PSCI 485 Final Paper

Stephanie Blank
PSCI 485: Inequality in American Politics
Final Paper
1
“The Effects of Transgender Discrimination in the Juvenile System”
In his State of the Union address in 2015, President Obama became the first
President to mention transgender people in his speech: “That’s why we defend free
speech and advocate for political prisoners, and condemn the persecution of women, or
religious minorities, or people who are lesbian, gay, bisexual, or transgender.” (Obama,
2015)
This statement marks an advance in the understanding of the issues that beset
the transgender population. Although "transgender" is not a new term, nor are
transgender people new phenomena, transgender people, especiallytransgender youth,
are greatly misunderstood. Transgender is the "T" in the LGBT community. They are
typically characterized by their gender expression, which is different than what they
were assigned at birth. Transgender is not limited to only people assigned one gender
and identifying as another. Some are born with genetic abnormalities that make
identifying gender difficult, if not impossible, until puberty. LGBT1 people face a
1
In many sources used for research, transgender youth was grouped with LGBT
by the authors, and not always as a separate entity. As a result, the terms are used
interchangeably by the authors, and, at times, in this research paper.

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multitude of hurdles in our society due to bigotry and ignorance. These hurdles are
compounded when faced by youth that have no better understanding of their situation
than their families or communities surrounding them.
Because they are more likely to experience personal life factors that increase a
likelihood of offending, such as family conflict and homelessness, transgender youth
are more likely than the general youth population to end up in the juvenile justice
system. Transgender youth experience multiple facets of discrimination within the
juvenile justice system, from adults in the courtroom and in detention centers, as well as
from their peers. The mislabeling, misunderstanding, overlooking, and ignoring of
transgender youth illustrate the discrimination against these youth. This leads to
incarceration that is ultimately unproductive, because the discrimination prevents the
youth from receiving adequate treatment, may result in insufficient sentencing,
increases their recidivism rate, and does not put them back into society any safer than
they were before. It is important to understand the effects of transgender
discrimination, where and how it occurs, and what can be done to eliminate
discrimination and create a safer, more productive environment for transgender
juvenile delinquents, as well as their peers. Understanding the reasons why so many
transgender youth come to the juvenile justice system and the effects they experience of
all aspects of discrimination while incarcerated is necessary in order to reduce

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Final Paper
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recidivism rates and the disproportionate impact of the current system among this
already susceptible population.
Transgender youth, and youth in general, are likely to encounter the juvenile
justice system. “When LGBT youth seek assistance, they frequently encounter adults
who ignore them or even blame them for the abuse they are experiencing. In response,
many LGBT youth resort to living on the streets.” (Estrada and Marksamer, 2006b, 4)
According to Katayoon (2009, 3), homelessness is the greatest predictor of involvement
with the juvenile justice system, for gay and transgender youth. Another study of LGBT
juvenile delinquency found that gay and transgender youth in the juvenile justice
system are twice as likely to have experienced family conflict, child abuse, and
homelessness as youth. (Irvine, 2010)
Because transgender youth are more likely to experience homelessness as a result
of being more likely to experience family conflict or rejection, they are brought into the
juvenile justice system at a disproportionate rate as compared to the overall youth
population. Gay and transgender youth are twice as likely to face family rejection than
their heteronormative counterparts (Hunt and Moodie-Mills, 2012, 2), and thus are
twice as likely to find themselves homeless. While many gay and transgender youth
leave their homes on their own accord to escape abuse, more often their families push
them out of the home and into the juvenile justice system. Prosecutors often file charges
against these youth for being “ungovernable,” or beyond the control of their parents or

