August 26, 2019 Feature

Gaining Cultural Competency

By Celeste Fiore

Cultural competency and diversity seem to be hot topics for continuing legal education (CLE). Maybe this is because some jurisdictions have made separate diversity requirements within the ethics CLE component, or maybe it is just a sign of the times: People are different, but they all deserve the same respect. Or, it could be that the business case for diversity has gained more traction. Whatever your motivation for wanting to gain cultural competency, the goal of this article is to provide an accessible general outline and set of tools for how to gain cultural competency.

You must make a commitment to put in the time and effort to gain competency.

You must make a commitment to put in the time and effort to gain competency.

gettyimages.com/Andrea Colarieti

Each year, I give roughly 50 presentations about diversity and cultural competency primarily focusing on LGBTQ (lesbian, gay, bisexual, transgender, and queer) people to groups such as high school teachers, local registrars, members of the judiciary, lawyers, and community groups. What I have learned through these presentations, and through sharing panels with members of different linguistic, cultural, or religious groups, is that if we view cultural competency like learning another language that is foreign to us, we can follow similar steps to gain fluency in our communications and interactions with members of different groups of people. This fluency is cultural competency.

When polled, the majority of my audience members report they attempted to learn another language. However, most of these people never gained fluency. Of course, they do not lose their own native language in the process of attempting fluency, and chances are that their understanding of their own language is greatly increased just by attempting to learn another language. Because I am most familiar with the topic, this article will use LGBTQ cultural competency as an example to fill in the basic framework necessary to gain fluency about another group. This structure can be used for gaining cultural competency about other groups as well, much the same way as the framework holds to learn Spanish as well as English as additional languages. I posit that gaining cultural competency is not only possible, but much less difficult than one might imagine.

Even if you read no further, I hope you take away the first, most important principle: It is the responsibility of the learner who wants or needs to gain cultural competency to put in the work, not up to the teacher to impart their language to you. You would not walk up to a native speaker of another language and just expect them to teach you their language immediately or in a short period of time with no effort or independent learning on your part. However, it has been my experience that LGBTQ people are presumed to be able to quickly teach about the history of LGBTQ people throughout time and to give full vocabulary lessons about all current terms relating to our community. It is not the responsibility of native speakers to teach others fluency, nor is it possible.

The second principle: Most LGBTQ people are not experts on all things LGBTQ, much like most people, even those who have a particular heritage, are not professional linguists or language teachers. You would not expect that a native French speaker who happens to work with you will be able to teach you the French language, be current on politics and culture in another country, or be a scholar of that country’s history. Similarly, when someone comes out as LGBTQ, there’s no monthly newsletter they sign up for that contains relevant points of LGBTQ history or current vocabulary. There was no LGBTQ required K–12 curriculum in any state ten years ago: California was the first state to mandate LGBTQ inclusive curriculum in 2011, with New Jersey in 2019 being the next state (Jackie Botts, “ABCs of LGBTQ History Mandated for More U.S. Public Schools,” tinyurl.com/y3xc8urp). It was not until 2017 that California approved history textbooks in accordance with the mandate. Chances are that none of you reading this article or any of the people you interact with on a daily basis learned about LGBTQ people or history because you didn’t learn it in K–12 education. Therefore, we have all been left in the dark to figure it out on our own either in self-selected college classes or through personally motivated learning. To put this in perspective: The LGBTQ person you are looking to as a teacher may be trying both to learn their own history and to work through their own identity and labels in order to figure out where they fit in the community.

Yet, in my experience, LGBTQ people are expected to be completely up-to-date on current events impacting the community, details on the history of the community’s oppression, and on all the labels or definitions folks use to describe themselves. While it is acceptable to ask an LGBTQ person about something that you might have read about LGBTQ history, it is not acceptable to assume that an individual will be able to teach you all you need to know. Too many people assume that LGBTQ people can explain and teach what it means to be LGBTQ, but justifying one’s own identity is almost impossible (and exhausting). People assume that just because someone is LGBTQ they have specialized knowledge about how laws impact the LGBTQ community, such as whether Title VII of the Civil Rights Act covers sexual orientation and gender identity under sex discrimination. (I’ll ruin the surprise: This will be heard by the Supreme Court this term, so this area of the law is not settled.)

