ACLU and Equality Virginia Commend State Board of Juvenile Justice for Standing Strong on Rules to Protect LGBT Youth in Its Care

Affiliate: ACLU of Virginia
November 14, 2012 4:55 pm

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RICHMOND, VA – The Executive Directors of the Virginia Affiliate of the American Civil Liberties Union, Claire Guthrie Gastañaga, and Equality Virginia, James Parrish, released the following joint statement regarding action today by the Board of Juvenile Justice (the Board) regarding proposed rules governing discrimination based on sexual orientation in residential facilities under its supervision:

The Board of Juvenile Justice adopted final rules in June 2010 that continued explicit prohibitions on discrimination against lesbian, gay, bisexual and transgender (LGBT) youth in its residential facilities. Since that time, the members of the Board have refused to retreat from their commitment to LGBT youth even in the face of the current Attorney General’s ill-founded, ideological intransigence.

Unlike the Board for Social Services, which backed down from similar nondiscrimination rules proposed for adoption and foster care agencies, the citizen representatives on the Juvenile Justice Board refused to be bullied and stood with the LGBT community. They did not give up on regulations essential to protect vulnerable LGBT youth in their care.

We are grateful to the current and former members of the Board for their unyielding commitment to ensure that the regulations governing departmental facilities and programs (residential and non-residential) continue to protect LGBT youth from discrimination.

If properly implemented, the revised regulation adopted today will put staff in Juvenile Justice residential facilities on notice that any violation of the constitutional right of LGBT youth to be safe from discrimination (including harassment, bullying and criminal assaults) continues to be prohibited. The amended rules also include gay, lesbian, bi-sexual, transgender and inter-sex youth among vulnerable populations in Juvenile Justice facilities who may be entitled to special protections.

The ACLU of Virginia and Equality Virginia will closely monitor the development of the implementing policies and procedures to see that they do, in fact, provide the protection for LGBT youth expected and promised by the Board in the proposed final regulation it endorsed today.

Regulatory and Procedural Background:

The Board of Juvenile Justice has had a rule since May 2005 that prohibited discrimination based on sexual orientation in the Department of Juvenile Justice’s programs and facilities. 6VAC 35-140-50,

In rewriting the rules for both residential and nonresidential facilities, no case was made (from an operational or policy standpoint) for changing that nondiscrimination rule. Accordingly, the Board affirmed in June 2010 (when it first voted in favor of publishing the residential rules in final form), July 2011 (after the current Governor and AG refused to sign off on the rules with the non-discrimination provision), and, again, in January 2012 (in the face of continued pressure from the AG to approve rules without protections against discrimination based on sexual orientation) that it wanted to continue to include specific protections against discrimination based on sexual orientation in the residential and non-residential rules.

The ACLU of Virginia and Equality Virginia wrote a letter in late June 2011 to the chair of the Board and the head of the Department of Juvenile Justice indicating that, unless withdrawn by the Board, the non-residential rules (which were further along in the regulatory process than the residential rules) must go into effect on July 1, 2011 with the anti-discrimination, juveniles’ rights provision intact, 6VAC35-150-490. Those rules have now been effective for more than a year without any adverse operational impact or challenge.

The Attorney General’s office advised the Board in January 2012 at its public meeting, that, “as a matter of policy,” the Attorney General’s office would never approve any regulation governing its residential programs that included the words “sexual orientation.” The Office also threatened in January (as it had previously in July 2011) to deny Board members legal representation in the event a lawsuit was lodged challenging non-discrimination rules that continued to include sexual orientation.

EV and the ACLU previously have advised Juvenile Justice Board members, in written and oral comments, that, despite the AG’s advice to the contrary, every public official who takes the required oath to uphold the Constitution and laws of the United States has the inherent authority and the responsibility to enact any regulation that he or she reasonably believes is necessary to implement that oath.

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