The Legal Rights of Lesbian, Gay, Bisexual, and
Transgender Youth in the
Juvenile Justice System
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The Legal Rights of Lesbian, Gay, Bisexual, and
Transgender Youth in the Juvenile Justice System
Lesbian, gay, bisexual, and transgender ( LGBT) young people in the juvenile justice system, like all people in
state custody, have clearly established civil rights under the U. S. Constitution, state and federal statutes
and regulations, and agency policy. By examining how these rights apply to LGBT youth, juvenile justice
professionals can gain a greater understanding of how to develop fair and appropriate policies and
procedures for working with LGBT youth, in order to protect their civil rights and provide for their safety
and rehabilitation.
All young people in state custody have a right to be safe in the institutions and facilities in which they are
held. 1 Because young people in the juvenile justice system are under the care and protection of the state,
juvenile justice officials have a legal responsibility to protect these youth from physical, emotional, and
sexual abuse by other youth or facility staff. 2 For example, if staff are aware that a youth is being subjected to
harassment or violence, they must respond with appropriate remedial action designed to stop the
harassment and violence, especially if the youth is known to be vulnerable because he or she is young, has a
mental illness, is openly LGBT, or is perceived to be LGBT. 3 To ensure that all staff members understand their
legal obligations to protect LGBT youth, facilities should adopt non- discrimination policies and implement
regular staff training that specifically addresses the needs of LGBT youth. 4 These policies should include a
sound classification system that prevents the placement of vulnerable LGBT youth in cells or units with
aggressive youth who may physically or sexually attack them. 5
All youth in juvenile justice facilities have a right to be free from unreasonably restrictive conditions of
confinement including isolation. 6 Facilities violate this constitutional right when they place LGBT youth in
extended isolation, either as punishment for expressing their identity7 or based on the unfounded and
illogical myth that all LGBT youth are a danger to other youth. 8 Facilities may also violate this constitutional
right by placing LGBT youth in segregation or isolation “ for their own safety.” While an LGBT youth may be at
risk of violence in a juvenile justice placement, the law requires a more effective and less stigmatizing
* This document summarizes a longer article published in the Summer 2006 issue of the Temple Law Review, co- authored by Rudy
Estrada, Staff Attorney at Lambda Legal Defense and Education Fund and Jody Marksamer, Staff Attorney at the National Center for
Lesbian Rights.
the legal rights of lesbian, gay, bisexual, and transgender youth in the juvenile justice system 1
LGBT Youth in Juvenile Justice Placements Have a Right to be Safe from
Emotional, Physical, and Sexual Abuse.
LGBT Youth Have a Right Not to be Isolated from Other Youth in the Facility.
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response than simply holding the youth in isolation. 9 Rather than punishing the victim, the facility has an
obligation to address the root of the problem and take appropriate remedial steps to ensure that the
harassment and violence does not persist.
LGBT youth should never automatically be treated as sex offenders, housed with sex offenders, or sent to sex
offender treatment programs simply because of their gender identity or sexual orientation. These practices
are both discriminatory and extremely harmful. Being wrongly labeled or treated as a sex offender may also
cause a youth permanent psychological damage. If a facility labels or treats an LGBT youth as a sex offender
or houses the youth with sex offenders without adequate due process protections, such as a hearing, an
evaluation by a qualified mental health professional, and an opportunity to appeal, the facility has violated
the youth’s constitutional rights. 10
All youth in detention and correctional facilities have a right to receive adequate physical and mental health
care. 11 This includes a right to receive health care that may be unique to LGBT youth. 12 For example, a facility
should provide appropriate health care to a transgender youth who is diagnosed with Gender Identity
Disorder. If a facility ignores the instructions of a transgender youth’s treating physician or otherwise does
not provide the youth with necessary health care, this act or omission may constitute a violation of the
youth’s right to appropriate health care. 13 In addition, LGBT youth should not be forced to undergo
inappropriate or unethical services that are damaging to their emotional well- being, including “ conversion
therapies” or other controversial practices intended to involuntarily change a person’s sexual orientation or
gender identity. These practices have been condemned by all of the major medical and mental health
associations because they cause emotional harm. 14
LGBT youth, especially those facing extreme forms of anti- LGBT abuse and harassment, may be at an
increased risk for suicide. 15 Thus facilities should have adequate policies governing the supervision and
treatment of suicidal wards. 16 Facility administrators must ensure that staff respond in a timely and
appropriate manner to all anti- LGBT harassment and abuse in order to alleviate conditions that could cause
or exacerbate suicidal feelings. 17 In addition, facilities should not withhold supportive services, such as peer
support groups or other community resources that help to ameliorate feelings of isolation and depression for
an LGBT youth.
All youth in state custody have a federal constitutional right to equal protection under the law. 18 This means
that juvenile justice providers must treat LGBT youth equally when determining placements, delivering
services, and responding to complaints of harassment or abuse. 19 Juvenile justice programs should not refuse
to accept a youth for placement because of the youth’s sexual orientation or gender identity, nor should a
national center for lesbian rights the legal rights of lesbian, gay, bisexual, and transgender youth in the juvenile justice system 2
LGBT Youth who are not Adjudicated “ Sex Offenders” Have a Right to be
Free from a “ Sex Offender” Label or Classification.
LGBT Youth in Juvenile Justice Facilities Have a Right to Receive
Appropriate Medical and Mental Health Care.
LGBT Youth Have a Right to be Treated Equally and Without Discrimination.
facility treat an LGBT youth differently in its provision of care and services. For example, a facility should not
require LGBT youth to wear distinguishing clothing because of their identity. In addition, juvenile justice
professionals should respond appropriately to complaints of sexual orientation or gender identity harassment
or abuse, following the facility’s adopted procedures for handling incidents of ward- on- ward harassment or
violence on other bases. Facility staff should never ignore LGBT- related abuse, send a youth to isolation for
protection, move an LGBT youth from placement to placement rather than address the harassment, or tell
youth that they should expect to be harassed because they are openly LGBT.
All youth have a constitutional right to freedom of speech and freedom of expression, 20 which includes the
right to be open about one’s sexual orientation21 and the right to express one’s gender through clothing and
grooming. 22 Juvenile justice facilities should not require a youth to hide his or her sexual orientation or
gender identity in order to receive services or refuse to allow transgender or gender- nonconforming youth to
express their gender through clothing and accessories. 23
The First Amendment also guarantees young people in state custody a right to religious freedom and a right to
be free from religious indoctrination. 24 LGBT youth in juvenile justice facilities should not be forced to hide
their identities because of religious objections or be required to participate in religious activities that condemn
homosexuality and gender difference. In addition, facility staff must not be permitted to intimidate or coerce a
young person into adopting any particular religious practices or beliefs. 25 LGBT youth who wish to participate
in religious activities that are accepting and affirming of their identities must be permitted to do so.
conclusion
Professionals who work for juvenile justice agencies have a tremendous responsibility to protect the safety
and well- being of all youth in their care, including those who are LGBT. Accordingly, these agencies and
facilities should educate themselves on the needs of LGBT youth and the scope of their civil rights. They also
should enact non- discrimination policies, train juvenile justice staff on how to work with LGBT youth, and
establish practices that deal effectively with anti- LGBT abuse. These actions should be taken proactively,
prior to any abuses of LGBT young people, rather than in response to complaints or in the course of time-consuming
and resource- intensive litigation. Fortunately, there are a wealth of educational tools and
materials available to help juvenile justice facilities comply with professional standards of care for LGBT
youth and ensure that LGBT youth are provided with the care and protection they deserve. For more
information or to learn more about these resources visit www. nclrights. org.
national center for lesbian rights the legal rights of lesbian, gay, bisexual, and transgender youth in the juvenile justice system 3
LGBT Youth Have a Right to Express Their Sexual Orientation
and Gender Identity.
