Working With Transgender Clients

Working with Transgender Clients

The institutionalization of gender is at a tipping point. “They” was recently announced to be Miriam-Webster’s word-of-the-year for 2019. Three percent of high school students now report that they do not identify as cis-gender.[1] Top law firms have added gender pronouns to their standard signature blocks. Legal scholars have tackled the few, but nuanced, changes that the law needs to make to hold space for all genders.[2] Fifteen states and a number of countries now formally recognize nonbinary genders in legal documents.

And yet, no data is formally collected on transgender citizens in the United States. Despite being a small percentage of the population (which is growing as individuals recognize their authentic identities), transgender people disproportionately experience harm:

  • 50-66% of transgender individuals have experienced sexual assault, compared to 18% of men and boys in the general population, and 33% of women and girls in the general population
  • 50% of transgender individuals are survivors of intimate partner violence
  • 40% of homeless youth are LGBT
  • 32% of LGBT youth have faced physical, emotional, or sexual abuse at home
  • 20% of transgender people have experienced housing discrimination, and more than 10% have been evicted because of their gender identity
  • 15-20% of transgender people have been the victim of stalking, compared to only 5% of the general population

And 91% of transgender respondents to a survey from the UCLA Law School had an outstanding legal issue with which they needed help.[3]

The legal community often talks about the law as a source of remedies. The trans community most often encounters the law as a source of problems. As a member of both communities, I know firsthand the immense harm the law has caused to trans people.

For example:

• Punitive national laws, policies, and practices targeting transgender people, complex procedures for changing identification documents, and social hostility/exclusion strip transgender people of their rights and limit access to justice.

• Workplace-related research on lesbian, gay, bisexual, and trans (LGBT) individuals reveals that trans workers are the most marginalized group and are excluded from gainful employment, with discrimination occurring at all phases of the employment process, including recruitment, training opportunities, employee benefits, and access to job advancement.   This environment inculcates pessimism and internalized transphobia in trans people, discouraging them from applying for jobs.  These extreme limitations in employment can push trans people toward jobs that have more safety and security risks, such as beauticians, entertainers, or sex workers.   Unemployment and low-paying or high-risk and unstable jobs feed into the cycle of poverty and homelessness.

• Medical institutions burden trans people with high additional expenses and isolation by requiring long stays in recovery rooms while waiting for single rooms, and even putting warnings on patient doors that are not used for cis patients with the same conditions.

• When homeless trans people seek shelter, they are typically housed with groups based on their sex assigned at birth, even when it does not match their presentation, their lived experience, or any other aspect of who they are; they are also subject to abuse and humiliation by staff and residents. 

• Laws were enforced, even in recent decades, criminalizing trans people’s very existence through legislation that punishes so-called unnatural sex, sodomy, “buggery,” homosexual propaganda, and cross-dressing. Criminalization and mistreatment by law enforcement continue with unchecked profiling, discrimination, and harassment.[4]

Anti-Trans discrimination in action: In 1990, a trans woman, who at the time was identifying as a gay man, was arrested under a state sodomy law for consensual homosexual activity. Based on that charge, she must register as a sex offender for life. Yet, in 2003, Lawrence v. Texas[5] found these statutes unconstitutional. Now, trying to change her name, she faces barriers to accomplishing that goal. Under the statute, the prosecutors raise a routine objection that the name change should be denied “on the basis that the request aims to defraud or mislead, is not made in good faith, will cause injury to a person, or will compromise public safety” under Minnesota Statute § 259. And yet, if she does not get her name change, she faces violence and can be denied services based on the fact that her legal identification documents appear incongruous to her presentation. Since arrests, charging, and convictions for sodomy were often based on evidence such as perceived gender, transgender individuals were disproportionately affected and marginalized even within the LGBT community to begin with. Today, even the unconstitutional laws continue to oppress the community beyond the date they were invalidated.   

