Hawai’i LGBT Youth Win

Federal court rules against facility subjecting wards to punishment

The American Civil Liberties Union won a big victory for troubled LGBT youth in Hawai’i, with a ruling on February 7 by U.S. District Judge J. Michael Seabright that the Hawai’i Youth Correctional Facility (HYCF) in Kailua appears to be violating the federal constitutional due process rights of kids who are LGBT or perceived as such, and finding that the plaintiffs are entitled to preliminary injunctive relief, the details of which are still to be worked out.

HYCF is where juvenile court judges send Hawai’i teens, under a system where those under age 18 avoid acquiring criminal records and receive rehabilitation. This does not apply to situations in which prosecutors determine that a particular offense—such as homicide and other serious felonies—will be tried in the adult courts. The facility is intended primary for teens who commit minor criminal offenses, run away from home, or refuse to submit to normal parental discipline.

The ACLU represents three teens who have done time in the facility—one out lesbian, one transgendered woman, and one male whose sexual orientation is not stated but who was perceived and treated as gay at HYCF. Although none of the three plaintiffs was residing at HYCF when their lawsuit was filed, the court found that the high rate of recidivism and the minimal probation violations required for re-commitment to the facility meant that the chances of returning were high enough to give the three youths standing to seek relief against future violations.

Because HYCF is not a prison—those committed to it have not been legally adjudged criminals—facility procedures that have the effect of punishing its wards raises due process issues under the Constitution’s 14th Amendment, as does failure by the facility to protect them from harassment and assaults.

Seabright, who described conditions at the facility as “chaotic,” found that there was a regular practice of placing LGBT inmates—known as wards—who complain about harassment from their peers into solitary confinement for extended periods of time, and that this is effectively punishment. Wards placed in solitary are essentially in a locked-down situation for 23 hours a day, allowed only one or two books—until a recent change, one of those books was a Bible—and given limited opportunities for physical recreation or socializing. This treatment was ostensibly for their own protection.

Seabright also found evidence that anti-gay harassment by fellow wards and anti-gay name-calling by both wards and HYCF staff members appeared to be so pervasive as to raise due process issues about the facility’s failure to deal with them effectively. The lack of a reasonably well-functioning grievance procedure also raised such issues. The plaintiffs filed complaints, but this rarely resulted in any improvement in their situation, since grievances were rarely treated confidentially, resulting in retribution by staff members. Seabright also faulted the administration’s response to harassment complaints that placed complainants in solitary confinement to “protect” them, rather than taking steps against their harassers.

The court found that there was no staff training on dealing with LGBT youth and the problems they encounter in the institution, and that until the lawsuit was filed, the HYCF did not have any official policies whatsoever regarding LGBT wards. The institution lacked any procedure for identifying and classifying individuals regarding either any vulnerability or, conversely, their risk of harming others. Such a policy is considered a minimal requirement for a competently run youth facility.

In response to the lawsuit, the administration adopted an official non-discrimination statement that includes sexual orientation, but no evidence was presented that the policy had been translated into any change within the facility.

Much of the plaintiffs’ testimony was corroborated by HYCF medical staff, whose own attempts to improve the situation had been stymied by the administration.

There was also evidence of religious proselytizing by the staff, but Seabright was not convinced it was strong enough for preliminary relief based on constitutional principles of separation of church and state. The judge noted that the practice of requiring that one of the two books given to wards in solitary be the Bible had been suspended. He also found that those few staff members who initiated conversations telling LGBT wards that their orientation was contrary to God’s will or that they were fated to be condemned did not prove an institution-wide policy. One suspects that the judge expects the administration will crack down on those staff members acting inappropriately now that the practice has been brought to light.

Seabright also concluded that the occasional denial of a plaintiff’s request to phone their attorney at the ACLU was not sufficient to support issuing an injunction, since he found no general policy of interfering. He did raise some concerns, however, about a new rule requiring parental permission for wards wishing to contact their attorneys.

Seabright began his opinion by quoting from a U.S. Department of Justice report on HYCF, stating that it is “no exaggeration to describe HYCF as existing in a state of chaos.” Many of his findings were bolstered by the DOJ report, from which he quoted liberally.

In wake of Seabright’s ruling, the Hawai’i state attorney general on February 10 announced that an agreement had been reached with the federal government to make sweeping improvements at the facility within three years, according to The New York Times. Though Hawai’ian officials pledged to consult with the ACLU on the specifics of its program, Lois Perrin, legal director the ACLU of Hawai’i, said her organization would press to have the improvements spelled out in a court order and completed in a more timely manner.