Unfortunately, sometimes even LGBTQ people, in their zeal to believe that they are treated equally under the law, assume that practitioners don’t need specialized knowledge about how LGBTQ people might be impacted in a particular area of the law. However, as long as the law does not validate or recognize LGBTQ people and their families as equal, advanced fluency in LGBTQ issues will be necessary to adequately represent LGBTQ clients. For example, New Jersey courts have recently determined that unmarried same-sex parents and their children can, as a matter of law, constitute a family. In Moreland v. Parks, 456 N.J. Super. 71 (App. Div. 2018), 191 A.3d.729 (2018), the Appellate Division overturned a trial court ruling that a non-marital co-parent could not bring a claim for bystander emotional distress when her same-sex partner’s child was struck and killed by a car in front of her. At the time the accident occurred, the co-parents were not and could not have married each other in New Jersey; the trial court found that because the parents did not have a legal relationship to each other, the non-biological parent could not have a familial relationship with the biological parent’s child. The Appellate Division disagreed and remanded for further proceedings. Cultural competency about how LGBTQ people create and organize their families, as well as an awareness that LGBTQ couples were not historically treated equally under the law, was vital to the appellate court’s decision in Moreland.

Third, you have to make a commitment to put in the time and effort to gain fluency. Anecdotally, fluency in a language takes somewhere between 500 and 1,000 hours for less difficult languages. This means that it if you spend an hour a day on a language, it would take almost three years to gain fluency! The same principle holds true for LGBTQ cultural competency because it includes learning about culture, history, vocabulary, and current events—this kind of knowledge isn’t gathered overnight. Practice is what makes perfect: Attending continuing legal education courses on LGBTQ issues, watching shows or movies with LGBTQ content, and making friends with LGBTQ people through community organizations (such as religious institutions or service/volunteer organizations) provide opportunities to practice.

Fourth, have a personal reason for wanting to gain fluency, whether it’s to increase your client base or support a friend or relative. Motivation is key. Often a relative, friend, or job personally motivates a learner to push past mental blocks or fatigue in learning. It is thought that at least 10 percent of the population is LGBTQ, a statistic from the Kinsey reports of the 1950s and 1960s when fewer people were comfortable coming out and identifying as LGBTQ even confidentially to researchers. Thus, it’s likely that you know someone who is LGBTQ even if they have not come out to you. Sharing your LGBTQ cultural competency (or your efforts to obtain it) creates a safe space for LGBTQ people to come out to you and around you. Studies have shown that people are more productive and comfortable when they can be themselves.

Fifth, start with mastering the basics, like vocabulary words or cultural history, rather than jumping immediately into complex theories. When learning a language, it’s best to start with children’s stories containing limited vocabulary rather than trying to comprehend poetry. Find established LGBTQ advocacy or media organizations and review any definitions they may have on their websites to gain fundamental vocabulary. Try practicing the acronym “LGBTQ” until you can say it without stumbling or inadvertently adding or subtracting letters. Although it may seem silly at first, having “LGBTQ” roll off your tongue indicates that you have practiced making sure that you don’t stumble when welcoming the LGBTQ community. This is similar to learning words in another language with the proper accent and sound of the words so that you can be understood by native speakers. Learn to ask simple questions politely and appropriately: Asking someone what pronouns they use also reflects cultural competency and does not take much effort to obtain significant returns.

Sixth, practice with a variety of native speakers, not just one. Much like a Spanish speaker in Mexico might have a different word than a Spanish speaker in Spain for the same object, different issues may impact lesbians more than gay men, such as gender-based income inequality or violence. There is not one monolithic LGBTQ culture/language nor is there only one way to speak Spanish. In particular, transgender people have issues that uniquely impact them based on their gender identity and may also be impacted as non-heterosexual (lesbian, gay, or bisexual). This is intersectionality within the LGBTQ label that may not be recognized without sufficient cultural competency.

