Quimbee logo
DMCA.com Protection Status

LGBTQI Cultural Competency in Client Representation

4.7 out of 5 Excellent(85 reviews)
CQ
Presenter(s)
Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49
Play video

LGBTQI Cultural Competency in Client Representation

In this practical webinar, you will learn how to be culturally competent when representing LGBTQI clients and how to have an LGBTQI friendly law office and presence on-line and in your marketing.

Presenters

Colleen Quinn
Owner
Quinn Law Centers

Transcript

Colleen Quinn: Hello. Welcome to LGBTQ Cultural Competency in Client Representation by Quimbee. This is Colleen Quinn. I'm a lawyer in Richmond, Virginia, practicing at my law firm of Locke & Quinn. And I've been in practice for 32 years. This is one of my favorite topics to talk about because I represent quite a number of LGBTQI clients. And making sure that we are culturally competent and make them feel comfortable as our clients is really critically important.
   As an aside, I belong to the LGBT Bar, also to the Virginia Equality Bar Association. And I'm one of the allies with Equality Virginia, having worked with them for many years, including getting favorable legislation passed in Virginia for LGBTQ families. In particular, I'm quite proud that this past year we got a second parent adoption bill passed in Virginia working with Equality Virginia.
   So let's launch into our topic today and talk a little bit about cultural competency. What are we going to cover? We're going to cover the use of appropriate language with LGBTQ clients and ensure that you have a welcoming law office. We're going to recognize what is necessary to make our clients feel comfortable when they are in our law office. And we're also going to make sure that the other staff in our law office use the same terminology and, likewise, are culturally competent.
   So we want to be educated and we also want to educate our team. We want to respect our clients and also our perspective clients by knowing and using proper and respectful terminology. So I've included among your slides, there's one of my favorite slides, which has the rainbow flags. That basically says, "We are all the same in inside. I'm gay, I'm lesbian. I am bisexual. I am transgender. I am like you. I am human." We need to respect the humanity that we all have.
   Let's look at the letters now. What do the letters mean? You should know the letters. Some of them are pretty well known and obvious, but others are not quite as well known. First of all, the L stands for lesbian, G stands for gay, B is bisexual, T is transgender, Q is queer or questioning, I is intersex. GNC is gender nonconforming, and A typically refers to asexual.
   Now, sexual orientation and gender identity are two different concepts, and it's really important to understand the difference between the two concepts. Sexual orientation is who you go home to. Gender identity is who you go home as.
   So let's focus on what is gender identity. Gender identity is basically one's innermost concept of self as male, female, a blend of both, or neither. It's how individuals perceive themselves and refer to themselves. Gender identity can be the same or different from someone's assigned sex at birth. Some people might know of a really famous actress who basically her parents chose at birth that she would be female, although they could have gone either way.
   What's the difference between gender identity and sexual orientation? Gender identity is which gender you identify or don't identify with. And sexual orientation is who you are romantically, physically, emotionally, or sexually attracted to. Sam Killerman says, "Gender is who you go to bed as. Sex is who you go to bed with."
   A good view of looking at gender identity versus sexual orientation is The Genderbread Person, not the gingerbread person, but The Genderbread Person. And this is in one of the slides that we've included in the materials, that basically there are different spectrums of gender identity, gender expression, biological sex, and sexual orientation, and everything basically works on a spectrum.
   So gender identity can be on the one spectrum, woman, or on the other spectrum, man, or in the middle, gender queer. Gender expression, on the one hand, could be feminine and, on the other hand, masculine or, in the middle, androgynous. Biological sex, of course, can be female on the one hand or male on the other, or in the middle is intersex. So sexual orientation generally ranges from heterosexual on the one end to homosexual on the other, and then bisexual in the middle. But The Genderbread Person gives us a nice diagram and visual idea of the different spectrums on each of these different scales.
   Let's talk a little bit more about gender identity, and we're going to get into some words that are appropriate and words that are inappropriate. So first of all, gender nonconforming is a term for individuals whose gender expression and behavior is different from societal expectations or stereotypes related to gender. Gender queer is a term which generally refers to a person who does not accept a gender binary world and refuses to conform their behavior to any gender stereotypical behavior. Gender identity, that we've already talked about, is a person's innate, deeply felt psychological identification as a man, a woman, or some other status, which may or may not correspond with their external body or sex assigned at birth, that is, what was listed on their birth certificate.
   Gender expression is the external manifestation of a person's gender identity, which may or may not conform to the socially defined behaviors and external characteristics that are commonly referred to as either masculine or feminine. These behaviors and characteristics are expressed through movement, dress, grooming, hairstyles, jewelry, mannerisms, physical characteristics, social interactions, and speech patterns, including voice and voice levels. Gender is basically a spectrum.
   Now, a cross-dresser is a term for a person who dresses in clothing not typically worn by their assigned birth sex, but who generally do not desire to live full-time as the other gender. So a cross-dresser typically might be a drag queen. If you go to a drag show, there's a really great breakfast place here in Richmond, Virginia, where they have a fabulous Sunday brunch and drag show.
   Intersex. Intersex means biologically a person who was born with both female and male or indescript sexual genitalia or chromosomal differences that create secondary sexual characteristics.
