"We've had three of them": addressing the invisibility of lesbian, gay, bisexual and gender nonconforming youths in the juvenile justice system.

• Author: Irvine, Angela
• Position: Gender on the Frontiers: Confronting Intersectionalities

Two researchers were speaking to a high-ranking probation officer from a large city, trying to convince her to participate in a project on lesbian, gay, bisexual and questioning ("LGB"), and gender nonconforming youths. (1) Her first response was, "I've worked in this system for twenty-five years and in all of that time I think we've had three of [these types of youths]. (2)

This quote perfectly captures a prevalent myth: the juvenile justice system detains only very few LGB and gender non-conforming youths. Juvenile justice professionals believe this myth because only a handful of LGB and gender non-conforming youths disclose their sexual orientations, act in ways that do not conform to gender norms, (3) or have court cases linked to their sexual orientation, gender identity or gender expression. (4) However, many LGB youths, youths who are questioning their sexual orientations or youths who have non-conforming gender identities enter the juvenile justice system unnoticed. (5) The disproportionate incarceration of youths of color within the juvenile justice system further reinforces the invisibility of LGB and gender non-conforming youths. (6) Many juvenile justice professionals assume that LGB and gender non-conforming youths come from middle class, white families, and therefore, juvenile justice jurisdictions detaining large numbers of youths of color do not serve LGB and gender non-conforming youths. (7)

This Article shows that both assumptions are wrong. National survey data presented in this Article shows that fifteen percent of youths in the juvenile justice system are LGB, questioning their sexual orientation, transgender or express their gender in non-conforming ways. Moreover, the data shows that equal proportions of white, African American and Latino youths are LGB and gender non-conforming. (8)

Yet, myths around the nonexistence of LGB and gender nonconforming youths in the juvenile justice system persist, presenting numerous challenges to the equitable treatment of such youths. Juvenile justice professionals need to know that LGB or gender non-conforming youths exist within the system, and that LGB or gender non-conforming youths often enter the juvenile justice system for different reasons than straight youths. For example, the findings presented in this Article show that LGB or gender non-conforming youths are more likely than heterosexual youths to enter the juvenile justice system because they run away from home or placement or because of status offenses such as truancy. (9) Juvenile justice professionals need to know the underlying reasons for failure to remain at home, in placement or truancy in order to identify successful alternatives to detention and out-of-home placements or to assign appropriate terms of probation.

Yet, gathering information about clients' sexual orientation, gender identity and gender expression create a difficult conundrum for juvenile justice professionals. While juvenile justice professionals need to know the reasons that youths have entered the juvenile justice system, many youths do not disclose their sexual orientations or gender identities. Research that uncovers high levels of homophobic reprisal from peers, parents, institutional staff or judges provides one possible explanation for such lack of disclosure: youths may fear further victimization if they disclose their sexual orientation or gender identity. (10) The policy recommendations provided at the end of this Article can help create safe conditions that lead to disclosure about sexual orientation and gender identity, but there will always be youths who prefer to maintain their privacy. (11)

Faced with the need to serve LGB and gender non-conforming youths while respecting their privacy, national survey data can help inform practice even when the sexual orientation or gender identity of individual youths are not known in individual instances. By analyzing 2,100 surveys that have been collected from six jurisdictions across the country, this Article:

* provides the only existing estimates of the number of LGB and gender non-conforming youths who enter the juvenile justice system;

* describes patterns of incarceration for LGB and gender nonconforming youths compared with their heterosexual and gender conforming peers to help juvenile justice professionals understand the social context around the detention of many LGB and gender non-conforming youths; and

* offers suggestions to juvenile justice professionals on how to address the needs of LGB and gender non-conforming youths, whether visible or invisible within the juvenile justice system.

