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Relationship Building and Zealous Advocacy of LGBTQ Clients 

By Sarah Schriber and David Fischer 

 

Among the hundreds of offerings for CLE credits, you many have seen the acronym LGBTQ or some variations such as LGBTQI, LGBTQQIAAP, and LGBTQ+. You may know that LGBTQ represents the terms Lesbian, Gay, Bisexual, Transgender, and Queer/Questioning.

 

Lawyers should have a working knowledge of identities as they relate to gender and sexual orientation because knowing the broader context of a client’s life may illuminate their intentions, motivation, needs, and priorities, and thus, may strengthen the representation.

 

This article will discuss key concepts and terminology related to gender and sexuality, including research and statistics that illuminate the need for LGBTQ-competent lawyers, important law and policy regarding LGBTQ clients, so lawyers can more zealously represent these clients.1 This topic is important to lawyers across all areas of practice, as LGBTQ clients are impacted in multiple areas of their lives, from the criminal justice system to workplace discrimination.

 

Key Concepts & Terminology Primer

The following concepts are key because they apply to everyone. Everyone has a sex that was assigned to them at birth (people often exclaim: “It’s a boy! or It’s a girl!), a gender identity (expressed with pronouns), and a sexual orientation.

 

The following terms are key because they help describe how the key concepts of birth sex, gender, and sexuality apply to us individually and as members of our communities. It is important to note that terminology is subjective and evolves with the progression of history, social movements and even scientific advances. A “Golden Rule” related to sexuality and gender identity is to let people self-identify.

 

“Sex” is the biological status of male, female, or intersex, based upon the appearance of external genitalia.2 Biological sex is the result of a combination of chromosomes, gonads, hormones, internal reproductive anatomy, and external genitalia.

 

Intersex, Disorders of Sex Development

Disorders of Sex Development (DSD), more commonly known as Intersex, are congenital conditions in which a person is born with reproductive or sexual anatomy or chromosomal patterns that do not fit typical definitions of male or female. DSD is an umbrella term covering at least 60 different conditions in which biological sex is not clear at birth. People with DSD may or may not identify as Intersex.


INTERSEX/DSD TERM TO AVOID:
“Hermaphrodite”: a term that is no longer used by medical professionals because it is stigmatizing and inaccurate. It is appropriate to use the term “intersex” or to say that a person has DSD (or to refer to the specific name of the disorder itself, such as Androgen Insensitivity Syndrome).


Sexual Orientation

Sexual orientation is a person’s physical, sexual, romantic, or intimate attraction to other people. Most people begin to explore and understand their sexual orientation between the ages of 11-14.3 Examples of sexual orientation are:

 

Gay: a man who is attracted to some other men

 

Lesbian: a woman who is attracted to some other women

 

Bisexual: a person who is not exclusively attracted to one gender

 

Straight: a person who is attracted to people of the other gender


SEXUAL ORIENTATION TERMS TO AVOID:

“Lifestyle”, “sexual preference”: these terms imply that a person has chosen their sexual orientation, when many gay, lesbian, and bisexual people feel strongly that their sexual orientation is an inherent part of their identities and not a decision they made. 

“Homosexual”: a term that has been used to pathologize gay and lesbian people; instead, use the terms gay or lesbian.


Gender Identity

Gender identity is a person’s sense or experience of belonging to a particular gender category as a man or a boy, woman or a girl, or an identity outside of those categories. Gender identity develops early in life, between ages of 3-6.4 Following are some foundational terms related to gender identity:5

 

Transgender: an umbrella term for a person whose gender identity or expression is different from that typically associated with the sex they were assigned at birth. NOTE: Some, but not all, transgender people desire medical changes to their bodies as part of their gender transition process.6

 

Cisgender: a person for whom gender identity matches the sex they were assigned at birth.


GENDER-RELATED TERMS TO AVOID: 

“Transsexual”: a term that has been used to pathologize transgender people. If you need to describe a client’s experience of identifying as a gender that differs from the sex they were assigned at birth, it is appropriate to refer to them as transgender.

