Gault at 50: Ensuring Counsel for LGBTQ Youth in the Juvenile Justice System

This blog was co-authored by Christina J. Gilbert, Staff Attorney and Policy Counsel, National Juvenile Defender Center

In 1967, the United States Supreme Court held in In re Gault that children have a constitutional right to a lawyer in juvenile court. But, nearly 50 years after that landmark decision, too many children continue to face police interrogation, court proceedings, and confinement without the protection of an attorney. Not surprisingly, this reality leaves them vulnerable to incalculable harm.

As Pride Month celebrations kick off this June, the National Juvenile Defender Center and the Movement Advancement Project are collaborating to elevate the experiences of lesbian, gay, bisexual, transgender, queer and/or questioning (LGBTQ) youth in the juvenile justice system. Research shows that LGBTQ youth are funneled into juvenile court at rates far higher than their peers--and the disparity is even more staggering for youth of color, who make up 85 percent of LGBTQ youth housed in secure detention.

Advocates and legislators nationwide are making exceptional headway to improve juvenile court policies around LGBTQ youth and end disproportionate contact with law enforcement and court systems. One crisis, however, remains largely unaffected: children's access to counsel. In a juvenile justice system crippled by prejudice, a child's attorney is the last--and sometimes only--line of defense against unfair treatment and senseless punishment.

In 2010, the Office of Juvenile Justice and Delinquency Prevention found that only 42 percent of youth in custody reported having legal counsel. Often, children waive their right to counsel without fully understanding their rights or the possible long-term consequences of their court involvement. Some attorneys are simply overworked, underpaid, and lack adequate training--and for that, young people pay the price.

Access to counsel for children means more than representation in court. It means having an advocate who will value clients' stories, hear their concerns, and fight for fair and equitable outcomes throughout the entirety of the case. Juvenile defense attorneys are uniquely positioned to uphold young people's rights and bring to light abuse and mistreatment that youth might otherwise suffer in silence.

The attorney-client relationship is especially important for LGBTQ youth, who may be struggling with difficult and deeply personal situations at home, school, or in their communities. When attorneys fail to be sensitive and understanding allies for LGBTQ children, the client-attorney relationship erodes. Juvenile defenders must be trained to check their own biases, which could interrupt or guide their representation of LGBTQ youth. Not only is that an ethical violation, but it also diminishes the special role juvenile defenders can--and do--play as champions for children.

Specialized knowledge and skills for juvenile defense attorneys is critical to ensuring the best possible outcomes for LGBTQ youth who are court-involved.

Some LGBTQ youth may not be "out" to their families, and attorneys should be prepared to navigate fragile parent-child relationships. Judges in juvenile delinquency cases routinely look to a child's family support system and school environment to make a determination of whether or not to detain the child. When LGBTQ youth are disconnected from their families or neglect school because of bullying and harassment, a judge may be less inclined to allow them to return home--unless a juvenile defender offers an alternative remedy informed by the client's experiences.

In our system of "justice," LGBTQ youth are twice as likely to be locked up for nonviolent behavior like truancy, running away, and breaking curfew. It's not shocking, then, that LGBTQ youth account for as many as 40 percent of girls and 14 percent of boys in juvenile justice facilities.

Behind bars, the bullying, harassment, and violence continue. LGBTQ youth are at increased risk for verbal harassment and physical and sexual assault by their peers and facility staff. The Department of Justice found that youth who identify as non-heterosexual are 12 times more likely than heterosexual youth to be sexually assaulted by another youth. As front line advocates, juvenile defense attorneys are empowered to assure children's safety.

This Pride Month, while we honor the progress of the LGBTQ advocacy movement, we must also lift up the voices of LGBTQ youth too often stifled in our courtrooms and in our prisons. Our young people need protections, not punishment. With community and legislative support, juvenile defense attorneys can be that catalyst for change. State leaders should recognize the power of juvenile defenders, invest in their excellence, and ensure they're within the reach of every child.