   So moving along in our presentation here, we're going to talk a little bit now about transgender people. Transgender means an umbrella term for people whose gender identity or gender expression differ from their assigned sex at birth. So not all transgender people want to live as the sex opposite of the one they were assigned at birth. Individuals who cross-dress, live androgynously, or do not live their life in a gender binary manner, such as gender queer, are all within the umbrella term transgender.
   The preferred use of the word transgender is as an adjective and not a noun or a verb. So you would say, "Tony is a transgender man," not, "Tony is a transgender," or, "Tony is transgendered." Instead, it would be used as an adjective. So a transgender man would be a term for a transgender individual who was assigned female at birth, but currently identifies as a man. This is sometimes shortened to trans man. And a transgender woman, on the other hand, would be the opposite, a term for a transgender individual who was assigned male at birth, but currently identifies as a woman. And that's sometimes shortened to a trans woman.
   Actually, when I'm dealing with clients, there's really no reason whatsoever to use the term transgender man or transgender woman or trans man or trans woman. Basically, you should just refer to them as either man or woman. However, they choose to be referred is how we should respectfully refer to them and just leave the term transgender out, unless for some reason there's a legal reason to have to use the term transgender.
   Transsexual are people whose gender identity differs from their assigned sex at birth and people who often on a full-time basis live their lives as a member of the opposite sex. They may or may not take hormones or have surgery. This term, transsexual, is one that's hotly debated within the transgender community and should only be used if the individual's comfortable with the term. So I would just advise you not to use the term transsexual. There's really no reason to ever use it. You should always just recognize how does a person want to be identified and how should we be referring to them? What are their pronouns?
   So basically, in my signature block at the law office, I make sure I have of she/her/hers in my signature block and are the pronouns that I used to refer to myself.
   So looking at definitions of transgender people, when we talk about a person that transitions, it's important to not use the term transgendering. A transgender person, we use that as an adjective as opposed to a verb. So when a person is transitioning or they're going through gender affirmation, that's when an individual begins to live as the sex opposite of the one is signed at birth. And that process is referred to as transitioning or going through the gender affirmation process.
   That process of self-authorization generally includes three phases of transition: social, legal, and medical. It can be really difficult for a person to go through this process. I'm working with a client right now who, in trying to transition from male to female, has had to try to explain to his young son what is going on. And that can be difficult for not just the person going through the transitioning process, but also for members of the family around them to understand. So it's important to really understand what that person is going through and just how difficult it is to reach the point of knowing that a person doesn't feel right in the particular sex that they've been assigned. They just don't feel good about it.
   If we follow the whole story of Caitlyn Jenner, that's a really great public example of just some of the pain and the hardship that transgender people go through, especially in going through the process of transitioning. And so the social, legal, and medical parts of the process are all very important.
   So let's talk a little bit about the medical, psychological aspects of transgender people. So gender dysphoria is a DSM V diagnosis. It is not a term of general usage that describes a strong and persistent cross-gender and persistent discomfort with a person's sex or sense of inappropriateness in the gender role of that sex, which causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Some, but not all, transgender individuals have gender dysphoria. This has been and, in some literature, still is referred to as gender identity disorder. However, many in the community consider the use of disorder to be an offensive term. And gender dysphoria is now the preferred technical term. So again, we don't use the term gender identity disorder. The proper term to use is gender dysphoria, if the term needs to be utilized at all.
   So let's talk a little bit more about the medical side of transgender people. So gender reassignment surgery, also referred to as gender confirming surgery or gender affirming surgery, those terms refer to various surgical procedures that change one's body to align gender identity and presentation. Contrary to popular belief, there is not one surgery. In fact, most transgender people that are transitioning go through a lot of different surgeries. In addition, they typically undergo hormone therapy. The administration of hormones to facilitate the development of secondary sex characteristics is part of the medical transition process. Those medically transitioning from female to male may take testosterone, while those transitioning from male to female may take estrogen and androgen blockers. Note that not all persons that transition from one sex to the other actually undergo any surgery. Some folks will just simply go through the hormone therapy and take medications to basically transition from one to the other. So it's not always the case that surgery is imperative in the transitioning process.
   All right. Let's talk a little bit about some more controversial things. In children, Lupron is used to suppress puberty and the development of secondary sex characteristics that can exacerbate gender dysphoria symptoms and make transitions at adulthood less successful. There's a reversible effect upon termination of the Lupron therapy. This, of course, is hotly, hotly debated. The World Professional Association for Transgender Health, that's WPATH, who can be found at wwww.WPATH.org, have heavily debates on hormone therapy and surgery for minors. Most persons in this area are of the opinion that children should figure out for themselves who they want to be and any intervention at a young age, especially medical hormone therapy intervention is inappropriate, for young children.