LGBT Youth in Juvenile Justice Placements Have a Right Not to Participate
in Religious Activities that Condemn LGBT People.
the legal rights of lesbian, gay, bisexual, and transgender youth in the juvenile justice system
endnotes
1 In 1982, the U. S. Supreme Court ruled that people involuntarily committed to state mental institutions are entitled to a standard of
care that takes into consideration their complete dependence on the government for protection and necessary care. Since these
patients are not convicted criminals, the Supreme Court reasoned that the Eighth Amendment’s protection of prisoners from cruel
and unusual punishment does not apply. Instead, the Court found that the Fourteenth Amendment’s guarantee of liberty is a more
appropriate basis for the right to the state’s protection from harm for those who are involuntarily committed. Youngberg v. Romeo,
457 U. S. 307 ( 1982). Similarly, youth in juvenile justice facilities are entitled to more protection than incarcerated adults, because like
those who are involuntarily committed, they have not been “ convicted of crimes,” so most courts analyze their conditions of
confinement claims under the federal Due Process Clause of the Fourteenth Amendment also. See A. M. v. Luzerne County Juvenile
Detention Ctr., 372 F. 3d 572, 579 ( 3d Cir. 2004); Alexander S. v. Boyd, 876 F. Supp. 773, 782 ( D. S. C. 1995), aff’d in part and rev’d in part on
other grounds, 113 F. 3d 1373 ( 4th Cir. 1997), cert. denied, 118 S. Ct. 880 ( 1998) (“[ J] uveniles possess a clearly recognized liberty interest in
being free from unreasonable threats to their physical safety.”); A. J. v. Kierst, 56 F. 3d 849, 854 ( 8th Cir. 1995); Gary H. v. Hegstrom, 831
F. 2d 1430, 1431- 32 ( 9th Cir. 1987); H. C. ex rel. Hewett v. Jarrard, 786 F. 2d 1080, 1084 - 85 ( 11th Cir. 1986); Santana v. Collazo, 714 F. 2d 1172, 1179
( 1st Cir. 1983); Milonas v. Williams, 691 F. 2d 931, 942, n. 10 ( 10th Cir. 1982) (“[ B] ecause the state has no legitimate interest in punishment,
the conditions of juvenile confinement… are subject to more exacting scrutiny than conditions imposed on convicted criminals.”). But
see Nelson v. Heyne, 491 F. 2d 352, 355 ( 7th Cir. 1974) ( applying the cruel and unusual punishment test of the Eighth Amendment).
2 See R. G. v. Koller, 415 F. Supp. 2d 1129 at 1157 ( D. Hawai’i, 2006) ( finding facility violated LGBT plaintiffs’ due process rights by allowing
pervasive verbal, physical, and sexual abuse to persist); Alexander S. v. Boyd, 876 F. Supp. at 797- 798; A. M., 372 F. 3d at 787; Guidry v.
Rapides Parish Sch. Bd., 560 So. 2d 125 ( La. Ct. App. 1990) ( holding that the failure to protect children from sexual behavior of other
confined children may result in liability). Juveniles in confinement also have the right to reasonable protection from facility staff.
Courts have held that facility staff are prohibited from using physical force against juveniles for any purpose other then to restrain a
juvenile who is either physically violent and immediately a danger to himself or others, or who is physically resisting institutional
rules. See Pena v. N. Y. Div. for Youth, 419 F. Supp. 203, 208 ( S. D. N. Y. 1976) ( holding that unless child is uncontrollable and constitutes a
serious and evident danger to himself or others, use of physical restraints is prohibited); Milonas v. Williams, 691 F2d 931, 935, 943
( 10th Cir. 1982).
3 See, e. g., R. G. v. Koller, 415 F. Supp. 2d at 1158 ( finding placing vulnerable LGBT youth in unit with aggressive boys amounts to deliberate
indifference); A. M. v. Luzerne County Juvenile Detention Ctr., 372 F. 3d 572, 579 ( 3d Cir. 2004) ( finding sufficient evidence individuals
were deliberately indifferent to the substantial risk of harm to 13 year old boy with mental illness who was placed in general
population).
