Gender Identity and Sexual Orientation
Educate yourself on more than the facts and the law: Educate yourself about the people with whom you are mediating so that you can develop trust, understanding, and respect. Regardless of who the litigant is, you are more likely to reach a settlement if the mediator, the litigant, and counsel all respect each other and the litigant trusts the counsel and the mediator.
Begin by never, ever assuming what litigants’ gender identity or sexual orientation is by how they present themselves, how they dress, how they talk, what they sound like when they talk, or who their attorneys are.
Gender identity is “[a] person’s deeply-felt, inherent sense of being” a man or a woman, a male or female, “or an alternative gender (e.g., genderqueer, gender nonconforming, gender neutral) that may or may not correspond” either to the sex a person was assigned at birth “or to a person’s primary or secondary sex characteristics.” Definitions Related to Sexual Orientation and Gender Diversity in APA Documents, APA.org (last visited July 16, 2021). The terms genderqueer, gender neutral, gender nonconforming, and non-binary are used “to describe a person whose gender identity does not [identify] with a binary [male or female] understanding of gender.” Id. For example, “[p]eople who identify as genderqueer” or non-binary may understand themselves to be “both man and woman . . . ; neither man nor woman . . . , moving between genders . . . ; or embodying a third gender.” Id. The term cisgender is “[a]n adjective used to describe a person whose gender identity and gender expression align with [the] sex [that person was] assigned at birth.” Id. “Since gender identity is internal, a person’s gender identity is not necessarily visible to others” based on how that person looks or dresses. See id.
In addition to gender identity, educate yourself about the litigant’s sexual orientation if that is relevant to the case. Sexual orientation is “one’s enduring sexual attraction to male partners, female partners, or both.” Sexual orientation may be straight, gay, lesbian, or bisexual. Id.
It is important to understand that gender identity and sexual orientation are not the same thing; therefore, do not confuse them when referring to a litigant’s gender identity. For example, if the litigant identifies as a female who is transgender and her spouse identifies as a female, then the couple is usually considered to be a lesbian couple. The term transgender “is an umbrella term used to describe . . . people whose gender identity and/or gender role do not conform to” the sex that they were assigned at birth. Id.
When referring to litigants, it is important to always use the language that they use to describe themselves. Remember, litigants know themselves better than anyone else knows them.
Acknowledge the importance of pronouns by using them.
Introduce yourself with your pronouns. For example, say,“My name is Chris Smith. I use he/him/his pronouns, and I will be mediating your case today.” Don’t say, “My preferred pronouns are he/him/his.” A person’s pronouns are the pronouns that must be used to show that person dignity and respect; the use of the pronouns with which a person identifies are not a matter of choice. Pronouns: A Resource, GLSEN.org (last visited July 17, 2021).
Ask litigants what their pronouns are. Understand, though, that some people do not use pronouns but instead want to be referred to by their names; if so, then respect their wishes. Id.
For those litigants who do use pronouns, refer to the litigants using their pronouns throughout the mediation—even if you are not in the same room. This will get you in the habit of using their pronouns so that you do not mistakenly “misgender” them. In fact, regardless of when or where you are referring to litigants, you should use their correct pronouns, whether in pleadings, in written communications, in conversations with your colleagues, in open court, or outside of the courtroom. This shows respect for the litigant’s dignity, sets the tone for civility in the mediation, establishes your commitment to professionalism, and gives you credibility. After all, you would not want a litigant, counsel, judge, or juror to misgender you or call you by a name that is not true for you.
What do you do if you make a mistake and use the wrong pronoun? Take responsibility for it and then resolve to display the appropriate dignity and respect the next time you use the litigant’s pronoun. You can say, “I’m sorry, I meant to say he.” If you realize your mistake at a later time, apologize to the person as soon as you are able and move on. Id. Do not make a big deal out of making the mistake; the focus here is on being respectful to the person you misgendered, not on your embarrassment.
For the purposes of making your pleadings and written communications more inclusive, if you use Microsoft Office, consider adding inclusive proofing tools to your applications. For example, in Word from the “Home” tab, click “Editor > Settings”; or click “File > Options,” choose “Proofing,” and then click the “Settings” button. Scroll down to the “Inclusiveness” section, select all of the checkboxes that you want to include when you proof, and then click the “OK” button.” The next time you review your document, the editor will provide suggestions for how you can make your document more inclusive.
