While our nation has experienced exponential growth in diversity and technology, our legal system continues to work in an archaic fashion. As more and more professions have integrated cultural competencies in their practices, the legal profession has lagged very far behind. An effective 21st-century lawyer must possess skills for cross-cultural engagement by developing cross-cultural competency so that he or she can advocate effectively and justly. Nowhere is this clearer than in the area of criminal justice, family law, reproductive technology, and lesbian, gay, bisexual, and transgender (LGBT) issues.
Cultural competency in LGBT legal issues means understanding not only basic LGBT terminology but also how gender, sex, and sexual orientation interplay within one’s understanding of one’s identity and inform the choices an individual may make. As practitioners, we are bound by a code of ethics and professional conduct to represent our clients competently, zealously, and professionally in an ever-changing terrain. The legal strategy of our cases must be based on a thorough understanding not only of the client and the legal issue being addressed but also the possibilities of emerging trends in the law and portability factors to the solutions or options we as practitioners recommend.
While the Supreme Court decisions in Obergefell and Windsor have offered married same-sex couples some protection, the absence of equal rights and the non-recognition for all LGBT individuals across the nation remains a serious concern for legal practitioners. To say that the legal issues LGBT people face are no more complex in divorce, estate planning, or other areas is missing the mark. To treat all LGBT people the same is also missing the mark.
Below are some practical tips for working with LGBT clients:
Language. Exercise client non-discrimination. A practitioner should never use outdated or offensive terminology (e.g., sexual preference, tranny, homosexual, or hermaphrodite).
Respect. Revise your forms. Practitioners should revise all internal forms and documents to ensure that they are culturally sensitive (e.g., “spouse and spouse” rather than “husband and wife”). Do not assume to know someone’s sexual orientation or gender identity. If it is not clear, or your client uses terms you do not understand, ask for clarification.
Safety concerns. Do not “out” clients if they have not given you permission, either to people in your office or in pleadings or court proceedings.
Staff training. Make sure members of your staff are trained in cultural competency.
Interviewing skills. Practitioners must utilize the first meeting with the client to ask many questions. What is going on in the client’s life? What informed the choices the client made?
Bias from the court. Plan the road map of your legal strategy—and make sure that education of the court is in that plan. Know your judge and know your forum. Be cognizant of disparity of treatment. Be cognizant of how discrimination has caused your client’s legal position to be complicated. Humanize your client’s situation.
Portability. Educate yourself regarding what is going on in the law as well as national trends in the law. Are the options and solutions you are recommending going to be portable should your client move to another state, and will they withstand a change in the future legal terrain?
Mediation. Speak to the client about exploring other alternatives, such as mediation.
Remember: The lawyer who wears blinders limits creative and innovative possibilities in his or her lawyering.
As lawyers representing LGBT clients, we need to erode the embedded ethnocentric ideals that affect impartiality within our system of justice. Until LGBT individuals have equal protection nationwide and until discrimination has been eradicated, practitioners must be mindful and vigilant to ensure that the justice system avoids the imposition of dominant cultural values and morals that often perpetuates injustice and prevents the full equality that all people deserve.