   So let's now talk about words not to use. And I actually feel like sometimes I should have my mouth washed out with soap when I talk about some of these words. So a lot of words not to use because they are outdated or considered offensive include tranny, she-male, he-she, it, transvestite, sex change, or sex change operation. Ooh. I just feel like I've got a dirty potty mouth when I use those terms. So whenever possible, use a transgender person's chosen name, even if it's not their legal name. Oftentimes, transgender people cannot afford a legal name change or they're not old enough yet to change their name legally. They should be afforded the same respect for their chosen name as anyone else who lives by a name other than their birth name. Look at all the celebrities out there, Cher and others, Madonna. They go by whatever name they choose and not necessarily their birth name.
   If it's not possible to ask a transgender person which pronoun he or she prefers, use the pronoun that seems consistent with their appearance and gender expression. For example, if a person wears a dress and uses the name Susan, feminine pronouns would be appropriate. If it's not obvious, try to avoid any use of gender terms until you can ask their person's preference.
   I find that most of my clients are absolutely nonplussed if I just simply ask them, "Which pronouns do you prefer to use?" When we get on an Equality Virginia Zoom type call or a presentation, the first thing we do is we put in our little Zoom box our name and then which pronouns we prefer. And then when we introduce ourselves, we typically give the name and our pronouns that we prefer. Most people that live in the LGBTQI world are going to respect you when you ask them, "Which pronouns do you prefer?" That has become a pretty common thing to do.
   So if I have somebody come into my office and I really can't tell whether they want to be referred to as male or female or something in between, the first thing I do is I ask them their name. Now, if their name is Terry or something that could go either way, then second thing I'll ask them is, "Terry, which pronouns do you prefer that I use?" And then Terry will simply tell me whether it's he, she, or they, or whichever pronouns that they would prefer.
   So when describing transgender people, please use the correct term or terms to describe their gender identity. For example, a person who is assigned male at birth and transitions to a female technically is a transgender woman, but just refer to them as a woman, whereas a person who was assigned female at birth and transitions to male is a transgender man or trans man. But again, I would just refer to them as a guy.
   All right. So moving right along here, the term they. The term they really started to crop up about a decade ago. And in the Times, there was an excerpt in April of 2017 about the grammar difficulty with the use of the term they.
   But let's talk about the history of they. So grammar conventions are shifting just as quickly in these recent years, and efforts to introduce non-standard pronouns, some of which date as early as the 1850s, have generated a vast array of alternatives. None of the early ones took off, which included XE, ZE, PHE, ER, and OU. And then in 1884, several newspapers tried to make THON, T-H-O-N, happen. And increasingly, courtesy titles like mister and miss have to make room for novel varieties like Mx, pronounced mix.
   Today, many transgender people prefer the conventional he or she, but those who have adopted they, them, and theirs as personal pronouns have become much more visible. Both the Washington Post and the Associated Press in April of 2017 began permitting the singular they in their reporting on a case-by-case basis. In some cases, a reporter finds that a write around, like avoiding pronouns altogether and just using the person's name, is going to be more appropriate. Other times, the reporter confronts the terminology head on in the introduction or body of the article.
   If you want to follow a really good program, Billions has a great character who is referred to throughout the program as they. And the actors and actresses do an amazing job of using the term they correctly and appropriately throughout the program. So it's not that difficult, even though sometimes for me as an English major, I have a hard time wrapping my head around the they term. But once you start to incorporate it, think about if somebody was in your conference room and there was a cup or something left on the conference room table, and we would maybe say to somebody else in the conference room, "Hey, they left that cup there." Well, it was probably a singular person and it was probably a he or she, but we've used the term they in a general manner. So that's a really easy way of starting to accept how to incorporate the term they.
   So let me give you a case example that I had. I had Betsy and Bo who came into my office, and it was almost like a comedy routine, because Betsy was lesbian and identified she, but Bo was they. And so Betsy and Bo had been in an auto accident and I asked Betsy, "Well, who was in the car with you?" And Betsy says, "They were." And I went, "Oh. You mean Bo or do you mean Bo and anybody else?" And she says, "They were." And I said, "So it was just Bo." She says, "Yes, it was just Bo."
   And then I asked Betsy, "Was anybody injured in the car accident?" And she says, "Well, I was and they were." And I then said, "You mean Bo. Bo was injured in the car." And she said, "Yes." "Was anyone else injured in the car accident?," I asked. She said, "No."
   So you just have to basically come back to the person's name to get the best clarification when using the term they. Interestingly enough, in that case, Bo had been born female and had treated female throughout the case while in Virginia. And so all of the medical records referred to Bo as female. However, when Bo moved to Colorado, he was going through the transitioning process. And so at that point, the medical records started to identify Bo as male.
   In the case, I had to address with Bo that the claims adjuster, and this was probably about 15 years ago, was not going to fully comprehend me referring to Bo in the claim package as they. And I asked Bo if I could simply refer to him as he had treated previously, which was as a female. And so we had a good discussion about it. And I told Bo, "I'm not just not sure that the adjuster is going to comprehend the terminology of referring to you as they. Would it be okay, because you treated mainly as female throughout the case, if I referred to you in the claim package as female?"