“Boy who thinks he’s a girl,” “girl who thinks she’s a boy”: Affirming a person’s gender identity means referring to their gender identity, not to the sex they were assigned at birth.  

“Transgenderism”: a term used by anti-transgender activists to dehumanize transgender people and reduce who they are to “a condition”; instead, refer to being transgender.

“Sex change,” “Pre/post-op”: terms that oversimplify the complex process of gender transition and inaccurately suggest that a person must have surgery in order to transition gender; instead, refer to a person’s transition.  

“Biologically male/female,” “genetically male/female,” “born a man/woman”: terms that oversimplify the complex process of gender transition; instead, use “assigned male at birth,” “assigned female at birth.”

Gender Non-Conforming: describes a person whose gender expression (e.g., clothing, mannerisms) differs from conventional expectations of masculinity and femininity.

NOTE: Not all gender non-conforming people identify as transgender and not all transgender people gender non-conforming.

 

Non-binary, genderqueer: terms used by some people who experience their gender identity and/or gender expression as falling outside the gender categories of man and woman. They may define their gender as falling somewhere in between man and woman, or they may define it as wholly different from these terms.


ARE PRONOUNS IMPORTANT TO YOU?

Find someone you can talk to about what you did last weekend. Include where you were, what you did, and with whom you did it. Did you go to a party? Whose party? Or maybe a movie? Did you go with another person or a group? Who was in the group? When you are finished, have your partner do the same.

Here’s the hitch: you must describe your weekend activities without using a single pronoun or other gender-identifying word – that is, no “she and I went to a movie,” “my boyfriend and I went to our friend’s party for her promotion,” or “Billy? He’s my sister’s son.”

After you’ve finished, consider how it felt to avoid using pronouns or indicators of gender. Was it challenging? Imagine how it might feel if you were a person who felt you had to intentionally avoid such disclosures to avoid outing yourself or your relationships? How might it feel to be mis-gendered at work? At the grocery store? At church?

Pronouns

Have you noticed that people have begun to include their pronouns in their email signature blocks? Or that at meetings, people ask for participants to share their names and pronouns? Or that the pronoun “they” appears in the dictionary alongside “she” and “he” as singular?

 

Pronouns matter because our assumptions are not always correct, and a person’s pronouns are an important reflection of who they are. Getting it right can be the difference between connecting with a person and throwing up a brick wall. Asking means you’ll get the right answer.

 

Illuminating the Need for LGBTQ-Competent Lawyers

A rich body of data drawn from research on the lived experiences of LGBTQ youth and adults reveals that they often experience higher rates of harassment, discrimination, violence, and criminalization in their families, in school, in child welfare, at work, in healthcare and in the criminal justice systems, than people who are straight and gender conforming. Furthermore, such adverse experiences are compounded when race/ethnicity, ability status, and socioeconomic status are taken into account. People theorize that the conscious and unconscious bias against LGBTQ people (which surfaces not only in interpersonal interactions but in structural and systemic contexts, including law and policy) is at the root of such mistreatment and manifests in school bullying, punitive school discipline and push out, family rejection, unemployment, homelessness, perpetration of survival crimes (e.g., trading sex for money, selling drugs, theft), and involvement with the child welfare and criminal justice systems.7 The cycle continues as LGBTQ people often struggle to find services to address these adverse experiences that are affirming and safe.8

 

Taken together, these data illuminate the need for LGBTQ-competent lawyers. The following statistics can assist lawyers in their understanding of their LGBTQ clients’ specific issues, needs, and struggles. Lawyers will gain knowledge that will equip them to better represent their LGBTQ clients compassionately and zealously.

 

LGBTQ youth experience disproportionately high rates of bullying, harassment, and punitive discipline at school.

