Transgender clients are not fundamentally different from non-transgender clients. They have the same need for resolution, respect, effective representation, and returned phone calls.
Most often, the unique challenges they face originate from discomfort or disinterest on the part of others. For some transgender people, past experience with this discomfort or disinterest may lead them to be wary about opening up to new people. This barrier may be something the practitioner will need to overcome in order to provide effective representation. An honest and open relationship between attorney and client is integral to effective advocacy, and creating this relationship begins with a genuine showing of respect and support. Below are a few tips on ensuring that transgender clients are comfortable.
Practice Tip: Similar to a client who may have changed her name through marriage or one who prefers “Liz” to “Elizabeth,” a transgender client will appreciate your ability to respect his or her choice of name and pronoun.
1.2.1 Avoid Assumptions
It is very common to assume that you know a person’s gender or gender identity based on sex stereotypes. In most cases, you will “guess” correctly. However, some people’s expression or identity is non-stereotypical or different than what you might assume or expect. Therefore, it is important to be open to someone’s self-identity. If you are unsure, it is appropriate to ask how the person would like to be addressed.
Practice Tip: If you believe your client may be transgender, but you are not sure how to question him or her respectfully about gender identity, ask a broader question such as, “In immigration, being lesbian, gay, bisexual, or transgender could be legally relevant to your case. Do you identify with any of these categories?”
If you are unsure of the pronouns to use when referring to your client, it is appropriate to politely ask. For example, you can ask, “Are you most comfortable being referred to with male or female pronouns?”
1.2.2 Narrow the Issues
Sometimes, the legal challenge facing a transgender person is unrelated to his or her gender identity. It is important not to focus so narrowly on the fact that a person is transgender that you end up making that characteristic more important than the actual reason the person is seeking your services. It also is important that you help your client focus on the real issue and steer him or her away from focusing on gender identity if that is not the core legal issue.
Still, in the immigration context, it is quite likely that a person’s gender identity is central to his or her legal situation. It is important to talk to your client about his or her identity and the social group created through that identity. It is possible that your client’s identity—and even the gender description—will be unclear. Reassure your client that if he or she is transsexual, it is okay to describe him- or herself based on gender identity (for instance, someone who is FTM may be reluctant to identify himself as a man).
It also is important to be aware that individuals from other countries may not use our terminology to describe themselves. Always follow yBack to Table of Contentsour client’s cues. Even if your client clearly appears to be a transgender woman to you, if your client identifies as an effeminate gay man, don’t impose your own definition on the client. Conversely, if your client doesn’t “look transgender” to you, you should still use the name and pronoun that your client feels comfortable using.
1.2.3 Access Community Resources
Because so many legal issues concerning transgender people are issues of first impression or are still being developed, it is important that you connect with knowledgeable attorneys as you begin to frame your legal arguments. For recurring issues, there may be a tried and true approach that is not well-known outside of the community of advocates who specialize in transgender issues. Too often, well-intentioned attorneys create bad law simply because they do not fully understand the issues. This manual provides basic information about legal issues facing transgender immigrants, but you still should talk to others who have worked on similar cases.
1.2.4 Use the Correct Name, Gender Marker, and Pronoun in All Correspondence and Filings
Except in extremely rare circumstances, it is very important that you use the name and pronoun that corresponds to a person’s gender identity (for example, if your client transitioned from male to female, use female pronouns). In addition, your client may choose to use a name that is gender-neutral or not associated with the pronouns he or she prefers. It is important to be aware of and respect this decision. It may be necessary to footnote the person’s prior name or to explain in a cover letter with an application to U.S. Immigration and Citizenship Services (USCIS) that you will be referring to your client using the current name and gender even though some of the documents are still in the prior name or gender. It also is important that you respectfully urge immigration officers, U.S. Immigration and Customs Enforcement attorneys, immigration judges (IJs), and other government officials to do the same.
Often, clients will tell their attorneys their legal name (i.e., their birth name) rather than the name they feel comfortable using. If your client’s legal name clearly does not match his or her corrected gender, you should ask whether there is another name that is preferred.
Practice Tip: If a transgender client has not legally changed his or her name, record both the client’s preferred and legal name on your intake form. For example, a transgender man whose preferred name is Mark, but was called Diana at birth, would be recorded as Diana “Mark” Smith. All employees should be told to refer to this client as Mark at all times.
18.104.22.168 File in the Correct Name as Early in the Immigration Process as Possible
It is easier for your client to begin his or her immigration record with the name that corresponds to the gender identity. Therefore, especially for immigration clients, it is important to do all that you can to get your client’s paperwork in order to file the application in the correct name (i.e., someone who is MTF can file in her female name). Chapter 3 goes into this issue in depth.
If your client has not legally changed his or her name, however, you will generally not be able to file in the name your client chooses. Nonetheless, it is best to explain in the cover letter to USCIS that your client is transgender and generally goes by a different name.
Practice Tip: It is important when dealing with USCIS that you do not give the impression that you are trying to commit fraud or conceal your client’s identity. At the same time, you want to be sure that any correspondence on your client’s behalf is respectful of his or her identity. In writing to USCIS, you may want to begin a letter as follows. “Diana ‘Mark’ Smith” is a transgender man. Although his legal name remains “Diana,” he uses “Mark” for most purposes and is in the process of legally changing his name. We will refer to him as Mark.”
1.2.5 Make Sure Your Office Has Transgender-Friendly Policies
Your intake forms should allow for an “also known as” (AKA) and should encourage or allow people to identify their sex based on their current gender identity. Your restrooms should be accessible to people based on their gender identity (as opposed to their birth sex or genital anatomy). Where possible, it is always a good idea to have a gender-neutral option available. However, use of a gender-neutral bathroom should be optional for anyone who wishes to use it; a transgender client should not be forced to use a gender-neutral bathroom, and forcing the person to do so may be unlawful. Finally, your coworkers should be trained in basic transgender cultural competency.
1.2.6 Always Be Respectful
As discussed in other parts of this manual, whether a transgender person has transitioned and what kind of transition-related medical care he or she has received often will be legally relevant to the case. As an attorney, you must learn to ask personal questions in a respectful way.
Sample Intake Questions
- In immigration, being lesbian, gay, bisexual, or transgender could be legally relevant to your case. Do you identify with any of these categories?
- How do you prefer to be addressed? What pronouns do you to prefer?
- What is your legal name?
- Have you received a court-ordered name change?
- What is the gender you were assigned at birth?
- What is your gender identity?
- Have you received a court order recognizing your change of gender? From what court?
- Have you been able to change your birth certificate in your home country or state to reflect your gender identity?
- I realize that your physical transition is a very private thing, but in some cases, the transition-related care you have undergone is relevant to your case. Please understand that our conversation is confidential, and this information will be shared with the government only if it is relevant. Have you accessed any medical treatment as part of your transition?
- Are you undergoing hormone replacement therapy?
- Are you seeing a mental health professional related to your transition?
- Do you have a primary care physician who is overseeing your transition-related health care?
- Have you undergone any surgeries as part of your transition?
- Do you plan to undergo any surgeries as part of your transition?
- Have you experienced any mistreatment in your home country because of your gender identity, appearance, or sexual orientation?
- Are you married? If so, what gender was your spouse assigned at birth? What is your spouse’s gender identity?