Experience with laws criminalizing their lives have discouraged trans people from interacting with the law or seeking justice, leading to further marginalization. When picked up for any of the aforementioned alleged crimes or under vague “public nuisance” or “vagrancy” laws, abuse can continue at the hands of the police or inmates in criminal justice systems that fail to appropriately provide basic healthcare and other needs for trans inmates.[6]

As a result, the transgender community operates by relying on word of mouth. Every space must be presumed unsafe until proven otherwise. The legal community, to the extent we wish to change the status quo and serve transgender and gender-diverse clients, must affirmatively prove itself to be culturally competent.

As an attorney, you owe your clients a duty to be competent in your area. Just as you must be competent in the norms of an industry to best serve a client in that industry, you must also be competent in the norms of a client’s culture in order to best serve that client. If you plan to serve transgender or gender diverse clients, you must actively educate yourself and stay current with the community.

Tip No. 1: Use the correct terminology for your client and ensure that all others interacting with your client will too, even if that involves hard conversations with the court.

Terms are crucial to conveying respect and openness. Simultaneously, terms are meaningless because they tell you none of what you need to know to provide appropriate legal advice.

Such “terms” include:

  • Identity labels
  • Names
  • Pronouns
  • Experiences
  • Personal history
  • Body part names
  • Nearly any part of a social experience

Definitions of terms are hotly contested, even within the community. Yet, there is a terms paradox: defining terms does not give us an understanding of who the person is or what their needs and goals are, but those labels can be very dear to the client’s needs and sense of self. You should be careful to use the terms a client uses for themselves and resist the urge to impose any labels based on your perceptions. Challenge yourself today to look at someone on the street and remind yourself that you do not know that person’s gender by looking at them.

How do I ask for my client’s correct name and pronouns?

Attorney: “Hi, my name is CB Baga. I use they/them pronouns. Thanks for coming in today. What name and pronouns do you use?”

Client: “I’m Jamie, he/him.”

Attorney: “It’s nice to meet you, Jamie.”

If you are looking for casual transitions or ways to connect with your client, do not connect by editorializing on information your client shares about their identity. It is common to want to comment on your personal progress or challenges using various pronouns. This redirects the conversation to your needs, in a situation where the client is vulnerable and probably nervous. Doing so signals to the client that their identity is unusual to you, and that you may not be a safe person with the client’s communication needs (for example, the client’s need to be called by the correct pronouns) and that you are focused on your own discomfort over the client’s. Choose innocuous topics that you would discuss with any client.

Anti-Trans discrimination in action: When appearing for an order for protection against a respondent who committed sexual assault on the petitioner, the petitioner’s attorney asked the petitioner to use the wrong pronouns to refer to the respondent. The request was made to try to simplify the issues for the court. While it is natural to want to tell a clear story to the court, Model Professional Rule 3.3 Candor Toward the Tribunal says that “(a) A lawyer shall not knowingly:(1) make a false statement of fact or law to a tribunal[.]” While not every court will be familiar with all pronouns or situations, it is short-sighted to misrepresent in the name of simplification. The trans community is served by educating the court and the community at-large about the reality of our situations. By choosing to pass over the opportunity to educate the court, one merely delays the integration of our experiences in the jurisprudence and passes on the duty to the next party to appear.

How do I keep up with rapidly changing vocabulary?

Look up words you do not know and use them correctly to show your cultural competence when meeting with clients. As with any culture, the community has developed terminology like “dead name” (a name that was assigned to you that you no longer go by or is connected to a “dead” identity) and “AMAB/AFAB” (assigned male/female at birth). If you work with LGBTQ individuals, stay up to date on the terminology, the same way you would stay up to date on the factors that affect other aspects of your legal practice. If you do not work with the community regularly, do not make your client educate you—look up what you need to know to competently represent your client.

Tip No. 2: Show empathy and awareness for your client’s individual needs and create space for those needs to potentially be different than you have ever heard of before.

How do I ask for my client’s unique concerns in accessing legal help?

Attorney: “I see from your intake form that you are here to talk about a housing issue today. Before we dive into that, is there any information you would like me to have on how I can best support you, any particular concerns you have, or something you want to discuss right away?”

Client: “I am really uncomfortable going to the courthouse. I do not want to have to go in front of a judge if I can help it.”

