Where Have All the Children Gone?

This week’s post is brought to you by Garrett Miglin, a 1L at Alexander Blewett III School of Law at the University of Montana. Garrett is the secretary of OUTLaws and a member of the American Constitution Society at ABIII.  

It’s become a meme that all of Generation Z is a member of the LGBTQIAAGNC+ community. While that’s just a silly generalization, there actually is a place full of LGBT+ youths: juvenile detention facilities. The rate of LGBT+ youth in detention is double that of LGBT+ youth in the general population. If you pick two youths at random, one incarcerated and the other not, the incarcerated youth is twice as likely to identify as LGBT+. 

Many of the reasons fueling this disturbing statistic are readily understandable. The discrepancy is driven in part by social factors that many people already know LGBT+ youths experience—bullying and family rejection. This post explores three basic mechanisms by which these social pressures lead to disproportionate rates of LGBT+ youth incarceration. 

But first it’s important to note one other major discrepancy in juvenile detention: 85–90% of LGBT+ youth who are incarcerated are youth of color. Hence, “incarcerated LGBT+ youth” mostly refers to youth of color. This is due in part to the major racial discrepancies in youth incarceration generally. Black youth represent 40% of all incarcerated youth while composing just 15% of the general population. Rates of incarcerated Latino youth are about equal to the general population at around 25%. Rates of incarcerated white youth are just 33%, despite making up around 53% of the general population. The mechanisms underlying this disparity certainly deserve their own analysis. Nevertheless, the usually high rate of incarcerated LGBT+ youth of color is not merely a function of this racial disparity, or else 33% of LGBT+ youth would be white. The difference is further evidence that there are mechanisms working against LGBT+ youth that lead to their gross overrepresentation in the juvenile justice system. 

What are these social pressures pushing LGBT+ youth into juvenile detention? They are not mysterious. They are challenges that any LGBT+ youth may face growing up: family rejection and unsafe schools. Not entirely surprising; dozens of TV shows and movies explore the issues. But these challenges are potent because they drive so many LGBT+ youth into detention. As derivatives of the youth’s Sexual Orientation and Gender Identity and Expression (SOGIE), these pressures drive increased interactions with the police on a dimension that their cisgender, straight peers do not experience. They exist as an entirely separate lane by which LGBT+ youth become involved in the system, and therefore they have the overall effect of boosting the rate of incarcerated LGBT+ youth to double that of the rate of LGBT+ youth in the general population. 

Between one-quarter and one-half of homeless youth are LGBT+ youth. As the Department of Housing and Urban Development (HUD) defines a homeless youth as between 18–24 years of age, many social services are out of reach to runaways and homeless minors. (This lack of services can be particularly hard for victims of domestic violence.) Without access to shelters, homelessness for youth can mean couch-surfing, typically a cycle of two- to three-week solutions as they move from one couch to another. Even if they could find a landlord, minors cannot rent on their own in the many states where the age of housing consent is 18. 

Driving the rate of LGBT+ youth homelessness are family rejection and dearth of supports in the child welfare system. Unsurprisingly, a parent’s refusal to accept their child’s SOGIE leads some LGBT+ youth to leave or be kicked out of their homes. This is a SOGIE-specific cause of homelessness. This problem is prevalent in large, socially conservative areas. Additionally, family rejection is a risk factor for placement in the child welfare system. (Generally, youth involved in the child welfare system are two to three times more likely to become involved in the criminal justice system.) LGBT+ youth face special challenges in foster care and group homes. They may be subject to implicit bias or prejudice by their foster parents, caseworkers, or other adults whose job is to protect them. They are subject to bullying by their peers. They may be separated or isolated from other youth either for their own protection or because of a belief that the LGBT+ youth pose a danger to others. These unique pressures push some LGBT+ youth to leave their placement. This is another SOGIE-specific cause of homelessness. 

These SOGIE-specific causes help explain why LGBT+ youth are overrepresented homeless youth, comprising up to 20-40% of that population. Homeless youth sometimes shoplift to meet their needs. (Is that surprising?) Some may begin using illegal drugs or selling them for money. Others will exchange their bodies for money, housing, or other necessities. Any of these behaviors may result in police involvement. And LGBT+ youth are more likely to be stopped by police than their peers. 

Finally, unsafe schools are another causal factor for LGBT+ youths’ disproportionate detention. LGBT+ youth are more likely to be bullied in school. Approximately 33% of LGBT+ youth report being bullied in school, compared to 20% of their peers. Some youth will fight their bullies, others will begin to skip school, and others will decide to drop out. Both fighting and truancy can lead to contact with police, and LGBT+ youth are more likely to be expelled than their peers. Whether expelled or escaping harassment, LGBT+ students who leave school, at a minimum, lose a place to be during the day and a reliable place to eat. 

Lack of support from parents and caregivers leads many LGBT+ youth to leave their homes, bullying from their peers disrupts their schooling and foster placements—these are key reasons why LGBT+ youth, who are overwhelmingly youth of color, are incarcerated at twice the rate of their presence in the general population. In other words: at least half of the LGBT+ youth in juvenile detention facilities would not be there but for their queer sexual orientation or gender identity or expression. 

Statistics derived from Unjust: How the Broken Juvenile and Criminal Justice Systems Fail LGBTQ Youth, a report compiled by the Center for American Progress and the Movement Advancement Project in 2016.  

Center for American Progress & Movement Advancement Project, Unjust: How the Broken Juvenile and Criminal Justice Systems Fail LGBTQ Youth, Aug. 2016, available at https://www.lgbtmap.org/file/lgbt-criminal-justice-youth.pdf.  

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