Another great resource for learning more about how to use pronouns with which litigants might identify in court is the Canadian Bar Association’s web page on the use of gender-inclusive pronouns; it includes definitions, frequently asked questions, and sample scripts and videos. In 2019, courts in British Columbia began introducing new directives that require counsel and witnesses to introduce themselves with their pronouns and titles. These directives can easily be adapted for use in mediation.
Educate yourself about the litigant’s everyday lived experience.
The LGBTQIA+ community is a minority. How likely are you to have a litigant who identifies as LGBTQIA+? Estimates of the number of LGBT people in the U.S. range from 4.5 percent of the population to 5.6 percent of the population, or between 13 to 18 million people. LGBT Data and Demographics, UCLA Sch. L., Williams Inst. (Jan. 2019). Less than 1 percent of the population, or 1.4 million people, identify as transgender.
Fifty-eight percent identify as White, 21 percent as Latino/a, 12 percent as Black, and more than 5 percent as more than one race. Fifty-eight percent identify as female, and 42 percent identify as male. Their average age is 37, while the average age of non-LGBT adults is over 10 years older (48). LGBT Data and Demographics, UCLA Sch. L., Williams Inst. (Jan. 2019).
A 2017 study published by the National Library of Public Medicine found that LGBTQ people disproportionately experience interpersonal discrimination, including slurs (57 percent), microaggressions (53 percent), sexual harassment (51 percent), violence (51 percent), and harassment (34 percent). Logan S. Casey et al., Discrimination in the United States: Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Americans, Health Servs. Rsch. (2019). LGBTQ people who also live at the intersection of race, including Black, Indigenous and People of Color (BIPOC), reported “statistically significant higher” rates of discrimination than their White counterparts when they “appl[ied] for jobs,” “tr[ied] to vote or [otherwise] participate in politics, and interact[ed] with the legal system.” Id.
In addition to discrimination, poverty is notably high for the LGBT community. Twenty-two percent of LGBT people and 29 percent of transgender people live in poverty. Twenty-five percent of LGBT people earn less than $24,000 a year, 15 percent do not have health insurance, and 27 percent are food insecure. See LGBT Data and Demographics, UCLA Sch. L., Williams Inst. (Jan. 2019). Poverty is “particularly high at the intersection of racial and [LGBT] minority statuses.” LGBT Poverty in the United States, UCLA Sch. L., Williams Inst. (Oct. 2019). LGBT people who also identify as BIPOC have statistically significant higher rates of poverty than non-LGBT people who are White. Id. Furthermore, “Black, White, Asian, and other-race LGBT people have statistically significant higher poverty rates than their same-race cisgender straight counterparts. For example, 30.8% of Black LGBT people live in poverty, whereas 25.3% of Black cisgender straight people live in poverty.” Id.
These statistics do not reflect the lived experience of all LGBT people. However, every LGBTQIA+ litigant has a lived experience; and regardless of whether you are the mediator, the litigator representing the LGBTQIA+ litigant, or the opposing counsel, you should bring an understanding of that lived experience into your role. A keen understanding of the litigant and the litigant’s life experience, settlement priorities, and considerations that remain unsaid can affect your ability to reach a compromise. Effective mediators are aware of this context and are creative and relentless in their commitment to find areas of agreement between the parties. The same holds true for a lawyer. If you have an understanding of the litigant’s day-to-day reality, you may be able to suggest a compromise that is attractive to the litigant—one that the litigant might not necessarily think of in the moment—and won’t exacerbate any current disparities that the litigant is experiencing.
Be aware that because of an LGBTQIA+ litigant’s lived experience, it may take you longer to earn the litigant’s trust. And if you are the mediator or the lawyer for the LGBTQIA+ client, building trust is critical to facilitating a settlement.
Know what litigants’ expectations are regarding the confidentiality of their identity, the mediation process, and the settlement.
