The Consensus Statement on the Rights of Youth in State Custody

We, the undersigned, agree:

  1. All young people have a right to access sexual health care programs and services that recognize and accommodate all aspects and stages of their personhood and encourage attitudes and practices that allow for a healthy transition to adulthood. Sexual healthcare services must be inclusive, medically accurate, age-appropriate, trauma-informed, and affirming of and culturally responsive to the individual needs of all young people.

  2. Programs that ensure access to essential sexual health care are particularly necessary for the young people who, because of social inequalities related to their sexual orientation, gender identity, or gender expression (“SOGIE”), may have unique and unaddressed health care needs or difficulty accessing care. These health needs are also inextricably tied to other factors that make up a young person’s identity, including race or ethnicity; citizenship or immigration status; disability; and economic status.

  3. Comprehensive sexual and reproductive health education and services are essential elements of basic health care , and all young people—regardless of their SOGIE—should receive affirming and nurturing care that responds to their individual health needs while ensuring their overall sexual health literacy.

  4. Providing comprehensive sexual and reproductive health care services is smart pediatric, adolescent, and public health policy. These services have been shown to effectively:
    a. address STIs, HIV, and unplanned pregnancies;
    b. help young people resolve stress and insecurities by answering questions about their bodies, emotions, and feelings;
    c. address mental health, self-harm, and substance abuse issues that may stem from SOGIE-based trauma; and
    d. prevent gender- and SOGIE-based violence, such as sexual and dating violence, by providing guidance on healthy relationships, consent, respect, boundaries, and affirming historically marginalized identities.[1][2]

  5. The absence of these essential health programs and services contribute to high rates of HIV, other STIs, and unplanned pregnancy; endemic levels of gender- and SOGIE-based violence, including discrimination, harassment, sexual violence, and assault; and a range of poor mental health outcomes, including high rates of depression, self-harm, substance abuse, and suicide risk.[3]

  6. Comprehensive and affirming sexual and reproductive health care must be provided to all youth under the care and custody of the state, including those in foster care, youth homeless shelters, youth detention centers and facilities, youth in adult jails and prisons, and immigrant detention centers. These institutions often serve the most marginalized of youth—including youth of color and lesbian, gay, bisexual, transgender, and/or queer (LGBTQ) youth—who often present with many forms of trauma. Underserved youth populations are linked to a number of individual and public health outcomes related to sexual and reproductive health[4].

  7. Under the United States Constitution, youth under the care and custody of the state have the fundamental rights to adequate physical and mental health care, personal security, safe living conditions, and freedom from harm and unreasonably restrictive conditions of confinement.[5] These rights are further supported by a number of federal statutes and state constitutions, at the federal level these protections are included under Title IV-E,[6] including the Chafee Program for Successful Transition to Adulthood[7] and IV-B of the Social Security Act,[8] and the Prison Rape Elimination Act.[9]

We therefore call for states to provide for laws and local policies ensuring the provision of:

  1. Comprehensive, inclusive, medically accurate, trauma-informed, and LGBTQ-affirming sexual and reproductive health care, including access to culturally- competent, health care providers; health literacy programming to include SOGIE-based instruction and instruction on topics such as consent, relationships, and mental health; access to condoms, pre-exposure prophylaxis (PrEP), contraception, abortion and post-abortion care, and other such tools and services to effect healthful choices and self-care; and mental health care responsive to the individual needs of each young person; and

  2. Comprehensive training for all staff in institutions that house or detain youth to ensure they are practicing cultural humility, able to uphold the rights of all youth in their care, and adequately respond to their sexual and reproductive health care needs.

While we support working to reduce and end incarceration, the needs of youth currently in facilities is critically important. Many states are building upon a growing body of research demonstrating that correctional facilities are not the best rehabilitative environments for youth and are often harmful[10],[11],[12],[13]. We believe states should work to decrease the population of youth in correctional facilities and expand programs that better serve the health and wellbeing of youth and their communities. Where it is possible or necessary, states should prioritize increased funding for community-based programs which serve youth. States should take guidance from their public health departments and other relevant state agencies; adolescent health practitioners; community-based and professional membership organizations that specialize in providing required services, training, technical assistance to service providers; and most critically, LGBTQ, formerly- or currently-system involved youth.


