Frequently Asked Questions
A judge should not reveal your sexual orientation or HIV status in court unless it is relevant to the court proceedings, but sometimes such information about you is disclosed, whether you’re a plaintiff, defendant, juror or witness. You might be asked about your relationship status during the process of selecting jurors for a case (also known as voir dire), or while you’re on the witness stand. Your relationship status might be relevant to the court proceeding. However, asking a plaintiff, defendant, juror or witness about sexual orientation for the purpose of discriminating against them would violate judicial codes of professional responsibility (known as canons) and/or court rules in many states. The U.S. Court of Appeals for the Ninth Circuit has ruled that potential jurors should not be disqualified simply based upon their sexual orientation.
If your HIV status is not relevant to the court proceeding, there is no reason for it to be disclosed in court. If your HIV status is revealed in court, however, the information you disclose will be made part of the court record, which is a public document. You or your attorney may ask the judge to seal the information in the case that it would identify you as HIV-positive, and thus keep your HIV status private.
You deserve to be treated with dignity and respect in court but, unfortunately, not all judges and court staff will respect your gender identity and expression. In many states, judicial canons and ethical codes demand that judges, attorneys and court staff treat all court users with respect. Unfortunately in courts across this country, transgender and gender-nonconforming people are disrespected in the courtroom by judges, court personnel and sometimes even by their own attorneys.
Showing respect for transgender people in court includes:
- Addressing transgender and gender-nonconforming court users by their correct names and pronouns. You can ask your attorney to refer to you by your correct pronouns, and you or your attorney can ask the court to do the same. The best practice is to refer to people by the name and pronouns they identify with whether or not an individual has had a legal name change. Attorneys should indicate to the court how their clients would like to be referred to if there is a question about name or pronouns. An attorney can communicate this through a formal written motion (sample motion here) or through an informal conversation with the judge.
- Keeping gender and gender identity private when it is not relevant in the court proceeding. Sometimes transgender and gender-nonconforming people are outed in open court when their gender is not relevant in the court proceeding. This can be traumatic and can put transgender people at risk of harassment and violence when leaving the courtroom. It’s important for court staff to respect people’s privacy and not raise the issue of gender identity if it isn’t related to the case.
- Allowing transgender people to wear clothing that matches their gender identity or expression. Sometimes transgender people are asked by a judge to wear clothing that does not match their gender identity or expression as a condition of appearing in court or resolving their case. This would be like requiring a cisgender man to wear a dress in court. There is no reason for it, and it dehumanizes the person asked. People should be allowed to dress as they feel is appropriate.
- Allowing name changes that correspond with your gender identity. Sometimes judges deny name changes based on prejudice and insensitivity toward transgender people. Again, this would be like forcing a cisgender man to take a woman’s name that he did not choose. Judges should respect individuals, including their desire to change their names to correspond to their gender identity.
In addition to showing respect to transgender and gender-nonconforming people in their courtrooms, the presiding judges are responsible for ensuring that all court staff also show respect and courtesy to court users regardless of gender identity or expression.
In a case on behalf of Private Chelsea Manning, the United States Army Court of Criminal Appeals ordered the military to stop using male pronouns, her former name, or an “also known as” pseudonym in all legal papers filed in her appeal. This recognizes that the interests of justice require the court to use the correct name and pronouns with which the individual identifies.
Discrimination against transgender people in court can happen for a variety of reasons, including implicit bias, lack of understanding about gender identity, or direct “hostility” toward those who do not follow societal gender norms. Lambda Legal’s Fair Courts Project trains judges, attorneys and court staff across the country about cultural competency related to gender identity and expression. This reduces bias in our courts and increases access to justice for transgender and gender-nonconforming court users. To learn more about fair courts, visit www.lambdalegal.org/issues/fair-courts-project. If you have experienced discrimination in court, call Lambda Legal’s Help Desk.
State courts that receive federal funds are required to provide interpreters to limited English proficient (LEP) individuals..
Courts also have a legal obligation to provide interpreters free of charge. Courts must ensure that interpreters act ethically and appropriately, and that they have essential language and interpreting skills. If interpreters treat court users unethically or disrespectfully, court systems should have a complaint and disciplinary procedure in place. Judges and other court personnel must know when and how to use interpreters. Additionally, courts must show LEP individuals the same respectful treatment they must give to other individuals.
Federal courts have decided that LEP defendants in criminal and asylum cases have a constitutional right to an interpreter. In addition, courts are legally required to provide an interpreter in civil proceedings when necessary. Some state courts have stated that there is a constitutional right to an interpreter in small claims cases. Various state courts have also decided that an interpreter must be provided, in cases concerning child welfare, domestic violence restraining orders, employment, landlord-tenant disputes and trespassing.
The reasoning underlying these court decisions can also apply to other types of civil cases.
Despite these legal requirements, the Brennan Center for Justice examined interpretation services in 35 states and found:
- 46% fail to require that interpreters be provided in all civil cases;
- 80% fail to guarantee that the courts will pay for the interpreters they provide, with the result that many people who need interpreters do not in fact receive them; and
- 37% fail to require the use of credentialed interpreters, even when such interpreters are available.
If you are denied or charged for an interpreter you may file administrative complaints with the federal agency that funds the court or sue. Title VI itself prohibits intentional discrimination. However, most funding agencies have regulations implementing Title VI that prohibit recipient practices that have the effect of discriminating on the basis of race, color or national origin. If you believe you have been denied or charged for interpretation services you can call the Title VI Hotline at 1-888-TITLE-06.
This answer contains information from the Brennan Center for Justice. To see its full report about language access in courts, click here.
The judicial canons and court rules of many states prohibit bias and discrimination in the courts on the basis of gender identity, gender expression and/or sexual orientation. The judicial canons and court rules of each state differ. Not all states have codes, rules and canons that are specifically inclusive of sexual orientation, gender identity and/or gender expression. All states require that judges not show bias or prejudice and demand the same of court staff. You can find the judicial canons and court rules for your state here.
You should be treated with respect at all times in court, regardless of whether court rules or judicial canons expressly prohibit discrimination based on gender identity, gender expression or sexual orientation. However, biased and discriminatory language and treatment does happen in courts.
Lambda Legal’s Protected and Served? survey of LGBT and HIV positive individual’s experiences with the courts found that:
Of the 965 survey respondents who were in court during the previous five years:
- 19% heard a judge, attorney or other court employee make negative comments about a person’s sexual orientation, gender identity or gender expression;
- 6% heard negative comments about an individual’s HIV status.
The data reflect both comments directed at the respondent and those heard about someone else.
Some survey respondents reported hearing discriminatory comments about sexual orientation or gender identity at higher rates. These included people of color, transgender and gender-nonconforming people, people with disabilities and people with low income.
If you experience bias or discrimination in court as a defendant, witness, juror, plaintiff or attorney because of sexual orientation, gender identity, gender expression or HIV status, call Lambda Legal’s Help Desk. You may also consider submitting a complaint against the judge or court officer who treated you with bias or discrimination (see How can I or my attorney file a complaint against a judge?)
You (or your attorney) may file a complaint if a judge has committed some kind of misconduct, such as bias or the appearance of bias against you. Each state has a different set of judicial canons and ethical codes. Complaints are sent to each state’s respective judicial conduct commission, which then decides whether complaints are valid and warrant investigation. Many states do not require using an official form. In some states, a handwritten letter detailing the misconduct is acceptable, along with information identifying the judge and court case. Some states require the complaint to be signed in the presence of a notary.
Click here to find the link to further instructions for filing complaints in your state’s court system.
For ethical codes for attorneys, click here.