By Michael V. Lauro, Jr.
First Appeared in Arkansas Bar Assocaition's Young Lawyer Section "In Brief", Summer 2011 edition

Lawyers have a duty to provide competent representation. We should strive to be effective advocates and provide meaningful services through respectful representation. Although the population of transgender people is small, they deserve access to competent and effective legal representation. Because laws and policies pose obstacles for transgender people, it is imperative that lawyers break down barriers to effective representation. Although the initial learning curve may seem steep, numerous resources provide excellent opportunities to learn more about transgender people and the legal issues affecting them. This article is meant to be a starting point by briefly touching on cultural competency, client interaction, and due diligence to improve legal representation of transgender people.

Although transgender cultural competence requires many steps, building a foundation begins with basic terminology. “Transgender” is an umbrella term describing people whose gender identity and expression do not conform to predominant societal expectations associated with their sex assigned at birth. “Gender identity” is a personal characteristic referring to one’s internal sense of being a man or a woman. “Gender expression” is the external manifestation of gender identity and includes characteristics such as behavior, clothing, voice, and hair style. Transgender people typically desire to express themselves in a manner consistent with their gender identity rather than their sex assigned at birth. “Gender transition” is an individualized process by which a person changes from their gender assigned at birth to the one consistent with their gender identity. It involves various personal, legal, and medical adjustments, and may or may not include anatomical alterations through the use of hormones and surgical procedures. Understanding transgender terminology not only improves the lawyer’s ability to understand relevant case law, statutes, and regulations, but also leads to improved client Interactions.

In addition, lawyers can adjust their interactions with clients to better serve transgender people. Modifications to intake forms allow clients to write in their gender instead of checking “male” or “female,” to list their preferred name, and to describe special needs, such as use of appropriate names and pronouns when talking to them, to their employer, and to family members. It is rarely necessary to ask about specific anatomical or transition procedures unless relevant to the representation. Other adjustments involve the use of restrooms, which most non-transgender people take for granted. For transgender people, using restrooms may create substantial anxiety. Law firms can relieve this anxiety by designating single-use restrooms as “gender neutral” and restrooms with multiple stalls as “family restrooms.” Family restrooms respect transgender people and accommodate those who may require assistance from an attendant of a different gender or parents who may need to care for an infant or small child. Implementation and display of nondiscrimination policies that include gender identity and expression signal to everyone that a law firm respects transgender people and their rights.

Furthermore, lawyers advance the legal profession and further the interests of justice by recognizing their lack of knowledge in a particular area and acquiring that knowledge to provide effective representation. It is critical that lawyers understand that laws and policies affecting transgender people differ not only among entities within one jurisdiction but also among different jurisdictions. For example, while Arkansas gender-change laws require proof for changing driver’s licenses that is different from the proof required for changing birth certificates, Arkansas and Iowa have different requirements for changing birth certificates. The U.S. State Department requires proof for changing passports and birth certificates Issued to U.S. Citizens born abroad that is different from proof that the Social Security Administration (ssa) requires for changing social security records.

Moreover, lawyers should realize that helping a transgender client in one matter may involve subsequent issues that the lawyer thinks falls outside the scope of that matter. However, the client will likely see all of their issues as connected and look to the lawyer for guidance. For example, after obtaining a legal name or gender change and updating some but not all of their identity documents, a client may encounter a problem changing their employee personnel record. An employer may receive “gender no-match” letters from the ssa indicating that the employee’s reported gender does not match the gender on file with the ssa. Also, if a transgender client is either married or wants to get married in Arkansas, or if there are parenting or custody issues involved, the lawyer must understand the legal impact of the client’s transition on the client’s marriage or family law issues. This may involve looking outside of Arkansas to see how other jurisdictions have dealt with similar matters. Lawyers must recognize potential issues arising from a client’s transition in order to advise the client accordingly.

There is a growing trend toward more respect for the identity of transgender people. Participation in this trend allows lawyers in positively affect transgender people by improving their access to legal services and showing respect for their identity and rights. One way to gain a further understanding of transgender law is through Lavender Law, the annual bar conference for the National LGBT Bar Association. It took place this year in Los Angeles, California, September 8-11, and included a one-day program call the Transgender Law Institute. The Institute’s 2011 theme was “Competent Representation of Transgender Clients” and will cover identity documents, employment, incarceration, and health care. For more on the Institute, see http://lgbtbar.org/annual/program/transgender-law-institute/.

Additional reading: Paisley Currah, Richard M. Juang, and Shannon Price Minter, Transgender Rights (Univ. of Minn. Press, 2006); John M Burda, Gay, Lesbian and Transgender Clients: A Lawyer’s Guide (American Bar Association, 2008); World Professional Association for Transgender Health, Standards of Care (6th ed. 2001) (available at http://www.wpath.org/publications_standards.cfm). 

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© 2011 Michael V. Lauro, Jr. - Lauro Law, PLLC. All Rights Reserved