Attorney: “Okay, thanks for sharing that. I can see how that would be really scary. It’s hard to know how safe a particular individual in the court system will feel. We can definitely talk through all your options and help figure out what the best next steps are for you.”

Resist the urge to reassure your client right away if they share a concern. The client needs to feel heard and validated in order to know that you will respect the boundaries that they share with you and that you understand their issues. You can give them more information later about what each option they have looks like, so they can think through their fears and concerns in context. When they raise the concern is not the best time to tell them that their concern doesn’t concern you the same way.

How do I get enough information about my client’s situation when I see how complicated gender and sex and transition can be?

Trans individuals make choices in three key areas about how they want to live their life—medical, legal, and social. These choices do not tell you anything about that person’s actual identity or legal needs—and asking about them when they are not strictly relevant will put your client on high alert that you are not culturally competent. There are many different decisions in all these areas, such as how to dress, what names to use, and what medical interventions or changes are desired. Every choice is based on many complex factors and can even vary day to day or in different contexts based on the time, activities, comfort, safety, cost, and more. Do not assume anything—including who the client is out to, what names, pronouns, and presentation are used in what contexts, or how the client may feel about those choices.

Example 1:

Attorney: “The legal form requires that I put the name that is on your legal identity documents here. Would you write it in for me?”

Example 2:

Client: “I am a nonbinary transfeminine person, so it’s really hard to get my landlord to take me seriously and I think she is just trying to evict me to get me out of her hair, but the whole place is falling apart.”

Lawyer: “That must be so tough to deal with. At this point, what would be the best outcome for you? What would a win look like?”

Anti-Trans discrimination in action: A client who was transgender experienced employment discrimination. The client’s lawyer wrote a letter to the employer to assert the client’s rights. Only after the letter was written did the lawyer realize that the client was “stealth” to the employer (the client was not out as transgender and was not willing to be outed for the sake of legal advocacy). The lawyer had to re-write the letter to focus on “perceived sexual orientation.” If the lawyer had realized that they needed to ask if the individual was comfortable being outed before the first draft of the letter, the risk of outing the client and the time spent would have been avoided.

TIP No. 3: Overcome bias:

  • Take it all in
  • Spend time to list out the client’s goals
  • Evaluate alternative options
  • Articulate your recommendations
  • Identify the key facts supporting and steps required for each choice the client has

One psychological effect of perceiving a client to be gender diverse (or have another diverse identity) is a tendency to naturally assume that the demographic category is more significant than other aspects of the individual’s background, behavior, or experience. This is called “master status thinking.” Master status thinking is a type of implicit bias that focuses on the diverse identity as the primary issue and focus of the meeting instead of the issue that the client prioritizes. The conversation may follow the attorney’s curiosity (trans history and experiences), invasive questions (inappropriate and irrelevant to the legal issue), redirecting the conversation (back to transness), and assumptions about causality/correlations (may be false or true, but should not be assumed).

How can I work against the natural tendency toward master status thinking?

In order to prevent this cognitive bias that all of us tend toward, try to set aside the fact that your client is diverse and listen to the many different factors that comprise that experience. There is tension between this and the fact that to understand your client, you need to see the systemic factors about that person’s background, behavior, and experience that are directly linked to their status as a marginalized person. One effective way to balance this is to start by showing empathy and understanding of the experience as a marginalized person, and then move on to focus on your client’s options for solving the problem based on their personal situation, taking into account all the factors of their situation, skills, and goals. Resist the urge to only give them the traditional legal framework, without considering whether that framework solves the problem that the individual experiences. Help the client through their decision on what the best next steps are.

What should a discussion with a client look like when they present with complex, interconnected identity and legal issues?

Wait to ask personal questions until they are necessary. Allow the client to direct the conversation when they are sharing their experience, and gradually focus the discussion to explore the client’s goals and the legal parameters applicable to the situation. When you need to know personal questions to address the legal issue, consider prefacing your query by explaining the legal reason it is necessary, and ask while collecting the other specific details necessary for the legal analysis.

