The Responsibility of Victory: Confronting the Systemic Subordination of LGBT Youth and Considering a Positive Role for the State

Abstract

In light of the stunning cascade of recent victories ending some aspects of sexual orientation discrimination, this article calls for both the LGBT Rights Movement and the State to take responsibility for ending the systemic subordination of LGBT youth.

This article’s first section synthesizes the alarming data demonstrating the disproportionate harms suffered by LGBT youth within the very institutions designed to protect them. Professor Nice categorizes these experiences as including rejection by families, hostility from faith communities, harshness from the child welfare and juvenile justice systems, harassment in schools, and destitution and violence on the streets. She further argues that these socio-legal institutions intersect with a tendency toward compounding the adverse consequences for LGBT youth.

In addition to analyzing recent developments, the article contributes new information such as the story of the legal struggle for inclusion launched by LGBTQ students in one southern California high school. The article also emphasizes the mutually reinforcing relationship between economic impoverishment and extreme vulnerability among LGBT youth.

The article then pivots to consider seemingly unrelated strands of theoretical and empirical scholarship regarding a positive role for the state. Professor Nice reviews Fineman’s “responsive state,” Eichner’s “supportive state,” Dauber’s “sympathetic state,” Mettler’s “submerged state,” and Canaday’s “straight state.” She concludes that this body of research reveals that a more positive role for the state is not only intelligible as a matter of legal theory but also remarkably consistent with the historical development of the American welfare state.

Keywords: LGBT youth, subordination, discrimination, institutional support