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Final Paper
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guardians. (Stanley and Smith, 2011, 79) This may be the result of parent’s objections or
biases toward the youth’s sexual orientation or gender expression. This effectively
criminalizes gay and transgender youth for their identity rather than actual criminal
behavior.
Conscious and unconscious biases of adults in authoritative positions, and the
ways in which they shape the actions of such adults, plague the treatment of
transgender youth in the justice system, not only in court but also in the treatment
facility. The youth are often blamed for the attention they receive as a result of being
“different,” or going against perceived conventional gender identity and expression,
also known as gender norms. Transgender youth face invisibility through the eyes of
the authoritative adults who surround them because their gender expression is
perceived to be a cry for attention, or a phase, not to be taken seriously. Through this
perspective, the mistreatment the transgender youth receive at the hands of peers is
their own fault.
These biases, acting either alone or together, lead to failures of legal
representation. These include failure to provide appropriate treatment or rehabilitation
plans, lack of access to counsel and the courts, lack of competence to assist and treat
transgender youth, lack of respect for gender identity or expression, and lack of safety
in juvenile correctional facilities. Ultimately, these juvenile courts fail to uphold and
protect the rights of transgender youth.

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Final Paper
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In court and in a juvenile correctional facility, adults are there to argue for the
youth’s rights, to monitor their actions and progress, and to represent the people
against whom the youth has committed a crime. Not only do these adults have their
own conscious or unconscious biases about transgender people, but also so do the
teachers and guards that work within the juvenile detention center. This can be due to
societal norms, unfounded beliefs, irrationality, bigotry, or contempt, all of which the
adult may or may not be aware of. Their own biases against transgender youth hinder
how much they can actually rehabilitate the youth.
While state juvenile justice systems usually function similarly to adult criminal
justice systems and have similar aims, such as punishing poor behavior and
rehabilitating an individual, the consequences of that behavior may be different based
on a jurisdiction’s system-wide goals. In recent years, states have implemented
sentencing guidelines designed to address the conflicting objectives of the juvenile
justice system, weighing retribution and punishment with deterrence and rehabilitation.
(Katz, 2014, 4)
Estrada and Marksamer (2006b) found that rejection, harassment, and
discrimination from caretakers and professionals in juvenile justice facilities leave
transgender youth essentially invisible. Often, these youth have been socialized to hide
their identities. Many child welfare and juvenile justice professionals simply believe
that transgender youth do not exist; that is, such professionals may think that
transgender youth are going through a dismissible phase, or that they are crying out for
attention, instead of help. Estrada and Marksamer go as far as to recommend that, in

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order to make progress in the treatment of LGBT youth, “staff cannot ignore a
substantial risk of harm to a particular youth, 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.” (Estrada and Marksamer, 2006b, 2) Furthermore, the notion of
keeping youth in extended isolation is a violation of the youth’s constitutional rights
and should not be used. Squatriglia addresses the notion of extended isolation and the
stigmas that act as a catalyst for isolation in her “Guidelines for Youth in the Juvenile
Justice System”: “Facilities should not condone ‘administrative isolation,’ the practice of
isolating LGBT youth either for their own protection or because of an unfounded fear
that they will ‘prey’ on other youth. There should be parity in accommodations. If
straight youth have roommates, LGBT youth should not be prohibited from having
roommates.” (Squatriglia, 2008) The underlying stigma that LGBT youth are predatory
or a problem (i.e. a target for bullying) has led to the authoritative approval of extended
isolation, which effectively weakens the strength of the rehabilitative process for the
youth. In 2015, President Obama requested for the Attorney General to review “the
overuse of solitary confinement across American prisons.” (Department of Justice, 2016)
A subsequent report was presented and its policies were all adopted in 2016, effectively
ending solitary confinement for juveniles in federal prisons. (Department of Justice,
2016)

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Marksamer’s “And By the Way, Did You Know He Thinks He’s a Girl?” also
provides support for the notion that discrimination and partialities serve as a catalyst
for poor treatment:
Transgender youth often do not receive effective representation because many
attorneys lack an understanding of gender and sexuality or hold a bias against gender
difference. [...] Without effective representation, transgender youth are pulled deeper
into the juvenile justice system. Only when defense attorneys understand the varied
backgrounds of their clients, insist on the court system’s respect of these backgrounds,
and expose the biases within the system can transgender youth have the opportunity to
be heard in court. (Marksamer, 2008, 78)
The discrimination toward transgender youth is not always outward and
apparent. An attorney’s failure to grasp the transgender youth’s background can
prevent sufficient defense in court. The attorney could not adequately defend the rights
of the juvenile that they do not understand. This is particularly significant to the
treatment the youth will receive because it directly affects the resolution that the court
will decide upon. The consequences that result for transgender youth after court
resolution have increased. Punishments may now include sex offender registration,
preclusion from public housing, limited educational and/or employment opportunities,
and ineligibility for student loans or military service. (Marksamer, 2008, 76). When the
transgender juvenile is not properly represented and defended in court, their
sentencing may not be adequate for their needs. Unlike the adult criminal court,
juvenile court disposition decisions are at the discretion of the court, rather than having
mandatory or minimum sentencing.