4 See R. G. v. Koller, 415 F. Supp. 2d at 1157 ( finding supervisory defendants’ failure to adopt policies and procedures and to provide
training regarding how to ensure safety of LGBT wards supports a finding of deliberate indifferent to plaintiffs’ safety); Unpublished
Order Dismissing Writ of Habeus Corpus Without Prejudice, Family Court of the First Judicial Circuit, Hawaii, Judge Wong, March 17,
2005 (“ The Court is concerned that the problems raised by this case are systemic and must be addressed … with the adoption, with
deliberate speed, of policies and operation procedures that are appropriate to the treatment of lesbian, gay, and transgender youths,
that set standards for the conduct of youth correctional officers and other staff, and that provide on- going staff training and
oversight.”).
5 Appropriate classification is particularly important for the physical and emotional safety of transgender youth. In R. G. the
transgender plaintiff was originally placed in the girls unit. Because of physical plant repairs, she was transferred to the general boys
unit where she was subjected to physical and sexual assaults. The defendants’ own experts submitted declarations stating that in
their expert option, they believed that male to female transgender wards, like the plaintiff, were “ better off in O & A with the girls
than anywhere else at HYCF and that the placement kept them physically and psychologically safe.” R. G. v. Koller, 415 F. Supp. 2d at
1145. See also Alexander S., 876 F. Supp. at 797- 798 ( facilities must have a system for screening and separating aggressive juveniles
from vulnerable juveniles); R. G. v. Koller, 415 F. Supp. 2d at 1158 ( same).
6 See, e. g., Alexander S., 876 F. Supp. at 798. See also H. C ex rel. Hewett v. Jarrard, 786 F. 2d 1080 ( 11th Cir. 1986) ( juvenile isolated for seven
days was entitled to damages for violation of 14th Amendment); Milonas v. Williams, 691 F. 2d at 941- 42 ( use of isolation rooms for
periods less than 24 hours violated the 14th Amendment); Morales v. Turman, 364 F. Supp. 166 ( E. D. Tex. 1973) ( solitary confinement of
young adults held unconstitutional); Inmates of Boys’ Training Sch. v. Affleck, 346 F. Supp. 1354 ( D. R. I. 1972).
7 In addition to isolation, forcing LGBT youth to dress differently than other youth in the facility, requiring LGBT youth to perform
different chores, or singling out LGBT youth in any other way, are actions that a court would likely find unconstitutionally punitive.
See, e. g., Gerks v. Deathe, 832 F. Supp. 1450 ( W. D. Okla. 1993) ( finding due process rights of girl may have been violated for asking her to
clean her own excrement); Gary W. v. Louisiana, 437 Supp. at 1230 ( addressing types of work performed by youth).
national center for lesbian rights the legal rights of lesbian, gay, bisexual, and transgender youth in the juvenile justice system 4
8 Youth in juvenile detention or correctional facilities should not be placed in conditions that amount to punishment or be stigmatized
or humiliated as part of their treatment. With the understanding that some restrictions of liberty may be constitutional, a court will
look at whether a particular restriction is “ reasonably related” to a legitimate governmental interest to determine if there is a
violation. If it is not, it may be inferred that the purpose of the restriction is punishment. Bell v. Wolfish, 441 U. S. 520, 539. See also
Milonas v. Williams, 691 F. 2d 931, 942 ( 10th Cir. 1982) (“ Any institutional rules that amount to punishment of those involuntarily
confined … are violative of the due process clause per se.”).
9 See R. G. v. Koller, supra at 1155- 56 (“ After examining expert opinions and case law regarding the use of isolation on children, the court
concludes that the defendants’ use of isolation was not within the range of acceptable professional practices and constitutes
punishment in violation of the plaintiffs’ Due Process rights… The likely perception by teenagers that isolation is imposed as
punishment for being LGBT only compounds the harm… Consistently placing juvenile wards in isolation, not to impose discipline for
violating rules, but simply to segregate LGBT wards from their abusers, cannot be viewed in any reasonable light as advancing a
legitimate nonpunitive governmental objective.”). A lawsuit on behalf of young people in a juvenile detention facility in Philadelphia
in the 1970’ s also addressed the use of isolation for protection and segregation and resulted in a settlement under which the facility
agreed no longer to place gay youth in isolation. Santiago v. City of Philadelphia, Civ. Act. No. 74- 2589 ( E. D. Pa. 1978). The settlement
provided: “ Homosexuals shall be protected from harassment, and shall not be stigmatized by putting them in isolation, segregating
them by unit or otherwise discriminating against them…. Attorneys representing gay or lesbian juveniles should be aware of the
possibility that a youth’s homosexuality itself may be perceived as a danger to others, rather than the individual circumstances of the
specific child. They should, of course, vigorously oppose any attempts by the institution to characterize gay or lesbian youths as
dangerous or potential rapists.” Stipulation, Santiago.