Extensive research documents that gay, transgender, and gender nonconforming youth experience higher rates of bullying and harassment at school compared to their straight and gender conforming peers.9 In Illinois in 2017, 72% of LGBTQ students reported verbal harassment, 25% reported physical harassment, and 12% reported assault in school based on sexual orientation. Sixty-one percent of LGBTQ students reported verbal harassment, 22% reported physical harassment, and 10% reported assault based on gender expression.10 Eighty percent of people who were out or perceived as transgender at some point between Kindergarten and Grade 12 (K–12) experienced some form of mistreatment, such as being verbally harassed, prohibited from dressing according to their gender identity, disciplined more harshly, or physically or sexually assaulted because people thought they were transgender.11 Fifty-eight percent of out transgender students were verbally harassed, 25% were physically attacked, and 13% were sexually assaulted in K–12 because of being transgender.12 20% faced such severe mistreatment as a transgender person that they left a K–12 school.13

 

Lesbian, gay, and gender non-conforming youth are three times more likely than their straight and gender conforming peers to experience punitive discipline at school, especially girls14 Evidence is emerging that these disparities are more severe for LGBTQ youth of color and LGBTQ youth with disabilities.15

 

Youth experience disproportionate rates of involvement with the child welfare and juvenile justice systems.

In the U.S., approximately 20% of youth in the child welfare system identify as LGBTQ or gender nonconforming.16 In Illinois, a recent study of the comprehensive well-being of youth in the custody of the Department of Children and Family Services found that 21.8% of youth age 12 to 17 identified as something other than straight.17 Approximately 20% of youth in the juvenile justice system in the U.S. identify as LGBTQ.18 Many of these youth are involved in both systems. In contrast to these figures, approximately 8% of adolescents in the general population in the U.S. identify as lesbian, gay, or bisexual,19 and 1.8% as transgender.20

 

Adults experience disproportionate rates of contact with the criminal justice system, and of violence and discrimination once in the system.

In Illinois, 69% of transgender people who interacted with police or other law enforcement officers experienced some form of mistreatment.21 This included being verbally harassed, repeatedly referred to as the wrong gender, physically assaulted, or sexually assaulted, including being forced by officers to engage in sexual activity to avoid arrest.22

While lesbian, gay, and bisexual adults make up approximately 3.5% of the U.S. general population, 5.5% of men in prisons are gay or bisexual and 33.3% of women in prison are lesbian or bisexual.23 During incarceration, lesbian, gay, and bisexual adults were three times more likely to have been sexually victimized than other inmates,24 and to experience sanctions like administrative segregation and solitary confinement.25

 

As compared to 5% of the general population, approximately 16% of transgender and gender nonconforming people report being incarcerated at some point in their lifetimes.26 This rate increases to 47% for black transgender people.27 More transgender women report experience with incarceration than transgender men (approximately 21% and 10%, respectively).28

 

Regarding the experiences of incarcerated transgender adults, transgender inmates have been shown to be ten times more likely to report experiencing sexual assault.29 The National Center for Transgender Equality found that 23% were physically assaulted by staff or other inmates and 20% were sexually assaulted.30 Thirty-seven percent (37%) of transgender adults who were taking hormones before their incarceration were prevented from taking their hormones while incarcerated.

 

LGBTQ people experience high rates of harassment and discrimination in accessing employment and in the workplace.

LGBTQ people face a broad range of experiences in the employment area that reveal bias, harassment, and discrimination related to their sexual orientation or gender identity. In the U.S., 20% of LGBTQ people have experienced discrimination based on sexual orientation or gender identity when applying for jobs, with LGBTQ people of color (32%) more likely to experience this type of discrimination than white LGBTQ people (13%).31 Twenty-two percent of LGBTQ people have not been paid equally or promoted at the same rate as their peers.32

 