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Final Paper
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Once in treatment, the transgender youth may face challenges from the facility
staff who are charged with protecting the youth. Harassment and mistreatment may
also occur from their peers.
Once LGBT youth enter the juvenile justice system they often face further
rejection, harassment, and abuse by the very officials charged with their care. There is
often a lack of sensitivity on the part of the adults responsible for their care. When
LGBT youth seek protection from harassment in juvenile justice facilities they are often
blamed for bringing the abuse on themselves. They are told to "act normal" and
conform to "acceptable" expressions of sexual orientation and gender expression. LGBT
youth enter the juvenile justice system for many reasons that are directly related to their
sexual orientation and/or gender identity. (Squatriglia, 2008)
As discussed earlier, Jody Marksamer’s piece about Destiny shows the
discrimination that just one transgender youth faced while in the juvenile justice
system. Destiny had been living as a girl for the past 3 years, and her community and
family happily recognized her gender identity. Starting at the age of 12, Destiny was in
and out of court over a 4-year span for various property offenses. Marksamer writes
that it is common for transgender youth to commit crimes that have some connection to
their transgender identity. (Marksamer, 2008, 77) Destiny was arrested for shoplifting
women’s clothing and shoes, stealing women’s jewelry from a neighbor after breaking
and entering into their house, fighting at school, and once for stealing a car.
After waiting 4 months in the county facility for placement, she was sent to T-
Max, a facility much like an adult prison that is typically reserved for male youth with
long-standing histories of violent offenses. The court’s probation staff and mental health

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Final Paper
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evaluator deemed Destiny to be low risk and recommended an unlocked, or low
security, facility. While the evaluator even went as far as to recommend specific group
homes that he thought would be able to cater to Destiny’s sensitive needs, she
interviewed with three different programs and was declined admission to all of them
because she was transgender.
Destiny’s T-Max sentence alone violated her rights. According to the Juvenile
Defender Delinquency Notebook (2006, 7), an advocacy and training guide, “Juvenile
dispositions are expected to meet the treatment needs of individual children in the least
restrictive environment possible, or, at least, to balance treatment considerations with
community safety concerns.” While in treatment, Destiny was sexually assaulted and
physically threatened by other inmates, and harassed and mistreated by staff. Her
counselors punished her for expressing her female gender identity in any way.
Destiny’s defense attorney told the judge, in regards to Destiny’s request to be moved
out of T-Max for concerns of continued abuse,
I think [the report Marksamer and co-counsel filed with the court on Destiny’s
behalf] overblows a lot of the incidents. I went through it with [Destiny] and while
conceding there had been several incidences [sic], I think there has been a lot of good
progress work done at [T-Max] … I think this young man has a lot of things—and I use
the word man—to think about so I would just ask the court to be cautious in any
decision that it makes. (Marksamer, 2008, 77)
Destiny’s case is the perfect example of what happens when there is not only
discrimination in the courtroom, but also when it is widespread and unchecked within
the detention facility. Instead of spending time getting help in regard to the crimes she

