Juvenile detention facilities are obligated to ensure that detained youth receive all medically necessary health and behavioral health services.121 Facilities must ensure that youth receive a medical and mental health screening at admission, a full medical assessment within a week of admission and any necessary medical, mental health or dental services identified in the assessment.122 These services must be delivered by qualified professionals who are familiar and comply with the relevant standards of care.123 The standards in this section are aimed at meeting these requirements for LGBTI youth.
Facility staff must ensure that transgender youth receive a full medical assessment by qualified medical personnel who adhere to the relevant medical standards of care.124
Physicians or other health care professionals who assess or treat transgender youth must be familiar and comply with the medical standards of care promulgated by the World Professional Association for Transgender Health (WPATH).125 In particular, health care professionals must be competent to diagnose and treat gender dysphoria, which is defined by WPATH as the discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics).126
The core principles of the WPATH standards of care are as follows:
• Exhibit respect for patients with nonconforming gender identities (do not pathologize differences
• Provide care (or refer to knowledgeable colleagues) that affirms patients’ gender identities and
reduces the stress of gender dysphoria, when present.
• Become knowledgeable about the health-care needs of transsexual, transgender and gender non-
conforming people, including the benefits and risks of treatment for gender dysphoria.
• Match the treatment approach to the specific needs of patients, particularly their goals for gender
expression and need for relief from gender dysphoria.
• Facilitate access to appropriate care.
• Seek patients’ informed consent before providing treatment. • Offer continuity of care.
• Be prepared to support and advocate for patients within their families and communities (schools,
workplaces, and other settings).127
If the medical staff in the facility are not familiar with the WPATH standards, they should ensure that transgender youth have access to qualified medical personnel who are familiar with the standards and competent to diagnose and treat gender dysphoria. Under no circumstances should nonmedical staff make decisions about whether youth are entitled to be evaluated for transition- related care. Upon request by the youth or referral by facility medical staff, the staff should ensure that the youth has access to qualified health care professionals for assessment and medically necessary treatment.
Policies must require provision of medically necessary transition-related health care to transgender youth, as determined by qualified medical personnel familiar with the relevant standards of care.
The National Commission on Correctional Health Care (NCCHC) issued a position statement on transgender healthcare in correctional settings, including juvenile confinement facilities.128 Key provisions of that statement include:
• Determination of treatment necessary for transgender patients should done case by case. Ideally,
correctional health care staff are trained in transgender health care. Alternatively, they should have access to other professionals with expertise in transgender health care to help determine appropriate management and provide training on gender-related care.
• Because transgender patients may be under different stages of care before incarceration, there
should be no blanket administrative or other policies that restrict specific medical treatments. Policies that make treatments available only to those who received them before incarceration or that limit transition and/or maintenance are inappropriate and out of step with medical standards and should be avoided.
• Accepted treatments for gender dysphoria should be made available for people with gender
dysphoria. Providing mental health care, while necessary, is not sufficient.
• Psychotherapy such as “reparative” or “conversion” therapy or attempts to alter gender identity
should never be employed.
• Transgender patients who received hormone therapy with or without a prescription before
incarceration should have that therapy continued without interruption pending evaluation by a specialist, absent urgent medical reasons to the contrary. Hormone therapy should not be discontinued precipitously as this will likely cause depression and anxiety.129
• Gender dysphoric patients who have not received hormone therapy prior to incarceration should
be evaluated by a health care provider qualified in the area of gender-related health care to determine their treatment needs.
• When determined to be medically necessary for a particular patient, hormone therapy should
be initiated, and regular laboratory monitoring should be conducted according to community medical standards.
• Transgender patients should have access to services that address self-acceptance, disclosure of sexual
orientation or gender identity, family relationships, healthy intimate relationships and sexual decision making.
The facility must not employ or contract with medical or behavioral health providers that attempt to change a youth’s sexual orientation or gender identity.130
Interventions, formal or informal, that seek to change a youth’s SOGIE or suggest that these aspects of identity can or should be changed, are known as “conversion therapy,” “reparative therapy” or “Sexual Orientation Change Efforts” (SOCE). The nation’s leading professional medical and mental health associations have universally rejected these interventions as unnecessary, ineffective and dangerous. These groups have cautioned that the practices do not work and have warned patients that they may be harmful. For example, the American Psychological Association “advises parents, guardians, young people and their families to avoid sexual orientation change efforts that portray homosexuality as a mental illness or developmental disorder and to seek psychotherapy, social support and educational services that provide accurate information on sexual orientation and sexuality, increase family and school support and reduce rejection of sexual minority youth.”131 Facilities should ensure that medical and behavioral health providers do not engage in any form of conversion therapy, which should be contractually prohibited.
