An estimated 35,000 youth in Wisconsin identify as belonging to the LGBTQ population. Given that this statistic comes from self-reported data, it is likely the number is even higher, as not everyone may feel ready or comfortable identifying themselves as such.

While courts are becoming more open to expert testimony regarding LGBTQ issues, a knowledge gap exists among legal practitioners and judges that requires closing. In particular, understanding the needs of transgender, nonbinary, and intersex youth may be challenging for lawyers and attorneys who have been practicing for years or decades without encountering these particular issues.

LGBTQ Youth in Wisconsin

LGBTQ youth have higher rates of suicide attempts and other risky behaviors, such as smoking and engaging in sexual behavior at an early age. Having a supportive environment at home, at school, and in the community is important as LGBTQ youth mature and navigate the trials and tribulations of adolescence with an added layer of stress and vulnerability.

Renee Pasciak

Renee Pasciak
,
U.W. Law School Class of 2023, is the student liaison to the Children and the Law Section Board and a member of the U.W. Law School’s Children’s Justice Project.

Wisconsin’s
LGBTQ policy tally earns a “fair” rating from the Movement Advancement Project. Wisconsin lacks anti-bullying laws and policies covering LGBTQ students, and state curricular standards are not required to be LGBTQ-inclusive.

Transgender Discrimination

While Wisconsin has made some strides in providing nondiscrimination protection for LGBTQ students and protections for LGBTQ youth in the child welfare system, similar protections related to gender identity do not exist. This leaves the transgender population particularly at risk for bullying and discrimination.


Whitaker v. Kenosha Unified School District
illustrates the type of discrimination transgender youth may face at school or in other public places. In
Whitaker, a transgender youth was prohibited from using the boys’ restrooms and endured school administrators who repeatedly failed to use his correct pronouns. While the Seventh Circuit found in favor of Whitaker, it is important for guardians ad litem (GALs) and other attorneys to understand the scope of issues facing LGBTQ youth.

Considerations in Court

If a case involving legal custody or physical placement goes to trial, it is important to brief the court and include scientific information to inform the court on the significance of a youth identifying as LGBTQ.

Defining terms and recommended practices (such as transitioning a youth who identifies as transgender) in a scientifically factual manner will help all parties involved feel more comfortable discussing the needs of LGBTQ youth and make more educated recommendations moving forward. Youth in the foster care system would benefit from the court and prospective foster parents understanding their specific identity and the individualized support required for them to thrive.

This education of the court could also benefit LGBTQ youth involved with the criminal justice system, as an understanding of their background and identity could be important when discussing their home life or other factors, such as placement in a facility or institution segregated by gender. Understanding the different stressors and challenges such youth may face will be integral to any presentence investigation report or other discussion of motivation for any alleged criminal actions.

In addition, GALs and other advocates for LGBTQ youth should feel comfortable being open and talking about the experiences of LGBTQ youth in court in the hopes of eventually impacting policy regarding this population.

Finally, the Bar should consider offering CLE programs related to educating judges and GALs on these issues.*

The world has changed a lot since many of us started practicing law, and LGBTQ youth deserve an educated court system ready to understand their unique needs.

The author wishes to thank Attorneys Abby Churchill and Elizabeth McInerny for inspiring this post and sharing their expertise on the topic.

This article was originally published on the State Bar of Wisconsin’s
Children & the Law Section Blog. Visit the State Bar
sections or the
Children & the Law Section webpages to learn more about the benefits of section membership.

*Editor’s note: State Bar resources on LGBTQ+ topics include these from State Bar of Wisconsin PINNACLE®:

Book:

Sexual Orientation, Gender Identity, and the Law

Revised for 2021-22, this book offers a number of discussions that relate directly to youth (e.g., chapter on school issues, including bullying and cyberbullying, issues related to transgender access to bathrooms, etc.).

V​isit WisBar Marketplace for more details, including a summary of contents, recent developments, author biographies,
the book’s table of contents, and more.

CLE Program:

LGBTQ+ Updates in Family Law 2022

This CLE webcast covers topics on LBGTQ+ and family law, including family formation, parental determination, and parental rights; working with premarital children, surrogacy, and adoption; and more.

Recorded Jan. 18, 2022, this 1.0 CLE program is available for webcast viewing on specific dates in January, February, and March 2022.
Visit WisBar’s Marketplace for more details.

In addition, check out these additional resources: