About Me
Before I start to give you advice about representing trans and non-binary clients, let me introduce you to myself.
My name is Connor Barusch (he/they). I am a visibly trans person. I am also a public defender coming up on the end of my first decade of practice and I interact with court systems every day. Before I walk in the door alongside a client who is trans or non-binary, I already have a good idea which judges, clerks and court officers are committed to supporting (or hurting) trans and non-binary people.
Public Defender in Massachusetts
I regularly consult with attorneys about the legal issues facing their trans and non-binary clients and from this communication keep my ear to the ground about what our trans and non-binary clients are facing in the criminal legal system.
Seeing the benefit of educating attorneys about effectively representing trans and non-binary clients, I set up a course through the National Association of Public Defenders that any public defender can take September 28, 2020 thru November 13, 2020 that addresses working with trans or non-binary clients in detail.
If you prefer, I can come to you (or as the case is now Zoom to you) since I do consulting aimed at educating the public defenders and legal services attorneys on working with trans and non-binary clients . While you anxiously await for your firm, bar association, or public defender agency to invite me to present, I wanted to help get you started with six tips on effectively representing trans ans non-binary clients.
Tip #1 Names and Pronouns Matter
When you meet with a client, ask what name and pronouns they use. Be careful to include this in your regular practice and not only ask clients you guess are trans or non-binary. Just ask every client.
This may feel new or odd at first. I get it. But names and pronouns matter. People who are not used to working or living in community with trans and non-binary people, or representing trans and non-binary clients, are not used to asking pronouns and may not be used to interacting people who use different names in different situations.
It is simple to assume that whatever name or gender is on a document, whether it be an intake log, police report, indictment, etc., is accurate. We may also assume what pronoun or honorific (eg. Mr., Ms., Mx.) a person uses is knowable simply by looking at the person. When we make these assumptions, we strengthen the gender binary and we dis-invite our trans and non-binary clients from sharing with us.
Instead, we can show ourselves to be co-conspirators in the project of our clients’ gender self-determination. We show we value gender self-determination when we do not assume the paperwork is right and do not assume our guess is a “safe bet.”
We support gender self-determination by being ready to accept an answer that is complicated. For example, some people use different names or pronouns in public, in front of their family or groups of friends, etc. Explain that you are capable of using a different name or pronoun if they want. Invite them to correct you if you mistakenly use the wrong name or pronoun. Just as we want to respect every client by learning to pronounce their name correctly, we want to learn what name and pronouns to use for a client: we want to respectfully tell our client’s story and advocate for them.
Tip #2 To Effectively Represent Trans and Non-Binary Clients, Think About Your Own Gender Identity
You will find yourself better able to use pronouns flexibly and support your trans clients if you take some time to explore and consider your own gender identity and expression. It’s not just our clients being contained by enforcement of a gender binary or will benefit from gender self-determination – it’s all of us.
Looking for a basic place to get started? Try reading about the gender unicorn and thinking about where you fit on it.
Tip #3 You Don’t Need To Explain Transphobia To Your Client
Your client will be an expert in transphobia – you don’t have to tell them. You don’t need to tell your trans or non-binary client that people might find it “hard” or “confusing” to interact with them in the legal system. Save your breath explaining that their name or pronouns might be used incorrectly or that there may be nowhere to use the bathroom. Your client already knows.
Instead, take a client centered approach where you allow your client to participate in solution planning. For example, instead of saying “this judge is old-school and I don’t think they will get your ‘they’ pronouns,” try “because you want the judge to use they pronouns and the judge is old-school, let’s talk about some options for how we can try to make that happen.”
You could offer several options that will work in your court, for example educating the judge or clerk beforehand, asking to discuss pronouns at sidebar when the case is called, objecting if a mistake is made or just modeling the correct pronoun and name and hoping to see the judge and prosecutor follow your model.
Together, you can discuss the pros and cons and your client can help shape the strategy. Remember that your client has almost definitely done this before in several non-courtroom settings so probably knows a lot about what does and doesn’t work!