Even though LGBTQIA+ people now have a fundamental right to marry and are protected from discrimination in the workplace if they work for employers with 15 or more employees, many LGBTQIA+ people are not “out” because they fear discrimination. Prior to the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia in 2020, which prohibited discrimination in the workplace under Title VII based on sexual orientation and gender identity, close to 50 percent of LGBTQ Americans were in the closet at their workplaces. Just because some legal protections now include LGBTQIA+ people does not mean that discrimination no longer takes place, or that access to housing, employment, education, public accommodations, health care, credit, funding, and other opportunities is equal or equitable. See Small Bus. & Entrepreneurship Council, Facts and Data on Small Business and Entrepreneurship (2018) (noting that 78 percent of American businesses have fewer than 10 employees, meaning that in at least 78 percent of American businesses there are no protections in the workplace for discrimination based on sexual orientation or gender identity); Kerith J. Conron & Shoshana K. Goldberg, LGBT Protections from Discrimination: Employment and Public Accommodations, UCLA Sch. L., Williams Inst. (June 2019), (listing Texas as one of many states that does not prohibit discrimination based on LGBT status under state law in public accommodations). Therefore, many LGBTQIA+ people still hide their identities. For example, 34 percent “of LGBT older adults fear having to re-closet themselves when seeking senior housing.” SAGE, The Facts on LGBT Aging, SAGEUSA.org (last visited July 17, 2021).
For these reasons, LGBTQIA+ litigants may fear being outed during a lawsuit, which may make them more likely to accept a settlement that will ensure their LGBTQIA+ status is confidential. Therefore, when drafting a settlement agreement, counsel should consider including appropriate language in the settlement to maintain the confidentiality of the litigant’s identity, as well as the nature of the dispute itself if the litigant’s LGBTQIA+ status has been revealed. Finally, even though it is a requirement under mediation rules in most jurisdictions, the mediator and counsel should take special care to maintain the confidentiality of the mediation itself to ensure that they do not “out” the litigant.
Benefits of Mediation over Litigation
Mediation, as opposed to litigation, carries some specific benefits for LGBTQIA+ people.
First, many LGBTQIA+ people are estranged from their families and rely on their chosen LGBTQIA+ families and the LGBTQIA+ community for their social connections, services and support, and business and personal relationships. Mediation provides an opportunity to settle a dispute and still maintain these much-needed relationships, which might be jeopardized through protracted and hotly contested litigation. For example, in a family law case, subpoenaing a witness from the LGBTQIA+ litigant’s community to testify against another member of the community may have a greater impact on the daily life of the LGBTQIA+ litigant than a parallel scenario would have on a straight litigant because the straight litigant likely has a larger network of business and personal relationships to access.
Second, the laws affecting LGBTQIA+ people are still far from settled, including laws regarding access to housing, employment, education, health care, goods, and services; securing identity documents; receiving equal treatment in the criminal justice system; and being privy to the benefits and privileges that come with marriage. Therefore, a legal decision by a court may carry a higher risk of an unfavorable result. And with that risk comes the possibility that the unfavorable decision may further harm other LGBTQIA+ people in the jurisdiction. Therefore, mediation offers a litigant an opportunity to better control not only the outcome of the litigant’s case but also the potential binding effect of an unfavorable decision on LGBTQIA+ people more widely.
Third, while acceptance of LGBTQIA+ people in the U.S. is on the rise, LGBT and LGBTQ people still experience bias and prejudice in the court system. Therefore, resolving a case through mediation can protect the litigant from dehumanizing, disparate, and often traumatizing treatment during litigation, as well as from an unfavorable outcome before a judge or a jury.
Finally, the litigant’s safety is an important factor to consider. LGBT people are almost four times more likely than non-LGBT people to experience violent victimization, including rape, sexual assault, and aggravated or simple assault. “LGBT people are highly overrepresented as victims of hate crimes given the number of LGBT people in the population, and this is especially true of hate crimes against transgender women.” Liz Coston, Hate Crimes Against LGBT People in the United States, Oxford Rsch. Encyclopedia (Apr. 30, 2020). Therefore, the litigant could be exposed to violence if the case proceeds to trial in a public forum.
In sum, bringing these “tools” (particular knowledge) to mediation fosters understanding, respect, and trust, which can make for a better mediation experience as well as a higher likelihood of finding areas of consensus, thereby increasing the chances of settlement.