   And Bo understood completely. He also didn't want to have any devaluation of his case due to the adjuster not comprehending the transgender transitioning process or the fact that he was transgender. So the key thing there is just to have an open and honest conversation with your client about how they choose to be referred. And sometimes, legally, it might be the case that you can't necessarily refer to them that way, or it might pose some problems with how the case is presented.
   So that Billion series, the character Taylor is the one that is they in the program. And I think watching that episode is a really great way of further understanding how to properly use the term they.
   All right. We're going to switch from gender identity now and talk about sexual orientation. So sexual orientation is a term describing a person's attraction to members of the same gender or different gender. Sexual orientation and gender identity, as we previously discussed, are completely different concepts. Gay is a term used to describe a male who's sexually and emotionally attracted to other males, also a generally descriptive term for gay men or lesbians. So gay can refer to lesbians as well. However, many lesbians prefer to be called lesbians and not gay. And of course, a lesbian is the term used to describe a female who's sexually and emotionally attracted to other females.
   Bisexual is a term used to describe a male or female who's sexually and emotionally attracted to both sexes. Questioning is a term used to describe a person who's unsure and is questioning their sexual orientation. Heterosexual or straight, of course, are terms used to describe persons who are sexually and emotionally attracted to persons of the opposite sex. Gender queer are people who do not ascribe to a binary notion of any sex or gender. And then asexual is a person with no desire for a sexual relationship with anyone. Sex just simply doesn't enter into the picture for them.
   All right. So let's go back to those potty mouth words where we want to wash our mouths out with soap, more words not to use. The term homosexual is an offensive term. While it regularly was used in the past, it's something to avoid now. Preferred terms are gay, gay man, or lesbian or gay person or bi, bisexual. Please use gay or lesbian describe people attracted to members of the same sex. Because of the clinical history of the word homosexual, it's aggressively used by anti-gay extremists to suggest that gay people are somehow diseased or psychologically or emotionally disordered. These are notions that have been discredited by the American Psychological Association and the American Psychiatric Association in the 1970s. So we do want to avoid using the term homosexual. Besides, gay is a much more fun term to use anyway.
   All right, another word not to use and that is offensive is sexual preference. What is preferred is sexual orientation or just orientation. The term sexual preference is typically used to suggest that being lesbian gay or bisexual is a choice, and therefore can and should be cured. Sexual orientation is the accurate description of an individual's enduring physical, romantic, and/or emotional attraction to members of the same and/or opposite sex and is inclusive of lesbians, gay men, bisexuals, as well as straight men and women. So sexual orientation is the preferred term. Sexual preference is the offensive term to avoid.
   Let's talk about more words not to use. Homosexual relations or homosexual relationship, homosexual couple, or homosexual sex, et cetera. Rather, the preferred terms are just relationship or couple, or, if necessary, gay couple or same-sex couple.
   In my practice, we typically refer to the same-sex stepparent adoptions as separately from the stepparent adoptions for a number of reasons. First of all, typically, our lesbian couples in a same-sex stepparent adoption have used a sperm donor and have a donor agreement and we don't really have a biological father's consent to obtain or rights to terminate. And so in the law office, there's a legal distinction for why we differentiate the two.
   I also give my same-sex couples a discount in an ongoing celebration of marriage equality as well. So there may be reasons to actually distinguish between a heterosexual couple and a same-sex couple. But if you can, just use the term couple. Also, characterizing somebody's relationship as a homosexual relationship or identifying their intimacy as homosexual sex is extremely offensive and should be avoided. Sex is sex. Relationship is a relationship. Why do we need to put any sort of characterization on that? So those constructions are frequently used by anti-gay extremists to denigrate gay people, couples, and relationships.
   As a rule, try to avoid labeling an activity, emotion, or relationship gay, lesbian, or bisexual, unless you would call the same activity, emotion, or relationship straight. So by way of example, would you say that, "Oh, those people there, they engage in straight sex," or, "Oh, those people there, they're a straight couple." No, we pretty much wouldn't be using those terms. So folks are either just a couple or they just are a couple that are having sex, as opposed to trying to define what type of sex.
   In most cases, your listeners will be able to discern people's sexes or orientations through the names of the parties involved, the depictions of their relationship, and also the use of pronouns.
   All right. Let's talk about more words that, if you use them, we may have to rinse your mouth out with soap. Gay lifestyle or homosexual lifestyle. What is preferred are gay lives, gay and lesbian lives, or just lesbian lives. But there's no single lesbian, gay, or bisexual lifestyle. Lesbians, gay men, and bisexuals are diverse in the ways they lead their lives. The phrase gay lifestyle is used to denigrate lesbians, gay men, and bisexuals, suggesting that their orientation is a choice, and therefore can and should be cured. Let's just use the term lifestyle. All people live, and they all live in different ways. And so using the term gay lifestyle or homosexual lifestyle is really offensive and not preferred.
   More offensive terms, admitted homosexual or avowed homosexual. What is preferred is openly lesbian or openly gay or openly bisexual, or simply they've come out. The terms admitted homosexual or avowed homosexual are dated terms used to suggest that somehow being gay is shameful or inherently secretive. And so that's a really dated term and one that we don't want to use. Instead, you just want to say that the person is out, for example, "Ricky Martin is an out pop star from Puerto Rico," or, "That person's come out," or, "That person is openly lesbian or openly gay."
