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Article Excerpt
I. INTRODUCTION
In our nation's cities, tens of thousands of teenagers live on the streets. (1) In major urban centers like New York, San Francisco, and Chicago, up to half of all of these teens may self-identify as lesbian, gay, bisexual, or transgender (LGBT). (2) Nationally, between eleven and forty percent of homeless youth are thought to be LGBT. (3) Like their non-LGBT counterparts in the homeless population, most homeless LGBT youth have been kicked out of or have run away from home, frequently cycling through the child welfare and foster care systems. (4) Many have been abused or harassed by parents, family members, child welfare workers and foster parents, and even classmates and teachers. (5)
Consequently, for many homeless LGBT youth, the only "safe" space they can find is on the streets. (6) Not surprisingly, homelessness exposes LGBT youth to a host of troubling problems, including increased risk of becoming victims of crime and assault, (7) as well as a greater likelihood of committing crimes themselves--like theft, prostitution, and drug dealing--in order to survive. (8) They also face police harassment for minor infractions like loitering, public drinking, or subway turnstile jumping--or for nothing at all. (9) Committing such offenses may usher them back into the same system that failed them the first time. (10) LGBT youth offenders' experiences in the juvenile justice system--when they are arrested, tried in juvenile court, sentenced, and ultimately incarcerated--are plagued by intentional and unintentional discrimination because of their real or perceived sexual orientation. (11)
While at-risk and disenfranchised LGBT youth continue to face severe discrimination--in their homes, schools, child welfare placements, and the juvenile justice system--the gay and lesbian community as a whole achieved a significant legal advance in its quest for equality in the United States Supreme Court's 2003 decision in Lawrence v. Texas, (12) which invalidated states' statutory prohibitions of homosexual sodomy. (13) Generally considered the most gay-friendly decision ever issued by the Court, many commentators view Lawrence as a tall stepping-stone toward increased legal and social equality for sexual minorities. (14) The immediate effect of Lawrence was to decriminalize sexual conduct between individuals of the same sex--itself a historic, landmark advance for gays and lesbians. By finding that sodomy statutes violated the Due Process Clause of the Fourteenth Amendment, (15) however, the Court acknowledged that its decision extended beyond only legalizing gay sex. (16) The decision also lifted a major legal stigma associated with being homosexual. (17) As long as sodomy statutes remained on the books, gay and lesbian adults bore the presumption of criminality because of the illegality of the sexual acts associated with their sexual identity. (18) Laurence Tribe has noted that Lawrence lifted this stigma of criminalization from all gays and lesbians, writing:
Lawrence quickly becomes a story about how the very fact of criminalization, even unaccompanied by any appreciable number of prosecutions, can cast already misunderstood or despised individuals into grossly stereotyped roles.... The outlawed acts ... come to represent human identities, and this reductionist conflation of ostracized identity with outlawed act in turn reinforces the vicious cycle of distancing and stigma that preserves the equilibrium of oppression.... (19)
This presumption remained alive and well until June 2003, when with the abolition of sodomy statutes, gays and lesbians were able to shed--as individuals and as a community--this subjugated outlaw status. (20) For the first time, being gay was not a criminal act.
In decriminalizing gay and lesbian adults' sexual behavior, (21) the Supreme Court effectively legitimized the status of being gay. The sex act had been used for so long to define gay people solely by the "criminal" sex in which they were likely to engage. (22) Through Lawrence, the gay community was able to toss off that reductionist shackle--and to define itself more wholly in terms of the full range of emotions, attractions, and, indeed, sexual preferences, that constitute the core human identity of a gay or lesbian person. (23)
Unfortunately, for many LGBT young people, their sexual identity still bears the stigma of criminality. (24) Correctly interpreted, Lawrence should, however, offer relief both to adult gays and lesbians and to the most marginalized, invisible, and ill-treated subpopulation of the LGBT community--its homeless and incarcerated youth. Lawrence bolsters the Court's previous holding in Romer v. Evans (25) that a more searching form of rational basis review is required when addressing discriminatory policies targeted against LGBT people as a group. (26) Since Lawrence, however, some courts have misunderstood and wrongly applied one seven-word phrase in Justice Anthony Kennedy's majority opinion, "[t]he present case does not involve minors," (27) which this comment will refer to as "the minor exception." This phrase has been incorrectly interpreted to limit the reach of Lawrence by excluding LGBT youth from the decision's scope, since its proper application is to preclude adult sex offenders from seeking a liberty interest to engage in sexual conduct with children--an issue unrelated to sexual orientation. (28) Further, although the Court in Lawrence recognized that gays and lesbians are a distinct class of people who face societal discrimination, it failed to take the next step and conclusively hold that sexual orientation is a suspect classification for purposes of constitutional review. (29) Under this narrow view, by just decriminalizing the sex act, but not formally extending protections on the basis of sexual identity, it could be argued that youth (and others) who are not sexually active may be found to fall outside the scope of the holding.