Anti-Trans discrimination in action: An order for protection petitioner called the police after being brutally beaten and locked outdoors in the winter by her female partner. The two individuals, both assigned-female-at-birth (AFAB) and nonbinary identifying. The police disregarded that there was real violence at play and belittled the couple, asking “if the two girls needed to take a few deep breaths” while one was bruising and bloody before them. As a result, the petitioner delayed seeking an order for protection for many months, fearful that the legal system would similarly overlook her situation.

Conclusion

Competent representation of trans and gender-diverse parties requires the legal community to learn inclusion skills and build trust with the community. Long-term harms continue to alienate LGBTQ people from the legal system. Only by affirmatively taking responsibility for gender inclusion will the legal community be able to keep up with the needs of the society it exists to serve.[7]

-------------

By CB Baga

CB.Baga@FaegreBD.com

CB Baga is an associate at Faegre Baker Daniels and the founder of the Trans Legal Clinic, which is a partnership between the Volunteer Lawyers Network and Family Tree Clinic. Their pro bono and community services work outside of the LGBTQ Clinic has included high profile tenant advocacy impact litigation, social security appeals, and orders for protection. CB’s trial practice focuses on resolving complex commercial disputes by focusing on the advantage that can be gained for clients, with emphasis on trade secret and non-compete litigation, insurance, and complex contract disputes.



[1] A 2017 study by the University of Minnesota medical school found that 2.7 percent of study participants identified as TGNC—transgender or gender nonconforming. Eisenberg, Marla E., Risk and Protective Factors in the Lives of Transgender/Gender Nonconforming Adolescents https://www.jahonline.org/article/S1054-139X(17)30207-0/fulltext; Kosciw, J. G., Greytak, E. A., Zongrone, A. D., Clark, C. M., & Truong, N. L. (2018). The 2017 National

School Climate Survey: The experiences of lesbian, gay, bisexual, transgender, and queer youth in our

nation’s schools. New York: GLSEN. https://www.glsen.org/sites/default/files/2019-10/GLSEN-2017-National-School-Climate-Survey-NSCS-Full-Report.pdf.(reporting that over half of respondents to a survey to high school GSA and GLSTN network students identify as something other than noncisgender).

[2] Jessica A. Clarke. They, Them, and Theirs. 132 Harvard L. Rev. 894 (2019), https://harvardlawreview.org/2019/01/they-them-and-theirs/.

[3] Ayako Miyashita, Amira Hasenbush & Brad Sears, The Williams Inst. Univ. of Cal. L.A. Sch. Of Law, The Legal Needs of Transgender Women Living with HIV: Evaluating Access to Justice in Los Angeles (2015), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Legal-Needs-of-Transgender-Women-Living-with-HIV-November-2015.pdf https://williamsinstitute.law.ucla.edu/wp-content/uploads/Legal-Needs-of-Transgender-Women-Living-with-HIV-November-2015.pdf.

[4] A Research Agenda to Reduce System Involvement and Promote Positive Outcomes with LGBTQ Youth of Color Impacted by the Child Welfare and Juvenile

Justice Systems. Los Angeles, CA: The Williams Institute. https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBTQ-Youth-of-Color-July-2019-3.pdf.

[5] 539 U.S. 558 (2003) (holding that criminalization of consentual, adult homosexual activity violates the constitutional right to privacy and the Fourteenth Amendment).

[6] E.g., Farmer v. Brennan, 511 U.S. 825 (1994) (holding that the prison’s deliberate indifference to the harm faced by a black trans woman housed with men in prison violated her Eighth Amendment rights); Christy Mallory, Amira Hasenbush, and Brad Sears, Discrimination and Harassment by Law Enforcement Officers in the LGBT Community, THE WILLIAMS INSTITUTE, (March 2015) https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf; Conron, K. J. & Wilson, B. D. M. (Eds.) (2019).

[7] This article was created from materials from a CLE that the author, CB Baga, has co-presented at conferences and law firms around the legal community by the same title as this article. Mx. Baga would like to thank their collaborator, Beau RaRa of Mid-Minnesota Legal Aid for their contributions and work to further justice from the interpersonal to the systemic. We welcome feedback and input of any kind as we continue to develop this work.