The Supreme Court decision in Obergefell v. Hodges, 576 U.S. ___ (2015), secured marriage equality for lesbian, gay, bisexual, transgender, and queer (LGBTQ) people, yet, these same individuals may be fired from their jobs for being LGBTQ; in some states, transgender and gender-nonconforming people may be prosecuted for failing to use public restrooms and locker rooms that correspond to their assigned sex at birth. Post-Obergefell, these communities, as well as the broader LGB community, must refocus their political agenda to address issues such as homelessness among LGBTQ youth, poverty, workplace and housing discrimination, and violence against black trans women, along with an alarming plethora of other social, legal, and political issues. With this refocusing and, consequently, broadening of activism agendas, lawyers increasingly will represent LGBTQ clients to secure and defend rights and justice. What will lawyer-client relationships look like now that marriage equality has been won? LGBTQ clients require lawyers who are not only competent when it comes to substantive law and the workings of the legal system; these clients also require lawyers who are familiar with the demographics, intersecting identities, and sociopolitical issues and interests of LGBTQ people. Lawyers must be culturally competent.
Must LGBTQ Lawyers Represent LGBTQ Clients?
Some people wonder whether LGBTQ clients will be best served by lawyers who also identify as LGBTQ. A similar question has been asked in the context of diversity and inclusion within the legal profession: Do racially/ethnically diverse lawyers require racially/ethnically concordant mentors in order to best thrive within the profession generally and in particular workplaces? The answer to both questions may seem obvious: of course not. A black woman is not the only person who can mentor a black woman, a person with a disability is not the only person qualified to represent a client in an Americans with Disabilities Act case.
The most apparent reason why LGBTQ clients cannot solely be represented by identity-concordant LGBTQ attorneys is because there simply are not enough openly LGBTQ practicing lawyers. The same is true of other diverse attorneys, excluding women. Clients would be left without adequate access to attorneys to represent them. It would also be largely unfeasible, leaving clients (and diverse lawyers) underrepresented within the judicial system. Further, requiring LGBTQ identity concordance between lawyers and their clients would be counter-intuitive to inclusion efforts. It would close off clients to whole groups of passionate and competent attorneys who do not identify as lesbian, gay, bisexual, transgender, or queer.
Finally, no community or population is monolithic. Just because a lawyer is black, gay, or a woman does not mean that lawyer will hold and exhibit cultural competence in a way that is inclusive of the lived experiences and identities of other women or black or gay people. There are a variety of reasons why this may be the case. For instance, these lawyers face significant social and professional pressure to conform and assimilate. They constantly have to navigate the uneven terrain of being “black enough” but not “too black,” feminine but not too feminine, gay but not too gay. Lawyers and their clients do not have to share sexuality and/or gender identity concordance for justice to be served. Lawyers, however, must be culturally competent when representing LGBTQ—and all other—clients.
Some legal scholars advocate for cultural competence training in legal education. Not surprisingly, there is no standard definition of cultural competence, nor any uniform requirements related to cultural competence, diversity, or inclusion as it relates to law schools or the legal profession. The American Bar Association does, however, require law graduates and lawyers to obtain ethics credits through continuing legal education (CLE). CLE ethics courses sometimes include information and training on issues of diversity and inclusion, but they do not follow any established curriculum related to cultural competence.
The Association of American Medical Colleges (AAMC), however, has had a set standard for cultural competence in medical education since 2000, expressed in the AAMC document Cultural Competence Education (tinyurl.com/pceqtnq). The medical profession has long understood that social and cultural factors impact the quality of health services and treatment that patients receive. While acknowledging that multiple definitions of cultural competence exist in this field, this AAMC document opens with the single definition that is most widely accepted within the medical and medical education professions:
Cultural and linguistic competence is a set of congruent behaviors, knowledge, attitudes, and policies that come together in a system, organization, or among professionals that enables effective work in cross-cultural situations. “Culture” refers to integrated patterns of human behavior that include the language, thoughts, actions, customs, beliefs, and institutions of racial, ethnic, social, or religious groups. “Competence” implies having the capacity to function effectively as an individual or an organization within the context of the cultural beliefs, practices, and needs presented by patients and their communities.
The legal profession has not made a similar attempt at establishing generally accepted standards of cultural competence or even attempted to accept generally that social, cultural, and political factors influence individuals’ interactions with the legal system, at all levels and locations.
