Recent studies indicate that more than 1.4 million transgender adults live in America. That’s around 0.5% of adults. If you’ve encountered 200 clients in your practice, odds are at least one of them is transgender, even if you didn’t know it.
Transgender people are those whose gender identity is different than the gender assigned at birth. Gender identity is one’s innermost concept of self and gender. For example, a person may identify as transgender if they were assigned female at birth, but identify as a man or non-binary (or something else like genderqueer or gender fluid). This article provides four tips for working with transgender clients, regardless of whether you know they are transgender when they first walk in (or videoconference in) your office.
1. Don’t Make Assumptions.
You can’t tell someone’s gender identity by looking at them. Let me repeat that: You cannot tell someone’s gender identity just by looking at them. What you can see is their gender expression — how they choose to express their gender in public, such as by haircut, clothing, behavior, voice, and body characteristics. Someone’s gender identity may be totally different than what you would expect it to be based on their gender expression — you can never guess at what someone’s innermost concept of their self is. Doing so is a form of sex stereotyping. If someone’s gender identity is relevant to the legal issue they’re facing, have a private conversation with them.
You likewise shouldn’t assume that someone’s gender identity is relevant to their legal issue. Transgender people face the same legal issues as everyone else, from housing to business disputes to criminal charges. While sometimes their gender identity is at the forefront of their legal issue — such as in the context of discrimination — it may not be, and you should focus on the legal issue before them, not their gender identity. Along this same vein, unless directly relevant to your representation of your client, avoid asking inappropriate questions about a client’s medical transition. Some transgender people choose to have surgery and/or hormone replacement therapy; some do not for a number of valid reasons, including cost, fertility, pre-existing medical conditions, and desire. Unless it is an essential factor in a case, it is not necessary for an attorney to know details of your client’s medical transition. Where relevant, ask respectfully and let your client know why you need to know.
Finally, don’t assume that other people know that your client is transgender. When to disclose that they are transgender is your client’s decision alone, and they may have decided not to disclose this information to certain people for a number of important reasons, such as safety or fear of discrimination. Remember your obligations to protect client confidential information, including their gender identity. Regardless, though, of your legal relationship with someone, disclosing someone’s gender identity is inappropriate.
2. Use Their Name and Pronouns.
Just like you cannot tell someone’s gender identity by looking at them, you certainly cannot tell what pronouns they use or even what name they want to be called. Transgender people may use pronouns you are familiar with, like he/him/his and she/her/hers. They may use something different, like the singular they/them/their or even ze/zir/zirs. It is important to be aware of and respect your client’s name and pronouns. On February 22, 2021, the American Bar Association House of Delegates passed Resolution 106A providing that the ABA “encourages use within the legal profession and justice system of pronouns consistent with a person’s gender identity.” Further, it is important that you respectfully urge opposing counsel, court staff, and judicial officials to respect your client’s pronouns and name. When it is necessary to refer to their former name, you can do so in a footnote and then continue using the pronouns and name your client uses throughout the body of the document.
How do you know what pronouns they use? You ask. My favorite way to open this conversation with a client, whether I know they are transgender or not, is to tell them my pronouns first. This should be done even if you think your pronouns would be easy to guess. For example:
Collins: “Hi, my name is Collins Saint. I use she/her and they/them pronouns. Thanks so much for coming in today. What name and pronouns do you use?”
Client: “I’m Jordan. He/him.”
Collins: “Nice to meet you, Jordan!”
You may accidentally slip up and call someone by a former name or the wrong pronouns. If you do, politely apologize, move on, and use the correct name and pronouns moving forward. If you struggle with this for whatever reason, you can practice by using the correct name and pronouns with your assistant or paralegal.
3. Be Welcoming.
Transgender clients are clients, and they should be afforded the same respect you afford any of your clients. To be welcoming to transgender folks, though, may require a little extra work on your part, including by making sure your office is friendly and safe for a transgender client. Your intake forms should give clients the option to reveal or decline to reveal their transgender identity. It can include a place for legal name and name by which they prefer to be called. It can include a place for pronouns. If it includes a place for spouse, be sure gender neutral language is used. If your office has gender specific restrooms, clients should be allowed to use the restroom that corresponds with their gender identity, regardless of their biological sex. Finally, your office staff should receive training on working with transgender clients.
4. Reach Out!
It’s not your client’s job to educate you about transgender vocabulary, how to make more inclusive intake forms or interviews, or what to do when a judge or opposing counsel uses the incorrect name or pronoun when referring to your client. It’s your job to build that understanding before you are hired by your first transgender client. If that isn’t possible because, for instance, you’re stumbling across this article having just been retained by a transgender client, reach out to attorneys who have worked with transgender clients, non-profits serving the transgender community, or law clinics to ask for help and resources. Be ready to spend time researching and learning about working with transgender clients. Access the resources linked in this article. And be humble about where you are on your journey. The more open you are to learn and refresh your worldview, the better attorney for transgender clients you will be.
With that said, you should express empathy and awareness for your client and create space for them to express needs that may be different from what you’ve heard before. For example, you may have a client who does not want to go to the courthouse because they are concerned about how a judge or jury or opposing counsel may view or treat them in light of their gender identity or gender expression. You shouldn’t be quick to reassure your client if they share a concern. Instead, you should make sure they feel heard and validated, give them information that would help them, and work through their fears with them in context.