Raising the Bar: Names, Pronouns, and Judicial Respect for Trans People

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November 18, 2019
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This is part of our blog series written by Lambda Legal staff in honor of Transgender Awareness Week 2019.

Read Part I: Committing To A Year of Action: Five Ways to Honor Our Community by Avatara Smith-Carrington and Taylor Brown.

Read Part II: HHS's Nonstop Attacks on Transgender People by Sasha Buchert.

Read Part III: Support Trans Youth in Out of Home Care by Oliver Stabbe.

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This Transgender Awareness Week, let’s focus on one place where transgender awareness is notably absent: the courts. 

When the U.S. Supreme Court heard oral arguments last month in a set of cases addressing whether LGBTQ people are protected from workplace discrimination under Title VII, one thing was made clear: Supreme Court Justices (like many other judges) don’t know much about the T in LGBTQ.

In R.G. & G.R. Harris Funeral Homes v. EEOC, the case in which Aimee Stephens was fired after informing her boss she is a woman and would be transitioning, the very first inquiry raised by the justices was Chief Justice Roberts asking how to analyze the issue of a “transgender man transitioning to woman” when “he…, he or she” is doing so to use the women’s bathroom.

Every day, transgender people face brutal discrimination and rejection of their identity. At Lambda Legal, we often hear from trans and nonbinary people who have been treated disrespectfully by judicial officers –including experiences of being misgendered, turned away, mocked, denied appropriate legal representation or criminalized disproportionately.

We know of judges who don’t want to make decisions in cases involving trans people, and those who have laughed out loud in open court because a transgender person asked for the respect of being addressed with their correct pronouns.

A person’s identity–including their name and pronouns—is a powerful, essential element of someone’s dignity and humanity. Denying it has dangerous consequences.

Most people come into contact with courts at the local or state level. According to the 2015 U.S. Transgender Survey, thirteen percent of respondents who had visited courts in the previous year experienced negative treatment when staff either knew or they believed staff knew that they were transgender. Transgender women of color, again, experience negative treatment at the highest rates. When transgender people are treated disrespectfully in court or turned away by a particular judge, they are denied access to justice—further harmed by the very system through which they are seeking protection.

Access to the courts is fundamental to a functioning democracy. Unfortunately, a lack of understanding and knowledge about transgender people is persistently widespread in the legal community. 

From Justice Roberts’ use of “transgender man” when he was talking about a transgender woman; to the Court’s extended conversation on the questions surrounding restrooms (questions not at issue in the case); to Justice Gorsuch’s query about what consideration should be given to the “massive social upheaval” that would be caused by protecting transgender people in the workplace; it was made evident on October 8th that the very humanity of transgender people was foreign to the court.

Lack of knowledge often leads to a lack of respect, and in this arena, that can mean that disrespect is memorialized into case law.

There are plenty of other examples in lower courts. In March of this year, Trump appointee Judge James Ho (a nominee whose record deeply concerned us throughout the confirmation process) of the Fifth Circuit Court of Appeals intentionally misgendered Vanessa Lynn Gibson, a transgender woman incarcerated in Texas, throughout the opinion he authored denying her access to medical care.

He did this despite the briefs filed and the oral argument held in which she was clearly identified to the court as a woman.

This type of mistreatment happens in courts across the country. Fortunately, we have proof that in many cases education can make a tremendous difference.

One of the ways we work to ensure trans and nonbinary people have equal access to justice is through educating those who work in the judiciary. Each year, myself and many of my colleagues talk to judges about transgender people, using tools we've developed like “Moving Beyond Bias: How to Ensure Access to Justice for LGBT People”.

When I speak to judges, they see a transgender attorney; someone who, like them, attended law school and went to work in the legal field. Most of the time, they see my humanity. They hear what I mean when I say trans people are often having a horrible time in court, and they have the power to remedy it.

Not only do I reach the judges in the room, but likely these judges pass information on to others. Not every transgender person is afforded that understanding and respect, and our educational and training work is essential.

Fortunately, many judges are increasingly doing the right thing. In dozens of cases, judges have made explicit decisions to use the correct name and pronouns for transgender litigants. Just this summer, Judge Hector Garza in Dallas ruled that the parties in a criminal assault trial must refer to Muhlaysia Booker, the victim, not with her legal name but the name that she used. He also ruled that the parties must use she/her pronouns to refer to her in court.

Shockingly, this caused no social upheaval. There is no denial of rights to others when transgender people are given basic respect.

Judges are—and absolutely should be—held to a high ethical standard. Codes of judicial conduct require judges to treat people in their courtrooms with courtesy and dignity. They must act without bias or prejudice. Today, that is not happening in every court nationwide.

Would education have changed the way Judge Ho wrote his opinion? Would it have changed Justice Roberts’s line of questioning? These questions are debatable, but continuing to insist on the sharing of knowledge remains an important step.

We must raise the bar on educating judges and hold them accountable when they refuse to provide the same access to justice for transgender people as they do for cisgender people.

This Trans Awareness Week, more judges must know that every word they choose to use and every action they take sends a message about whether someone is welcome in their courtroom. Actions can indicate if equal justice will be available to all.

Judges must not only be aware of the existence of trans people and our lived experiences, but they must also invest the time to get to know us and treat us with the respect and dignity we deserve.