10 In the adult context, the classification of an inmate as a “ sex offender” has been found to have such stigmatizing consequences that
unless the inmate has a sexual offense history, additional constitutional requirements must be met before this classification can take
place. See Neal v. Shimoda, 131 F. 3d 818, 830 ( 9th Cir. 1997) (“ We can hardly conceive of a state's action bearing more ‘ stigmatizing
consequences’ than the labeling of a prison inmate as a sex offender.”). Juveniles are entitled to greater protections than adult
inmates, and branding a juvenile with a sex offender label clearly would have the same, if not an even greater, stigmatizing effect.
11 See Youngberg v. Romeo, 457 U. S. 307 ( 1982); Burton v. Richmond, 276 F. 3d 973 ( 8th Cir. 2002); A. M., 372 F. 3d 572, 585 n. 3; Jackson v.
Johnson, 118 F. Supp. 2d 278 at 289; Alexander S., 876 F. Supp. at 788.
12 See A. M., 372 F. 3d at 584- 85 ( discussing lack of medical and mental health care for ward with mental illness); Jackson v. Johnson, 118
F. Supp. 2d at 289; Alexander S., 876 F. Supp. at 788.
13 Juvenile justice professionals must provide some form of appropriate treatment for transgender youth diagnosed with Gender
Identity Disorder. Even under the more restrictive minimally adequate medical care standard applicable to adult prisoners, courts
have held that “ transexualism” constitutes a “ serious medical need” therefore, deliberately denying access to transgender- related
health care for prisoners amounts to cruel and unusual punishment under the Eighth Amendment of the U. S. Constitution. See, e. g.,
Allard v. Gomez, 9 Fed. Appx. 793 ( 9th Cir. 2001); Meriwether v. Faulkner, 821 F. 2d 408, 413 ( 7th Cir. 1987) ( holding that “[ t] here is no
reason to treat transsexualism differently from any other psychiatric disorder”); Kosilek v. Malone, 221 F. Supp. 2d 156 ( Mass. Dist. Ct.
2001); Wolfe v. Horne, 130 F. Supp. 2d 648 ( E. D. Pa. 2001); Phillips v. Michigan Dep’t. of Corr., 731 F. Supp. 792 ( W. D. Mich. 1990).
14 E. g., In 1993, the American Academy of Pediatrics issued a Policy Statement on Homosexuality and Adolescence: “ Therapy directed
specifically at changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential
for achieving changes in orientation.” In 1997, the American Psychiatric Association explained “ there is no published scientific
evidence supporting the efficacy of ‘ reparative therapy’ as a treatment to change one’s sexual orientation” and it developed a policy
in opposition to “ any psychiatric treatment, such as ‘ reparative’ or ‘ conversion’ therapy which is based upon the assumption that
homosexuality per se is a mental disorder or based upon a prior assumption that the patient should change his/ her homosexual
orientation.” Also in 1997, the American Psychological Association ( APA) issued a Resolution on Appropriate Therapeutic Responses to
Sexual Orientation, stating, “ The APA opposes portrayals of lesbian, gay, bisexual youth and adults as mentally ill due to their sexual
orientation and supports the dissemination of accurate information about sexual orientation, and mental health, and appropriate
interventions in order to counter bias that is based in ignorance or unfounded beliefs about sexual orientation.”