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committed, the justice system spent its time working on a perceived “problem” which
was only a problem to the authoritative adults. Destiny expressed no request for help
with a gender identity crisis or confusion. When she expressed experiencing abuse
within the system, adults who essentially viewed Destiny as a misguided young man,
going through a “phase,” to be dismissed, overlooked her cries for help. Her attorney, a
public defender, did not talk to her let alone visit her once while she was in T-Max.
Destiny could not have received treatment for the sexual abuse from peers when she
could not be taken seriously in her own gender identity.
The discrimination within the staff hindered Destiny from getting help with
abuse from her peers. Katz writes that, “focusing more on punishment than treatment
in these cases [of non-violent juvenile delinquents] may render a juvenile offender more
scarred than when he or she entered the system, which is a disservice to that individual
and to society as a whole.” (Katz, 2014, 5) This was certainly true for Destiny: a
punishing and abusive experience, in her case heavily based on the discrimination from
staff and peers, overrides the progress that is to be made during treatment.
When Destiny first arrived at T-Max, she was originally going to be placed into
the sex offender unit, but was allowed into the general population of T-Max after an
evaluation. The court-appointed medical treatment that she received while in juvenile
detention evaluated her for any risk of sexually offending anyone, even though she was
not detained for a sexual crime. The T-Max psychiatrist described that Destiny, “can be

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Final Paper
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expected to flaunt his gender issues as a way of expressing his anger and disdain over
being rejected as a female.” (Marksamer, 2008, 81) While detained for 4 years, Destiny
was never evaluated for any medical needs related to her gender identity and
expression, such as hormone therapy or supportive counseling. Furthermore, she was
also never evaluated for the risk of actually becoming the victim of a sexual offense
while in juvenile detention. As Hunt and Moodie-Mills (2012, 1) write, “the system
often does more harm by unfairly criminalizing [LGBT] youth - imposing harsh school
sanctions, labeling them as sex offenders, or detaining them for minor offences - in
addition to subjecting them to discriminatory and harmful treatment that deprives them
of their basic civil rights.”
“Compared with students who are not harassed, students who face harassment
due to their sexual orientation or gender identity are more than three times as likely to
carry a weapon to school, more than twice as likely to use methamphetamine and
inhalants, and have higher rates of alcohol and marijuana abuse.” (Marksamer, 2008, 74)
The treatment that transgender youth receive produces much different results than that
of heterosexual, cisgender youth. Cisgender refers to one whose self-identity conforms
to the gender that they were assigned at birth. According to Hunt and Moodie-Mills
(2012, 1), 300,000 LGBT youth are arrested and/or detained each year in the United
States. Although LGBT youth make up only 5-7% of the nation’s overall youth
population, they account for 13-15% of youth currently incarcerated. A large factor seen

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in transgender overrepresentation in the juvenile justice system is that they have higher
chances of reoffending as a result of the lack of understanding combined with poor care
and treatment. Whereas the heterosexual, cisgender offender has a higher chance of
receiving the help, punishment, and rehabilitation they need, the misunderstood LGBT
youth must overcome many hurdles on their path to success. Success in the juvenile
justice system is demonstrated by a low likelihood of the inmate reoffending, and no
longer being a threat to the wellbeing of the public. Transgender youth are already
statistically more likely to offend and reoffend because of many outside factors, such as
family conflict, child abuse, and homelessness. (Hunt and Moodie-Mills, 2012, 2)
The National Council of Juvenile and Family Court Judges (NCJFCJ), in its
Juvenile Delinquency Guidelines, states that “reoffending rates and commitment or
incarceration rates of youth released from state correctional care are difficult to find, but
those that do exist raise questions about the effectiveness of the system.” (NCJFCJ, 2005,
39) The effects of transgender discrimination can be seen in the recidivism rates of
transgender youth. In one example, studies show that each year, more than 2,000 youth
offenders are released from the California Youth Authority, now called the Division of
Juvenile Justice. It provides treatment for California’s most serious youth offenders. The
recidivism rate of these youth offenders who are released is 91%. (Byrnes et al, 2002, iii)
The NCJFCJ’s data suggests that there is already a noteworthy trend of youth
reoffending after they are released from their correctional facility. If there is already a