Before we understand competence, we must first conceptualize “culture.” While most cultural competence literature (in both medical and legal education scholarship) focuses exclusively on race and ethnicity, conceptualizations of cultural competence must also include religion, sex, gender, sexuality, class, mental and physical ability, age, marital and/or parental status, among others, and interactions thereof. We must also understand the following (adopted from Zofia Kumas-Tan, Brenda Beagan, Charlotte Loppie, Anna MacLeod, and Blye Frank, “Measures of Cultural Competence: Examining Hidden Assumptions,” Academic Medicine, June 2007 (82:6): 548–57):
- The “Other” is not the only group that possesses culture; socially dominant or majority groups such as white people or men also possess culture. We cannot limit our understanding of culture to requiring white people to understand the Other.
- Cultural competence must include understanding and awareness of power and white privilege. Instead of solely focusing on disadvantage, we should also concern ourselves with privilege and domination.
- Competence does not exist in a bubble. You cannot simply learn it in a training session and then deem yourself “competent.” Competence also involves continued interaction with, and understanding of, the experiences of other groups.
- Cultural competence means more than understanding how individuals stereotype and hold discriminatory attitudes toward the Other. To be culturally competent, actors in the legal profession must understand and accept the larger structural and systemic barriers limiting full inclusion and access to justice that many people face.
Competence also requires “cultural humility,” a lifelong commitment to “a process that requires humility as individuals continue to engage in self-reflection and self-critique as lifelong learners and reflective practitioners” (Melanie Tervalon and Jann Murray-García, “Cultural Humility Versus Cultural Competence: A Critical Distinction in Defining Physician Training Outcomes in Multicultural Education” Journal of Health Care for the Poor and Underserved, May 1998 (9:2): 117–125). Cultural humility as a practice works to actively avoid the pitfalls of practitioners who may assume that, because they completed a discrete set of trainings on cultural competence, they have now absorbed all knowledge about all culture and can therefore apply such knowledge across the board to every and any patient/client. Cultural humility helps prevent the stereotyping that inevitably occurs when we apply generalized notions to specific people.
Cultural Competence Post-Obergefell
LGBTQ people now can marry in the United States, but they still can be fired from their jobs for being lesbian, gay, bisexual, or queer. Lawyers must develop cultural competence surrounding the unique and nuanced legal, social, and political issues of their client population, especially if they represent LGBTQ clients and LGBTQ clients who are also people of color. Clients’ legal claims are inextricably linked to their social and structural settings. Their experiences with constructing and embodying race, gender, sexuality, and class directly shape their interactions in the social world. Lawyers must be open to learning and affirming these experiences. Even more crucial, lawyers must factor clients’ social, interactional, and embodied experiences into how they represent clients.
There is a fallacy of objectivity within the legal profession. Studies show that unconscious biases affect lawyers’ ability to “objectively” evaluate evidence and performance. Additionally, law students are taught to “think like a lawyer,” a presumption that includes “setting aside existing biases or prejudices and thinking rationally, logically, and analytically” (Andrea A. Curcio, “Addressing Barriers to Cultural Sensibility Learning: Lessons from Social Cognition Theory,” Nevada Law Journal, Spring 2015 (15:2), 537–565). We see this, for example, in how courts determine whether a person’s actions and expectations were reasonable. This fallacy of objectivity affects every aspect and each actor within the legal profession, including, most notably, the arbiters and advocates of justice: lawyers, judges, and juries.
Imagine that a lawyer previously worked as a prosecutor and that the job meant the lawyer worked closely with police officers who consistently arrested black transgender women for alleged unlawful sex work. The lawyer is a white gay male who left the county prosecutor’s office to start his own civil law practice with a stated mission of helping LGBT people be treated equitably in American society. The lawyer’s client is a black transgender woman alleging that her openly gay, white, male boss sexually harassed her on the job. Now imagine that the lawyer unconsciously conforms to American society’s perception of black women as sexually deviant, hypersexual, and overly aggressive. (For more on these stereotypes, see Patricia Hill Collins, Black Feminist Thought, Routledge, 2002.) The lawyer must first believe it is possible that he, as a lawyer working under the “objectivity” of the law, is even capable of holding and acting on such beliefs. The lawyer must then become aware that he, in fact, holds these biases against black women and femmes, perhaps by periodically taking implicit association tests and by being familiar with the cultural characteristics of the populations he serves and the systemic inequalities that his clients experience. The lawyer then has to work actively to dispel his personally held beliefs.