While employed, LGBTQ people continue to face harassment and discrimination. Recently, research conducted by the Human Rights Campaign found that 1 in 10 employees have heard their own supervisor make negative comments about LGBTQ people.33 Over half (53%) of LGBTQ employees heard lesbian and gay jokes at work, while 37% heard bisexual jokes and 41% heard transgender jokes and nearly one fifth of LGBTQ workers reported that someone at work has made sexually inappropriate comments to them because their coworker thought their sexual orientation or gender identity made it okay.34 Thirteen percent of LGBTQ people were concerned they would be fired because their workplace was unwelcoming of LGBTQ people.35

 

In the U.S., between 11% and 28% of lesbian, gay, and bisexual employees report losing a promotion because of their sexual orientation. More than 25% of transgender people have lost a job due to bias and more than 75% have experienced discrimination, refusal to hire, privacy violations, harassment, and physical and sexual violence in the workplace.36 These numbers are higher for transgender people of color.37

 

In Illinois, 28% of transgender people who held or applied for a job reported being fired, being denied a promotion, or not being hired for a job they applied for because of their gender identity or expression. Fifteen percent of transgender Illinoisans reported losing a job in their lifetime because of their gender identity or expression.38 In 2015, while the national unemployment rate was 5% and the poverty rate was 11%, transgender Illinoisans experienced rates of 11% and 21%, respectively.

 

Transgender Illinoisans reported being verbally harassed (18%), physically attacked (1%), and sexually assaulted (2%) at work because of their gender identity or expression. Twenty-six percent of those who had a job also reported other forms of mistreatment based on their gender identity, such as being forced to use a restroom that did not match their gender identity, being told to present in the wrong gender in order to keep their job, or having a boss or coworker share private information about their transgender status with others without their permission.39

 

LGBTQ people experience high rates of harassment and discrimination while accessing services, such as healthcare and applying for driver’s licenses, or using restrooms.

LGBTQ people often avoid seeking healthcare and experience harassment and discrimination once they access healthcare. In research conducted by Lambda Legal, 9% of lesbian, gay, and bisexual people reported being concerned about being refused medical services when they need them, and over half of transgender and gender nonconforming reported this concern.40 When accessing healthcare, nearly 8% of lesbian, gay, and bisexual people reported being refused medical care outright. This rate rose to 27% for transgender and gender nonconforming.41 While seeing a healthcare provider, approximately 10% of lesbian, gay, and bisexual people reported having harassing language used toward them and 11% reported that health professionals refused to touch them or used excessive precautions.42 Again, these rates increased for transgender and gender nonconforming people, 21% of whom reported being subjected to harsh or abusive language and 8% of whom reported experiencing physically abusive treatment from a healthcare professional.43

 

LGBTQ also experience bias, harassment, and discrimination while accessing services such as procuring identity documents such as a driver’s license or a same-gender marriage license, applying to change their gender markers on birth certificates, and going to court to procure a name change. For example, 34% of transgender people in Illinois reported being harassed, denied benefits or service, asked to leave or assaulted when their gender presentation didn’t match their identity documents.44

 

In Illinois, 9% of transgender people reported that someone denied them access to a restroom in the past year, 11% reported being verbally harassed, and 1% reported being physically attacked when accessing a restroom. Fifty-eight percent of respondents avoided using a public restroom because they were afraid of confrontations or other problems they might experience, and 28% limited the amount that they ate or drank to avoid using the restroom.45

 

LGBTQ-Affirming Statutes, Caselaw, and Policies that Every Lawyer Should Know

Sexual orientation and gender identity impact many areas of legal practice, such as employment, insurance, education, child custody, divorce, personal injury, housing, and criminal defense and prosecution. Additionally, your clients may have needs related to their sexual orientation and gender identity that go beyond your representation but impact it nonetheless, including the need for correct identity documents (e.g., driver’s license, birth certificate, passport), access to services (e.g., domestic violence shelters, substance abuse facilities), and medical care. The following are a sampling of the federal, state and local laws, caselaw, and policies to protect and support LGBTQ people.

