Law Review Articles of Interest (* Indicates summary of the law review article is provided below)

*Jenny Casciano et al., Symposium Proceedings: Client-Centered Advocacy on Behalf of At-Risk LGBTQ Youth, 26 N.Y.U. Rev. L. & Soc. Change 221, 231 (2001)

*Melinda Coolidge, Eight Annual Review of Gender and Sexuality Law: Family Law Chapter: Adoption and Foster Care, 8 Geo. J. Gender & L. 583 (2007).

*Rudy Estrada and Jody Marksamer, Lesbian, Gay, Bisexual, and Transgender Young People in State Custody: Making the Child Welfare and Juvenile Justice Systems Safe for all Youth Through Litigation, Advocacy, and Education, 79 Temp. L. Rev. 415 (2006).

*Barbara Fedders, Coming Out for Kids: Recognizing, Respecting, and Representing LGBTQ Youth, 6 Nev. L.J. 774 (2006) (Discusses terminology related to sexual orientation and gender identity, the plight of LGBT youth in the criminal justice system and the foster care system, and provides recommendations for lawyers.)

*Miriam Aviva Friedland, Too Close to the Edge: Lesbian, Gay, Bisexual and Transgender Youth in the Child Welfare System, 3 Geo. J. Gender & L. 777 (2002).

* James W. Gilliam, Jr., Social Justice in the 21st Century: Towards Providing a Welcome Home for All: Enacting a New Approach to Address the Longstanding Problems Lesbian, Gay, Bisexual, and Transgender Youth Face in the Foster Care Legal System, 37 Loy. L.A. L. Rev. 1037 (2004)
*Sonia Renee Martin, A Child's Right to be Gay: Addressing the Emotional Maltreatment of Queer Youth, 48 Hastings L.J. 167 (1996).

*Nancy D. Polikoff, Resisting "Don't Ask, Don't Tell" in the Licensing of Lesbian and Gay Foster Parents: Why Openness Will Benefit Lesbian and Gay Youth, 48 Hastings L.J. 1183 (1997).

Teemu Ruskola, Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist, 8 Yale J.L. & Feminism 269 (1996).

Dean Spade, Resisting Medicine, Re/Modeling Gender, 18 Berkeley Women's L.J. 15, 34-37 (2003). (For a thorough and thoughtful exploration of the strategic usefulness yet theoretically problematic nature of using GID as a basis on which to make claims for transgender people)

Colleen A. Sullivan, Kids, Courts, and Queers: Lesbian and Gay Youth in the Juvenile Justice and Foster Care Systems, 6 L. & Sexuality 31 (1996)

* Anne Tamar-Mattis, Implications of AB 458 for California LGBTQ Youth in Foster Care, 14 Law & Sex. 149 (2005)

Summary of Law Review Articles
*Jenny Casciano et al., Symposium Proceedings: Client-Centered Advocacy on Behalf of At-Risk LGBTQ Youth, 26 N.Y.U. Rev. L. & Soc. Change 221, 231 (2001)
This is essentially a transcript from a discussion on Client-Centered Advocacy between Jenny Casciano, a site director at the New Neutral Zone, a drop-in center for homeless and runaway LGBT youth; Colleen Sullivan is a staff attorney at Lambda Legal Defense and Education Fund; and David Pumo, Director of Lesbian and Gay Youth Project (LGYP) at the Urban Justice Center; moderated by Cynthia R. Kern an associate at Weiss, Buell, and Bell, a lesbian-run law firm. The panelists discuss what they feel are the most important issues in representing or dealing with LGBT youth on a day-to-day basis
Comments of interest:

• Casciano: Many [of the GLBT] youth say that their schools do not have any safe places or that they do not feel safe accessing counselors or people within the educational system to talk about what is going on with them at school.
• Sullivan: Because they are LGBT youth, if they are out or gender-nonconforming, they often end up being ostracized in foster care as well. So we take them out of a place that is abusive, not productive, not loving, not caring, or not understanding, and we put them in a place that ought to be better for them. But sometimes we end up not making things better at all; we end up making them worse. Not only do we make matters worse, but we further these young people's distrust of adults, of the system, of society.
• Sullivan: [F]oster care systems are run by states or cities that contract out their foster care work to private organizations, many of which are faith-based organizations. Accordingly we have any number of sectarian establishments contracting with the states to provide foster care services to youth, and these organizations have specific opinions about homosexuality. The agencies, through their employees, end up imposing those views on the children, and in the employees' minds, rightfully so.
• Sullivan: There have been lawsuits across the country about youth dying in foster care, about foster care agencies making bad decisions and hurting youth. There have been class actions everywhere, but we end up losing on qualified immunity grounds.
• Pumo: One out of four gay kids in this country, at some point, either runs away or is thrown out of his or her home.