The central questions posed by this comment are (1) how Lawrence affected the status of sexual minority youth as a class, if at all; and (2) whether the decision will be useful in seeking expanded legal protections for at-risk LGBT youth. Since Lawrence, a judicial and public backlash against LGBT rights has emerged. (30) In 2004, voters in thirteen states approved ballot measures creating state constitutional amendments banning same-sex marriage. (31) Several state and federal courts have issued decisions narrowly construing Lawrence and attempting to restrict its scope, (32) raising questions of how other courts will apply Lawrence to cases involving LGBT youth. This comment will argue that Lawrence decriminalized not just consensual sodomy between homosexual adults, but also the very status of being gay or lesbian, and as such, should also be interpreted to include gay youth in its protections.
Part II of this paper will describe the discrimination faced by LGBT young people on the basis of their sexual identity, including special risks of homelessness and exposure to the juvenile justice system; review empirical data on children's sexual identity formation and contrast it with stereotypes still used to abridge gay rights; and discuss courts' conceptions of the existence and rights of LGBT youth prior to Lawrence.
Part III will argue that a correct reading of Lawrence should render any discrimination against youth on the basis of sexual orientation constitutionally suspect. Lawrence recognized that gays and lesbians are a distinct class of citizens, whose liberty interests include the rights to realize their human and sexual identity free from state-sanctioned interference based on the majority's animus or ignorance. While it stops short of labeling LGBT people a protected class in constitutional terms, the decision implicitly recognizes that gay people are something more than the sexual acts in which they engage. This comment will analyze two 2004 decisions, Lotion v. Secretary of Department of Children & Family Services (33) in the Eleventh Circuit and State v. Limon (34) from the Kansas Court of Appeals, both of which incorrectly construed Lawrence to categorically exclude LGBT youth from any legal protections, relying on grounds Lawrence itself made irrational. It will argue that the "minor exception" in the decision's caveat paragraph cannot be read to justify discriminatory policies against LGBT adults and minors.
This comment will conclude that Lawrence should be used by advocates for LGBT youth who are homeless, at risk of entering the juvenile justice system, or already confined in detention or prison facilities. Specifically, policies, practices, and conditions of confinement that treat LGBT youth differently and detrimentally do not, in light of Lawrence, bear any rational relation to legitimate state interests.
II. BACKGROUND
The United States Supreme Court declared in Lawrence v. Texas (35) that state sodomy statutes violated gay and lesbian individuals' liberty interests under the Due Process Clause of the Fourteenth Amendment. (36) In Lawrence, the Court overturned its 1986 decision in Bowers v. Hardwick, (37) in which the Court found such statutes constitutionally permissible and rejected the gay plaintiffs' equal protection claims as "facetious." (38) In reversing Bowers, the Court not only legalized same-sex sexual activity, but also removed one of the most significant legally-sanctioned justifications for discrimination against LGBT people as a class. (39) The Lawrence decision, which implicitly recognized a growing social acceptance and understanding of gays and lesbians, (40) was issued during a historic moment when LGBT youth were also starting to become increasingly visible in communities across the country. (41)
This section will first review the research on youth sexuality and the cultural shifts which have led to LGBT youth acknowledging their homosexuality or gender identity earlier than in generations past. Next, it will discuss the still-pervasive discrimination against youth who are gay or perceived to be gay, despite these positive cultural shifts. Third, it will describe how this discrimination puts significant numbers of LGBT youth at risk of entering the child welfare system, becoming homeless, engaging in delinquent behavior, and entering the juvenile justice system. Finally, it will analyze the pre-Lawrence legal context for LGBT youths' rights, and discuss how courts have traditionally dealt with the existence of LGBT youth and the problems faced by this marginalized subpopulation of the LGBT population. Although Lawrence did not bear directly on LGBT youth, (42) the ways in which it has been interpreted in subsequent lower court decisions have directly impacted LGBT minors. The long-term legacy of Lawrence will be measured, in part, by whether it extends legal protections against discrimination to homosexual and gender non-conforming minors.