 

Workplace Harassment and Discrimination

Statutory Law

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. While Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases, the U.S. Equal Employment Opportunity Commission, which is responsible for enforcing federal employment discrimination laws, consistent with United States Supreme Court case law and other court decisions, “interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”46

 

 

The Illinois Human Rights Act47 The Illinois Human Rights Act (IHRA) prevents discrimination based on sexual orientation and gender identity (gender identity is included in the statute’s definition of sexual orientation) in public accommodations (i.e., facilities, goods, and services available to the public), employment, real estate transactions, financial credit, and primary, secondary, and high school education.

 

EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). Termination of employee on the basis of transgender status violates Title VII.

 

Hively v. Ivy Tech Cmty, Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc). The Seventh Circuit agreed with the EEOC that Title VII’s prohibition on sex discrimination incorporates a prohibition on sexual orientation discrimination, overruling its contrary prior precedent. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). Termination of employee defendant because she was transitioning from male to female is sex discrimination under Title VII. The court also found that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and government termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination.

 

Baldwin v. Dep’t of Transportation, EEOC Appeal

No. 0120133080 (July 15, 2015).

A claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.

 

Discrimination in Accommodations and Services

Statutory Law

The Illinois Human Rights Act (see above).

Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000). Citing Title VII case law, the court concluded that a transgender plaintiff, assigned male at birth, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that she was denied a loan application because she was dressed in traditionally female attire.

 

Identity Documents

Statutory Law

The Illinois Identification Card Act, 15 ILCS 335/5. Amended in 2019, the Illinois Identification Card Act (IICA) requires that the Illinois Secretary of State permit people making applications for driver’s licenses or state identification cards to choose “male”, “female”, or “non-binary” as their gender marker, which will then be displayed on their identification card. (NOTE: The amended law may not be implemented until 2024 due to the State’s six-year contract with the vendor it uses for its identification cards).

 

The Illinois Vital Records Act (410 ILCS 535/1). As of January 1, 2018, people may amend the gender markers in their birth records to reflect their gender identity and not their sex assigned at birth.48

 

Education

Statutory Law

Title IX of the Education Amendments of 1972, 20 U.S.C. ch. 38 § 1681 et seq. Title IX protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance.

 

Equal Access Act of 198449 The Equal Access Act forbids public schools from receiving federal funds if they deny students the First Amendment right to conduct meetings because of the content of speech at the meetings. If a school permits students to form non-curricular clubs like the Key Club or the drama club, it also must permit students to form Gay-Straight Alliances.50

 

Illinois Human Rights Act (see above).

Illinois Prevent School Violence Act51 The Illinois Prevent School Violence Act (IVPA) prohibits bullying in all school districts, charter schools, and non-public, non-sectarian elementary and secondary schools.52 The IVPA defines bullying as “any severe or pervasive physical or verbal act or conduct, including communications made in writing or electronically, directed toward a student or students.”53 In addition to bullying that takes place at school or at school-sponsored activities, the statute applies to bullying behavior that occurs through the transmission of information from a “nonschool-related location, activity, function, or program or from the use of technology or an electronic device that is not owned, leased, or used by a school district or school if the bullying causes a substantial disruption to the educational process or orderly operation of a school.”54

 

Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v. Whitaker, 858 F.3d 1034 (7th Cir. 2017). The Seventh Circuit held that requiring individuals to conform their behaviors to gender stereotyping (in this case, requiring a transgender male student to use the bathroom designated for girls) is a form of sexual discrimination prohibited by Title IX of the Education Amendments Act and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.55

 

Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996). The Equal Protection Amendment of the U.S. Constitution requires that schools protect students who are bullied because of their sexual orientation just as they must protect students bullied based on race or other protected categories.

 

Henkle v. Gregory 150 F. Supp. 2d 1067 (D. Nev. 2001). Students have the right to be “out” at school.

 

Doe v. Yunits, No. 001060A (Mass. Cmmw. Feb. 26, 2001). Schools may not discipline transgender students for expressing their gender identity even if that expression does not conform to their sex assigned at birth.