   When we had our first juvenile court judge in the city of Richmond who came out and was openly gay, that was the terminology that was used. And it was great because we knew that there were other judges that were gay, but here was one that was willing to come out, along with his husband and their twins that they had through a surrogate who came to his initiation ceremony. And it was wonderful to be able to say that we had the first openly gay juvenile court judge in Virginia at that time.
   All right. More words not to use, and don't let anyone else in your office use. So fag and faggot. Of course, we know that a faggot is a bundle of sticks, but there's really no reason to ever use that term, because you can just refer to it as a bundle of sticks. So let's stay away from terms like fag, faggot, dyke, homo, sodomite, and similar epithets. These are derogatory terms that should be treated in the same manner as vulgar epithets used to target other groups. They should not be used except in a direct quote that reveals the bias of the person quoted. So that such words are not given any credibility in the media, it's preferred that reporters say, "The person used a derogatory word for a lesbian, gay, bisexual, or transgender person." So even reporters will not even use any of those words. They'll just refer to them as a derogatory term that had been used.
   All right. More derogatory language that we want to stay away from: deviant, disorder, dysfunctional, diseased, perverted, destructive, and other some descriptions. The notion that being gay, lesbian, or bisexual is a psychological disorder was discredited by the American Psychological Association and American Psychiatric Association in the 1970s. Today, words such as deviant, diseased, and disordered often are used to portray LGBT people as less than human, mentally ill, or as a danger to society. We simply want to stay away from all of those terms.
   More derogatory language. Don't use and don't let anyone else use. So associating any gay, lesbian, bisexual, or transgender people with pedophilia, child abuse, sexual abuse, bestiality, bigamy, adultery, or incest, or any deviant or antisocial behavior is just simply an absolute no-no. Being gay, lesbian, bisexual, or transgender is neither synonymous with nor indicative of any tendency toward any of those things. That's just ridiculous, absolutely ludicrous. Such claims, innuendos, and associations often are used to insinuate that LGBT people pose a threat to society, to families, and to children in particular. That's absolutely outrageous. In fact, most pedophiles tend to be straight.
   All right. Let's talk about polyamory. So per the Urban Dictionary, polyamory is a form of relationship involving more than two people. The relationships may be symmetrical like a triangle or something more complex. The relationships may also be open or closed, straight or gay, or a mixture. A purely heterosexual form of a polyamorous marriage was once practiced among the Tibetans. Each man had many wives and each woman had many husbands. This raises a possibility of your brother also being your husband-in-law, in-law. Try to diagram that one.
   So I just recently had a polyamorous situation where I had two women, both married to men, but they were in a polyamorous relationship. And the two women are attracted to each other and are choosing to have a child with each other. Unfortunately, under Virginia law, trying to structure the parental relationship for this child to be just as to the two women who do not want to divorce either of their husbands, but also not have the husbands on the hook for the child posed a pretty legal dilemma. Fortunately, one of my colleagues in California, where one of the women lives, was able to come up with a solution. And under California law, the two women can actually have a child together while staying married to their husbands. And an order of parentage can be entered as to the two ladies, leaving both of the husbands off the hook for being parents to the child. We're going to see more and more polyamorous relationships coming out in the open.
   And one of the articles that I wrote was a Law Review article called Mom, Mommy, and Daddy and Dad, Daddy, and Mommy, which is basically the focus on multi-parenting and the evolution of multi-parenting. More and more states and countries actually are recognizing three and four parents for children. And this is an evolving area of the law, which will continue to evolve.
   In one of my reciprocal IVF cases, where we had a gestational mother and a genetic mother, so the genetic mother contributed her egg to her spouse to carry the child, they actually lived with the sperm donor who contributed the sperm. And while he did sign a donor agreement and is technically not a father, he helps co-parent the twin children of those two women as well.
   All right. So let's talk a little bit more about polyamory. Polyamory, from the Greek, means poly meaning many or several, and the Latin amore, meaning love. It's the practice or a desire for intimate relationships with more than one partner, with the knowledge of all the partners. It's been described as a consensual, ethical, and responsible non-monogamy.
   So people who identify as polyamorous reject the view that sexual and relational exclusivity are necessary for deep, committed, long-term loving relationships. Those who are open to or emotionally suited for polyamory may embark on a polyamorous relationship when single, or they might already be in a monogamous or open relationship. Polyamorous arrangements are varied, reflecting the choices and philosophies of the individuals involved, but with recurring themes or values such as love, intimacy, honesty, integrity, equality, communication, commitment, and also respect.
   Confusion arises when polyamory is misapplied in a broader sense, such as an umbrella for various forms of consensual, non-monogamous, multi-partner relationships or consensual, non-exclusive sexual or romantic relationships. Polyamory is not being a swinger or belonging to a swing group. Polyamory is a much deeper, more meaningful arrangement where there simply is an arrangement where it's more than just two people. It's several people that actually are involved in a deep, romantic, caring relationship with each other.
   And I have this wonderful cartoon that I use sometimes where the one little boy is talking to the other little boy and he says, "Have you met my mothers?" And the one mother is a genetic mother and the other mother is a biological mother who could have been the gestational mother, and then the other mother is a social mother, again grasping this concept of having more than two parents.
