Protected and Served?
"When I went to the court to file my divorce, the clerk tried to require proof of my transgender spouse's birth, forcing me to out her as a trans person. When I said this, the MA state employee began telling me I needed to submit proof of birth to make sure I wasn't lying. This happened in front of a whole packed lobby full of people." —Linda
As part of the Protect and Served? survey, Lambda Legal asked respondents to share their personal stories of mistreatment by police, in courts, in prisons and by school security toward LGBT and HIV-positive people. See other stories or contribute your own here.
Judges and attorneys have an ethical responsibility to make sure LGBT people and people living with HIV are treated fairly and respectfully in courts. But the reality falls far short of that ideal. For example, Daunn Turner, a transgender woman who applied for a name change at the Will County Courthouse in Illinois, was subjected to discrimination by that court’s Chief Judge. She was denied a ruling on her request for the name change and denied a fee waiver based on her low-income status. Despite requests to be called either “Daunn” or “Miss Turner,” she was told that she would be referred to as “Mister” until she had “that surgery.” Lambda Legal filed a writ of mandamus on her behalf with the Illinois Supreme Court, which ordered the Will County Courthouse to consider her application.
In 2012, Lambda Legal — a national organization committed to achieving full recognition of the civil rights of LGBT people and people living with HIV through impact litigation, education and public policy work — conducted a national study exploring the issue of government misconduct by the police, courts, prisons and school security against lesbian, gay, bisexual and transgender (LGBT) people as well as people living with HIV in the United States. A total of 2,376 people completed the individual survey. Respondents were also given the opportunity to share their own accounts of their experiences with government misconduct and some of those stories are also incorporated into this report. (Note that in our findings, one of the categories we use, based on self-definitions, is “transgender or gender-nonconforming [TGNC].”)
Of the survey respondents, 43% (965 respondents) had been involved in the court system as an attorney, juror, witness or a party to a legal case in the previous five years. Of those 965:
- 19% were attorneys
- 21% were witnesses
- 44% were jurors
- 61% were a party to a case
Respondents in each of those roles within the court system told us that they heard negative comments about the sexual orientation, gender identity, gender expression or HIV status of individuals in court room proceedings. Some of our respondents also had their sexual orientation, gender identity, gender expression or HIV status disclosed improperly.
While respondents from each of those four categories reported mistreatment, as with other forms of government misconduct, there were significantly higher numbers of reports from members of the community who are more often targeted by police, including transgender or gender-nonconforming individuals, as well as those who, in addition to being LGBT or living with HIV, are people of color, low-income or have physical or learning disabilities.
Too often, LGBT people and people living with HIV are forced to navigate courts in which they often feel they are perceived as criminals based solely on their identity or HIV status. As three scholars reported in a 2011 book on LGBT criminalization:
Close scrutiny of the nation’s courts reveals a judicial system rife with anti-LGBT bias. Within it, discriminatory laws are enforced, queers are often treated with derision, if not outright contempt, and queer criminalizing archetypes are deployed in full force....
Anonymous surveys conducted by judicial commissions and bar associations to determine the level of bias or prejudice suffered by gay and lesbian court users and employees found that homophobic prejudices continue to permeate courthouses around the country. These studies — though limited because they failed to examine the treatment litigants experienced on the basis of race, gender identity, and class, along with sexual orientation — universally concluded that the majority of gay and lesbian litigants experienced courthouses as hostile and threatening environments, whether in criminal or civil cases.1
Transgender people must often deal with judges, attorneys and other court employees who refuse to acknowledge and respect their gender identity, do not use their preferred names and pronouns, and in the case of judges, may even make rulings that force transgender people to deny their true gender identity.
“Overt transphobia in the courtroom is all too common,” says Dru Levasseur, director of Lambda Legal’s Transgender Rights Project. “For instance, one trans woman in drug court in Georgia, who had turned her life around, was told by the judge to complete drug testing — and not to come back in ‘my courtroom unless you are dressed as a man.”
“In another case, a judge in New York would only issue visitation/custody rights to a transgender parent if she agreed not to follow through with her plans for gender transition surgery.” Other incidences of judicial bias against LGBT people include:
- in 2012, an Oklahoma judge cited the Bible in an opinion involving a transgender woman seeking a name change. The judge wrote: "To grant a name change in this case would be to assist that which is fraudulent....It is notable that Genesis 1:27-28 states: 'So God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, be fruitful, and multiply, and replenish the earth."
- in a judicial opinion involving a child custody case, a chief justice of the Alabama Supreme Court cited scripture referring to gay partners as “immoral,” “detestable,” “an inherent evil,” and “inherently destructive to the natural order of society.” After Lambda Legal lodged a formal complaint, the Judicial Inquiry Commission in the State of Alabama found “no reasonable basis” to support a finding that the judge had violated of the Alabama Canons of Judicial Ethics.
LGBT people and people with HIV can be subjected to unnecessary or irrelevant (and, therefore, inappropriate) disclosure of their sexual orientation, gender identity and HIV status. Judges, attorneys and other court employees may raise these issues or cause such disclosure even when it is not relevant, and even when disclosure is against the will of the party who is “outed.” These unnecessary and involuntary disclosures can:
- violate an individual’s privacy, which can negatively impact the court case and the individual’s life.
- increase or lead to mistrust of the court system.
- expose people who are LGBT and people with HIV to discrimination, harassment and possible threats of violence at home, work, or in other aspects of their lives.
Sometimes these are mistakes are made out as a result of a lack of cultural competency and understanding of the importance of privacy to members of the LGBT and HIV-positive communities. In other instances, attorneys and judges may “out” someone in an attempt to shame, expose or discredit them. Judges, attorneys and other court employees may claim that by asserting their gender identity, transgender people are somehow not being honest about who they really are.
For many people, being called for jury duty may represent their most significant, or only encounter with the courts. A diverse and representative jury is an essential component of a fair and impartial legal system. Unfortunately, many minority groups, including LGBT people, continue to face discrimination in the courtroom, denying them equal access to jury service and an equal opportunity to participate in civic life, and denying litigants a jury truly comprised of peers drawn from the entire community.
For example, the process used to question potential jurors, known as “voir dire,” routinely involves asking questions about friends and family. For many potential jurors who are LGBT, the answers to those questions can risk “outing” them. Voir dire questions about marital status have the potential to alienate LGBT people in states that do not recognize marriages of same-sex couples, rendering their relationships invisible, or to foster a feeling that the jury selection experience is not fully informed or fair.
In addition, at the federal level and in nearly every state, lawyers continue to disqualify potential jurors on the basis of their sexual orientation or gender identity. In May 2012, prosecutors in California used peremptory challenges to remove two gay prospective jurors from the jury pool in the “Equality 9” case involving protestors who were arrested for demonstrating outside of the San Diego county clerk’s office in response to Proposition 8.
In January of 2014, a federal appeals court became the first in the nation to find that the Equal Protection Clause of the U.S. Constitution prohibits excluding lesbians and gay men from juries based on their sexual orientation. The court ruled that, “Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation."
Longstanding practices contribute to the criminalization of LGBT people and people living with HIV, such as the targeting of gay men in bar arrests or sex stings, as well as the focus on condom possession as evidence of sex work. In addition, laws criminalizing “exposure” to HIV—which are based on misunderstandings about the actual routes and risks of HIV transmission, ignorance as to the current-day consequences of an HIV diagnosis, and a desire to disavow the shared responsibility for maintaining sexual health—all contribute to uncertainty among many LGBT and HIV-affected people that they will be treated fairly in courts.
Iowa is one of 33 states which currently criminalize the sex lives of people living with HIV. Lambda Legal is leading an appeal for Nick Rhoades, an HIV-positive Iowa man convicted for the “criminal transmission of HIV,” despite the fact Mr. Rhoades had an undetectable viral load, a condom was used and that HIV was not transmitted. Nonetheless, after the other man was told Rhoades might be HIV-positive, Rhoades was arrested, charged and—after being advised to enter a guilty plea by his original lawyer—sentenced to 25 years in jail and classification as a sex offender, even though he engaged in consensual conduct with another adult.
Anti-LGBT and HIV Comments in Courts
Of the 965 survey respondents who were in court any time during the previous five years:
- 6% heard negative comments about an individual’s HIV status
- 19% heard a judge, attorney or other court employee make negative comments about a person’s sexual orientation, gender identity or gender expression
The data reflect both comments directed at the respondent and those they heard about someone else.
While 19% of survey respondents with court involvement heard discriminatory comments about sexual orientation or gender identity/ expression in the courts, certain groups reported them at higher rates:
- respondents with physical or mental disabilities (which may include HIV) (24%)
- low-income respondents (those with an income of $20,000 or less) (28%)
- people of color (30%, including 27% for African American, 34% for Latina/o and 43% of Native American)
- TGNC respondents (33%)
- TGNC respondents of color (53%)
While 6% of survey respondents with court involvement heard discriminatory comments about HIV, certain groups reported them at higher rates:
- respondents of color (9%)
- respondents with physical or mental disabilities (may include HIV) (9%)
- TGNC respondents (9%)
- low-income respondents (10%)
- HIV-positive respondents (15%)
- TGNC respondents of color (17%)
The rates at which respondents reported negative comments also varied with the nature of their contact with the court system. Attorney and witnesses were more likely to report having heard discriminatory language regarding sexual orientation, gender identity/expression of HIV status.
Among survey respondents who identified as attorneys, witnesses, parties to a proceeding or jurors, the following percentages said they heard discriminatory language about sexual orientation or gender identity:
- jurors: 12%
- parties: 22%
- witnesses: 28%
- attorneys: 32%
The following percentages said they heard discriminatory language about HIV:
- jurors (5%)
- parties (6%)
- witnesses (7.5%)
- attorneys (8%)
Of court-involved respondents, 16% reported that their LGBT identity was raised in court when sexual orientation and gender identity were not relevant to the case at hand; 11% reported that it was disclosed in court against their will.
Among respondents to the first question—those who reported that their sexual orientation or gender identity had been raised as an issue in court when it was not appropriate—certain groups had much higher rates of such reports than respondents overall, including:
- respondents of color (25%, with Native American, at 28%,and Latina/o respondents, at 29%, even more likely to report irrelevant disclosure)
- respondents with physical or mental disabilities (which may include HIV)(25%)
- TGNC respondents (26%)
- low-income respondents (28%)
For the question about “outing” against their will in court (overall reported by 11%), again, certain groups of respondents were more likely to report this, including:
- respondents of color (14%, with Latinas/os (18%) most frequently reported being “outed” as LGBT)
- respondents with physical or mental disabilities (which may include HIV) (16%)
- low-income respondents (20%)
- TGNC respondents (21%)
Witnesses were most likely to report having their LGBT identity exposed when it was not relevant (30%), compared to parties to the case (24%), attorneys (13%), and jurors (7%)
Of respondents living with HIV with recent court involvement, 15% reported that their HIV status was raised when it was not relevant.
Lawmakers, judicial governing bodies, and/or legal associations should adopt the following rules, policies and practices that would help protect LGBT people and people living with HIV participating or otherwise involved in judicial proceedings:
- measures to safeguard the privacy of people who are LGBT or living with HIV. Many people consider their sexual orientation, gender identity and/or HIV status sensitive information. In addition, a person’s HIV status is confidential medical information protected under a variety of laws. In most circumstances, an individual’s sexual orientation, gender identity or expression and HIV status are irrelevant in court proceedings and should, therefore, not be mentioned unless disclosed by the individual in question. In circumstances when a person’s sexual orientation, gender identity or expression, or HIV status is relevant to a proceeding, that information should be treated with sensitivity to protect the individual’s right to privacy.
- judicial canons that explicitly prohibit language and conduct manifesting bias or discrimination based on sexual orientation, gender identity or expression and HIV status, and that mandate judges to require lawyers, court officials and staff, and people appearing before them to refrain from using such language or engaging in such conduct.
- rules governing the professional responsibility of lawyers that explicitly prohibit language and conduct manifesting bias or discrimination based on sexual orientation, gender identity or expression, and HIV status.
- court rules and policies governing the actions of court staff and employees that explicitly prohibit language and conduct manifesting discrimination and bias based on sexual orientation, gender identity or expression, and HIV status.
- clear and accessible procedures for filing and processing complaints about words or conduct manifesting bias by judges, lawyers, court officials, and court staff.
- ensure that studies are conducted to examine the treatment within courts of individuals based on sexual orientation, gender identity or expression, or HIV status, conducted in consultation with community partners, and with recommendations for addressing problems identified by such studies.
- undertake efforts to encourage diversity, including diversity in sexual orientation and gender identity or expression, in the appointment and election of judges. Legal practitioners can assist with this process by working through state, local and specialty bar associations or political organizations. In addition, states with judicial nominating commissions should explicitly address these types of diversity in rules governing the evaluation of candidates.
- support and/or enact laws that explicitly prohibit discrimination in jury selection on the basis of sexual orientation, gender identity or expression, and HIV status, among other characteristics.
In addition, attorneys and judges should:
- immediately respond to jokes or disrespectful comments about an individual's actual or perceived sexual orientation, gender identity or expression, or HIV status. If this happens during a court hearing, judges and attorneys should respond promptly so that inappropriate comments, and the person who made them, can be addressed immediately. If the statement was made on the record, the response and any reference to the response should also be on the record.
- address transgender and gender-nonconforming (TGNC) individuals according to their preferred pronouns (“he” and “him,” or “she” and “her”). Addressing or referring to individuals by the wrong pronouns is disrespectful and inappropriate and can cause or contribute to unlawful harassment or discrimination.
- oppose the introduction of evidence of actual or perceived sexual orientation, sexual conduct, gender identity or expression, or HIV status unless these characteristics are relevant to an issue in the proceeding, oppose the introduction of such evidence in an attempt to embarrass an individual, attack his or her character, or play to the biases of decision-makers.
- conduct voir dire in a manner that is respectful of people’s right to confidentiality regarding their sexual orientation, gender identity or expression, and HIV status and that avoids involuntary outing or undesired visibility. Avoid questions that specifically focus on marital status and instead frame questions to identify anyone with whom the potential juror may have a significant personal relationship.
- when instructing jurors that biases and prejudices are to play no role in their decisions, explicitly include bias, prejudice and other preconceived notions about sexual orientation, gender identity or expression, and HIV status.
- when appropriate, ask questions during voir dire to expose juror biases and prejudices based on sexual orientation, gender identity or expression, and HIV status, and seek to remove such jurors for cause.
- challenge peremptory strikes that appear to be based on sexual orientation, gender identity or expression, and HIV status.
All government agencies included in the Protected and Served? survey, including police departments, courts, prisons and schools, should adopt comprehensive non-discrimination policies that:
- prohibit bias and discrimination based on sexual orientation, gender identity and expression and HIV status;
- ensure that culturally competent services and treatment are provided to LGBT and HIV-positive detainees. Police, court, jail/prison and school staff (including but not limited to police officers, police clerks, attorneys, judges, guards, schools security guards, school-based police and school safety officers) should undergo significant cultural competency trainings about sexual orientation, gender identity and expression, and HIV status so they will be able to treat all members of the LGBT community in a respectful, nondiscriminatory manner. These trainings should have a particular focus on gender identity and expression cultural competency, to emphasize the importance of improving the treatment of TGNC people. Additionally, these trainings should address HIV confidentiality and transmission, to improve the treatment of HIV-positive people;
- provide a transparent and accessible oversight process for reporting and redressing discrimination complaints, combined with clear and enforced disciplinary procedures;
- include employment policies that can help improve the hiring and retention of LGBT employees as well as contribute to a more LGBT-friendly environment.
1. Joey L. Mogul, Andrea J. Ritchie, Kay Whitlock. Queer (In)Justice: The Criminalization of LGBT People in the United States, Boston: Beacon Press, 2011, pp. 72, 74. ^