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Young, Queer, and Locked Up: LGBT Youth in the Adult Criminal Justice System

Posted in 2015, Voices Thursday, 18 June 2015

In April 2014, a sixteen-year-old transgender girl of color and trauma survivor was placed in an adult correctional facility by the Connecticut Department of Children and Families, which claimed the young woman was too violent to be housed elsewhere. Despite the fact that she had not been charged with or convicted of any crime, Jane Doe remained in the adult prison for two months, much of it in solitary confinement, before being transferred and subsequently placed in a juvenile detention facility for boys.

Unfortunately, situations like Jane's – in which lesbian, gay, bisexual, and transgender (LGBT) young people become involved with the adult criminal justice system – are all too common. While research about LGBT youth in the adult criminal justice system is scarce, statistics from the juvenile justice system illuminate a disproportionality that likely holds true in adult jails and prisons as well. Most estimates suggest that LGBT youth comprise 5 to 7 percent of the overall youth population, and yet approximately 20 percent of youth in the juvenile justice system self-identify as LGBT. Most of these youth are young people of color. New data suggest that the numbers for girls are even higher, with approximately 40 percent of all girls in the juvenile justice system identifying as LGBT or gender-nonconforming.

Research on the juvenile justice system likewise demonstrates that LGBT young people come into contact with law enforcement officers and the courts for a variety of reasons. LGBT youth are more likely than their peers to be detained for status offenses such as truancy or running away from home, probation violations, and engaging in survival crimes such as sex work. They are also more likely to be homeless and to struggle with substance use and abuse. Often, these behaviors stem from deeper issues related to the young person's sexual orientation or gender identity, such as family rejection, hostile school climates, or inappropriate foster care placements. Once in the juvenile justice system, lesbian, gay, and bisexual young people experience youth-on-youth sexual victimization at a rate that is nearly seven times higher than that of their heterosexual peers. LGBT youth are also more likely to be put into isolation by facilities who fear they are a threat to other youth or "for their own protection," despite the severe mental health risks posed by solitary confinement.

The experiences of LGBT youth echo those of LGBT people of all ages. LGBT youth and adults experience bias and discrimination at all stages of court proceedings. Certain drivers of incarceration for LGBT individuals contribute to this effect. LGBT people, particularly LGBT individuals of color, face pervasive discrimination in systems ranging from employment to housing to education. LGBT youth and adults are also profiled by police based on intersections of race, sexual orientation, and gender identity, as well as age, religion, disability, or immigration status.

Information about juveniles in juvenile justice settings is also informative in uncovering the experiences of LGBT young people in jails and prisons. Most youth in the adult criminal justice system are there for non-violent offenses. Many of them have never been convicted and are housed in adult jails and prisons while waiting for a trial. These youth face abusive conditions and often receive little or no rehabilitative treatment or education. Under federal law, incarcerated youth must be separated from adults for their own protection – which in practice often results in solitary confinement. This isolation has extremely negative physical and mental health effects, particularly on children. And according to the National Prison Rape Elimination Commission, "more than any other group of incarcerated persons, youth incarcerated with adults are probably at the highest risk for sexual abuse."

Numbers from the Bureau of Justice Statistics indicate that lesbian, gay, and bisexual sixteen- and seventeen-year-olds in adult jails and prisons experience higher rates of inmate-on-inmate sexual victimization – 6.3 percent of non-heterosexual youth compared to 1.7 percent of heterosexual youth, although the study included only a small sample of non-heterosexual youth. Beyond those statistics, little data exists on the specific experiences of LGBT youth in the adult system. Taken together, however, the research on LGBT youth, incarcerated LGBT adults, and youth in the adult system suggest that LGBT youth in adult jails and prisons experience multiple vulnerabilities, opening them up to discrimination and harassment from multiple systems.

Many states require that youth charged with a sex offense be tried in the adult system – one example of an area that impacts LGBT youth in unique ways. While "Romeo and Juliet" laws can reduce or remove penalties for consensual sex between adolescents who are close in age, these provisions have not always applied evenly to LGBT individuals. More recently, researchers found a public bias toward punishing gay youth more severely than heterosexual youth for consensual sex with another young person.

Where numbers are lacking pertaining to LGBT youth in the adult criminal justice system, anecdotal information indicates extensive trends of discrimination and disproportionate representation and points to troubling attitudes that may disproportionately harm LGBT youth. Such attitudes are visible, for example, when a prosecutor abuses their discretion by arguing that "a youth who is old enough to know their sexual orientation or gender identity is old enough to be tried in the adult system," or when feedback expressed during trainings with The Equity Project include questions about why juvenile justice professionals should bother learning about LGBT cultural competency if "the youth are just going to end up in the adult system" anyway.

LGBT young people, like all youth, need protection, safety, affirmation, and guidance in order to successfully transition to adulthood. They also need to be recognized as the young people they are – young people who are resilient in spite of discrimination, poverty, and abuse; young people who engage in normal adolescent behavior; and young people who have enormous potential. Adult jails and prisons offer no way forward for these young people to obtain the tools they need as they seek to empower themselves and change the world around them.

As we celebrate Pride during the month of June, we should encourage policymakers and advocates to promote fair and equitable treatment for all individuals in the juvenile and criminal justice systems, through promoting and supporting training and technical assistance regarding this population, increasing alternatives to detention, and supporting passage of legislation such as the long overdue reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA).

Christina Gilbert is the Director of The Equity Project. Hannah Hussey is a Research Associate at the Center for American Progress.