NOTES

[1] Sexuality Information and Education Council of the United States, Advancing Sex Education (2018), https://siecus.org/wp-content/uploads/2018/07/CSE-Federal-Factsheet-May-2018-FINAL.pdf.

[2] Future of Sex Education, Building a Foundation for Sexual Health Is a K–12 Endeavor: Evidence Underpinning the National Sexuality Education Standards (2016), http://www.futureofsexed.org/buildingfoundation.html.

[3] Sexuality Information and Education Council of the United States, Abstinence-Only-Until-Marriage Programs Fact Sheet (2009), http://www.siecus.org/index.cfm?fuseaction=Page.ViewPage&PageID=1195.

[4] Campaign for Youth Justice, Key Facts: Youth in the Justice System, (2018), http://www.campaignforyouthjustice.org/images/factsheets/KeyYouthCrimeFactsFeb222018Revised.pdf.

[5] It is well-established that deliberate indifference to serious medical needs of an inmate constitutes unnecessary and wanton infliction of pain in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Additionally, the right to be free from cruel and unusual punishment guaranteed by the Eighth Amendment includes a right to be free from deliberate indifference to a substantial risk of serious harm while in the state’s custody. See Farmer v. Brennan, 511 U.S. 825, 828 (1994); id. at 832 (stating that the Eighth Amendment requires prison officials to ensure inmates receive “adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”). Specifically in the youth context, federal courts have found that these rights are guaranteed not only under the Eighth Amendment, but under the “‘more protective’ Fourteenth Amendment,” Hughes v. Judd, 108 F. Supp. 3d 1167, 1182 (M.D. Fla 2015) because youth involved in the juvenile justice system are “adjudicated delinquent and have not been convicted of a crime.” R.G. v. Koller, 415 F. Supp. 2d 1129, 1152 (D. Haw. 2006).

[6] Title IV-E of the Social Security Act, 42 U.S.C.A. §§ 670-679c, provides for federal funds to be provided to states and tribes to enable them to provide child and family services, subject to eligibility requirements.

[7] 42 U.S.C.A. § 677. The Chafee Foster Care Program for Successful Transition to Adulthood provides for flexible funding to enable foster care programs to support youth in many ways, including access to high school and post-secondary education; career exploration, training, and placement; daily living skills; “substance abuse prevention, and preventative health activities (including smoking avoidance, nutrition education, and pregnancy prevention)”; as well as to facilitate permanent connections with caring adults; and providing financial, housing, counseling, and other support to children ages 18 to 21. Id. at § 677(a)(1)-(7).

[8] 45 C.F.R. § 1357.10. Eligibility for Title IV-B funds are subject to eligibility with various requirements, including “[a]ssuring adequate care of children away from their homes,” and providing family preservation services to support families and child development. See id. at § 1357.10(c).

[9] The Prison Rape Elimination Act, or “PREA,” established a zero tolerance standard for the incidence of prison rape and implemented national standards to detect, prevent, and reduce prison rape. 42 U.S.C.A. § 1502(1-3) (West 2003). Specifically PREA mandates training and procedures to respect LGB, transgender, and gender non-conforming individuals. PREA requires employees be trained “[h]ow to communicate effectively and professionally with residents, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming residents[.]” 28 C.F.R. § 115.231(a)(9). In addition, PREA specifies that inmates must not be subjected to cross-gender strip searches “except in exigent circumstances[.]” Id. at § 115.215(a). With respect to transgender inmates, agencies are directed to “train security staff in how to conduct cross-gender pat-down searches of transgender and intersex residents, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.” Id. at § 115.215(f).

[10] Justice Policy Institute, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities (2006), http://www.justicepolicy.org/images/upload/06-11_rep_dangersofdetention_jj.pdf.

[11] Karen M. Abram et al., Sex and Racial/Ethnic Differences in Positive Outcomes in Delinquent Youth After Detention, 171 JAMA PEDIATRICS 123–132 (2017), https://jamanetwork.com/journals/jamapediatrics/fullarticle/2592310?resultClick=1.

[12] Titilola Balogun et al., Does Juvenile Detention Impact Health?, 24 JOURNAL OF CORRECTIONAL HEALTH CARE 137–144 (2018), http://journals.sagepub.com/doi/full/10.1177/1078345818763174.

[13] Prison Policy Initiative, Youth Confinement: The Whole Pie (2018), https://www.prisonpolicy.org/reports/youth2018.html.