Report: Nearly All Fifty States are Failing Transgender, Gender-Expansive and Gender-Nonconforming (TGNC) Youth

New report is the first comprehensive analysis of the explicit law and policy protections for TGNC youth in child welfare, juvenile justice and homeless youth systems

(New York, NY) – A new report published today, Safe Havens: Closing the Gap Between Recommended Practice and Reality for Transgender and Gender-Expansive Youth in Out-of-Home Care, offers the first comprehensive analysis of the troubling lack of explicit laws and policies in most states to protect transgender, gender expansive and gender non-conforming (TGNC) youth in the child welfare, juvenile justice, and runaway and homeless youth systems (“out-of-home care systems”). The report is co-authored by Lambda Legal, Children’s Rights and the Center for the Study of Social Policy.

While in most places state law, policy and practice must catch up with professional standards and requirements of federal law, a growing number of providers are turning recommended practice into reality to the benefit of TGNC youth in their care. Ashley, a transgender girl in an affirming program in the southeast who contributed to the report, says “Now that I feel safer, I don’t have to worry about all of these other things. I’m able to focus on my future and doing the things I need to do to be successful.”

Child advocates and other experts have long observed that lesbian, gay, bisexual, transgender and queer (LGBTQ+) youth—and TNGC youth in particular—are dramatically overrepresented in out-of-home care systems compared to the general population and too often face harsh treatment and discrimination in programs designed to help them. These issues are particularly acute for TGNC youth, because of the way out-of-home care systems define and segregate youth on the basis of sex (or gender).

“Too many young people are not sleeping safely at night, despite the fact that our Constitution enshrines the right to be protected and treated equally in state care,” said Christina Remlin, Children’s Rights Lead Attorney and co-author of the report. “It is our hope that states, agencies and providers will embrace the wise counsel of TGNC youth themselves and heed the call to prioritize their safety and well-being.”

The report profiles and provides recommendations from six TGNC youth who experienced affirmation in out-of-home care systems and four providers – a family acceptance program, a shelter for homeless youth, a detention facility and a foster care agency – who affirm TGNC youth in their programs.

Key findings from the report’s fifty-state analysis of state law, policy, and licensing regulations include:

  • Only 27 states and D.C. explicitly include sexual orientation and gender identity in non-discrimination protections specific to the child welfare system; only 21 states and D.C. do so in their juvenile justice systems; and only 12 states and D.C. do so in their facilities serving runaway and homeless youth.
  • Only three states in the nation define sex (or gender) to include gender identity, and only one of those does so in a regulation specific to out-of-home care even though all states use these terms in law governing housing, clothing and body searches.
  • Only four states have statutory or regulatory guidance regarding placement of transgender youth in accordance with their gender identities in out-of-home care.
  • Twenty-four states provide no explicit statute or regulation that would allow TGNC youth to dress and express themselves in accordance with who they are in their child welfare systems; forty states provide no such allowance in their juvenile justice systems; and thirty-four states provide no such allowance in their homeless and runaway youth facilities.

“It’s critical for policymakers, administrators and service providers as they do essential reform work to these systems to listen to the voices of TGNC youth to ensure their safety and well-being. TGNC youth face unique challenges when they come into contact with out-of-home care systems because most placements and facilities are sex-specific and too often don’t affirm their identities,” said Currey Cook, Lambda Legal’s Director of the Youth in Out-of-Home Care Project and co-author of the report.

New York and California are the only states to have comprehensive protections in place to protect LGBQ and TGNC youth across all of their out-of-home care systems. In contrast, Alaska and North Carolina provide no explicit protections for LGBQ or TGNC youth in any of their out-of-home care systems.

“Too often, out-of-home systems of care that are supposed to protect transgender and gender expansive children and youth in their care end up replicating the same harmful discrimination or abuse that these young people experienced outside of these systems,” said Bill Bettencourt, director of CSSP’s getR.E.A.L (Recognize, Engage, Affirm, Love) Initiative. “Policy and practice reform that emphasize healthy sexual orientation and gender identity development is needed to ensure that all young people are supported and affirmed throughout their involvement with out-of-home systems.”

The report ends with recommendations for eliminating barriers to affirming treatment for TGNC youth, including:

  • States must adopt comprehensive and explicit statutory, regulatory, and policy protections for TGNC youth, such as defining sex (or gender) as inclusive of gender identity; requiring placement in accordance with gender identity; eliminating sex (or gender) from regulations regarding clothing, grooming, and expression; among others.
  • Agencies and providers must require affirming placement and classification procedures; promote healthy gender identity development and expression; mandate affirming gender-responsive programming and activities while in care; and provide clear and ongoing training and competency requirements for staff.
  • Advocates and administrators must utilize existing protections to ensure that children and youth are treated fairly, while proactively working to develop law and policies so protection is explicit and complete.
  • TGNC youth must be engaged to ensure that their voices are part of policy development and so their experiences can serve as examples to guide life-changing system improvements.

Read the full findings from the Safe Havens report here. To learn more about Lambda Legal’s Youth in Out-of-Home Care project visit here.

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Lambda Legal is the nation’s oldest and largest legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and public policy work. Lambda Legal’s Youth in Out-of Home Care Project raises awareness and advances reform on behalf of LGBTQ youth in child welfare, juvenile justice and homeless systems of care. The project aims to increase the will and capacity of youth-serving organizations to prepare and support LGBTQ youth as they transition from adolescence to independence.

Children’s Rights: Every day, children are harmed by America’s broken child welfare, juvenile justice, education, and healthcare systems. Through strategic advocacy and legal action, Children’s Rights holds governments accountable for keeping kids safe and healthy. Since 1995, the non-profit has secured court orders to achieve critical reforms in more than a dozen child welfare systems throughout the country, and has helped hundreds of thousands of children. www.childrensrights.org

The Center for the Study of Social Policy (CSSP) is a national policy organization that works with policymakers and communities across the country to improve the lives of the most vulnerable children and families. CSSP’s getR.E.A.L (Recognize. Engage. Affirm. Love) initiative is designed to help transform child welfare policy and practice to promote the healthy sexual and identity development of all children and youth.