Queering child welfare and juvenile justice: Recommendations for affirming LGBTQ+ youth

Key Concepts

• Cisnormativity: a set of values based on the assumption that everyone’s gender identity aligns with their gender assigned at birth.
• Heteronormativity: the assumption that heterosexuality is the default sexual orientation for everyone; nonconformity is pathologized.
• LGBTQ+ terminology in this paper: lesbian, gay, bisexual, transgender, queer (LGBTQ+); trans* includes transgender and nonbinary identities; QTPOC refers to queer and transgender people of color.
• Queer Theory: framework encouraging challenge to status quos and disruption of systems of oppression to affirm LGBTQ+ youth (Ghazianni & Brim, 2019; Nadal, 2020).
• Critical Theory lenses referenced:
  • Critical Race Theory (CRT)
  • Intersectionality Theory (Crenshaw, 1991)
  • Black Feminist Thought (Collins, 1991)
• Crossover youth: youths who move between the foster care and juvenile justice systems; especially at risk for criminalization due to intersecting identities.
• Trauma-informed care: approach recognizing trauma exposure and avoiding retraumatization in legal processes and services.

Historical and Systemic Context

• US legal system has historically privileged cisnormative and heteronormative norms, marginalizing LGBTQ+ people.
• Key historical milestones:
  • Homosexuality was considered a psychological disorder until the American Psychiatric Association removed it from the DSM-II in 1973.
  • 1960s sodomy laws criminalized certain sexual acts and bars frequented by LGBTQ+ people; raids, entrapment, arrests were common; public humiliation and sanctions followed.
  • Transgender people and LGBTQ+ people of color faced especially severe consequences due to transphobia and racism.
• Second-wave developments and ongoing backlash:
  • AIDS crisis in the 1980s intensified law enforcement targeting LGBTQ+ people living with HIV/AIDS, sex workers, and unhoused LGBTQ+ individuals.
  • The “tough on crime” era led to harsher punishments and reduced access to resources.
  • Recent era: ongoing legislative attacks with hundreds of anti-LGBTQ+ bills; examples include drag bans and attempts to criminalize LGBTQ+ visibility (e.g., drag events; Tennessee drag law) and First Amendment challenges to these laws.
  • As of 2023, the American Civil Liberties Union identified over 469 anti-LGBTQ+ bills across the US.
  • Legal context remains contested; some laws are struck down or challenged in courts (e.g., drag bans viewed as unconstitutional in some rulings).
• Contemporary impacts on youth:
  • LGBTQ+ youth are disproportionately affected by violence and oppression from law enforcement and within the child welfare and justice systems.
  • LGBTQ+ youth in custody face unique challenges and higher exposure to mistreatment and discrimination.

Population Scale and Representation

• General youth population identifying as LGBTQ+ in the US: approximately $0.10$ (10%).
• Incarcerated youth identifying as LGBTQ+: approximately $0.20$ (20%), with higher rates among girls, trans youth, and youth of color.
• LGBTQ+ youth in foster care: up to $0.30$ (30%).
• Foster care representation disparities:
  • Black children are disproportionately overrepresented in foster care: $23 ext{\%}$ in foster care vs $14.6 ext{\%}$ Black population in the US.
  • LGBTQ+ youth of color are about $1.5\times$ more likely to be in foster care than LGBTQ+ White youth.
  • Transgender or nonbinary youth are about $2\times$ as likely to be in child welfare systems compared to cisgender youth.

Risk Factors for LGBTQ+ Youth

• Family rejection, bullying, discrimination, and violence push some LGBTQ+ youth into homelessness or out of homes, increasing foster care exposure and risk for system involvement.
• Homelessness: estimates suggest a substantial share of LGBTQ+ youth experience homelessness; some studies report up to $0.40$ (40%) of LGBTQ+ youth facing homelessness; resulting survival behaviors (panhandling, theft, sex work, drug use) increase encounters with police and the juvenile justice system.
• Trauma exposure: LGBTQ+ youth experience trauma from family rejection, bullying, sexual violence, hate crimes, and systemic oppression; trauma increases mental health challenges and barriers to seeking help.
• Intersectional vulnerabilities: queer and trans youth of color (QTYOC) face amplified risks due to racism and transphobia; microaggressions and physical harm from families are more pronounced for QTYOC.
• Suicide and self-harm: victimization and maltreatment elevate risks of suicidality and self-harming behaviors.
• Trauma and later system involvement: early trauma correlates with higher likelihood of incarceration in later life for some transgender individuals who experienced assault as youth.