VI
1. Silber, S., & Francis, S. (2013). The evolution of family law, marriage and the LGBT community – the long road for family recognition and the remaining gaps in the patchwork of protections. Maryland Bar Journal,
46, 42-49.
2. APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation. (2009). Report of
the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington, DC: American
Psychological Association. Retrieved July 15, 2015, from https://www.apa.org/pi/lgbt/resources/ therapeutic-response.pdf
3. American Psychological Association. (2008). Answers
to your questions: For a better understanding of sexual orientation and homosexuality. Washington, DC:
Author. Retrieved July 15, 2015, from www.apa.org/ topics/sorientation.pdf
4. Bowers v. Hardwick, 478 U.S. 186 (1986). 5. Lawrence v. Texas, 539 U.S. 558 (2003). 6. Park, H. (2015, June 26). Gay marriage state by
state: From a few states to the whole nation. The
New York Times. Retrieved from www.nytimes.com/
interactive/2015/03/04/us/gay-marriage-state-by- state.html?_r=0
7. Obergefell v. Hodges, 576 U.S._ (2015). 8. Cannistra, M.K., Downs, K., & Rivero, C.
(2010, Nov. 30). A history of “don’t ask, don’t tell.” The Washington Post. Retrieved from www. washingtonpost.com/wp-srv/special/politics/dont- ask-dont-tell-timeline/
9. Ibid.
10. Mahapatra, L. (2013, Dec. 9). 90 percent of Fortune 500 companies are LGBT-friendly. International
Business Times. Retrieved from www.ibtimes.com/
90-percent-fortune-500-companies-are-lgbt-friendly- charts-1501280
11. Substance Abuse and Mental Health Services Administration. (2014). A practitioner’s resource
guide: Helping families to support their LGBT children. HHS Publication No. PEP14-LGBTKIDS.
Rockville, MD: Author.
12. Lesbian, gay, and bisexual youth are four times more likely, and questioning youth are three times more likely, to attempt suicide as their straight peers. Centers for Disease Control and Prevention. (2011).
Sexual identity, sex of sexual contacts, and health-risk behaviors among students in grades 9-12: Youth risk behavior surveillance. Atlanta, GA: Author.
13. Irvine, A. (2010). “We’ve had three of them”: Addressing the invisibility of lesbian, gay, bisexual and gender non-conforming youths in the juvenile justice system. Columbia Journal of Gender and Law,
19, 675.
14. Beck, A.J., Harrison, P.M., & Guerino, P. (2010).
Sexual victimization in juvenile facilities reported by youth. Washington, DC: Bureau of Justice Statistics.
15. R.G. v. Koller, 415 F. Supp. 2d 1129 (2006). 16. 42 U.S.C. § 15601 et seq
17. 42 U.S.C. § 15601(12). 18. 42 U.S.C. § 15603. 19. Beck, supra note 14.
20. This diagram is adapted from similar graphics found at www.thetrevorproject.org/pages/spectrum and www.gendersanity.com/diagram.html.
21. Leibowitz, S.F., & Spack, N.P. (2011). The development of a gender identity psychosocial clinic: Treatment issues, logistical considerations, interdisciplinary cooperation, and future initiatives.
Child and adolescent psychiatric clinics of North America, 20(4), 701-724.
22. Ryan, C. (2003). LGBT youth: Health concerns, services, and care. Clinical Research and Regulatory
Affairs, 20(141).
23. See Wilber, S. (2015). Invest upstream to promote the well-being of LGBT youth: Addressing root causes of juvenile justice involvement. N.E. Dowd (Ed.). New York: New York University Press.
24. Kosciw, J.G., Greytak, E.A., Palmer N.A., & Boesen, M.J. (2014). The 2013 National School Climate
Survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools. New York:
GLSEN. 25. Ibid.
26. Himmelstein, K.E., & Brückner, H. (2011). Criminal-justice and school sanctions against nonheterosexual youth: A national longitudinal study. Pediatrics, 127(1), 49-57.
27. Irvine, supra note 13.
28. Ryan, C. (2010). Engaging families to support lesbian, gay, bisexual and transgender youth: The Family Acceptance Project. Prevention Researcher,
17(4), 11-13.
29. Ibid. 30. Ibid.
31. Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). Family rejection as a predictor of negative health outcomes in white and Latino lesbian, gay and bisexual young adults. Pediatrics, 123(1), 346-352. 32. Ibid.
33. Durso, L., & Gates, G. (2012). Serving out youth:
Findings from a national survey of service workers working with lesbian, gay, bisexual and transgender youth who are homeless or at risk of becoming homeless.
Los Angeles: The Williams Institute with the True Colors Fund and the Palette Fund.
34. Van Leeuwen, J.M., Boyle, S., Salomonsen-Sautel, S., & Baker, D.N. (2006). Lesbian, gay, and bisexual homeless youth: An eight-city public health perspective. Child Welfare, 85(2), 151-170.
35. Ibid.
36. Ray, N. (2006). Lesbian, gay, bisexual and
transgender youth: An epidemic of homelessness.
Washington, DC: National Gay and Lesbian Task Force Policy Institute and National Coalition for the Homeless.
37. Wilson, B., Cooper, K., Kastanis, A., & Nehzad, S. (2014). Sexual and gender minority youth in foster
care: Assessing disproportionality and disparities in Los Angeles. The Williams Institute.
38. Ibid. 39. Ibid. 40. Ibid. 41. Ibid. 42. Ibid.
43. Irvine, A. & Canfield, A. (2015). The
overrepresentation of lesbian, gay, bisexual,
questioning, gender nonconforming and transgender (LGBQ/GNCT) youth in the population that crosses from child welfare to the juvenile justice system.
Working paper. Oakland, CA: Impact Justice. 44. Ibid.
45. Irvine, supra note 13. 46. Ibid.
47. Dank, M. (2014). Surviving the streets of New York:
Experiences of LGBTQ youth, YMSM, and YWSW engaged in survival sex. Washington, DC: Urban
Institute. See also BreakOUT! (2014). We deserve
better: A report on policing in New Orleans by and for queer and trans youth of color. Retrieved from http://
getyrrights.org/wp-content/uploads/2014/10/WE- DESERVE-BETTER-REPORT.pdf
48. See Make the Road New York. (2012). Transgressive
policing: Abuse of LGBTQ communities of color in Jackson Heights. Retrieved www.maketheroad.org/
49. Majd, K., Marksamer, J. & Reyes, C. (2009).
Hidden injustice: Lesbian, gay, bisexual and transgender youth in juvenile courts. The Equity
Project. See also Salerno, J.M., Murphy, M.C., & Bottoms, B.L. (2014). Give the kid a break – but only if he’s straight: Retributive motives drive bias against gay youth in ambiguous punishment contexts. Psychology, Public Policy, and Law, 20(4), 398-410.
50. Majd, supra note 49. 51. Ibid.
52. Ibid.
53. R.G. v. Koller, supra note 15. 54. Majd, supra note 49. 55. Ibid.
56. Beck, supra note 14. 57. Ibid.
58. Beck, A.J., Cantor, D., Hartge, J., & Smith, T. (2012). Sexual victimization in juvenile facilities
reported by youth. Washington, DC: Bureau of
Statistics.
59. The Annie E. Casey Foundation. (n.d.). Pathways to
juvenile detention reform, vol. 2: Collaboration and leadership in juvenile detention reform. Baltimore,
MD: Author.
60. See Lesson Three: Enhancing Communication and Building Trust with LGBT Youth, Toward Equity Training Curriculum produced by the Equity Project. Retrieved from www.equityproject.org/ training-type/curricula/
61. Wilber, S. (2013). Guidelines for managing information
related to the sexual orientation & gender identity and expression of children in child welfare systems. Oakland,
CA: Putting Pride Into Practice Project, Family Builders by Adoption.
62. 28 C.F.R. § 115.341(c)(2). 63. Ryan, supra note 28
64. Ibid.
65. Arya, N. (2013). Family comes first: A workbook to
transform the justice system by partnering with families.
Washington, DC: Campaign for Youth Justice. See also Pennell, J., Shapiro, C., & Spigner, C. (2011).