Lawyers should also consider the social and political structures and systems of oppression that intersect to shape the lived experiences of LGBTQ people and LGBTQ people of color. For instance, lawyers practicing in certain states might find that some of their LGBTQ clients are forced to use the public restrooms and locker rooms corresponding with their assigned sex at birth. This is a dehumanizing and offensive experience by itself. Some clients might also be black people, queer or not. Cultural competence means that lawyers understand that black masculinity is stereotyped as violent and aggressive while black women are stereotyped as both hypersexual and aggressive. (For more, see David S. Pedulla, “The Positive Consequences of Negative Stereotypes: Race, Sexual Orientation, and the Job Application Process,” Social Psychology Quarterly, March 2014 (77:1): 75–94.) Lawyers representing black transgender folks should understand these intersections and others, and how they impact clients’ social position and experiences.
Cisgender, queer, and transgender communities usually have diverging activist priorities, and, historically, the broader cisgender queer social and political priorities are privileged over the needs of trans communities. (This article uses “queer” as an umbrella term for gay, lesbian, bisexual, pansexual, same-gender loving, asexual, and poly sexualities.) According to “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey” by the National Center for Transgender Equality and the National Gay and Lesbian Task Force (tinyurl.com/mlh9qah), while marriage equality was important to transgender and gender nonconforming individuals, it was not the most important issue. Issues such as access to competent health care and housing and employment discrimination posed more imminent threats to their well-being. Lawyers with transgender and gender-nonconforming clients should know what is important to their clients and the communities they serve.
Being undocumented and trans presents additional challenges that lawyers should know about. The ubiquitous fears of removal proceedings owing to one’s undocumented status and the consequences should be within a lawyer’s body of knowledge when representing queer and trans undocumented people. Lawyers representing these groups should also be cognizant that undocumented people may find it difficult to trust Americans, particular those in positions of power, even if that person is their lawyer. These clients may not want to be completely forthcoming because they fear removal to their home countries as well as suffering physical and mental harm based on their queer and/or trans identities while imprisoned in detention facilities.
Consider, also, what visibility means for the client population that attorneys serve. What does it mean for lawyers to position themselves as spokespersons to the media for a claim of civil rights, housing or employment discrimination, and the like? What is it about the lead plaintiff in a class action lawsuit that makes them desirable as the public image of the case? These are just a few cultural competence considerations for lawyers and their clients.
With the historic Obergefell ruling comes new and advanced challenges to full inclusion of LGBTQ communities into American society. New legal battles will be waged, political campaigns will be organized, and social protests will be conducted. Lawyers will be called to advocate on behalf of these communities. We must be prepared to do so.
This preparation must first involve the legal profession as a whole committing to training its attorneys to be culturally competent in order to best represent their clients. The American Bar Association must take seriously the need to promote and train lawyers in cultural competence. As in the medical profession, law school accreditation and education should require cultural competence curriculum. It should work toward developing cultural competence standards by which lawyers and law students may be measured.
As representatives of justice, lawyers must be the foremost ambassadors of cultural competence. When taking on a new matter or working with a new client, ask yourself why you are working with this client. Determine whether you understand your clients and their legal issues, both as a lawyer competent in the law and the legal system and as a culturally competent lawyer. While lawyers should pursue training, they should also remember that there is no single class or set of classes that, when taken, will make lawyers culturally competent in perpetuity. Remember that cultural competence is an ongoing process. It is also multi-dimensional and multi-level. Cultural competence involves knowledge of yourself, the privilege you possess, and the unconscious biases you hold. It also involves knowledge of your client (individual or organizational) and the structural issues that impact how your client navigates the social world. Finally, cultural competence demands humility and commitment.
Anxiety and fear are some of the most pervasive barriers to diversity, inclusion, equality, and equity. Anxiety and fear prevent allies from speaking against injustice and unfairness. Fear of losing social standing not only blocks anti-inequality efforts, but it also encourages active reinforcement of privilege and systems of oppression. As lawyers, we cannot shrink from our duty to promote and advance justice. Yet, we do just that if we do not take seriously the pursuit of cultural competence.