A. LGBT YOUTH: AN INVISIBLE MINORITY WITHIN A MINORITY
1. Openly LGBT Young People Are Becoming Increasingly Visible in Society
Lesbian, gay, bisexual, and transgender adolescents have long suffered from legal and social invisibility. (43) First, many LGBT teenagers--like many LGBT adults--are not "obviously" gay, and parents, peers, teachers, society, and courts tend to presume their heterosexuality. (44) Indeed, society's tendency to ignore or downplay juvenile sexuality in general leads many to have trouble believing children can be gay. (45) Second, many LGBT teenagers have not come out to themselves and are still struggling with or even just beginning to recognize their own sexual identity. (46) Unlike children in every other minority group, most gay teens' families are not also gay. (47) Whereas other minority children enjoy support in confronting discrimination from their parents and communities--who share their experiences--most LGBT adolescents lack a comparable built-in support network. (48) Consequently, LGBT youth frequently confront these issues alone or, worse, lose family support when they come out as LGBT. (49) Third, while some gay and lesbian teenagers are sexually active, for most, attraction to members of the same sex and homosexual identity far predate any sexual encounters. (50) Finally, LGBT youth have long been ignored by LGBT adults, in part due to fears of gay adults that they will be accused of trying to "convert" children to homosexuality. (51)
(a) Presumption of Youth Heterosexuality Renders "Gay Youth" an Impossibility
Society has been reluctant to recognize that adolescents can be gay. (52) Ruskola identified "a central cultural fantasy that gay and lesbian youth do not exist," which results in "the discursive and material violence that gay kids confront in their lives." (53) Under this presumption, "an authentically gay adolescent is simply a contradiction in terms" because "adolescents are denied the ability to define themselves as gay, and a non-conforming child is, by definition, not gay but 'confused."' (54) While such experimentation and confusion is a part of many LGBT youths' adolescent experiences, (55) such presumptions effectively rule out the possibility of being an "LGBT youth." By ignoring the existence of gay adolescents, society and courts are less able to ensure those youth equality, respect, freedom from harassment, and freedom from institutionalized discrimination that many of them face because of their sexual identity. Put one way, "unless one is a walking embodiment of the queer stereotype, the presumption of heterosexuality is all but irrebuttable." (56)
(b) Many Adolescents Do Not Come Out or Self-Identify Until Later
Many gay and lesbian teenagers---or those who will ultimately self-identify as such--tend to get through adolescence without publicly adopting the label of "gay" or "lesbian." (57) On one hand, the formation and realization of sexual identity is a long-term process that, for many individuals, is only just beginning during adolescence. (58) For this group, a definitive label may make little sense. On the other hand, for the many adolescents who do recognize their same-sex attractions or transgender identity, a range of factors may prevent them from self-identifying as LGBT. These factors include a fear of stigmatization associated with being gay, a lack of support structures in addressing the social and psychological challenges involved with coming out, and uncertainty about what degree of weight to attach to internal emotional attractions and sexual feelings. (59) All of these factors lead many LGBT teenagers to resist coming out to either themselves or others. These internalized struggles, compounded by actual or feared intolerance by family members, (60) peers, teachers, and others, are often linked to greater susceptibility to depression, behavioral problems, and emotional issues. (61)
With these factors in mind, it is little surprise that many adolescents do not outwardly label themselves as homosexual. Although the contours of the LGBT youth population are impossible to rigidly define for all of these reasons, the existence of sexual minority youth cannot be denied. For juveniles who are either openly LGBT or perceived to be so because of gender non-conforming behavior, discrimination based on their sexual identity is as real as it is for gay adults--and in many instances, even more severe and pervasive.
(c) Sexual Identity Precedes Sexual Conduct
Our social and legal traditions have long defined homosexuality by same-sex sexual acts, rather than as a core, immutable emotional identity. The fact that LGBT individuals, like their heterosexual counterparts, first recognize sexual and emotional attractions to others at a young age (62) exposes the flaw in only equating homosexuality with same-sex sexual conduct. Due in part to the long-standing association between same-sex sodomy and the identity of being gay or lesbian, a sexual identity apart from sexual acts may still appear to be a paradox to many. (63) Moreover, because society tends to ignore the reality that teenagers--gay and straight alike--are having sex, (64) it systematically ignores the fact that some teenagers are sexually active with individuals of the same sex. (65) Finally, even when LGBT teenagers' sexual activity is acknowledged, it is often dismissed as "experimentation" or "a phase" that will pass. (66) Underlying these common sentiments is the false presumption that a conclusive sexual identity cannot be formed until adulthood. (67) As this comment will address later, the corresponding desire to "protect" children from becoming homosexual has been cited by courts as a legitimate state interest; (68) faced with empirical data that contradicts this presumption, reliance on such stereotypes arguably amounts to just one form of anti-gay prejudice.
