Representing Transgender Clients

Pointers for Working with Transgender and Nonbinary Clients in the Criminal Justice System

BY ELIZABETH DUGGAN AND RICK COFER

Transgender clients come from all walks of life. 1 And attorneys have a duty to focus on the needs of clients. But what does client-centered mean in practice when an attorney may not have much experience— in practice or in life—with transitioning or transgender and nonbinary people?

Gender identity is different and distinct from biological sex. Gender identity exists on a spectrum and is not limited to being a man or a woman. The transgender community includes a broad range of people whose gender identity is not aligned with their birth-assigned sex. 2

Recent personal experience representing a 17-year-old transitioning individual was a learning opportunity for us. Representing him was a lesson in the value of humility and importance of listening to a client. Our client was charged with an offense that he felt was driven by discrimination against his transgender identity. From the beginning of our engagement, we were direct and up front with our client about our goals in working with him and what we didn’t know. We asked our client to educate us about his identity. Simply asking his pronoun preference paved the way for his willingness to share his story.

With our client’s consent, we contacted the court to inform them of our client’s preferred name. Although court staff didn’t promise to honor the client’s preferences, they appreciated the heads-up. The next thing we knew, the prosecutor was reaching out using the client’s preferred name. While this may seem like a small step taking little time, the benefits for our client were significant: He felt he’d won a small piece of his personal dignity back.

At one point, our client’s mother shared with us an insight that was an important reminder of what it means to empathize with any client who has faced discrimination we, as the attorneys, might not have personally experienced. Our client’s mother asked us to imagine what it feels like to have our feelings hurt, and then imagine experiencing that feeling every second of our life. That is what her child—our client—feels.

We have developed the following practice pointers for attorneys working with transitioning, transgender, and nonbinary clients:

We asked our client to educate us about his identity. Simply asking his pronoun preference paved the way for his willingness to share his story.

Know when to acknowledge what you do not know.

For some attorneys, the transgender and nonbinary world is an unfamiliar place. This can lead to new conversations, expectations, and realities that initially may feel uncomfortable. Having the humility to admit you do not know all the answers—and asking questions to learn more about your client—will make you a better attorney in general!

Do not assume.

If you do not know someone’s gender identity or preferred pronouns, then just simply ask and listen. Listen to learn and not to respond. Listen to how the client refers to themselves. Do not share a transgender or nonbinary individual’s transition with others without permission as they may not feel comfortable sharing their outing. Do not assume your client’s preferences.

Acknowledge and verify feelings.

More than likely a transgender or nonbinary client has been discriminated against. Even more likely is that you have not been discriminated against in the same way that your client has. We have all had our feelings hurt by someone before and can all empathize with the feeling of pain. You should be a source of support and comfort for the individual.

Prepare your client.

To judges and court officials, clients start out as just names on a piece of paper. Our job as defense attorneys is to humanize our clients before the court. This challenge is even more prevalent when the name is one your client no longer identifies with. Warn your client that officers of the court may solely rely on their legal name and birth sex on legal documents. It is important to be forthcoming with your client about the challenges they will face in a system that has not been designed or adapted to respect changed or fluid gender identities.

Be an ally.

Above all, you are your client’s biggest advocate. You are representing them in what could be the most challenging time in their lives, and it can be filled with discomfort and discrimination. It is important as an attorney to remain steadfast in your loyalty to your client. Acknowledge what you do not know, never assume, validate feelings, prepare, and be the ally. 3 Listen to the story your client shares and remain dedicated in your opportunity to advocate for and alongside them.

In closing, we are pleased to inform you that the case referenced in this article was dismissed against our client. AL

Footnotes

1. Human Rights Campaign, https://www.hrc.org/resources/ understanding-the-transgendercommunity (last visited Jan. 13, 2022).

2. NATIONAL CENTER FOR TRANSGENDER EQUALITY, https:// transequality.org/issues/resources/ frequently-asked-questions-abouttransgender-people (last visited Jan. 13, 2022).

3. GLAAD, https://www.glaad.org/ transgender/allies (last visited Jan. 13, 2022).

Elizabeth Duggan is an associate attorney at Cofer & Connelly, PLLC.

Rick Cofer is a partner at Cofer & Connelly, PLLC. He is a long-time board member of Texas Health Action, the largest provider of gender affirming care in Central Texas.