We Don’t Know How Many LGBTQ Youth Are in N.C.’s Juvenile Justice System. That’s a Problem.
- Jordan Wilkie
- September 26, 2018
- Indy Week
North Carolina is one of just three states, along with Alaska and Oklahoma, that don’t explicitly protect LGBTQ youth in their juvenile justice systems from discrimination, according to the advocacy organization Lambda Legal. Now, a year after a reporter first began inquiring about the state’s policy, that’s about to change—somewhat.
The N.C. Department of Public Safety, which oversees the juvenile justice division, is awaiting federal approval of a new policy to protect LGBTQ youth in juvenile detention facilities or prisons. This change will likely affect hundreds of LGBTQ adolescents and teens each year, a group that is overrepresented in the country’s juvenile justice systems and whose members are targeted for physical and sexual assault, federal studies show.
Under the new policy, juvenile facilities will ask youth about their sexual orientation or gender identity at intake. The number of self-reported LGBTQ youth will then be reported to the director of facility services every month and become public record.
This information is hugely important, advocates say, because non-heterosexuals are about twice as likely as heterosexuals to be sexually assaulted by other juveniles or staff while in custody, according to a 2010 report by the federal Bureau of Justice Statistics. The bureau does not offer data on how often transgender youth are assaulted in juvenile facilities, but transgender adults in jails and prisons report sexual assault at thirteen times the rate of cisgender prisoners. Federal law requires juvenile facilities to screen for risk factors—and being LGBTQ is a major one.
Further, not having that data could mean that youth are being sent to inappropriate treatment, says Eric Zogry, head of the state’s juvenile public defender office. Teenagers may be forced to participate in treatment that is irrelevant to the root problems that pushed them into the system in the first place—like family rejection, homelessness, or being bullied at school.
“You gotta recognize that there’s a problem,” Zogry says. “And you don’t recognize that there’s a problem unless you ask certain questions and gather certain information. I think that would be a huge step if we could just get [the juvenile justice division] to gather data. And then we could start to talk about what are some effective ways to keep LGBTQ kids out of the system.”
States with the most comprehensive protections for LGBTQ youth in the juvenile justice system—most notably California and New York—have statutes, regulations, and nondiscrimination policies, as well as state-run grievance procedures for youth who have been mistreated and an ombudsman to look into reports of misadministration.
North Carolina has none of these things.
Instead, North Carolina is playing catchup with federal law. Its new policy is a response to a 2016 clarification of the Prison Rape Elimination Act, or PREA, a federal law under which all staffers who work in detentions, jails, or prisons are required to enact policies to eliminate sexual violence.
But because the policy is limited only to those in detention or juvenile prisons, it will leave out thousands of children and teens who move through juvenile courts, community treatment programs, and probation each year. And even with it in place, North Carolina will continue to rank among the states with the fewest protections for LGBTQ youth in their juvenile justice systems.
In an email, DPS Deputy Secretary for Juvenile Justice William Lassiter pointed to the department’s Juvenile Bill of Rights, which says youth should not be discriminated against due to sex or sexual orientation. But it also says those rights “are not absolute,and may be limited to the extent reasonably necessary for the Department to discharge statutory responsibilities.”
And in any event, that bill of rights doesn’t have any legal authority, Zogry says.
In theory, DPS could create more encompassing policies to protect LGBTQ youth on its own, even without changes in state law. But as this state’s recent history makes clear, the treatment of LGBTQ people can be a contentious political matter—and one that, even when it comes to vulnerable kids, few in state government seem eager to touch.
In North Carolina in 2016, more than 1,900 youth were placed in juvenile detention, 178 were committed to a juvenile prison, and more than 24,000 were sent to community-based treatment programs.
It’s unclear how many of them are lesbian, gay, bisexual, transgender, or queer; research on LGBTQ incarceration is near-nonexistent in the state, and there are very few, if any, advocates for this population who can point to how LGBTQ youth are treated. There is also no data coming out of DPS, which does not collect sexual orientation or gender identity information on the youth in its custody. And shoot-from-the-hip estimates from DPS officials on how many LGBTQ children and teens they serve doesn’t match national research on LGBTQ juvenile incarceration, further muddying the waters.
For example, Jean Steinberg, the department’s director of clinical programs for juvenile detentions and juvenile prisons, says that no transgender youth has come through a state-run juvenile prison in over a decade.
“It could be that we have had youth that have chosen to lay low, you know, while they’re with us,” Steinberg says. “But I’m not aware of anyone, any child, who’s come into a [juvenile prison], I would say in fifteen years, to be truthful, who’s identified as trans.”