Seventh, put up visual symbols to reflect that you’re working toward cultural competency or fluency. In the context of language, a quote in that language shows native speakers, or other learners, that you’re interested in that language. It could expand your network to more people with whom to continue learning. Hanging a rainbow flag or safe space sticker shows LGBTQ people that you will not be overtly discriminatory or hostile to us; this may seem like a very low bar, but LGBTQ people often face verbal and physical violence due to our identities, so having a welcoming space is vital to survival.

Eighth, start looking at the world in the second language, examining your own preconceived notions and comparing these to the lived experiences of native speakers. Start with the forms you use in the courthouse or in your practice. If your vocabulary contains words that may not apply or make sense to someone who speaks another language, find a better word, being mindful of false cognates (words that exist in two languages but that mean different things, like “gift,” which means “poison” in German). You may think that “husband/wife” means the same thing for LGBTQ people, when, in fact, a gender-neutral term such as “spouse” may be more appropriate.

Looking at the world through a new cultural lens is like learning new idioms, which is difficult if you have no cultural context. For example, American English contains an extraordinary number of idioms relating to horses: “don’t put the cart before the horse,” “don’t beat a dead horse,” “you can lead a horse to water, but you can’t make it drink,” etc. If you have no frame of reference for why people in the United States seem so focused on horses, you won’t be able to learn these very common expressions. Likewise, you won’t be able to understand why making sure to use the correct pronoun and name for a transgender person is vital to that person’s health and safety unless you have learned that outcomes for transgender youth are exponentially more positive when that child is affirmed in their gender identity, so make sure you understand the basics.

Similarly, if you are unable to recognize that many LGBTQ people are used to being excluded from polling data or having to hide their identities, you will not be able to ask the right questions of them. For example, the only demographic question related to LGBTQ people on the 2020 U.S. Census will explicitly ask couples living together if they are “same-sex” or “opposite-sex” partners; there will be no questions about the sexual orientation or gender identity of anyone surveyed. Therefore, there will not be any count of non-coupled LGBTQ people (and bisexual people in an opposite-sex couple will be erased and effectively considered straight by the census). This framework also completely ignores the existence of partnered or unpartnered non-binary people (people who do not identify as either male or female). If it is relevant to your representation of an LGBTQ person, you can ask if they are in a relationship with anyone, how that person identifies, and what pronouns everyone uses. Make sure you have either a blank spot or drop-down menu that includes more than just “M” and “F” for gender markers (include at least “X”) to include non-binary people.

Ninth, utilize multiple methods of learning, such as reading, writing, and speaking. There are movies, books, and television shows in other languages and also those that feature LGBTQ characters. Try to engage with media created by LGBTQ people or native speakers for a more authentic experience. Although the Internet can be a great research tool, be wary of social media postings posing as journalism.

Last, but not least, take an intersectional approach. For example, if it’s Hispanic heritage month, read an article about current or historical Latinx LGBTQ people. No language or identity exists in a vacuum, and too often the experiences of white LGBTQ people are taken as the only experience. Therefore, as you begin your cultural competency fluency journey, be mindful that no one experience is the LGBTQ experience.

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Celeste Fiore (queerfamilylaw.com) is an owner of Argentino Family Law & Child Advocacy. Their practice consists of family law, special education and anti-bullying work, legal assistance for the transgender and non-binary identified community, and advancement of LGBTQ rights. They are the immediate past chair of the LGBT Rights Section of the New Jersey State Bar Association and are currently an NJSBA LGBTQ+ at-large trustee. Celeste has been named a New Jersey Super Lawyers’ “Rising Star” in 2017, 2018, and 2019 and was recognized as one of the Best LGBT Lawyers under 40.