15 In a recent survey of high school students in California, students who were harassed based on their actual or perceived sexual
orientation were more than three times as likely seriously to consider suicide and have a plan for how they would do it compared
with students who were not harassed. California Safe Schools Coalition, Safe Place to Learn: Consequences of Harassment Based on
Actual or Perceived Sexual Orientation and Gender Non- Conformity and Steps for Making Schools Safer, available at
http:// www. casafeschools. org/ SafePlacetoLearnLow. pdf. Although LGBT youth may be at risk for suicide, LGBT youth should never
automatically be placed on suicide watch or in isolation simply because they are LGBT.
16 The failure to provide mental health screening, sufficient mental health services, or policies governing the supervision and treatment
of suicidal wards can contribute to the liability of facilities in cases brought forward by the families of young people who have
committed suicide while in juvenile facilities. See Viero v. Bufaro, 925 F. Supp. 1374 ( N. D. Ill. 1996) ( finding officials not entitled to
qualified immunity concerning suicide of boy with well- documented mental health needs who did not receive any services,
national center for lesbian rights the legal rights of lesbian, ga55y, bisexual, and transgender youth in the juvenile justice system 5
medication, or close supervision); see also A. M., 372 F. 3d at 585, FN3 ( finding that juvenile detention center has a duty to protect
detainees from harm, whether self- inflicted or inflicted by others); Dolihite v. Maughon, 74 F. 3d 1027 ( 11th Cir. 1996).
17 See R. G. v. Koller, 415 F. Supp. 2d at 1157 ( concerned lack of minimally adequate policies, procedures, and training to ensure ward safety
resulted in severe harassment and abuse by staff and wards which exacerbated plaintiffs’ suicidal feelings).
18 The Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution provides: “ No state shall… deny to any person
within its jurisdiction the equal protection of the laws.” In addition to the protections provided by the Equal Protection clause,
some states also have statutes that prohibit discrimination against LGBT youth in juvenile justice facilities. For example, a number
of states have laws that protect individuals from discrimination by governmental agencies, which may include juvenile detention
and correctional facilities. See, e. g., R. I. GEN. LAWS § 28- 5.1- 7 ( a) (“ Every state agency shall render service to the citizens of this
state without discrimination based on race, color, religion, sex, sexual orientation, gender identity or expression, age, national
origin, or disability. No state facility shall be used in furtherance of any discriminatory practice nor shall any state agency become a
party to any agreement, arrangement, or plan which has the effect of sanctioning those patterns or practices.”); MINN. STAT. §
363A. 02 ( 4) ( prohibiting discrimination in public services based on race, color, creed, religion, national origin, sex, marital status,
disability, sexual orientation, and status with regard to public assistance). Other states have non- discrimination laws that protect
children and adults who are living in “ institutional settings”, which likely would include a juvenile justice facility. See, e. g., IOWA
CODE ANN. § 19B. 12 ( 2) ( prohibiting state employees from discriminating against a person in the care or custody of the employee
or a state institution based on sex). Still other states have non- discrimination laws that apply to businesses and other facilities
considered to be “ public accommodations.” See, e. g., LA. REV. STAT. § 51: 2232 ( 10) ( explicitly including as part of the Louisiana public
accommodations nondiscrimination law any place which is supported directly or indirectly by government funds, although the law
is not inclusive of sexual orientation and gender identity); Chisolm v. McManimom, 275 F. 3d 315, 325 ( adult jail, like a hospital, is
place of public accommodation under New Jersey’s Law Against Discrimination); Ortland v. County of Tehama, 939 F. Supp. 1465,
1470 ( California Unruh Act is applicable in claims against governmental agencies). Finally, juvenile justice facilities may be
prohibited from discriminating against LGBT youth pursuant to state laws prohibiting discrimination in housing, since such
facilities provide publicly assisted housing accommodations. See Doe v. Bell, 754 N. Y. S. 2d 846, 850 ( N. Y. Sup. Ct. 2003) ( recognizing
residential foster care facility as “ publicly- assisted housing accommodation” for purposes of disability discrimination claim under
New York’s Human Rights Law).