   So when we talk about relationship building, we do want to ensure that we have an LGBTQI law friendly law office. And it's important to give the signal to potential clients and your clients that you are LGBT friendly. So the intake forms, examine your intake forms. Do they ask for the person's sex or marital status? If so, is that really necessary to the intake? If yes and it's necessary to the intake, is the wording in those forms appropriate? We want to make sure that we're only asking for their sex and for their marital status if it's important to the legal representation.
   Moreover, as we already discussed, if the sexual identity's not clear, but it's germane to the attorney-client relationship or it's germane to the legal proceedings, then you are going to need to ask straight up, "How do you identify? How are you on your birth certificate?"
   So I had a couple come in who were looking at doing an adoption together, and it was very clear that one half of the couple was female. She dressed female. The name she gave me was female. However, the partner with her was not clear to me how he or she or they preferred to identify. The person looked kind of male, but kind of female and their name was Terry. Well, Terry's a name that can go either way.
   So it was germane to the relationship, to the adoption proceedings for me to know the actual identity on the birth certificate of each individual. And so I simply asked Terry, "What is your gender on your birth certificate?" And Terry told me that the gender on the birth certificate was female. And I said, "What is the gender or the pronoun that you prefer to go by?" And Terry told me that the pronoun that she preferred was actually male. And so I said, with regard to the adoption at that time, same-sex marriage had not been recognized. I basically said, "Terry, will you be transitioning?," because at that time I could accomplish a heterosexual adoption, but I couldn't accomplish a same-sex adoption. And so it was important to the legal representation for me to know exactly how Terry identified and also if that might change over the course of the representation.
   All right. So you could also use the terminology, "Is that same gender on your identification document?" So you can ask them the other way. You can ask, "How do you identify in terms of your gender?" And then if you need to know how they identify it on their documents, you can say, "Is that same gender on your identification documents?"
   When we're doing name changes and gender change proceedings in our office, we do need to know exactly how the person is identified on their birth certificate, on their name change order, if they've gotten that, on their driver's license, on their passport, and on any other important documents. And so it's just germane to the arrangement, to the legal representation and easy to ask. The key thing is being respectful when asking the client those questions.
   All right. Other ways to make sure that your law office is LGBT friendly. Another one is to make sure that in your signature block, you make sure that you identify your pronouns and that they're in there. You can also even link to an article as to why pronoun identification is critical and include that website link in your signature block as well. Putting a unisex sign on any of the bathrooms, all gender restrooms, signify that the office is LGBT friendly. Putting materials in the reception in area, any magazines or anything that show the law office is the LGBT friendly also is helpful.
   I like to include at my law office a wonderful story about two of my clients who helped us get our surrogacy statutes changed a couple of years ago. And it's a wonderful story about their son and us getting Jacob's Law passed. And so I keep copies of those articles up front so that when people come in, not of course during the pandemic, but when people do come back into the office, that there are materials up there that make LGBT clients feel welcome coming into the office.
   Another thing is to look into your local groups, community groups. And for example, Equality Virginia in Virginia has a lot of different materials that can be utilized on a website and in signature blocks. So Equality Virginia has a badge that I use a signature block that basically says, "All are welcome" and references Equality Virginia.
   In addition, I've worked with Equality Virginia and the Family Equality Council and Center for Lesbian Rights on different materials. And one of the materials is a handbook that we use in Virginia for LGBT families. I also make sure that handbook is kept out in the lobby reception area.
   So you want to make sure that you add your LGBT friendly commitment to your website. You want to stay educated. You want to seek out and support LGBT resources. Join the LGBT Bar Association and join any Equality Bar Association in your state, as well as join Gat RVA or Equality Virginia or the state equivalent to make sure that you're staying abreast of what is LGBT friendly and what resources might be available to make sure that your law office appears LGBT friendly.
   So before we wrap up today, we're going to talk about how gender identity and sexual orientation discrimination are now protected in the workplace. And how did that happen? Well, the US Supreme Court decision in Bostock versus Clayton County, Georgia, which was certified up from the Eleventh Circuit, argued October 8th, 2019 and decided June 15th, 2020, was actually a combination of three cases on appeal.
   So what were they and what was the ruling and what led up to that? Well, let's take a look, because looking at these cases also gives us an idea of how to have a friendly work environment, as opposed to having an unfriendly work environment within the LGBTQI context.
   So the three cases were the Bostock case, but also the Altitude Express case, as well as the R.G. And G.R. Harris Funeral case. And we're going to talk about each of these cases.
   So the Supreme court in the Bostock ruling accepted the three cases that ask whether federal anti-discrimination laws, that is, Title VII, should apply to sexual orientation and gender identity in the workplace, putting the court on track to consider these high profile LGBTQ issues.
   So the cases were consolidated. Two of them were Bostock, along with Altitude Express versus Zarda, because both of those cases included claims that the employers discriminated on the basis of sexual orientation. A third case, R.G. versus G.R. Harris Funeral Homes versus EEOC involves the question of whether existing discrimination laws applied to transgender workers.