Safety, fairness, stability: Repositioning juvenile justice and child welfare to engage families and communities.
Washington, DC: Center for Juvenile Justice Reform: Georgetown University.
66. Majd, supra note 49.
67. The content of Chapter V draws heavily from the Annie E. Casey Foundation. (2014). JDAI
practice guide 2: Juvenile detention facility assessment, standards instrument (2014 update). Baltimore, MD:
Author. Retrieved from www.jdaihelpdesk.org. And from Lesson Five: Ensuring Safety and Equity in Secure Settings, Toward Equity Training Curriculum produced by the Equity Project. Retrieved from www.equityproject.org/training-type/curricula/ 68. The acronym “LGBTI” is used in Chapter V because
many of the standards are based on PREA, which applies to intersex youth as well as lesbian, gay, bisexual and transgender youth.
69. The Annie E. Casey Foundation. (2014). JDAI
practice guide 2: Juvenile detention facility assessment, standards instrument (2014 update). Baltimore, MD:
Author. Hereafter “JDAI 2014 UPDATE.” 70. R.G. v. Koller, supra note 15.
71. Ibid.
72. JDAI 2014 UPDATE, Training Standard.
73. JDAI 2014 UPDATE, Training Standard (C)(4)(c)(1). 74. JDAI 2014 UPDATE, Training Standard (C)(4)(c)(7). 75. 28 C.F.R. § 115.3341(a)(9).
76. JDAI 2014 UPDATE, Training Standard (C)(4)(f) (4); 28 C.F.R. § 115. 331(a)(7).
77. JDAI 2014 UPDATE, Training Standard (C)(4) (h)(6).
78. JDAI 2014 UPDATE, Environment Standard (G)(3). 79. Marksamer, J. (2011). A place of respect. San Francisco,
CA: National Center for Lesbian Rights.
80. JDAI 2014 UPDATE, Classification Standard (B)(7); Marksamer, supra note 79.
81. Ibid.
82. Alexander S. v. Boyd, 876 F. Supp. 773, 782 (D.S.C. 1995), aff’d. in part, rev’d in part on other grounds, 113 F.3d 1373 (4th Cir. 1997).
83. Holman, B. & Zeidenberg, J. (2006). The dangers of
detention: The impact of incarcerating youth in detention and other secure facilities. Washington, DC: Justice
Policy Institute. Retrieved from www.justicepolicy.org/ images/upload/06-11_rep_dangersofdetention_jj.pdf. 84. Majd, supra note 49.
85. JDAI 2014 UPDATE, Classification Standard (C)(6)(n). 86. Majd, supra note 49.
87. R.G. v. Koller, supra note 15.
88. JDAI 2014 UPDATE, Restraints, Room Confinement, Due Process and Grievances Standard (F)(3).
89. JDAI 2014 UPDATE, Restraints, Room Confinement, Due Process and Grievances Standard (F)(5).(6).(11). 90. 28 C.F.R. § 115.351(b).
91. 28 C.F.R. § 115.341(a). 92. 28 C.F.R. § 115.341(c)(2).
93. Frequently Asked Questions, National PREA Resource Center, retrieved from www. prearesourcecenter.org/faq.
94. Hastings, A., McGarry, P., & diZerega, M. (2013).
Screening for risk of sexual victimization and for abusiveness: Guidelines for using screening instruments and using the information to make housing decisions.
New York: National PREA Resource Center and Vera Institute of Justice.
95. 28 C.F.R. § 115.331.
96. 28 C.F.R. § 115.342 (c),(d); JDAI 2014 UPDATE, Classification Standard (E)(7).
97. R.G. v. Koller, supra, note 15; 28 C.F.R. § 115.342. 98. 28 C.F.R. § 115.342(c).
99. JDAI 2014 UPDATE, Restraints Standard (B)(1)(a). 100. R.G. v. Koller, supra note 15.
101. 28 C.F.R. § 115.342(b). 102. Ibid.
103. Ibid.
104. 28 C.F.R. § 115.342(h).
105. JDAI 2014 UPDATE, Classification Standard (E)(8); 28 C.F.R. § 115.342 (d),(f).
106. Levasseur, M.D. (2015). Gender identity defines sex: Updating the law to reflect modern medical science is key to transgender rights. Vermont Law Review, 39, 943.