19 Although there is not a large body of equal protection case law in the child welfare or juvenile justice context, the right to equal
protection has been clearly established within the public school context. These cases illustrate the types of violations that would also
be actionable in juvenile justice placements. For example, in the first federal appellate case addressing anti- gay violence in schools, a
court awarded nearly a million dollars in damages to Jamie Nabozny, a student who suffered severe anti- gay abuse in his Wisconsin
high school. Nabozny v. Podlesny, 92 F. 3d 446 ( 7th Cir. 1996). In that case, school administrators told Nabozny that the abuse should
be expected because he was openly gay. The court, however, disagreed explaining, “ The Equal Protection Clause … require[ s] the
state to treat each person with equal regard, as having equal worth, regardless of his or her status…. We are unable to garner any
rational basis for permitting one student to assault another based on the victim’s sexual orientation.” Id. at 456 and 458. This
reasoning has obvious applications in situations involving state custody, where an LGBT young person in a juvenile justice placement
may be singled out for mistreatment on the basis of sexual orientation or gender identity.
20 The First Amendment to the Constitution guarantees that “ Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
21 See Henkle v. Gregory, 50 F. Supp. 2d 1067 ( D. Nev. 2001) ( allowing claims under Title IX for discrimination and harassment by other
students and under First Amendment based on demands by school officials that student keep his sexual orientation to himself).
22 See, e. g., Doe v. Yunits, 2000 WL 33162199 ( Mass. Super. 2000), aff'd sub nom. Doe v. Brockton Sch. Comm., 2000 WL 33342399 ( Mass.
App. Ct. 2000) ( holding that transgender student had First Amendment right to wear clothing consistent with her gender identity
and that treating transgender girl differently than biological girls was discrimination on the basis of sex).
23 Although there is not a large body of First Amendment case law in the child welfare or juvenile justice context, in the public school
context, courts have held school officials liable for forcing LGBT youth to conceal their sexual orientation as a condition of
enrollment, for not permitting a transgender student to dress in accordance with their gender identity, and for prohibiting students
from bringing a same- sex date to the high school prom. These cases illustrate the types of violations that may be actionable for
youth in the juvenile justice system. Davis v. Monroe County Bd. of Educ., 526 U. S. 629 ( 1999); Ray v. Antioch Unified Sch. Dist., 107 F.
Supp. 2d 1165 ( N. D. Cal. 2000); Doe v. Yunits, 2000 WL 33162199 at * 3; Fricke v. Lynch, 491 F. Supp. 387 ( D. R. I. 1980).
24 See Canell v. Lightner, 143 F. 3d 1210, 1214 ( 9th Cir. 1998) ( holding that a practice of condoning or failing to prevent known proselytizing
or religious indoctrination by prison staff would violate the Establishment Clause if plaintiff could make requisite factual showing).
25 See Bellmore v. United Methodist Children’s Home and Department of Human Resources of Georgia, Settlement Terms available at
www. lambdalegal. org. See also R. G. v. Koller, 415 F. Supp. 2d at 1160- 1161 (“[ T] he court is concerned by the evidence that members of
the HYCF staff have promoted certain religious teachings to the plaintiffs.”).
national center for lesbian rights the legal rights of lesbian, gay, bisexual, and transgender youth in the juvenile justice system 6
the national center for lesbian rights—
youth project has been advocating for LGBTQ youth in schools,
foster care, juvenile justice settings, and the mental health system
since 1993. The Project provides direct, free legal information to youth,
legal advocates, and activists through a toll- free line; advocates for
policies that protect and support LGBTQ youth in these different
arenas; and litigates cases that are creating new legal protections for
youth in schools, foster care, juvenile justice, and other settings.
for more information, contact:
Jody Marksamer, Staff Attorney
415.392.6257 x308
jmarksamer@ nclrights. org
Toll- free Legal Helpline: 1.800.528.6257
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA 94102
info@ nclrights. org
nclrights. org
© June 2006 NCLR
This fact sheet is intended to provide general information regarding legal rights. Because laws and legal procedures are subject to frequent change
and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current, nor can NCLR be
responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency.
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