   So in the historic decision, the US Supreme Court ruled that the 1964 Civil Rights Act, which we refer to as Title VII, protects gay, lesbian, and transgender employees from discrimination based on sex. The ruling was six to three, with Justice Neil Gorsuch, President Trump's first appointee to the court writing the majority opinion, which was a great welcome for the LGBT community. The opinion was joined by Chief Justice John Roberts, and the court's four liberal justices.
   Gorsuch wrote, "Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. And the answer is clear. You found that such discrimination was barred by the language in the 1964 law that bans discrimination in employment based on race, religion, national origin, or sex."
   So in the quote from the opinion itself, Gorsuch wrote, "In our times, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There in Title VII, Congress outlaw discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions they would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
   So in the Bostock case, it came up from the Eleventh Circuit. It was Bostock versus Clayton County, Georgia. Gerald Bostock was a gay man who began working for Clayton County, Georgia as a Child Welfare Services coordinator in 2003. During his 10-year career with Clayton County, he received positive performance evaluations and numerous accolades. However, in 2013, Bostock began participating in a gay recreational softball league. And shortly thereafter, Bostock started receiving criticism for his participation in the league and for his sexual orientation and gender identity generally.
   During a meeting in which Bostock's supervisor was present, at least one individual openly made disparaging remarks about Bostock's sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock, allegedly for, "conduct unbecoming of its employees."
   Within months of his termination, Bostock filed a charge of discrimination with the Equal Employment Opportunity Commission, fondly referred to as the EEOC. Three years later, in 2016, he filed a pro se lawsuit against the county, alleging discrimination and based on sexual orientation and violation of Title VII of the Civil Rights Act of 1964. Wow. We're talking about somebody that is really persistent, who went for three years from the first initial filing all the way up to doing the action pro se, on his own, without a lawyer.
   So at the district court level, they dismissed Bostock's lawsuit for failure to state a claim, finding that his claim relied on an interpretation of Title VII as prohibiting discrimination on the basis of sexual orientation. And that was contrary to a 1979 decision holding the contrary. And that decision was in Evans versus Georgia Regional Hospital, an Eleventh Circuit case.
   So Bostock appealed and took it up to the Eleventh Circuit. The Eleventh Circuit, of course, affirmed the lower court and, in so doing, also noted some procedural deficiencies in the appeal. The Eleventh Circuit panel pointed out that it could not overrule a prior panel's holding in the absence of an intervening Supreme Court or Eleventh Circuit en banc decision.
   However, Bostock again was tenacious and persistent and took the case up successfully to the United States Supreme Court, thus entering a seminal ruling in the case and being the lead plaintiff.
   All right. So let's talk about the second case, the sexual orientation case of Altitude Express. This case came up from the Second Circuit, and that was an en banc holding involving a gay skydiving instructor, that was Zarda, who was fired because of his sexual orientation. He brought a sexual orientation discrimination claim under Title VII. The court basically held that, "Sexual orientation discrimination, which is motivated by an employer's opposition to romantic association between particular sexes, is discrimination based on the employee's own sex." That case was significant because it overruled two cases that expressly stated sexual orientation was not cognizable under Title VII. And Zarda, if you look at pictures of him, looks like quite an entertaining, enthusiastic skydive instructor.
   All right. So what was the third case? The third case was a gender identity case, and it involved a funeral home. So in that case, basically the holding was that the termination of an employee on the basis of transitioning or transgender status violates Title VII. In that case, Aimee Stephens, who her pronouns are she/her/hers, worked at the R.G. And G.R. Harris Funeral Home for six years. And she was terminated two weeks after she told her employers that she planned to transition to become a female. Her employer specifically stated that he fired Aimee because she would no longer dress or represent herself as a man.
   The EEOC investigated, and they brought charges against the funeral home for terminating Stephens on the basis of transgender or transitioning status and discriminatory clothing allowance policy. The district court granted summary judgment for the funeral home against the EEOC on both counts, using the Religious Freedom Restoration Act as their reasoning. The Sixth Circuit then reversed the district court, citing that discrimination based on Stephen's gender expression and transitioning status was sex-based discrimination.
   The Sixth Circuit said that Stephen's employer had fired her because she wanted to dress and identify as a woman, which falls under sex discrimination, and discrimination against trans individuals is based on sex. The Sixth Circuit said that title VII was intended to "strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes," which includes any discrimination based on gender or perceived gender.
   The court went on to say, "Discrimination based on a failure to conform to stereotypical gender norms" was no different under Title VII than discrimination based on "the biological differences between men and women." The court then went on to say that "it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex."
   So what other cases led up to these three cases being selected for the Bostock ruling by the United States Supreme Court? Well, these other cases, these precursor cases are also important to look at in order to evaluate how discrimination, especially LGBT discrimination, can permeate a workplace setting.
   So there was a split basically in the circuits that prompted the US Supreme Court to take up the rulings of Bostock and the two other cases. But let's look at a couple of other cases that were in the works as well. The Glenn versus Brumby case, which was an Eleventh Circuit 2011 case, had a holding that the termination of an employee based on their gender transition, transgender status, or bathroom concerns constituted sex-based discrimination in violation of the Equal Protection Clause of the US Constitution. So that wasn't based on Title VII, but on the Equal Protection Clause.