Client-centered decision making will help build your relationship with your client, even if an oppressive system stops your client from achieving their goals. Let yourself be the person fighting for your client’s dignity as well as their rights.
Tip #4 Don’t Write Anyone Off!
Yes, many systems, particularly the criminal legal system, are designed to oppress our clients. That being said, your client’s allies are not always who you expect.
I have seen public defenders try to stop clients from presenting as openly trans in front of a judge who has openly trans people in their family. Why? The attorney assumed the judge would not “get it.” We can’t know which judges will be supportive based on their age, the political party that supported them or their thoughts about other issues.
Remember, we are constantly reminding others not to prejudge our clients. Well, this advice needs to apply to everyone, including judges and prosecutors. Unless you have spoken to them about the issue, witnessed how they treat trans and non-binary people, or discussed the matter with colleagues who have, you don’t know how that judge or prosecutor feels about trans and non-binary people.
It is perfectly acceptable to tell a client that you don’t know how a judge, prosecutor, or jury will react to them presenting as trans. Maybe it will be positive, maybe not. At the end of the day, it is your job to empower your client to feel confident in whatever decision they make and to stand in support of them in court.
Tip #5 Make a Few Changes to Show Your Support of Trans and Non-Binary People in Every Case
Be intentional about being open and affirming in your language related to gender with every client. As you train yourself to do so, you will find that you work with more trans and non-binary people than you thought.
Don’t ask your client “do you have a girlfriend?” Instead, ask “do you have a girlfriend, boyfriend or significant other?” Don’t argue to “ladies and gentlemen of the jury,” talk to the “members of the jury” – not everyone is a lady or a gentleman. (In fact, even many people who have binary gender identities may not identify as a “lady” or a “gentleman.” I’m pretty sure if someone called my feminist mom a “lady” she would cringe.)
In addition to asking each client what pronouns to use, include your own pronouns in your introductions and on your email signature. You will find yourself not only meeting more trans and non-binary clients but also being introduced and connected to trans and non-binary people in your client’s families and community. One time, I emailed a medical records request and got a call back the next day from someone at the hospital excited that I had used pronouns in my signature. They told me about their child who had recently transitioned and then put my medical records request at the front of the line!
Tip #6 Be ready to learn more!
As I mentioned, I’m teaching a course with the National Association of Public Defenders on representing trans and non-binary clients that you are welcome to join.
But it doesn’t have to be me who does the teaching! Educate yourself. For starters, having explored your own gender identity, take a test to determine whether you carry any implicit bias against trans persons.
Take what you learn to your co-workers and the people who work in the courts where you practice. Help them build up a base of knowledge and, hopefully, motivate them to continue learning more.
How do you know which materials are reliable? Look for information coming from trans and non-binary people ourselves, as well as people connected with grassroots organizations, and people who are focused on the intersection of transphobia, racism and other systems of oppression.
The person who does a Trans 101 at your church or at your teen’s school may be a great person to help you learn some terms but may not have spent time working with our client population even though they can be the source for some basic information. Looking online, you can learn from trans-led and LGBTQ-led organizations that provide everything from infographics, a guide to being a good ally, information about COVID-19 and trans folks, transition while incarcerated, projects that will help your client pursue a name change, working with youth being prosecuted and asylum for trans people who are not U.S. Citizens.
Thank you!
As you continue to educate yourself about trans and non-binary people and the unique issues they face in the legal system, you will become a more effective advocate for these clients.
There is a lot to learn, but do not think of this as a hurdle. Just by delving into this subject you are becoming a better attorney, and for that, I thank you. Please do not hesitate to reach out to me to discuss any of these issues. barusch@barusch.com. I look forward to helping you and your trans and non-binary clients!
Connor Barusch is a public defender in Massachusetts and also runs a legal consulting service, helping attorneys educate themselves around issues concerning trans and non-binary clients. You can learn more at www.barusch.com