1. ESTIMATING THE NUMBER OF LESBIAN, GAY, BISEXUAL AND GENDER NON-CONFORMING YOUTHS IN THE JUVENILE JUSTICE SYSTEM

   Collecting accurate data on the number of LGB and gender nonconforming youths in the juvenile justice system has been difficult to date. There are no federal or state agencies that require the collection of data on sexual orientation. As a result, we, at Ceres Policy Research, failed to identify any jurisdictions that collect formal data linking the sexual orientation and gender identity of an individual youth to his or her probation record. (12) Our own previous research provides some clues regarding the number of LGB and gender non-conforming youths in the juvenile justice system. Questions about sexual orientation and gender identity in two small program evaluations for the Santa Cruz and Sonoma County Probation Departments in California provide two limited snapshots. We added questions about sexual orientation and gender identity to one needs assessment of 230 youths in Santa Cruz County, CA. (13) We found that fourteen percent of youths disclosed being LGB or questioning their sexual orientation. (14) No youths reported having gender identities other than male or female. (15) In Sonoma County, CA we asked questions about sexual orientation in surveys and interviews for an evaluation of a gender specific program for girls. (16) When we asked 176 participants about their sexual orientation on an anonymous survey, thirteen percent of girls disclosed having a lesbian or bisexual sexual orientation or being unsure. (17) When we asked a smaller sample of 26 girls about their sexual orientation during qualitative interviews, seven percent of participants disclosed bisexual sexual orientations. (18) Yet, the number of youths in each of these studies was small, making broad generalities about LGB and gender non-conforming youths in the juvenile justice system difficult.

   Even if jurisdictions decided to collect system data on sexual orientation or gender identity, understanding exactly how many LGB and gender non-conforming youths enter the juvenile justice system as well as their detention patterns presents a unique challenge; youths can hide their gender identity and sexual orientation, making the accurate collection of data that links gender identity and sexual orientation to juvenile justice outcomes difficult. (19) At the same time, peers, family members, and juvenile justice professionals often inaccurately make assumptions about youths' gender identities and sexual orientations based on social norms. (20) Researchers must rely on youths themselves to disclose their sexual orientation and gender identity. Unfortunately, youths often resist disclosing their sexual orientations or gender identities. One explanation for this resistance is fear of reprisal from parents, teachers, or juvenile hall staff. Researchers have documented that LGBT youths experience rejection, bullying and harassment from parents, teachers or juvenile hall staff when they disclose their sexual orientations or gender identities. (21)

   Given the difficulty of tracking LGB and gender non-conforming youths, all three of the previous studies of LGB and gender non-conforming youths in the juvenile justice system have relied on convenience samples. (22) These researchers contacted LGB-and-gender-non-conforming-youth-serving agencies and conducted focus groups or interviews with youths who have disclosed being LGB or having non-conforming gender identities. (23) However, these findings fail to document the experiences of youths who choose to keep their sexual orientations or non-conforming gender identities hidden.

   Large anonymous surveys that target the general juvenile justice population can come closer to accurately measuring the number of LGB and gender non-conforming youths in the juvenile justice system, since youths may be more likely to disclose their sexual orientation or gender identity if this information will be kept from parents, peers and juvenile justice staff members. (24) By surveying youths within the juvenile justice system, researchers can also link sexual orientation and gender identity to detention patterns. Previously, juvenile justice systems did not collect or analyze data about the sexual orientations or gender identities of individual youths, making statistical disaggregation along these two variables impossible. By sampling the general population in the juvenile justice system, researchers ensure the inclusion of LGB and gender nonconforming youths who have not disclosed their sexual orientations or gender identities or who have not accessed LGB-and-gender-non-conforming-youth-serving agencies.

   This Article presents the findings of such a large national survey. Contrary to popular belief, survey results show that fifteen percent of youths being detained prior to adjudication are LGB, questioning their sexual orientation, transgender, have non-conforming gender identities or express their gender in non-conforming ways. (25) This is a significant number of LGB and gender non-conforming youths within the juvenile justice system each year.

   1. Survey Methods

      This Article presents findings from a survey of 2,100 youths in six juvenile justice jurisdictions across the country. The research sites were selected among jurisdictions receiving funds from the Annie...