Vol. 41, No. 1

Questions about LGBTQ? Speaker at NABE Annual offers up-to-date information, guidance

by Marilyn Cavicchia

For people who identify as lesbian, gay, bisexual, transgender, questioning, or queer, the past decade or so has brought tremendous progress in securing important rights and protections, said Davina Kotulski, an author, life coach, and psychologist based in Oakland, Calif.

Kotulski spoke to attendees at the 2016 Annual Meeting of the National Association of Bar Executives in San Francisco, providing an overview of important terms—such as the components of the LGBTQ acronym—of landmark decisions, and of how bar associations can make sure they are respectful and inclusive.

Among the more recent and well-known milestones, she said, was the decision in Obergefell v. Hodges, in which the U.S. Supreme Court affirmed same-sex couples’ right to marry and states’ obligation to recognize such marriages, thereby guaranteeing access to the 1,138 federal rights and hundreds of state rights that come with marriage.

To illustrate what some of those rights are and how their denial harmed many same-sex couples, Kotulski pointed to Flanigan v. University of Maryland Hospital System, a case based on an incident in 2000. While on vacation, one member of a couple who had a legally recognized domestic partnership in California became critically ill. A hospital in Maryland refused to recognize the partnership, which meant the partner who was healthy was unable to see his spouse, consult with medical staff, or make health care and end-of-life decisions. The hospital system prevailed in the lawsuit, as it was following procedures that were legal at that time.

Earlier this year, in Mississippi, the final law barring same-sex couples from adopting was struck down; however, Kotulski noted, some states still prohibit such couples from being foster parents.

As of the end of June 2016, she added, people who are transgender can serve openly in the U.S. military. Also pertaining to those who are transgender, the public restroom issue has been widely publicized. Offering a gender neutral public restroom is no small matter, Kotulski said: In general, she explained, those who are transgender are at risk for unusually violent hate crimes, and these have been known to occur when someone is perceived to be in the “wrong” restroom.

Why should bar associations stay current on such matters, and on terminology that continues to evolve? For one thing, Kotulski said, “Being LGBTQ crosses every aspect of life” and can curtail access to rights and privileges that others take for granted.

“Equality doesn’t have to be a ‘rainbow’ issue,” she stressed, meaning that it’s not just a concern for those who identify as LGBTQ. “Equality is a human rights issue.”

Understanding an evolving language

What can bar associations do to show their members, employees, and others that they support equality and are committed to being inclusive? Simply mentioning people who are LGBTQ and issues involving their equal rights, and holding programs related to those matters, can go a long way toward helping your LGBTQ members and others feel safe, Kotulski said.

It’s important to use the correct terms, she noted, adding that these have evolved over time and that the LGBTQ acronym itself has expanded, adding a new term—and letter—as other groups have said that they, too, are marginalized because of their sexual orientation and/or gender expression or identity.

“Every group has to fight for their place in the alphabet,” Kotulski said, noting that even among a marginalized community, “Not everybody sees the vision of ‘Let’s include everybody.’”

Kotulski gave a detailed overview of some of the most relevant terms:

  • Queer. Though it is part of the LGBTQ acronym, this term is politically charged and is most popular among younger people who are part of the LGBTQ community. Those who are not in that community should not use “queer” as a general term—and it’s particularly offensive to refer to “a queer” or “queers.”

  • Homosexual. This is now considered derogatory, as it sounds a bit clinical and is often used by those who consider being LGBTQ to be a disease or disorder. As a side note, Kotulski said she’s uncertain regarding the term “heterosexual”—it, too, sounds clinical, but the term “straight” may connote that someone is “normal” or conservative.

  • Gender variant. This refers to someone whose physical appearance and other outward characteristics differ in some way from what is typical for those of the gender they were believed to be at birth. This is a better term than “gender queer” or “gender nonconforming,” Kotulski said, noting that the latter makes it sound as if the person is rebelling rather than simply living as who they are. A person can be gender variant without fully identifying as a different gender from the one they were first believed to be. For example, Kotulski uses feminine pronouns for herself in professional contexts and identifies as gender variant or "two spirit"—a term of respect in some Native American/American Indian cultures.

  • Transgender, transsexual, transvestite. “Transgender” is similar to “gender variant” except that it connotes identification with a gender that differs from the one the person was believed to be at birth. “Transsexual” refers specifically to a transgender person who has undergone sex reassignment surgery. There are many reasons a person who is transgender may opt against this surgery, Kotulski said: For one thing, a male-to-female procedure can cost $40,000 or more—in addition to the hospital stay—and is not always covered by insurance. “Transvestite” is an outdated term for someone who identifies as a man but adopts a feminine appearance under some circumstances. The preferred term is “cross dresser”—not “drag queen,” Kotulski noted, as not all cross dressers do so as part of a public performance.

  • Cis or cisgender. This refers to someone who identifies as the gender they were believed to be at birth.

  • Intersex. This, not "hermaphrodite," is the preferred term for someone whose physical gender at birth is not definitively male or female. Such a person may have XXY chromosomes, and/or genitalia that are ambiguous. This occurs in about one in 1,000 births, Kotulski said, and there’s currently “lots of litigation” by adults whose gender was guessed at by a physician and who then underwent surgery before they were old enough to consent to it. Kotulski also noted that the letter “I” may be added to LGBTQ someday soon.

Other ways to be inclusive

Besides talking about people who are LGBTQ and the issues that are of interest to them, and staying current with terminology, what else can a bar association do?

Avoid asking rude questions, Kotulski said. It may be obvious that you shouldn’t ask a transgender person what body parts they have, but you should also avoid asking what their “real name” is—meaning the name they were given at birth.

It’s also a good idea, Kotulski said, to ask everybody what pronoun they prefer, rather than making any assumptions based on appearance. Be aware, she said, that some people prefer a gender neutral pronoun called “ze.” (You may have noticed, too, that in this article, we have taken advantage of recently relaxed rules that reinstate “they” as an accepted singular pronoun.)

‘See the needs of all your members’

During the question-and-answer period, attendees mentioned ways their bars aimed to be inclusive, or unanticipated issues they had faced.

One attendee said that his bar association is obligated to publish legal notices and had to ask the court for permission to omit name change notices. Someone called the bar to let them know that hate groups were using this information on the bar website to target people whose name change was because of their gender identity, the attendee explained.

Another attendee noted that her bar asks about gender on its dues form for demographic purposes, and that it includes “other” along with “male” and “female.” Kotulski said that this was a good start, but that “other” can have a negative connotation of being different from the norm. Why not specify some of those other gender options, Kotulski asked?

This would be more inclusive, she said, and could yield some surprising and useful information that can help you “see the needs of all your members”—something that all bar associations aspire to do.