Transgender, Nonbinary, and Gender Diverse Youth
About This Issue
Youth who are transgender, nonbinary, and gender diverse (TNGD) face unique challenges and harms in the juvenile court system. While the number of young people who identify as TNGD in the juvenile legal system is difficult to accurately capture due to several factors such as lack of mandatory data collection on gender identity and expression and fear of disclosure, research suggests that about 20% of incarcerated youth identify as LGBTQ or gender non-conforming, among whom youth of color are disproportionately represented. Further, studies have shown there are approximately three to six times more TNGD youth in the delinquency system than the general population.
TNGD youth face heightened discrimination and criminalization both in and out of delinquency systems. Studies have revealed that TNGD youth experience heightened levels of mental health challenges, including depression, anxiety, and suicidality. Once involved in the delinquency system, TNGD youth are more likely to face harsher punishment, incarceration, and overreliance on solitary confinement in placement, often being placed in facilities that are unable or unwilling to ensure their safety and wellbeing in a way that honors and aligns with a young person’s gender identity and expression. As a result, TNGD youth experience higher rates of physical and sexual violence and other mistreatment inside the delinquency system, in addition to pervasive bias and discrimination in their day-to-day treatment in court proceedings.
Opportunities for Youth Defenders
Youth defenders are specialized lawyers and advocates who defend young people accused of crimes, status offenses, and violations in the delinquency system. Youth defenders are in a pivotal position as frontline advocates to ward against the pervasive harms that TNGD youth face in the juvenile legal system by asserting legal protections, demanding fair treatment, and partnering with trusted community-based organizations to create liberatory passageways out of harm and toward safety and healing that upholds the dignity of all TNGD youth. Youth defenders are uniquely positioned to build trust and create space for TNGD youth to share their identity and experiences, amplify the strengths, beauty, and individuality of TNGD youth, co-create strategies to protect against harm and mistreatment inside the system, and hold systems accountable for their discrimination and abuse of TNGD youth. Youth defenders have the opportunity to champion the wholeness of young people’s individual identity and advocate for practices that not only will protect TNGD youth from harm inside the system but also celebrate their identity and work with them to create pathways outside the juvenile legal system and in caring communities.
Our Impact
The Gault Center regularly partners with organizations with expertise in TNGD advocacy to provide critical training, case assistance, policy support, and resources for advocates defending TNGD young people in delinquency court. Specifically, the Gault Center has been working with the youth defense community to ensure that everyone in court uses proper, affirming names and pronouns of TNGD youth, practice culturally competent and client-centered interviewing, and advocate for the release of TNGD youth facing harmful conditions of confinement by finding meaningful community-based alternatives that support TNGD youth. The Gault Center has created and compiled key resources, including sample motions and policies, to support youth defenders in their individual and systemic advocacy of TNGD youth. The Gault Center also co-facilitates a LGBTQ+ Youth Justice Work Group in partnership with Lambda Legal, Youth MOVE National, and Youth Law Center to respond to emergent issues involving TNGD youth in the juvenile legal system.
Our Resources
The Gault Center partnered with the National Center for Lesbian Rights to create a checklist for defenders to protect the rights of TNGD youth in facilities, covering considerations around discrimination, confidentiality, housing assignments, training, programming, youth health and safety, and searches in accordance to the civil and constitutional rights of TNGD youth.
Standard 6.1 of the National Youth Defense System Standards highlights the legal mandate that systems monitor and protect TNGD youth from discrimination and constitutional violations and calls for states to support an infrastructure that allows youth defenders to meaningfully assess and defend against disparate and harmful treatment of TNGD youth. The System Standards also call for early and continued representation by well-resourced, culturally competent, and specialized youth defenders to uphold the constitutional and federal rights of TNGD youth.