107. JDAI 2014 UPDATE, Classification Standard (E)(8). 108. Ibid.
109. JDAI 2014 UPDATE, Classification Standard (F)(1). 110. JDAI 2014 UPDATE, Classification Standard (F)(2). 111. JDAI 2014 UPDATE, Classification Standard (E)(4). 112. 28 C.F.R. § 115.315(a). 113. 28 C.F.R. § 115.315(b). 114. 28 C.F.R. § 115.315(c). 115. See www.prearesourcecenter.org 116. 28 C.F.R. § 115.315(e). 117. Ibid. 118. 28 C.F.R. § 115.315(f). 119. 28 C.F.R. § 115.315(d).
121. See Youngberg v. Romero, 457 U.S. 307 (1982);
Jackson v. Johnson, 118 F.Supp.2d 278, 289
(N.D.N.Y. 2000) (intentional delay in provision or denial of medical care may establish deliberate indifference); Alexander S. v. Boyd, 876 F.Supp. at 788 (D.S.C. 1995) (incarcerated youth have right to adequate health care).
122. JDAI 2014 UPDATE. Health and Mental Health Care Standard (B)(1), (C)(1).
123. Ibid.
124. JDAI 2014 UPDATE, Health and Mental Health Care Standard (B)(3)(q).
125. The World Professional Association for Transgender Health (WPATH) is an international multidisciplinary professional association that specializes in transgender health care. www.wpath.org 126. WPATH Clarification on Medical Necessity of
Treatment, Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide. Retrieved from www.wpath. org/site_page.cfm?pk_association_webpage_ menu=1352&pk_association_webpage=3947 127. Coleman, E. et al. (2012). Standards of care for the
health of transexual, transgender, and gender non- conforming people. World Professional Association
for Transgender Health (WPATH).
128. National Commission on Correctional Health Care. (2015). Transgender, transexual, and gender
non-conforming health care in correctional settings.
Chicago, IL: Author. Retrieved from www. ncchc.org/transgender-transsexual-and-gender- nonconforming-health-care
129. See also JDAI 2014 UPDATE, Health and Mental Health Care Standard (C)(24).
130. JDAI 2014 UPDATE, Health and Mental Health Care Standard (J)(17).
131. See, e.g., Anton, B.S. (2010). Appropriate affirmative responses to sexual orientation distress and change efforts. American Psychological
Association, 29. Retrieved from www.apa.org/about/
Appendix
A. Glossary
AGENDER: Describes a person who does not identify with a specific gender.
ALLY: Describes people who confront and challenge heterosexism, sexism, homophobia, transphobia and heterosexual privilege in themselves and others.
ANDROGYNOUS: Describes a person with physical and/or presentational traits ascribed to both men and women.
ASEXUAL: Describes a person who does not feel sexual attraction or a desire to engage in sexual behavior with either men or women.
BIAS: A personal, generalized preference for or against something that has the tendency to interfere with one’s ability to be impartial or objective.
BIGENDERED: Describes a person having two genders; exhibiting cultural and/or physical characteristics of male and female roles.
BIPHOBIA: Fear or hatred of, or prejudice against, bisexual people. BISEXUAL: Describes a person who is attracted to both men and women.
CISGENDER: Describes people whose gender identity matches their sex assigned at birth.
CISGENDERISM: Assuming that every person is cisgender, and marginalizing people who are gender nonconforming. Also believing cisgender people are superior, and holding others to traditional or stereotypical gender-based expectations.
COMING OUT: The act or process of voluntarily disclosing one’s sexual orientation or gender identity.
GAY: Describes a person who is attracted to individuals of the same gender. While historically used to refer specifically to men, it is often used to refer to women attracted to other women as well. GENDER: A social construct used to classify a person as a man, a woman or some other identity. Fundamentally different from sex assigned at birth, it is often closely related to the role that a person plays or is expected to play in society.
GENDER BINARY: The idea that there are only two genders – male and female – and that a person can only be either exclusively male or female.
GENDER EXPRESSION: Describes how individuals communicate their gender to others. People express and interpret gender through hairstyles, clothing, physical expression and mannerisms, physical alterations of their body or by choosing a name that reflects their gender identity.
GENDERFLUID: Shifting naturally in gender identity and/or gender expression. The term may be