LGBTQ+ Youth and Foster Care

• Foster care population context (US DHHS, 2020): about $407{,}318$ children in foster care; about $216{,}842$ entered foster care in the last year; about $123{,}437$ waiting to be adopted.
• Estimated LGBTQ+ youth in foster care: $15 ext{-}19\%$ (range from prior research).
• Aging out: LGBTQ+ youth are more likely to age out of foster care than their heterosexual/cisgender peers, with associated risks of homelessness, unemployment, lack of healthcare, and lower education attainment.
• Race and gender identity intersections:
  • Black youth are overrepresented in foster care relative to their share of the population.
  • LGBTQ+ youth of color are more likely to enter/foster care than LGBTQ+ White youth.
  • Transgender or nonbinary youth are disproportionately in foster care relative to cisgender peers.
• Adoption and foster parent barriers:
  • Same-sex couples are more likely to start families through foster care than different-sex couples, but many states create or maintain barriers to LGBTQ+ foster/adoptive parents.
  • Negative attitudes toward LGBTQ+ people among potential adoptive parents and lack of training/support for foster/adoptive families hinder placements.
  • Some states enact laws restricting LGBTQ+ parental rights or access to comprehensive, affirming care for LGBTQ+ youth.
• Consequences of placement instability:
  • LGBTQ+ youth experience more placement moves, leading to isolation and negative psychological outcomes.
  • Lower likelihood of permanency (adoption or family reunification) contributes to higher risk of aging out with limited supports.
• Implications for post-foster outcomes:
  • Aging out associated with higher risk of homelessness, unemployment, substance use, unplanned pregnancy, and reduced access to healthcare.
  • LLGBTQ+ adults, especially QTPOC, face higher unemployment and poverty, compounding risks for youth aging out.

LGBTQ+ Youth and the Juvenile Justice System

• Police contact and bias:
  • LGBTQ+ youth, particularly QTYOC and transgender/gender-nonconforming youth, face biased police contact due to heterosexist and transphobic biases.
  • School-based surveillance and disciplinary actions contribute to a school-to-prison pipeline that disproportionately affects Black and LGBTQ+ students.
• Overrepresentation in custody:
  • LGBTQ+ youth are disproportionately incarcerated; estimates show substantial higher proportions among incarcerated girls and transgender youth.
  • Race intersects with sexuality/gender identity, with a large share of incarcerated LGBTQ+ youth of color.
• Incarceration experiences and treatment in detention:
  • LGBTQ+ youth in detention experience discrimination and violence; limited access to hormones or gender-affirming medical treatments.
  • Detention correlates with higher trauma exposure and mental health issues.
• Specific risk factors for confinement:
  • LGBTQ+ youth are twice as likely to be detained and four times as likely to be held in solitary confinement compared to non-LGBTQ+ peers.
• Post-release concerns:
  • Returning to hostile home environments or foster care settings can perpetuate trauma and risk of re-entry into carceral systems.

Recommendations for Law Professionals

• Core premise: LGBTQ+ youth face cisnormative/heteronormative laws, overrepresentation in systems, homelessness, and survival behaviors, with intersectional compounding factors (race, class, immigration status, etc.).
• Education and training for legal professionals:
  • Ongoing education on historical and current LGBTQ+ issues, terminology, implicit bias, and microaggressions.
  • Familiarity with critical legal theories: Queer Theory; CRT; Intersectionality; Black Feminist Thought to contextualize youth experiences.
  • Training should cover cross-over youth and intersectional identities, with emphasis on empathy and trust-building with youth.
• Policy and legislative reform:
  • Revisit laws that restrict transgender rights, criminalize sex work, or restrict access to gender-affirming care.
  • Decriminalize homelessness and implement supportive housing options for LGBTQ+ youth.
  • Remove discriminatory adoption policies and barriers that prevent LGBTQ+ foster/adoptive parents.
  • Reform school discipline to reduce referrals to law enforcement; shift toward restorative justice practices.
• Crossover youth and systemic reform:
  • Target crossover youth (foster care to carceral system) with interventions to interrupt criminalization paths.
  • Implement trauma-informed approaches across the system to minimize retraumatization during legal proceedings.
• Mental health and gender-affirming care:
  • Ensure access to gender-affirming care in all relevant settings (foster care, juvenile facilities).
  • Court orders or policy mandates to secure timely medical appointments and ongoing care.
• Collaboration and communication:
  • Strengthen collaboration among case workers, social workers, mental health professionals, foster families, and legal professionals.
  • Include LGBTQ+ youth feedback and involve youth organizations in policy development.
• Training for frontline workers:
  • Mandatory training for foster care workers, correction workers, and foster families on LGBTQ+ inclusivity and anti-microaggression.
  • Establish consequences for inadequate support or discriminatory practices in homes and facilities.
• Trauma-informed and recovery-focused interventions:
  • Use trauma-informed care to reduce risk factors for retraumatization and promote stability (housing, education, family preservation).
  • Recognize and address complex trauma, including experiences of human trafficking exposure in the context of LGBTQ+ youth.
• Practical advocacy actions:
  • Promote alternative discipline in schools and reduce law enforcement referrals for minor infractions.
  • Support housing options to disrupt the school-to-prison pipeline for LGBTQ+ youth.
  • Secure court-ordered protections to safeguard access to medical care, housing, and education.
• Youth-centered engagement:
  • Ongoing collaboration with LGBTQ+ youth to inform policy and practice; ensure services meet their needs in safe, inclusive environments.

