States are Failing Transgender Youth in Foster Care, but Promising Practice Models Exist

The last few years have seen a marked increase in mainstream media coverage of transgender Americans, including civil rights victories. Recent news stories about trans people, however, contrast starkly with forward progress – a continuing epidemic of violence against trans woman of color, abandonment of trans students by the Department of Education and a rash of anti-trans “bathroom bills” in state legislatures around the country, just to name a few. Ongoing violence and negativity requires us to ask whether reality is really improving for trans people.

One useful gauge to measure progress is how society treats some of its most vulnerable members – trans youth in foster care. This month – National Foster Care Month – offers an opportunity to take a hard look at how trans youth fare in our nation’s child welfare system, a system disproportionately comprised of youth from low-income families and youth of color. Over the past several months, Lambda Legal, along with our partners at Children’s Rights and the Center for the Study of Social Policy, worked with trans and gender expansive young people with prior or current experience in foster care and affirming service providers to prepare a first-of-its-kind report, Safe Havens: Closing the Gap Between Recommended Practice and Reality for Transgender and Gender-Expansive Youth in Out-of-Home Care.

Our analysis of law, policy and practice across the country shows that, overall, state foster care systems are failing trans and gender expansive youth. And yet, expansion of laws and policies providing explicit protection from discrimination, improvement in practice, recent legislative victories and, most importantly, activism by trans youth with experience in care, demonstrate that systems are improving and provide reason for optimism.

Trans youth are over-represented in foster care compared to their cisgender peers, representing around six percent of youth in care. This disparity, fueled in large part by family rejection, collides with a system full of sex-specific facilities and programs and a byzantine array of regulations governing a youth’s whole life – where they live, the clothes they wear and the doctors and therapists they see. Add societal stigma, prejudice and insufficient legal protection and training to the mix and trans youth are left with a dangerous and harmful reality while in care.

In contrast to this reality, Safe Havens emphasizes that federal law and policy and professional standards are clear:  trans and gender expansive youth, who may identify across the spectrum of sexual orientation, must be supported and affirmed and doing so is essential to their safety and well-being. Despite this clarity, just over half of states have explicit protection against gender identity- and sexual orientation-based discrimination in child-welfare specific statute, regulation or agency policy, and only a handful require training on meeting the needs of trans youth.

While the Constitution protects youths’ rights, explicit protection from discrimination in law and policy, and accompanying training, is essential to ensure youth know their rights and agencies and system professionals are clear regarding expectations. Lambda Legal’s interactive map, featured in the report, shows which state child welfare systems offer critical protections and which don’t and highlights states that have LGBTQ-specific policies. These detailed policies are particularly important for trans youth, because they provide much-needed, concrete guidance such as requiring workers to use the name and pronoun a youth uses, to allow youth to express themselves freely, and to ensure youth have access to qualified and affirming service providers. While only nine states have these policies, they provide a useful roadmap other states should follow.

Safe Havens also highlights an additional barrier to affirming trans youth in care – the prevalent use of the term sex (or gender) in regulations governing the care of youth. For example, many states specify that youth may not share a bedroom or facility with a youth of a different gender or that youth must have “gender appropriate” clothing. Our survey of statutes and regulations revealed that only five states define the term sex (or gender) at all, while all states use the term. Only three states, California, New York and Florida, are in line with professional standards and define sex (or gender) as inclusive of sexual identity. Tennessee defines sex as sex assigned at birth and Illinois defines sex as either being male or female, excluding non-binary people.

Notably, two trans youth who contributed to Safe Havens, Jennifer and Savannah, felt this lack of clarity around the definition of sex (or gender) first hand. Savannah’s caseworker banned her from using her clothing stipend to buy girls clothes because female clothes weren’t “gender appropriate” and Jennifer was required to share a room with a boy in a residential treatment facility. Despite these and other negative experiences, the youth who contributed to Safe Havens all experienced affirmation in some aspects of their care and it made a demonstrable difference. For Ashley, access to prescription hormones while in care enabled her to stop doing sex work to pay for street hormones. And her placement in a group home for girls in Atlanta, run by CHRIS 180, an affirming provider in Atlanta featured in the report, has provided her with affirmation and support and resulted in stability and academic and therapeutic progress.

While stories like Ashley’s are still disappointingly few, they do offer significant hope. Jurisdictions and providers who protect and support trans youth by living up to professional standards and meeting their legal obligations demonstrate that we can change the negative narrative and ensure trans youth have safe and healthy futures. Recent legal advances in states like California, Florida and Nevada show that reform that mirrors recommended practice is possible. Significantly, these steps also help foster environments that are not only affirming to trans youth, but to LGBT families, kin and foster and adoptive parents as well.

M. Currey Cook is Counsel and Youth in Out-of-Home Care Project Director at Lambda Legal.