MOVING BEYOND BIAS Name of Presenter(s) - PowerPoint Presentation

Slide1

MOVING

BEYOND

BIAS

Name of Presenter(s)Presenter TitlePresenter Contact InformationFollow Lambda Legal on Twitter and Instagram @LambdaLegalSlide2

INTRODUCTIONS

NameGender pronounsPosition and organizationOne thing you

hope to get from this trainingSlide3

Confidentiality

Personal stories and experiences or information about an individual’s sexual orientation or gender identity should stay here. On the other hand, the terminology, best practices and concepts learned today should be shared widely with colleagues and others.

Respect One person speaks at a time.

Please respect each person by listening when they are talking and by remembering that we each come from a different set of lived experiences. Avoid generalizations and stereotypes. Expectations for EveryoneSlide4

Goals for the Training

Be introduced to and better understand terminology related to sexual orientation, gender identity and gender expression Better understand the experiences of LGBT peopleLeave with new strategies for working with LGBT people in the legal systemGain a better picture of the challenges that LGBT people may have in the courtroom and when working with attorneys and court staff Leave with new resources for better engagement with LGBT people in your legal workSlide5

Sexual orientation

- A person’s romantic, physical and/or sexual attraction to same-sex and/or different-sex people. Sexual orientations include: gay, lesbian, bisexual and others Gender identity

- Also called “brain sex,” this is one’s deeply felt internal sense of being male, female, both or neither—the primary determinant of sex Gender expression - Refers to the way a person expresses gender through dress, grooming habits, mannerisms and other characteristics

NOTE: All three of the above concepts are on a spectrum. CONCEPTSSlide6
Slide7

Important Definitions

Sex assigned at birth -

The sex designation that was given someone at birth usually by a medical professional and generally based on appearance of external genitaliaCisgender - Someone with a gender identity that is the same as the sex they

were assigned at birth Transgender woman - A woman who was assigned the sex of male at birthTransgender man - A man who was assigned the sex of female at birthSlide8

The Trans* Umbrella

Cross-dresser

Two-Spirit

AgenderThird GenderGender Queer

Gender Fluid

Gender Non-Conforming

Non-Binary

They, Them

Ze

,

Hir

Xe

,

Xem

Transgender

Transwoman

Transman

Transsexual

MTF FTM

MAAB FAAB

She, Her

He, HimSlide9

How can learning about lesbian, gay, bisexual and transgender people increase access to justice, produce more fair outcomes and increase trust in the court and legal system?

What do you think?CULTURAL COMPETENCY Slide10

2,376

people were surveyed.43% had been involved in the court system in the past five years. Of these respondents:

Findings from Protected and Served? Lambda

Legal’s Government Misconduct Survey61%44%21%19%were a party to a caseserved as jurorswere witnesseswere attorneysSlide11

19%

of those surveyed heard a judge, attorney or other court employee make negative comments about a person’s sexual orientation, gender identity or gender expression.6%

heard negative comments about an individual’s HIV status.Findings from

Protected and Served?Slide12

While 19% of survey respondents with court involvement heard discriminatory comments, certain groups reported them at higher rates:

Findings from

Protected and Served?Slide13

Among court-involved respondents, 16% reported that their LGBT identity was raised in court when sexual orientation and gender identity were not relevant to the case.

11% reported that their sexual orientation or gender identity was made known in court against their will.15% reported having their HIV status raised in court when it was not relevant to the case.Findings from Protected and Served?Slide14

Findings from

Protected and Served?Slide15

While applying for a name change at the Will County, Illinois Courthouse, Daunn Turner, a transgender woman, was subjected to discrimination from the Chief Judge. She was denied a ruling on her request, denied the fee waiver generally granted to low-income people such as herself and, despite requests to be called either “Daunn” or “Miss Turner,” was told that she would be referred to as “Mister” until she had “that surgery.”

Experiences of Lambda Legal ClientsSlide16

Please break into pairs.

Share with each other your first memory of gender.It can be:A memory of realizing you are a gendered person (male, female, both or neither)

A memory of when you began recognizing the gender binary in the world (toys, sports, friendships or anything you remember)A memory of understanding that there are distinctions or expectations in society based on your gender (things you could or could not do)

Ice BreakerSlide17

Everyone has one:

Gender-NonconformingFemale

Male Genderqueer / Non-Binary

GENDER IDENTITYSlide18

Determinants of sex

ChromosomesGonads (testes or ovaries) External morphologic sex (external genitals, such as penis, clitoris, vulva)Internal morphologic sex (internal organs, such as uterus, vagina, Fallopian tubes, seminal vesicles, prostate) Fetal hormones (prenatal hormones produced by gonads)Pubertal hormones

Secondary sex characteristics (such as facial hair or breasts)Sex of assignment and rearing (the sex assigned at birth and that the individual was raised consistently with)Most importantly, gender identity or

brain sex Medical researchers have determined there are at least nine characteristics that determine an individual’s sex. These are:Slide19

An umbrella term used to describe a wide range of natural bodily variations. Intersex people are born with sex characteristics that do not fit typical binary

notions of bodies designated “male” or “female.” In some cases, intersex traits are visible at birth, while in others they are not apparent until puberty. Some intersex variations may not be visibly apparent at all. Many people who are intersex identify as either male or female; others do not.

Experts estimate that between 0.05% and 1.7% of people are born with intersex traits.

IntersexSlide20

Judges issued orders reflecting non-binary sex designation to two people in the U.S. in 2016.

A number of countries already issue identification documents that reflect neither a male or female sex designation. For example, India, Australia, New Zealand and Germany are among the countries that recognize a sex other than male and female.

Gender Identity Non-binary identities Slide21

Dana

Zzyym was born with ambiguous sex characteristics but endured irreversible and medically unnecessary surgeries soon after birth and was raised as a boy. Because Dana does not identify as either male or female, they were unable to obtain a passport to travel for the International Intersex Forum in Mexico City in 2014. The U.S. State Department denied Dana’s request to have an “X” gender marker listed on their passport, a practice that is recognized by the International Civil Aviation

Organisation. Lambda Legal filed a complaint in the District of Colorado, by denying Dana a passport that accurately reflects their gender. The case is still unsettled.

Experience of a Lambda Legal ClientSlide22

Tranny

- This is a slur.He-she or any variation on this

- This is an offensive term that is often used to humiliate transgender people and to challenge their assertions of who they are. It

(to refer to a transgender or gender-nonconforming person) - This is an offensive way to refer to a transgender person. “It” should be used to refer to an object, not a person. Transvestite - This is a term disfavored by most people. NOTE: “Crossdresser” refers to a person who wears clothing traditionally worn by members of a different sex. It is not offensive when used appropriately. It refers to a specific community. It is not appropriate for most transgender people. Terms to AvoidSlide23

Terms to

Avoid

Drag/Drag Queen/Drag King (when referring to transgender individuals) - These are terms that refer to entertainment involving individuals who act in styles typically associated with a different sex. Transgender people are not acting or entertaining.

Passing as or presenting as - Transgender people are who they say they are. For instance, a transgender woman is not presenting as a woman; she is a woman. A transgender - Do not use “transgender” as a noun. You should refer to a transgender person, woman or man. Transgendered - This is not a preferred term. It was used in the past, but is no longer favored. It is not grammatically correct. