For the October 2023 Domestic Violence Committee Brown Bag luncheon, experts from North Carolina –S. Collins Saint, Associate – Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Nisha Williams – Legal Director at the North Carolina Coalition Against Domestic Violence, and Amily McCool – Owner at Scharff Law Firm-- shared insight on best practices for representing LGBTQI+ survivors of intimate partner violence. In any family law case, attorneys should approach each client from a place of compassion. No one can ever understand exactly what a different individual has experienced, or what traumas and past experiences may impact their current options and decisions about how to address abuse.
Recognizing the unique experience of each client, and having compassion for their reality, is especially important when working with LGBTQI+ survivors. Intimate partner violence is always rooted in a dynamic in which one person exercises power and control over the other person. This can manifest in distinct ways in same-sex relationships. For example, in an LGBTQI+ relationship, if one or both members is not out, the perpetrator could use the threat of outing the other person as part of the abuse. For the survivor, disclosing abuse and seeking help could also lead to outing themselves to a community, workplace, or family members who may not be accepting of their sexual orientation or gender identity.
In some localities, the LGBTQI+ community is very small and insular. Thus, survivors may legitimately fear that seeking protection from abuse could lead to social isolation or result in other repercussions in a close-knit social group. Be patient, be kind, and be compassionate to each clients’ reality. Keep intersectionality in mind. A client may have multiple different identities and be part of many different groups. They may fear experiencing additional oppression from courts or other agencies based not only on their sexual orientation or gender identity, but also because of their race, disability, immigration or socio-economic status. Be attuned to these issues and the biases that court personnel may hold. Advise clients of any of these aspects or concerns.
For these and other reasons, every domestic violence practitioner should research and become acquainted with community organizations that support survivors of intimate partner violence. Inquire on the front end about their policies and ensure that local organizations will be affirming and accepting of LGBTQI+ clients before making any referrals. Remember that the ABA has a Commission on Domestic and Sexual Violence. The Commission also has an LGBTQI+ Legal Access Project that offers individualized support, training, and technical assistance to address sexual and domestic violence in LGBTQI+ communities. Seek out training and education, so you can provide survivor-directed compassionate advocacy not just for LGBTQ+ individuals, but for all survivors of intimate partner violence.
When engaging in this work, remember that not all states and localities afford the same legal protections to all people. Even some laws retain unjust and discriminatory language. For instance, in North Carolina, “assault on a female” is a separate crime which is charged two levels “higher” than if a female were to assault another female, if a female assaults a male, or a male assaults a male. See North Carolina Criminal Law Chapter 14-33(c)(2).
Not all jurisdictions have domestic violence workplace protections either. Often intimate partner violence, whether it occurs in the LGBTQ+ community or not, can occur in or spill over to a victim’s workplace. Some perpetrators will abuse their partner by meddling with their employment. For instance, by calling and making anonymous complaints, harassing the victim and keeping them from their job duties, or preventing the victim from going to work. In these situations, LGBTQ+ survivors might face a double bind. If they disclose the stress of abuse to their employer, they may also risk coming out as lesbian, gay, bisexual, or transgender. This can be a challenging decision if weighing the consequences of disclosing the abuse against the risk of losing a job. Practitioners should consider incorporating questions about workplace abuse into every client intake. Then, even if a client only comes to an attorney for family law assistance or help in obtaining a restraining order, it may be possible to advocate with an employer to address the workplace abuse. For instance, if a client is experiencing stress and mental or physical health problems from the intimate partner violence, could the client seek reasonable accommodations under the ADA from the employer? Also consider advising clients about how to invoke leave and how to best protect their job if they need time off for court, therapy, or medical appointments.
Finally, protection from intimate partner violence is only effective if people know that it exists and know how to access it. North Carolina was the last state to extend domestic violence protection orders to people in same sex dating relationships. This only occurred as of December 31, 2020. See M.E. v. T.J. If a person is not aware that they can receive protection, or if they are uncomfortable sharing that they have an order, either because they don’t want to come out, or have concerns about stigma, then they effectively do not have protection. Bostock v. Clayton County, 140 S. Ct. 1731 (2019) held that Title VII prevents people from being fired on the basis of sexual orientation or gender identity. However, Title VII is a federal law, and it applies only to employers with more than 15 people. This leaves a gap and can expose independent contractors or survivors in small businesses to potential discrimination. As attorneys, the more we can learn about these nuances and be aware of them, the better equipped we can be to offer client-centered and effective advocacy for all survivors of intimate partner violence.