Melinda Coolidge, Eight Annual Review of Gender and Sexuality Law: Family Law Chapter: Adoption and Foster Care, 8 Geo. J. Gender & L. 583 (2007).
Coolidge notes that adoption and foster care raise important questions about the respective rights of parents and children, the proper role of stat intervention in the normally private realm of the family, and the most effective governmental solutions to the entrenched societal problems. She discusses the development of formal adoption in the U.S. in the mid-nineteenth century. She notes that adoption and foster care laws are statutorily based. States must comply with standards set forth in several federal statutes to be eligible for some forms of federal funding. Courts do not recognize any common-law rights to adoption or foster care for either parents or children. Foster parents do not have a constitutional right to maintain custody of their foster children. Similarly, there is no constitutional right to adopt or be adopted; adoption is considered a privilege, and when disputes arise, a court will determine whether there is a liberty interest it is willing to protect. Eligibility to adopt is governed by statute, but it eligibility threshold requirement, with the focus then turning to the best interest of the child and whether the adoption is in accordance with public policy. In determining what is in the best interest of the child, statutes and courts take into account the following factors: personal characteristics, age, religion, marital status, race, health, and sexual orientation.
Foster parents’ rights are extremely limited. When courts are faced with a child’s removal from a foster home, they have not found that foster parents or their foster children have an enforceable liberty interest under the Fourteenth Amendment’s Due Process or Equal Protection Clause.
Coolidge discusses adoption laws, including state legislation and court interpretation, adoptive rights and restriction on biological and adoptive parents, within this framework also discusses the constitutional and state rights of biological fathers, stepparent adoption, adoption restrictions based on adopting parent’s sexual orientation; and adoption. Then she discusses foster care including the assigned rights of biological parents and foster care providers under the common law; federal and state legislation: foster care placement and funding; problems and proposed reforms; foster care and sexual orientation; and safe haven laws. Rudy Estrada and Jody Marksamer, Lesbian, Gay, Bisexual, and Transgender Young People in State Custody: Making the Child Welfare and Juvenile Justice Systems Safe for all Youth Through Litigation, Advocacy, and Education, 79 Temp. L. Rev. 415 (2006).
This article provides some good cases and good facts about GLBTQ youth in the foster care system. Some of the statistics/facts:

• 26% of youth were forced to leave their families of origin as a result of conflicts with their parents regarding their sexual orientation or gender identity.
• Over 30% of lesbian and gay youth reported suffering physical violence at the hands of a family member after coming out.
• LGBT youth also they face discrimination in schools by their peers and faculty and administration. LGBT youth in the foster care and juvenile justice system often experience further harassment and discrimination.
• Between 20-40% of homeless and runaway youth identify as LGBT; almost 2/3rds of homeless LGBT youth have previously been in a child welfare placement.
• LGBT youth who run away or are homeless are at an increased risk of other problems, including criminal victimization, physical and sexual assault, and arrest.