From 2003–16, nearly five thousand youth were committed to a state juvenile prison. The idea that none of them were transgender “seems implausible,” says Currey Cook, a lawyer with Lambda Legal who helped write a national report on LGBTQ youth in juvenile justice systems. “If you intentionally keep your head in the sand about these issues, then you may be able to kid yourself that you don’t have them or that you don’t have to deal with them. But that position is not consistent with the research on this topic.”
Directors of the state’s juvenile prisons did not respond to requests for comment on whether they have housed LGBTQ youth. Neither did Angela Wilson, director of the Cabarrus juvenile detention center, a facility roughly equivalent to jail for kids. Four directors of juvenile detentions responded in emails that they were aware of LGBTQ youth but provided no further information. Two detention administrators—Eugene Hallock, director of the Cumberland detention, and Kimberly Dupree, director of the Pitt detention—said they were unaware of any LGBTQ youth in their facilities.
Throughout 2017, the Pitt detention held 232 kids, according to Dupree. The national estimate from the Bureau of Justice Statistics puts lesbian, gay, and bisexual youth at 12 percent of the juvenile detention population at any given time. Using those national averages, roughly 27 of the 232 kids served in 2017 would be expected to be lesbian, gay, or bisexual.
According to Angela Irvine of Ceres Policy Research, whose studies also account for transgender youth, the percentage of youth in juvenile detention who are LGBTQ is likely closer to 20 percent. That would mean that Pitt had housed almost fifty LGBTQ teenagers in 2017, but none came to the attention of the facility’s director.
Right now, instead of asking, detention staffers are supposed to guess whether a young person is LGBTQ.
The state’s screening tool directs them to fill out a box asking, “Are there any observed or self-disclosed non-traditional sexual orientation or gender-identity issues?” Underneath, in all caps: “(DO NOT ASK THE JUVENILE).”
That’s the opposite of smart policy, Cook says. “Basically, you’re having people engaging in stereotyping and doing their own analysis of whether someone is presenting in a way that they may be or are perceived to be LGBTQ, instead of actually asking people to self-identify, which is the only way that we actually know.”
Under the new policy, young people will be given the opportunity to disclose their sexual orientation or gender identity but will not be required to do so. If they do, their individual information will be private, only disclosed to certain staffers, and, in many cases, even kept from their parents. (In the aggregate, the data on the numbers of LGBTQ youth will be available to the public.)
This should all go into effect in November, DPS estimates, about a year before more sixteen- and seventeen-year-olds start entering the system due to the “Raise the Age” reform passed last year. North Carolina’s juvenile justice system already serves older teens, but only if they committed their crime before turning sixteen. Unsurprisingly, perhaps, research shows that teens tend to identify as LGBTQ at higher rates as they get older.
Federal law requires states to compile data on sexual abuse in juvenile facilities. From 2013, when PREA was implemented, through 2017, juveniles in North Carolina lodged 43 allegations of sexual abuse or harassment against staffers and 110 against other juveniles. There is no data on how many of those allegations came from LGBTQ youth.
After investigations, just five of the 43 allegations made against staffers and nine of the 110 allegations against other juveniles were determined to be true. The rest were deemed inconclusive or false.
These rates of substantiation are just under the national average of 10 percent, says Jesse Lerner-Kinglake, spokesman for Just Detention International, an organization dedicated to ending rape in prison.
“We see this as a massive problem,” Lerner-Kinglake says. “It takes a tremendous amount of courage to come forward to report sexual abuse in any setting, and particularly when a person is confined. And we know that the rate of false reports is very low.”
Every state-run juvenile facility has been audited for compliance with the PREA, and all have passed. But those audits, which often run more than eighty pages and lend themselves to boilerplate language, aren’t perfect.
There is some information that should be unique to each audit, says Lerner-Kinglake, such as the results of resident interviews. But you’ll often see nearly identical language like this passage, which occurs in several audits for juvenile prisons in North Carolina as well as three audits of Maryland facilities: “Residents were well informed of their right to be free from sexual abuse and harassment and how to report sexual abuse and harassment using several ways of communication such as trusted staff, administrative staff, family member, and the hotline.”
The problem, Lerner-Kinglake says, is that many auditors aren’t rigorous in their reviews. And when they become rubber stamps, PREA compliance protects the administrators and staff at juvenile facilities more than it guarantees a child’s security.
The likelihood of sexual assault is not the same for everyone in juvenile facilities. Those who get assaulted most often have prior histories of being sexually abused, present as LGBTQ, have mental illness, or were convicted of sexual offenses. LGBTQ people are targeted more than other groups, and their identity is so stigmatized that even the impression that teenagers are LGBTQ—regardless of their actual identity—is enough to increase their risk of being assaulted.
