What’s In a Name? �Gender Identity in the Courthouse

Oregon Women Lawyers Mary Leonard Chapter

Who We Are

Outline

• Introductions and Overview
• Concepts and Terms
• Procedural Fairness for Transgender Individuals
• Q & A

A word on language & �culture norms…

Concepts and Terms:

Beyond the Gender Binary

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OR

SEX

TRAITS

Female Girl Woman

Male Boy Man

Masculine

Feminine

Dominant Societal Assumptions

Straight

Attracted to Women

Straight

Attracted to Men

Beyond the Gender Binary

Male

Boy/Man

Masculine

Female

Girl/Woman

Feminine

Assigned Sex

Gender Expression

Gender Identity

Gender exists on a spectrum rather binary

Attracted to Women

Attracted to Men

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Sexual Orientation

A new way of understanding gender

A better way of understanding people

Male

Female

Man

Woman

Masculine

Feminine

Attracted to Women

Attracted to Men

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Assigned Sex

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Gender Identity

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Gender Expression

Sexual Orientation

Oprah is a cisgender and straight woman.

Gender Spectrum

Laverne Cox

Laverne is a straight, transgender woman.

Gender Spectrum

Male

Female

Man

Woman

Masculine

Feminine

Attracted to Women

Attracted to Men

Assigned Sex

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Gender Identity

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Gender Expression

Sexual Orientation

Sam Smith

Sam is a non-binary gay person.

Beyond the Binary

Male

Female

Man

Woman

Masculine

Feminine

Assigned Sex/Sex Traits

Gender Identity

Gender Expression

Sexual Orientation

Attracted to Women

Attracted to Men

Deconstructing Transition

17

Transition varies by individual

The Law: Oregon Has Strong Legal Protections based on Sexual Orientation and Gender Identity

• Discrimination prohibited in employment, housing, education and public accommodations.
• Public accommodations include “public bodies” and the Courts
• “Sexual Orientation” defined broadly to include gender identity. ORS 174.100(7)
• Hate crimes protections include sexual orientation/gender identity
• Legislative and administrative protection for gender identity on identity records.

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Ethical Rules

From Oregon Code of Judicial Conduct, 2013 Revision

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Rule 3.3 Impartiality and Fairness

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1. A judge shall uphold and apply the law and perform all duties of judicial office, including administrative duties, fairly, impartially, and without bias or prejudice.
2. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses, lawyers, or others based on attributes including but not limited to, sex, gender identity, race, national origin, ethnicity, religion, sexual orientation, marital status, disability age, socioeconomic status, or political affiliation and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
3. A judge shall not take any action or make any comment that a reasonable person would expect to impair the fairness of a matter pending or impending in any Oregon court.

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[Emphasis added.]

Procedural Fairness

How can you avoid “manifesting bias or prejudice” when working with transgender people?

Key: Self-Determination

• Use chosen names. If a litigant has not had a legal name change, find ways to use their preferred name whenever possible.
• Tip: if not known or not possible, use last name only.

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• Use preferred language such as pronouns (she/her, they/them) and titles (Mr., Ms., Mx.).

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• Use affirming language – in general, always reflect back on the language a person uses for themselves.

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• If you don’t know, you can always ask (thoughtfully)!

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Make Mistakes!�(… but do better next time)

• We learn as human beings by taking risks and making mistakes. To err is human.

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• It’s ok to make mistakes. The key is to own them and be accountable for them.

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• Often, the best response is to acknowledge the mistake, move on, and do better next time.

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• The key: the person should feel that you recognize the issue, and that you will be mindful moving forward.

What to Ask

You have questions. Consider:

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• Is the question for the purpose of the proceeding or conversation?

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• Will the question help you to better communicate with or serve a litigant.

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• Avoid questions that are personal or specific to a person’s transgender experience, unless they offer the information or indicate willingness to discuss it.

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• Don’t only ask for affirming info when you suspect someone is trans. Making questions routines reduces stigma and othering.

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• Make space for the trans person to decline to answer – educating the world is exhausting.

Challenge Assumptions

• A vital part of cultural competency is the willingness to challenge what you know and to be open to experiences of people who are differently situated.

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• Challenging assumptions about gender means thinking critically about the impact of gender roles, rules, and expectations – for everyone.

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• We also have to examine practical structures and policies, from hiring to security to bathrooms, to make sure transgender experiences are considered.

Consider the Impact of Transphobia

• Unemployment – Did the litigant suffer employment discrimination due to being transgender?�
• Criminal History – Are offenses such as minor property or identity crimes a direct or indirect result of transgender discrimination?�
• Housing – How has transgender status affected the litigant’s ability to obtain or retain housing?

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• Institutions – Have experiences of transphobia in institutions colored their view of the court?

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• Family Ties – How has the litigant’s transgender status affected their family relationship and emotional support?�
• Experiences of Trauma – How might a climate of having to “prepare for war” every day affect the case at hand?�
• Immigration status – Did the litigant flee persecution? Are they safe in their home country? Do they have family relationships in the U.S.?

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Consider the Power of Every Action

• Will the action demonstrate respect for a person’s gender identity?

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• Will the action create investment in the legal system and administration of justice?

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• Will the action have positive repercussions?��

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• Will the action affect someone who is transgender differently than someone who is not transgender?

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• Will the action “out” someone as transgender?

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• Will the action place a litigant in danger or increase a risk of harm because they are transgender?

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Example: Name Change > ID > Employment > Housing > Increased Safety, Stability, and Opportunity

Conclusion

• Be open to others’ experiences, aware of their challenges, and critical with respect to norms and structures.

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• Be aware of how even small actions can implicate those experiences

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• Use preferred and affirming language

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• Mistakes are ok – so long as you own them, learn from them, and do better next time!

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• Overall: treat others as they want to be treated.

Trends in the Law (Outside of Oregon)

• Identity Docs in Washington & California
• Nonbinary options of birth certificates
• Nonbinary options on drivers licenses
• Streamlined update processes
• “Bathroom Bills”
• Often arise as state pre-emption of local anti-discrimination ordinances
• Intense political controversy
• Federal Policy
• “The Trump Memo,” Military Ban, DOJ reversals, “Because of Sex” litigation.

Q & A