 

Child Welfare

B.H. v. Smith, 88 C 5599 (N.D. Ill.). B.H. is an active case (consent decree) that has sought improvements to the Illinois foster care system through a series of court-ordered reforms, such as reducing caseloads, improving the safety of children, protecting adequate agency funding, implementing better training for caseworkers and private agency staff, and reorganizing DCFS systems of supervision and accountability. The case specifically includes targeted advocacy for LGBTQ youth in care.

 

Agency Policies and Directives

The Illinois Department of Children and Family Services (DCFS) has a directive that addresses the housing, health and wellness, and medical needs of LGBTQ youth in its care, as well as require proper training for DCFS workers and caregivers on the needs of LGBTQ youth.56

 

Criminal and Related Law

Statutory Law

The Prison Rape Elimination Act, 28 C.F.R. § 115.42-43. The Prison Rape Elimination Act (PREA) mandates analysis of the incidence and effects of prison rape in Federal, State, and local carceral institutions and immigration detention facilities, and policies, procedures, and training to reduce such incidences.57 PREA contains standards specific to the care and custody of LGBTQ people. It is important to note that protections for youth and adults under PREA are similar, with the exceptions highlighted below.

 

PREA: Housing and Classification. Housing classification and other screening processes jails and prisons use to determine a person’s risk for experiencing sexual assault must be made on a case-by-case basis and must consider the person’s sexual orientation and gender identity (i.e., a person’s genitalia or sex assigned at birth cannot be the sole criterion for determining placement). A person’s own articulated sense of safety must also be considered.

 

In the case of juveniles, PREA states that sexual orientation and gender identity cannot be the sole justification for a housing classification decision. Furthermore, juveniles cannot be placed in dedicated LGBT-specific housing units.

 

In contrast, adults may be placed in LGBT-specific housing units if: (1) the person voluntarily chooses such housing or the decision is made after taking other considerations into account; (2) the housing unit includes other vulnerable populations; or (3) the housing unit was established as part of the resolution of a lawsuit.

 

PREA: Showering. Transgender, gender non-conforming, and intersex people must be allowed to shower individually regardless of where they are housed.

 

PREA: Protective Custody. Facilities may only use protective custody (i.e., isolated custody for the sake of an inmate’s safety) of LGBT adults as a last resort and not for longer than 30 days. LGBT adults in protective custody must be given access to programs and services.

 

LGBT juveniles may not be placed in protective custody based on their sexual orientation or gender identities.

 

PREA: Searches and Pat Downs. Facilities may not search or otherwise examine inmates to determine their “genital status”. PREA prohibits “cross-gender” searches; the statute is unclear about how this provision relates to transgender, gender nonconforming, and intersex inmates.58

 

Illinois Hate Crime Statute59 Hate crime law applies when “by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals, regardless of the existence of any other motivating factor or factors,” he or she commits one or more criminal acts as defined in the Illinois Criminal Code.60 The statute’s definition of “sexual orientation” mirrors that in the Illinois Human Rights Act (see above).

 

R.J. v. Mueller, 12-CV-07289 (N.D. Ill.). R.J. v. Mueller is an active case (consent decree) brought on behalf of a class of juveniles incarcerated at juvenile correctional facilities, alleging unconstitutional conditions and services, among them nonexistent or insufficient policies protecting and supporting LGBTQ youth.

 

Fields v. Smith, 653 F. 3d 550 (7th Cir. 2011). The Court ruled that the Wisconsin law barring prison doctors from pursuing the best course of treatment for transgender inmates by denying them access to any type of hormone therapy or sex reassignment surgery while in state custody violated the U.S. Constitution rights to equal protection and freedom from cruel and unusual punishment.

 

Agency Policies and Directives

Illinois Department of Corrections and Illinois Department of Juvenile Justice. The Illinois Departments of Corrections and Juvenile Justice have LGBTQ-affirming policies that address the housing, health and wellness, and medical needs of LGBTQ inmates.

 

Cook County Jail and the Cook County Juvenile Temporary Detention Center. Both the adult and juvenile jails in Cook County have LGBTQ-affirming policies that address the housing, health and wellness, and medical needs of LGBTQ inmates.

 

DuPage County Jail. The DuPage County Sheriff’s Office has stated the following policy on their website, “The DuPage County Sheriff’s Office is committed to providing a safe and healthy environment for staff and inmates. The DuPage County Sheriff’s Office has a zero-tolerance policy with regard to sexual abuse and sexual harassment of inmates, either by staff members or other inmates. Inmates have the right to be free from sexual abuse, from sexual harassment and from retaliation for reporting such incidents. Sexual acts or conduct between inmates or between inmates and any staff member, even if consensual are prohibited and are subject to administrative and disciplinary sanctions as well as possible criminal action.”

 

Relationship Building and Zealous

Representation

Now that we’ve illuminated need for LGBTQ-Competent lawyers and identified some of the key legal supports, consider some of the ways you can best represent your LGBTQ clients’ needs.

 

Your Attorney-Client Relationship

• During your intake interview, ask your client’s name(s) and pronouns. Realize that they may differ from those on their driver’s licenses or identification cards, arrest records, and other documentation.

-It is okay to ask.

-It is okay to get it wrong. Apologize and let your client self-identify.

• Discuss with your client how they would prefer to be addressed in meetings with you, in meetings with others, in court, and in documents.

-Your client may wish for you to address them a particular way but to be addressed another way in court or in legal documents.

-Be prepared to advocate that judges and others involved in the representation use names and pronouns that differ from those in the documents before them.

• Endeavor to learn your client’s social history, particularly the experiences that led them to the situation about which they have sought your assistance. As with any client, it is likely that the detailed context of their story will illuminate the situation for which they have sought your assistance and will enable you to better represent their interests.

 

Meetings, Discovery, and the Courtroom

• Advocate that judges, lawyers, security, opposing counsel, witnesses, advocates, and other people involved in your client’s case and in the courtroom treat your client with respect. This may mean advocating that everyone uses the names and pronouns that your client uses (regardless of what is in documentation) and educating them about LGBTQ issues.

• Be ready to address issues that arise regarding your client’s appearance or clothing.

• Be prepared to address bias toward LGBTQ clients in jury selection

 

Detention and Incarceration

• Be prepared to educate opposing counsels, police, jail/prison staff, and others about LGBTQ issues.

• Advocate that incarceration be used as a last resort for your client, given the significant safety risks LGBTQ individuals face in jails and prisons.

• Work with pre-trial services, probation, parole, and jail/prison staff and opposing counsel to obtain the LGBTQ-affirming services for your client while incarcerated and in the community after release.

 

Collateral Issues

• Become familiar with the range of services that may help your client to increase their health, safety, and well-being as it relates to your representation of them and beyond. Such services might include:

• Help your transgender clients get their names/gender markers corrected on identity documents or connecting them with someone who can.

• Identify and become familiar with affirming health and other services for your LGBTQ clients.

• Advocate for safety and support in school settings.

• Advocate that your young client be placed with an LGBTQ-affirming foster family, group home, or other setting.

 

Thus, lawyers can use these practical applications, the statutes and case law, and their knowledge of gender and sexuality, to better understand a LGBTQ client’s needs and priorities and to ensure a competent and zealous representation.

 

Sarah Schriber is Executive Director of Prevent School Violence Illinois, which transforms school culture, reduces bias-motivated aggression, and fosters conditions for learning and development. Previously, Sarah was Policy Director at the Illinois Safe Schools Alliance and an attorney at the ACLU of Illinois. Sarah graduated from Northwestern University School of Law.

David Fischer is an advocate who works to transform systems that impact the lives of marginalized youth. A consultant with Quo Vadimus, LLC, he works alongside the juvenile justice, child protection, health, and education systems to address the needs of youth and adults using a holistic and transformational approach.