LaDonna Conner
WGST 202
T/TH 9:30
Professor Currans
Blog Topic: Incarcerated Transgender
(LGBT Youth Legal Rights)
Article Review #3
Estrada,
Rudy and Marksamer, Jody. (2006). “The Legal Rights of LGBT Youth in
State Custody: What Child Welfare and Juvenile Justice Professional Needs to
Know, “Child Welfare Mar/Apr 2006;
85, 2; ProQuest pg. 171
In the article “The Legal Rights of LGBT Youth
in State Custody: What Child Welfare and Juvenile Justice Professional Need to
Know,” written by R. Estrada and J. Marksamer they discuss the federal and state constitutional and
statutory rights of LGBT youth in state custody. Many youths in state custody, regardless of
their sexual orientation or gender identity should be free from abuse, but many
are not. The lesbian, gay, bisexual, and
transgender (LGBT) youth have their rights violated on a regular basis while in
state custody and no one seems to know how to protect them. This article will hopefully give awareness of successful
federal legal claims that the child welfare and juvenile justice system have
made as a result of the experiences of LGBT youths. Also, included will be two
cases that was submitted by Estrada and Marksamer to help establish these
rights.
This is an
example of an actual case that was used by Estrada and Marksamer of a young transgender
woman who sued the New York City
Administration for Children’s services
(ACS) for not allowing her to wear female attire in her all-boys group home (Doe v. Bell, 754 N.Y.S.2d 846 (N.Y.
Sup.Ct.2003)). While in state care, she
was not allowed to express her female gender identity in ways that did not
conform to her birth sex, she had in fact been diagnosed with Gender Identity
Disorder (GID). According to DSM-IV-TR)
(p.581), Gender identity disorder is a profound disturbance of the
individual’s sense of identity with regard to maleness or femaleness.
Basically, the person is very uncomfortable with the gender they were born. The claim was since she was not
allowed to wear her skirts and dresses she suffered psychological distress and
illegal discriminated on the basis of her disability and her sex. In addition her First Amendment freedom of
expression (N.Y. Exec.3296 (18) (2)).
The courts findings were ACS was
required to make reasonable accommodations for her transgender status and
permit her to dress and present herself with her female gender identity.
A second case example, was in 2005 three
juveniles, who were perceived or were identified as lesbian, gay or transgender
were housed at the Hawaii Youth Correctional Facility (HYCF), they sued after
they experienced anti-LGBT abuse. (R.G. v
Keller, 415 F. Supp. 2d 1129) The
youths were often harassed and the only thing the administrator did was move
them to single cells. This action did
nothing, but isolate them, the abuse continued and they were denied social
interaction with other youths.
The courts
findings were HYCF acted with deliberate indifference. The supervisory defendants’ failure to adopt
any professionally acceptable methods of maintaining order and safety at HYCF
that constitutes deliberate indifference.
These are just some of the civil rights
that apply to all people in state custody;
(1) The
Constitutional Right to Safety; The Fourteenth Amendment to the U.S.
Constitution: “No State shall ….deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within the jurisdiction
the equal protection of the laws.” In the child welfare and juvenile justice
contexts, this is called “right to safety”.
(2) The
Right to Safety in Foster Care: the right to protection against threats
to a young person’s physical, mental and emotional well-being, the right to
prevent harm, and the right to monitoring and supervision. Caretakers of foster
children are expected to supervise appropriately and protect them from harm
(Camp v. Gregory, 67 F.3d 1286, 1296 (7th Cir. 1995)).
(3)
Right to service to prevent harm:
the right to receive service to prevent physical or psychological harm or
deterioration while in foster care (Norfleet v. Arkansas Dep’t of Human Serv.,
989 F.2d 289, 293 (8th Cir.1993)).
(4)
Right to Safety in Juvenile Detention and
Correctional Facilities: the purpose of institutional confinement of
children is rehabilitation and treatment; not punishment. They also have civil rights under the
Fourteenth Amendment due process clause. (Kent v. United States, 383 U.S. 541,
554 (1966)).
(5)
Right not to be place in conditions
amounting to punishment: (THIS IS PROGRESS) Rights that may violate a youth’s constitutional rights
punishing a youth with degrading or humiliating tasks, restricting their
personal appearance that may single them out from the rest of the population or
ridicule. (Gerks v. Deathe, 832 F. Supp. 1450 (W.D. Okla. 1993); A correctional
facility should never punish a youth because they are openly LGBT. Staff and
administrators also must not disclose an LGBT youth’s confidentiality by
revealing his or her sexual orientation or gender identity. LGBT should not be housed with sex offenders
or treated as such because they are gay or transgender.
In article one by Stotzer, R. I
discussed Hate Crimes, “Violence against Transgender People in Los Angles” How
people were being singled out because of their gender identity and becoming a
human targets for sick psycho(s) who feel they are easy prey. They are often physical assaulted and
verbally attacked for just existing in the world.
In article two by Marksamer, J. The discussion was on Transgender youths that
are being targeted because of bias and discrimination and the lack of
understanding of gender and sexuality by the juvenile justice system. The article also discusses how our lack of
laws, policies and legal representation is failing transgender youths in the
juvenile system.
Finally, in article three with
Estrada, R. and Marksamer, J the discussions of both articles of one and two
seem to give article three some victory for Transgender and (LGBT) .The
violence against Transgender People and how the failure of laws, policies and
legal representation for them has now been recognized on a state and federal level. Federal legal
claims put in by legal advocates is what begun the process of addressing the
abuse of the LGBT youths in state facilities.
Our youths are often place in state
facilities for their own personal protection from difficult situations. They
are not sent to be harassed, physical violated, raped, isolated or any other
form of abuse which includes psychological traumatized, many times this is why
they are placed in state facilities. When placed in juvenile justice system or
seeking a foster care home it is often asked by the foster parents, “Is it a
girl or a boy?” Well, how do you respond as a Social Worker trying to describe
to the foster parents that’s the youth is transgender person and they are in
need of a loving home? As a foster parent what do you say? What’s that? How do
you treat them? These are question many state and federal facilities are
facing. Not knowing is what harming our LGBT youths. Education is needed at
every level of our justice system, educational system and our city, state and
federal facilities that deal with people.
This is the way I see that we don’t single them out? We are all humans
before we are anything else, it shouldn’t make a difference how or what a
person view themselves as long as they are happy. The only things that should matter is how we
treat them, maybe the same way we would like to be treated, like a person with
respect. Let’s continue to fight for our
LGBT youths become an activists to make the world a safer place and it you have
a spiritual faith –spread it. BLOG IT
Cited
American,
Psychological Association. (2003).
Diagnostic and statistical manual, 4th ed. (DSM-IV-TR). Washington, DC: American Psychiatric
Association
The Legal Rights of LGBT Youth in State
Custody: What Child Welfare and Juvenile Justice Professional Need to Know
Estrada, Rudy; Marksamer, Jody
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