(d) Isolation from Mainstream LGBT Community
Not only are LGBT youths' struggles with their sexual identity development often invisible to their families and communities, one community uniquely able to provide support mechanisms to struggling adolescents--LGBT adults--has long kept a distance from minors. (69) Since society has historically conflated homosexuality with sexual perversity, (70) ignorance of gay people's lives fueled widespread, irrational fears that homosexuals had a propensity to molest children and to actively recruit juveniles to become gay. (71) One commentator described the pervasiveness of this invalid stereotype: "[T]he mythical specter of 'homosexual recruitment' accompanies every conversation about gay and lesbian youth.... The myth grows out of the first axiom of heterosexual logic: homosexuals must resort to recruitment [since they] cannot have children and [need] to transmit the homosexual 'culture' ... by converting heterosexual(s') children...." (72) Such fallacies have caused many gay adults to keep their distance from children, lest they be branded sexual predators. (73) More harmful still, courts have cited a desire to "protect" children from homosexuality as a legitimate justification for discriminating against LGBT people, particularly in the parenting context. (74)
2. LGBT and Gender Non-Conforming Minors Confront Severe Discrimination
By choice or from lack of full self-awareness, many LGBT adolescents are not open about their sexuality and "pass" as the societal default: heterosexual. By virtue of their heteronormative behavior, they are less likely to confront the discrimination faced by their openly LGBT and gender non-conforming peers. (75) The rules change for those teenagers who come out voluntarily, who are "outed" as gay, or who exhibit gender non-conforming behavior that, regardless of their actual sexuality, leads others to perceive them as gay. (76) These teens are more likely to have family problems, (77) be harassed at school, (78) and enter foster care or .the child welfare system. (79) Suicide attempt and success rates are disproportionately higher among LGBT kids. (80) Flowing from these problems, LGBT youth are disproportionately likely to experience periods of homelessness and, while homeless, to engage in delinquent activities that lead them to the juvenile justice system. (81) Those LGBT minors that enter public custody in group homes or juvenile detention centers continue to face discrimination, physical and sexual abuse, verbal harassment, and social isolation because of their real or perceived sexual orientation. (82)
(a) Problems at Home
LGBT youth often first confront discrimination in their homes. Half of all LGBT youth experience some form of parental rejection because of their sexual orientation. (83) Verbal abuse by parents is common. (84) Approximately one-third of LGBT youth were victims of physical violence by a family member after they came out or their sexual orientation was revealed. (85) Additionally, many LGBT teens are kicked out of their homes because of parental conflicts about their sexual identity. (86) Abuse rates against LGBT youth are highest for those that are also racial minorities. (87) Many LGBT minors in the child welfare system are victims of parental neglect or abuse. (88) Additionally, parental abuse is frequently linked to the high LGBT youth runaway rate. (89)
(b) Experiences at School
Abuse against LGBT youth is not confined to the home. Over two-thirds of all LGBT youth have been verbally or physically harassed on the basis of their sexual orientation; (90) additionally, nearly 90 percent have "sometimes or frequently hear[d] homophobic remarks" in school. (91) Marking improving societal attitudes toward gays and lesbians, including in the school context, many adolescents are now voluntarily coming out during high school. (92) Significant numbers of high school students self-identify as gay. (93) Nearly half of high schools students know a gay classmate, and two-thirds of today's high school students know someone who is gay. (94) Increasing numbers of LGBT teenagers are publicly open about their sexual orientation. (95) Nevertheless, they continue to face similar obstacles and challenges as those faced by their predecessors in years past: children "are often victims of the high visibility of, and widely divergent attitudes toward, gay issues." (96) Greater visibility brings both broader acceptance of homosexuality and an increased risk of discrimination:
While there are indications that greater societal tolerance and visibility of gay issues has resulted in children "coming out" at an earlier age, these children may be subjected to open hostility; hatred in arenas which ought to provide a safe and secure environment; and intolerance, often within their homes, schools, and communities. (97)
Gay teens' increasing outness makes it more difficult for their parents, classmates, teachers, and others to deny the existence or legitimacy of their sexual identity; as long as homophobia exists, however, many LGBT teens will also continue to confront discrimination in their daily lives.
3. At-Risk LGBT Youths'...
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