   And in that case, Vandy Beth Glenn, who identified with her pronouns she/her/hers, worked as an editor for the Georgia General Assembly when she notified her bosses she was going to transition to become a woman. She was terminated because her boss thought it was inappropriate and would be disruptive to the workplace. Glenn sued for discrimination under the Equal Protection Clause, stating that she was discriminated against because of her sex, female gender identity, and failure to conform to sex stereotypes.
   The district court granted summary judgment in favor of Glenn on her sex discrimination claim and the Eleventh Circuit affirmed. Using Price Waterhouse and the case of US versus Virginia, the Eleventh Circuit linked discrimination based on transitioning and being transgender to discrimination on the basis of gender-based behavioral norms. The court said, "An individual cannot be punished because of his or her perceived gender nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual."
   Let's look at another case out of the Sixth Circuit. So this is the case of Barnes versus the City of Cincinnati, and it's a 2005 case. The holding in that case was that the termination of an employee based on her gender transition was sex-based discrimination under Title VII. Felicia, whose pronouns were she/her/hers, began to transition from male to female while working for the Cincinnati Police Department. She lived as a man on duty and as a woman while off duty. Barnes was told that she did not appear masculine enough at work and that she lacked a commanding presence. She did pass a promotional test to become a sergeant and started a probationary period, which was standard policy. However, she was demoted at the end of the probationary period. She challenged the demotion under both Title VII and the Equal Protection Clause.
   The jury ruled in her favor, awarding her $320,511 in damages. The Sixth Circuit upheld the ruling, stating that sex stereotyping based on a person's gender nonconforming behavior is impermissible discrimination under Title VII.
   Moving right along, let's look at another Sixth Circuit case. This was a before in 2004, the Smith versus City of Salem case. The holding in that case by the Sixth Circuit was that the termination of an employee based on her gender transition constituted sex-based discrimination under Title VII. In that case, Smith was a firefighter who was born male, but started to identify and express herself as female. Her coworkers and supervisors stated that her actions and mannerisms weren't masculine enough, and she was suspended for an alleged infraction of policy.
   The district court dismissed her claims, stating transgender discrimination was not available under Title VII. Fortunately, the Sixth Circuit reversed and found that Smith had a prima Fosse case for sex discrimination under are Title VII. That was actually the first time that the Sixth Circuit or any circuit hinted that gender identity discrimination could be claimed as sex discrimination. The court relied heavily on Price Waterhouse, saying sex stereotypes are considered discrimination under Title VII. The court said, "Employers who discriminate against men because they wear dresses and makeup or otherwise act femininely are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex."
   I've had my own case in the Fourth Circuit, which unfortunately came forward before the Bostock ruling. And in that case, our client Dina Persico, she worked as a school teacher in Chesterfield County. And she was in a lesbian relationship, well, marriage with her wife. And the way that she dressed and the way she presented was very masculine. The case did settle, but unfortunately we didn't have good law at the time. Had the case been brought after the Bostock ruling, we would have had clearly established law. But at that time, the Fourth Circuit had no case law that recognized either sexual orientation discrimination or gender identity discrimination.
   So let's talk about another case, a 2013 case, that also led up to the Bostock decision. And that was an EEOC opinion of Baldwin versus Fox. And that was the first time the EEOC held that sexual orientation discrimination could be seen as sex discrimination. The decision involved an air traffic controller who was not promoted to a permanent position because he was gay. The EEOC held that an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII and that Title VII prohibited employers from using gender or sex-based considerations in employment actions for sex discrimination.
   Another case leading up to the Bostock ruling was a case out of the Seventh Circuit, a 2017 case of Hively versus Ivy Tech Community College of Indiana. That case involved a lesbian part-time adjunct professor who was repeatedly denied promotions, which she believed was related to her sexual orientation.
   The court held that sexual orientation discrimination was a subset of sex discrimination, and they actually used a Fourth Circuit case out of my own territory, which was the Oncale case, a case which involved male-on-male sexual harassment, to prove that sex can be interpreted to mean sexual orientation.
   Unfortunately, the Fourth Circuit at that time, up until the Bostock ruling, still did not clearly recognize sexual orientation or gender identity as protected discrimination under Title VII.
   All right. And as we wrap up here, let's talk about the Ninth Circuit Franks versus Santa Anna case, which was a 2018 case that involved a lesbian police officer who was forced out of her job based on her sexual orientation. The court didn't rule on the merits of the case, but said the lower court was wrong to not allow the case to go before a jury and remanded it. This indicated that the Ninth Circuit was open to the idea that sexual orientation discrimination was cognizable under Title VII.
   So basically, with all of these cases coming forward with different rulings, the timing was ripe and prime for the US Supreme court to take up the Bostock case along with the Zarda versus Altitude Express and the funeral home case. And fortunately, the decision came out favorable for members of the LGBT community.
   So as we wrap up here, I just want to say that I very much enjoyed you attending this program today. And thank you so much for Quimbee for allowing me to present today on LGBTQI&A cultural competency. Thank you.

Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49

Course materials

HandoutSupplemental Materials

Practice areas


Course details

On demand
1h 2m 49s

Credit information