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trend for the overall youth in facilities to reoffend, the high instances of abuse and
harassment that transgender youth face can only raise their already statistically high
chance of reoffending. Marksamer (2008, 84) writes,
Although transgender youth are often treated differently from other youth in
these systems because of bias and discrimination, for Destiny, this bias only accounted
for a portion of the problems she encountered in the juvenile court. Many of the
problems that Destiny experienced in the juvenile justice system (e.g., poor
representation, lack of access to courts) were not a consequence of her transgender
identity but resulted from the poor general conditions for all youth in the system or
were due to racism or the criminalization of youth.
Destiny’s time spent in the facility did not decrease her chances of reoffending,
which is one of the primary goals of juvenile justice. (Katayoon, 2009, 107) She was
released from T-Max after serving a sentence that was a little over a year. In line with
the recidivism rates presented earlier, she violated her probation shortly after being
released, was arrested, and brought back to court. Due to her history in the juvenile
justice system, the juvenile court had the option to maintain its jurisdiction over
Destiny’s case until she turned 20. At the time of reoffending after her release from T-
Max, she was 17. While the court could have taken an opportunity to see that Destiny
needed more help to prevent reoffending, especially after the abuse she experienced for
a year at T-Max, the court dismissed her case. This was good for Destiny since it meant
she no longer had to have anything to do with T-Max, but also detrimental, because this
meant she would be sent to the adult criminal system if arrested again. Adult criminal
court, according to Marksamer, is essentially unable to respond to individual needs.

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That is, the adult justice system is not any better at meeting the needs of its general
population, much less those a transgendered individual.
Some solutions exist when it comes to clearing a path to proper treatment and
understanding of transgender youth. For instance, in Destiny’s case, there was no
medical specialist to provide her with the specific care she needed related to her gender
identity and expression. Having medical treatment that specializes in gender therapy,
such as supportive counseling, would greatly benefit the juvenile justice system because
it would provide the care needed for transgender youth, and it would also allow other
juveniles the chance to receive therapy for any gender issues they may be having.
Access to onsite care and information creates an important opportunity for a safer
environment for youth in detention merely through education. More protection is
another productive solution for youth like Destiny who were abused within the juvenile
detention facility.
Destiny was largely unaware of her legal rights while she was in T-Max. She
informed Marksamer that although she had legal access to the courts through her
defense attorney, she never contacted her attorney. This is because she did not know
that she was allowed to call him, and figured that he would not do anything to help her
even if she could get contact him. The solution here is educating youth of their rights.
Youth may find themselves better educated and aware of their rights if their attorneys,
the presiding judge, or the staff within a detention facility gives them this information.

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If these authorities were required to inform youth of their rights, it would subsequently
force the adults to also be informed of the rights, and to be able to teach legal concepts
to the youth. The more educated youth would have the ability to gain more control and
understanding of their case, which would help to eliminate areas once blurred by a lack
of information and discrimination.
Finally, another constructive solution is mandatory and subsequent evaluation
and retraining on LGBT issues for adults who work within the juvenile justice system to
allow for more sensitivity training. The outcomes from this would be youth sexuality
and gender expression being taken more seriously; more understanding, which would
heavily benefit and change the experience for the youth in court and in the facility; and
the educated adults would be able to provide LGBT youth with the rehabilitation and
punishment that they require to be deterred from reoffending.
The abuse is especially apparent for this specific population because
authoritative adults in court, as well as in the facility with peers, do not know how to
work with LGBT youth, and, due to overrepresentation, the abuse occurs frequently.
The literature examined in this paper suggests a vicious cycle: due to discrimination,
they are overrepresented in the juvenile justice system. Because they are
overrepresented, largely misunderstood, and statistically more likely to reoffend as a
result, they are discriminated against. Transgender youth are more likely than
cisgender youth to enter the juvenile justice system. When they fail to receive proper

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representation in court and understanding of issues while in treatment, they experience
the effects of discrimination. These effects ultimately negate the efficacy of incarceration
time for transgender youth. The statistics showing the likelihood for LGBT youth to
reoffend support the notion that most LGBT youth are no better when they exit the
justice system than when they entered it. It is for this reason that discrimination within
the juvenile justice system is important to expose and understand, as well as to
eradicate.

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Bibliography
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