Practical Implications and Ethical Considerations

• Ethical imperative to queering the systems: reforming policies and practices to align with principles of equity, safety, and dignity for LGBTQ+ youth.
• Societal and legal implications:
  • Interventions should avoid pathologizing LGBTQ+ identities and instead focus on supportive, rights-respecting approaches.
  • Policies must address racialized and gendered disparities that amplify LGBTQ+ youth’s risk of involvement with the child welfare and juvenile justice systems.
• Real-world relevance:
  • Implementing recommendations can reduce the likelihood of cross-over into carceral settings, improve health outcomes, and promote permanency and stability for LGBTQ+ youth.

Key Takeaways and Connections

• The two systems (child welfare and juvenile justice) are historically and structurally biased toward cisnormative and heteronormative norms, contributing to overrepresentation and differential treatment of LGBTQ+ youth.
• Intersectionality (race, gender, immigration status, class) intensifies risk and shapes unique experiences, particularly for QTYOC and transgender/youth of color.
• A trauma-informed, trauma-preventive, and youth-centered approach—underpinned by Queer Theory and CRT—can guide ethical practice, policy reform, and more affirming care.
• Practical reforms include education, policy change, restorative justice, gender-affirming care, and cross-system collaboration to create safe, inclusive environments for all youth.

Illustrative Examples and Scenarios

• Historical raids: 1960s bar raids targeting LGBTQ+ patrons under sodomy laws, entrapment by undercover officers, public humiliations, and long-term harms to individuals’ employment and social networks.
• Drag bans: modern legislative efforts (e.g., Tennessee drag law) framed as protecting minors but broadly risking civil liberties and transgender rights; some challenges in court citing First Amendment concerns.
• School-to-prison pipeline: disciplinary practices in schools that disproportionately affect Black and LGBTQ+ youth, with police referral pathways creating a pipeline to juvenile detention.
• Restorative justice alternatives: proposed shift from suspensions/expulsions to restorative practices that address harm and maintain youth engagement in education.

References (selected)

• American Civil Liberties Union. (2023). Mapping Attacks on LGBTQ Rights in U.S. State Legislatures.
• Crenshaw, C. (1991). Mapping the margins: Intersectionality, identity politics, and violence against women of color.
• Nadal, K. L. Y. (2020). Queering law and order: LGBTQ communities and the criminal justice system.
• Dettlaff, A. J., et al. (2018). Lesbian, gay, and bisexual (LGB) youth within welfare: Prevalence, risk, and outcomes.
• Baams, L., Wilson, B. D., & Russell, S. T. (2019). LGBTQ youth in unstable housing and foster care. Pediatrics.
• Grant, J. M., et al. (2011). Injustice at every turn: A report of the national transgender discrimination survey.
• Sissoko, D. G., et al. (2023). Into and through the school-to-prison pipeline: The impact of colorism on the criminalization of Black girls.
• Stammen, E., & Ghandnoosh, N. (2022). Incarcerated LGBTQ+ Adults and Youth. The Sentencing Project.
• Pharr, J. R., et al. (2022). Transgender sports bans and suicidality among sexual and gender minority adults.
• Stryker, S. (2017). Transgender history. Hachette.
• Satta, M. (2023). Anti-drag laws and First Amendment considerations. Georgetown Journal of Gender and the Law.