Advocates point to two things states need to do for LGBTQ youth in their custody. First, staffers need to accept and affirm their sexual orientation and gender identity. Federal law prohibits discrimination, Cook says. But even if states and counties were meeting all federal requirements, it still would not be enough.
“PREA doesn’t speak to all the specifics of affirming the identity of youth,” Cook says. “It says that you should be treating LGBTQI people with respect, but that is really general and vague.”
That’s why North Carolina’s new policy is only a starting point.
According to Cook, staffers need to be trained to look for and be responsive to the types of trauma that LGBTQ youth commonly face: family rejection, homelessness, sexual, physical, and verbal assault, abuse in foster care, and severe punishment by juvenile justice systems.
The department’s new policy speaks to these issues by laying out some protections for LGBTQ teenagers. It says employees cannot try to change a youth’s sexual orientation or gender identity. Staff members will be required to use preferred names and pronouns. Plus, the juvenile facilities will need to include LGBTQ materials in educational books and other reading material. The new policy also states that mental health and other medical personnel should offer appropriate care, though neither how “should” will be enforced nor what is “appropriate” are laid out in the current draft. In addition, teenagers who enter a juvenile facility having already been prescribed or taking hormones will have the opportunity to see a specialist. Until now, the juvenile division had no policy about hormone treatment for transgender youth.
No training on working with LGBTQ youth is currently required. When asked, DPS spokespeople could not point to any voluntary training on LGBTQ issues juvenile detention or prison staffers may have taken.
Youth in facilities where staff members do not receive specific and effective training “arejust rolling the dice,” Cook says. The staff may be competent and affirming, or they could act unprofessionally and contrary to law.
The state has been tracking how often African Americans are caught up in the juvenile justice system since 1988, when the federal government amended the Juvenile Justice Delinquency Prevention Act. The thirty years of data have been unequivocal: Black youth are cited, arrested, detained, and punished in North Carolina more often and more severely than other racial groups.
Knowledge of racial disparities in the justice system is now widespread and has spawned a number of organizations, projects, and task forces to address the problem. That’s not the case for LGBTQ youth.
None of the twenty-six LGBTQ organizations in North Carolina that could be reached for this story—including the LGBT Centers in Durham, Charlotte, Greensboro, and Raleigh; Equality NC; and the Freedom Center for Social Justice—have researched the issue or advocated for LGBTQ youth in the state’s juvenile justice system, though they have worked on related issues such as LGBTQ teen homelessness, family acceptance, LGBTQ youth in the foster care system, LGBTQ acceptance in school, and opposing discriminatory laws.
Until the new policy takes effect, LGBTQ youth in North Carolina’s juvenile justice system face four interconnected problems: There are no legally enforceable policies that protect them. The state doesn’t collect data about them. There are too few watchdogs. And the juvenile justice system is confidential—which both keeps their records from following them their whole lives and prevents the public from talking to them about what is happening behind detention facility walls, as can be done with adult prisoners.
Just as state LGBTQ organizations haven’t crossed over into juvenile justice advocacy, groups that seek juvenile justice reform haven’t worked on LGBTQ issues in any systematic way. These partnerships, which exist elsewhere, have yet to develop in North Carolina.
Peggy Nicholson, a lawyer with the Youth Justice Project, part of the Southern Coalition for Social Justice, says this advocacy doesn’t happen because there’s no data to work with. The data collected under the new policy, however, “would definitely help us better evaluate the impacts of the juvenile system on LGBTQI youth.”
Reporting the numbers of LGBTQ youth in the system may break the cycle of silence, but that in itself won’t improve the conditions those detainees face. It will simply be a tool for advocates to use. But the policies that have been enacted in the most protective states remain untested.
Both California and New York follow the trifecta of best practices: asking for sexual orientation and gender identity data, implementing policies protecting LGBTQ youth, and training staff to properly work with LGBTQ juveniles.
Because these policies are relatively new, because this is a niche concern, and because federal grant money to study this issue has all but dried up under the Trump administration, there is little research to examine whether better policy actually leads to improved outcomes for LGBTQ youth.
Zogry is skeptical that it will. Knowing the scope of the problem is important, he says. But look at what has happened with black youth: Three decades ago, federal law required states to start tracking racial disparities in their juvenile justice systems and to make “good faith efforts” to fix the problem.
Most states, including North Carolina, have drastically reduced the total number of youths in their juvenile justice systems. But the racial disparities have gotten worse.
Originally posted here.