With tremendous progress for transgender people and the transgender community in recent years, tremendous challenges have also come to light.
Understanding these challenges is essential for lawyers to provide competent representation to their transgender clients.
Pronouns, poverty and parentage were up for discussion on the Family Law Section’s Annual Meeting program, “Transgender Parents/Transgender Children: Sensitivity, Bias and Diversity Considerations in Lawyers Advocacy.”
Greater Progress, Increased Challenges
“It is important to recognize how much language has changed over time, even in the short time many of us have been doing the work, said Jennifer L. Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders (GLAD). “It is so important as advocates, particularly those who are appearing in court and creating a model for others to look to about how to refer to our clients, to really make sure that we try to stay as current as you can.”
Levi acknowledged that it is easy for educated people to make mistakes with language.
“What I really try to do is model some humility around language, try to do my best, apologize when I make a mistake, and really move on,” said Levi. “The idea is to really support the identity of the client I am representing.”
Pronouns can be a convention for others to model, as they help people not assume how someone identifies themselves from their name or their appearance. Levi is comfortable with using any pronouns and she might not announce them to a stranger. It depends on the person and the circumstance, she explained.
Levi acknowledged the progress made with the landmark LGBT rights Supreme Court case Bostock v. Clayton County, in which the court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. The case, decided in June 2020, has brought “greater visibility, compassion, and understanding to transgender people,” she said. Most importantly, she said it really ensures that transgender people have the opportunity in employment and beyond despite other people’s prejudices.
With progress has come “very real and very significant” challenges. These include higher rates of poverty, diminished health care availability, housing insecurity, violence (both street and partner-based), and discrimination regarding public accommodations and education. These challenges are magnified in communities of color, said Levi. Levi also noted an increasing backlash, particularly with state bills that target transgender youth and the denial of health care.
Patience W. Cozier, senior staff attorney at GLAD, added that legal challenges for transgender people include bias and lack of protections within legal systems, no express federal nondiscrimination law, and transgender people regularly turned away or mistreated at courthouses, as well as federal, state and local agencies.
“We want everyone to have access to justice,” Cozier said. “I think the legal system, unfortunately, is not immune in afflicting harm on transgender people and they often face a legal system that does not protect them from discrimination on the basis of gender identity.
Cozier said that some states have made great progress educating the court system. Massachusetts, for example, did a comprehensive training for 6,000 employees in the trial courts on transgender inclusion and what that really means.
“Everything from pronouns to pleadings to dockets to basic customer service,” said Cozier.
Lawyers, judges, clerks and support staff “all play a pivotal role in improving the climate of legal systems for transgender people.”
“The ethical requirements remind us of our obligation to do so,” said Cozier.
While every lawyer shall provide competent representation to a client, for transgender clients that competence includes really understanding the issues and the challenges that the litigant might face because of their gender identity. For some, those issues are really critical to their case, explained Cozier.
It is professional misconduct for a lawyer to engage in conduct that a lawyer reasonably knows or reasonably should know is harassment or discrimination on the basis of, among other things, gender identity.
“Lawyers have an obligation to make sure their practice is inclusive,” said Cozier, who added that someone’s transgender status might be confidential information.
Levi said that lawyers’ offices should reflect support for transgender people with regard to accommodations. Support staff should be trained on sensitivity and inclusion.
Between two and four million children under age 18 have an LGBTQ+ parent. More research needs to be done on the number of transgender parents, as it’s still an emerging area, said Cozier.
Because transgender people have so many different paths to parentage, a key initial issue is: Is the client a legal parent or not? For transgender parents, establishing legal parentage – the core parent/child relationship from which rights and responsibilities flow– can be fundamental.
Legal parents stand on equal footing. It is a point of vulnerability for transgender people, said Cozier.
The modern trend in parentage law is to ensure that we are focusing on the child’s relationship and that we are securing people the child knows as the parent,” said Cozier.
The Uniform Parentage Act is a model for states to follow. It addresses trends including gender-neutral status, expanded access to voluntary acknowledgements of parentage, de facto parentage, parentage by consent, and assisted reproduction.
“It is not just genetics and marriage anymore,” said Cozier.
Transgender parents often do face disputes involving child custody, particularly if they are coming out in the context of a divorce.
“As a baseline, a person’s gender identity should not affect custody,” said Cozier. “Being transgender has no effect on one’s ability to parent.”
Likewise, transgender children experience a number of issues ranging from conflicts over legal custody and parenting time, to name changes and rejecting behaviors.
It is so important to ensure that an affirming parent has legal custody of the child, as well as medical decision making, said Levi. She emphasized the significance of having detailed documentation and guidance from doctors in supporting their child’s gender identity.
Courts can negatively react to parents who seek information on their own, including unverified internet sites, said Levi.
For transgender children who are not affirmed in their identity, the experience can be serious and debilitating, and cause distress and self-injury, lack of self-esteem and depression.
Be skeptical of moderating requirements, such as gender neutrality and limited “at home” expression.
Even moving to a little bit more affirmation of your child has a tremendous positive effect on that child’s well-being, said Cozier.