Barbara Fedders, Coming Out for Kids: Recognizing, Respecting, and Representing LGBTQ Youth, 6 Nev. L.J. 774 (2006)
This article is directed to lawyers working with LGBT youth and provides a information and advice, particularly useful for lawyers with limited experience working with LGBT populations, including providing terminology related to sexual orientation and gender identity..
Additionally this article discusses how we identify LGBTQ youth, noting that fewer youth identify as LGBTQ youth than participate in associated behaviors, and she encourages lawyers to focus less on ferreting out LGBTQ clients for special treatment than on adopting practice strategies sensitive to and supportive of youth of all sexual orientations and gender identities. Next she discusses the debate of what causes people to be GLBT and notes that the much of this debate stems from an underlying belief that being LGBT is bad or wrong and that this underlying pejorative message is apparent to young people and engaging in the debate can be harmful to LGBT youth. She also discusses the plight of LGBT youth in the criminal justice system and the foster care system, and provides recommendations for lawyers
In a nutshell, the seven recommendations she provides are: (1) respect the rights of our young clients to the expression of heir sexual orientation and gender identity (i.e., don’t try to convince them it’s a phase); (2) be gender-neutral when asking about romantic relationships (regardless of the clients perceived sexual orientation) (i.e., ask if they are romantically involved with anyone instead of asking if they have a boyfriend or girlfriend); (3) seek to identify if problems are related to gender non-conformity, sexual behavior, or sexual identity, or others’ perceptions of those things, but do not necessarily directly inquire as this can be off-putting to someone who faces harassment on these issues and has no way of knowing how an attorney will respond; (4) allow the child to be the gatekeeper of information about his or her sexuality or gender identity, it may not be safe for this information to be disclosed in court, before family members, etc. (5) unless the client wants it, it is not an adequate solution for youth to simply be moved – to a different class, or school, or foster home, or to protective custody, or the infirmary in a juvenile detention facility; (6) don’t assume that being LGBT is the biggest factor facing youth, ie., a young person whose entire community is in related to their ethnicity may feel tremendously uncomfortable in an LGBT specialized group composed primarily of white homosexuals. (7) maintain a network of local LGBTQ-sensitive providers to whom LGBTQ clients can be referred.
Miriam Aviva Friedland, Too Close to the Edge: Lesbian, Gay, Bisexual and Transgender Youth in the Child Welfare System, 3 Geo. J. Gender & L. 777 (2002).
Friedland provides an overview and brief history of the development of the American child welfare system. Then she identifies many of the particular needs and pitfalls that self-identified LGBT youth face and how homophobia compounds the stress of their experiences at school and at home. Next she explores how LGBT youth enter the child welfare system and how the needs of these youth are being met in the current system. She concludes with suggestions on how to better serve the needs of LGBT youth.
Some of the particular problems/needs Friedland identifies of self-identified LGBT youth. Like LGBT adolescents not in foster care, youth face who are labeled by their peers as LGBT face harassment in the form of name calling, bullying, and other forms of harassment. They face the possibility of losing friends and possibly losing their family. And in fact, many of the LGBT youth in foster care are there because the fear of losing their family becomes a reality, and then they must re-live this fear in every new placement. School can be particularly hard for youth perceived to be LGBT, many students suffering from a form of post-traumatic stress syndrome that affects schoolwork. Often youth face years of indignity until they are finally able to drop-out. Even those not perceived to be LGBT suffer, from witnessing or participating in harassment of other LGBT peers.
In the child welfare system, LGBT youth come into the system through similar ways as nonLGBT youth, including a finding of abandonment, neglect, or abuse by a parent, or through the juvenile justice system. Sometimes parents voluntarily relinquish some of their rights over to state welfare agencies, for LGBT youth this is sometimes experienced through parental rejection of their identities. For some families, emotional and physical abuse follows a child’s disclosure and the parent may shirk their legal duty to provide support, including financial support to their LGBT child. This can result in children being “thrownaways” whose parents do not look for them when they run away and would not welcome them home. Additionally, LGBT youth may be at increased risk of legal supervision because of their sexual conduct.
Some parents commit their LGBT child to a mental institution in hopes of changing their sexual identity, despite the fact that conversion therapy has been found to be ineffective and is discouraged by organizations including the American Psychiatric Association, The American Academy of Pediatrics, and the National Association of Social Workers. Friedland, notes that a 1979 Supreme Court decision, Parahm v. J.R. allowed the involuntary commitment of children to institutions – absent the due process of the law that is provided for youth in juvenile delinquency proceeds who are facing incarceration, thus the institutionalization LGBT youth can easily be achieved despite the rejection of its efficacy by professional groups.
Friedland also discusses foster care placement, including traditional placements (adoption, foster homes, and group homes) and nontraditional placement options, kinship care, and guardianship. James W. Gilliam, Jr., Social Justice in the 21st Century: Towards Providing a Welcome Home for All: Enacting a New Approach to Address the Longstanding Problems Lesbian, Gay, Bisexual, and Transgender Youth Face in the Foster Care Legal System, 37 Loy. L.A. L. Rev. 1037 (2004)
A central thesis in Gilliam’s argument is that the protection of gay children is the work of gay adults because no on else is doing it and no one else ever has. Gilliam provides support for his thesis by showing that most foster care systems deny the existence of GLBT youth and that identifying many factors that make LGBT foster youth more vulnerable to mistreatment, including the fact that religious organizations operate many foster care systems, and many of these organizations believe homosexuality is a sin. He notes that that in Seattle, 40% of the homeless youth are estimated to be lesbian or gay. Gilliam advocates a matching policy in foster care, matching GLBT youth with GLBT foster parents or other adults who have expressed an ability and a willingness to serve as parents to these youth. Gilliam also addresses potential challenges to the constitutionality of such a matching program. Sonia Renee Martin, A Child's Right to be Gay: Addressing the Emotional Maltreatment of Queer Youth, 48 Hastings L.J. 167 (1996).
Martin argues that it is imperative for the legal system to help queer youth by recognizing the severity of emotional abuse directed at a child's sexual orientation. She explores the causes and effects of such maltreatment on queer youth, specifically discussing psychological theories on the issue. Then she addresses the legal system's denial of the abuse of queer youth and argues that the legal system's denial of the abuse of queer youth is a result of several factors: (1) a general disregard in the legal system for psychological child abuse; (2) the dominance of heterosexuality; (3) the belief that a child's sexual orientation is changeable; and (4) the parental rights doctrine. These factors work together to deny abused teens legal protection. Finally, she suggests statutory recognition of the psychological abuse of queer teens in order to help represent the interests of these youths generally and in the contexts of custody litigation, guardianship and adoption proceedings, and emancipation.
Highlights from her article include:

• Queer youth comprise the most invisible segment of the population….They live in heterosexual families and school settings where they are either rejected or unrecognized.” …the gay and lesbian community has tragically failed to address the needs of queer youth, due largely to the community's fear of the stereotype that it "recruits" teenagers to homosexuality.
• The vast majority of queer youth experience severe feelings of isolation. A National Gay Task Force study found that thirty-three percent of gay and lesbian teens reported verbal abuse from their families because of their sexual orientation. Another study by the Hetrick-Martin Institute found that half of all queer youths reported that their parents rejected them because of their sexual orientation. Although empirical studies have failed to provide an accurate estimate of the rate of abuse of queer teens, studies clearly demonstrate that the rate of psychological abuse among queer teens is higher than that among heterosexual teens.
• Studies suggest that approximately one out of every four queer youth are forced out of their homes because of conflicts with families over their sexual orientation or gender identity.
• In Seattle, it is estimated that 40% of street youths are gay, lesbian or bisexual.
• Queer youth that leave or are pushed from home by parental abuse are often forced into prostitution because of a lack of other alternatives. Yates, et al., found that prostitutes under age 18 were five times as likely to be gay, lesbian or bisexual.

Nancy D. Polikoff, Resisting "Don't Ask, Don't Tell" in the Licensing of Lesbian and Gay Foster Parents: Why Openness Will Benefit Lesbian and Gay Youth, 48 Hastings L.J. 1183 (1997). Anne Tamar-Mattis, Implications of AB 458 for California LGBTQ Youth in Foster Care, 14 Law & Sex. 149 (2005)
Tamar-Mattis notes that between 5-10% of the adolescents in the foster care system are lesbian, gay, bisexual, transgender or questioning, but the foster care system has done little to protect/support them. As a consequence, they are often the victims of homophobia or tansphobia, both in their families of origin and later in the foster care system. Consequently, many youth chose life on the streets as a safer option then group or foster care homes.
California is the first, and as of March 2008, the only state to have passed a Foster Care Nondiscrimination Act, which went into effect on January 1, 2004. The law was passed in response to reported systematic patterns of abuse, including taunting from staff, inappropriate “conversion” therapies, and tolerance for slurs, violence, and sexual harassment in the foster care setting, with transgender youth facing a particular risk of discrimination, harassment, and violence. The Act provides that LGBTQ foster children, foster parents, and service providers have right to equal access to all services, placement, care, treatment, and benefits of the foster care system, without discrimination or harassment on the basis of (among other things) sexual orientation, gender identity, or HIV status. It also requires training for group home administrators, foster parents, and department licensing person on the right of LGBTQ foster children to have fair and equal access to all available services without harassment or discrimination on the basis of actual or perceived sexual orientation or gender identity. One of the limitations identified is that relative caregivers are not required to participate in available training programs. The act also does not provide funding for the trainings that are required, nor does it provide a mechanism for enforcement.
The article goes on to compare the foster care system to racial discrimination in foster care, sexual orientation discrimination in schools and employment, and gender identity discrimination.
Returning to the issue of foster care, the article then outlines issues faced by LGTBQ foster youth, including harassment and violence, inappropriate placement and instability of placement, religious conflicts, “reparative” therapy and supportive therapy, and restrictions of age-appropriate social and after-school activities.