Transgender people experience discrimination in almost every area of their lives, from schools, shelters, walking down the street, using the bus, senior citizen homes, and many other places. Nearly one-third live in poverty, which is more than twice the rate of the US population, according to Injustice at Every Turn, the National Transgender Discrimination Survey (NTDS) conducted by the National LGBTQ Task Force and the National Center for Transgender Equality in 2015. (See also Movement Advancement Project, Identity Document Laws and Policies.) Transgender people suffer unemployment at three times the rate of the general population according to the NTDS. This same survey shows that 80 percent reported experiencing harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it.
Anti-Transgender Bias and Structural Racism
I’ve been working with transgender clients for more than 20 years now. I’ve represented transgender people when others turned them away. I’ve represented transgender people along with many other underrepresented people in my practice because I am transgender and black, and because it was the right thing to do. The NTDS reported that the combination of anti-transgender bias and persistent, structural racism was especially devastating. I was constructively discharged from my corporate job, which allowed me the opportunity to open up my law practice.
I have worked with a close network of attorneys that have represented transgender clients over the years and hope to share some things that I’ve learned along the way. The statistics should help put into perspective some of the transgender population, but just as every human being is different, not every transgender person is the same. There is also a new survey being conducted this year, and as the population has changed, I am sure that the survey results will have changed.
Don't Be Afraid to Ask Questions
If you have any questions or reservations, there are plenty of resources available to you. It’s better to ask the question ahead of time than to damage someone’s opportunity to obtain something important such as a gender change or name change. Most transgender people have waited a lifetime to change their name and gender. They save, borrow, or hold fundraisers to make these changes happen. This plays a large part in their gender identity and the way they express themselves. I’ve heard other attorneys say, “I don’t see what the big deal is? It’s just a name change.” To a transgender person, it means everything.
Some jurisdictions are reluctant to change or amend a gender marker, and of course, statutes vary from state to state. There are advocates who have been doing this work now for decades who have some helpful tips that they can share. They do this work every day and are happy to speak with you. I will share resources with you below.
Build Trust With Your Client
We should never disclose someone else’s transgender status. It is that person’s right to choose when and where to disclose. This is whether we have a legal relationship with them or not. Honoring this will go a long way with building trust with your client unless it’s part of the case itself. Then it should only be discussed within those bounds. Transgender people feel scrutinized and judged, so do not judge the individual on their dress or behavior. Transgender people, to oversimplify, are born in a body different from their soul. All transgender people aren’t alike but all transgender people are human beings. Please use common courtesy with transgender clients as with any client and treat transgender people with dignity and respect.
This includes using proper pronouns to address your client. It is proper to ask the client what pronouns they use and to share your pronouns, such as she or he. You may need to update your office forms so that it can allow for more genders. This may be confusing, but more and more young people identify outside of the gender binary of female and male. You may need to think about adding transgender, gender nonconforming, or other options once you’ve done some research. There are many that use he or she, but many are gender fluid or gender non-conforming and use alternative pronouns which can span from “them, they, ze, zhe,” and numerous others.
How to Prepare for the Case
It will be necessary to make sure opposing counsel and the court address your client appropriately. You set the tone for this in your demeanor and pleadings. In most transgender cases, unlike other cases, you will need some type of medical evidence that substantiates your client is transgender. You want to be prepared and let the court know you’re the expert. Medical evidence can range from an affidavit to having various types of medical experts testify. You will need to know when and how to use this evidence. This is, of course, in addition to any other evidence you would submit in a similar case.
The American Medical Association has gone on record indicating this is a medical condition and has advocated for transgender health and civil rights. The American Psychological Association have also gone on record supporting the health care and civil rights of transgender people. The organization that sets the standards for transgender health is the World Professional Association of Transgender Health.
The Brain Is a Sex Organ
Finally, don’t get stuck on whether someone has had surgery or not. This may be a statutory requirement, but this doesn’t determine whether someone is transgender. There isn’t just one surgery. There are numerous surgeries, and they are expensive and haven’t been covered by insurance in the past. Others choose not to have them for a variety of reasons such as health concerns or fear. Additionally, people tend to forget that the brain is a sex organ.
I hope these tips have helped you in your practice with transgender clients and attorneys as transgender people become more visible in the media with Chaz Bono and Caitlyn Jenner coming out and Laverne Cox on the cover of Time. The key is to treat everyone with respect and dignity. If you need assistance with the nuances of a transgender case, there are plenty of resources to assist you. Please seek out advice. Ask the individual the pronouns that they wish to be called rather than assume and share your pronouns too. Know the law in your area, as each state is different. Become the expert for the court. Use medical evidence and experts when and where necessary in addition to any other evidence. Remember being transgender isn’t about the anatomy but about the individual beings. We are all human beings.
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA 94102
30 Winter St., Ste. 800
Boston, MA 02108
National Center for Transgender Equality
1400 16th St., NW, Ste. 510
Washington, DC 20036
Transgender Law Center
1629 Telegraph Ave.,400
Oakland, CA 94612
415-865-0176 x 306
Human Rights Campaign
1640 Rhode Island Ave. NW
Washington, DC 20036
National LGBTQ Task Force
1325 Massachusetts Ave. NW., Ste. 600
Washington, DC 20005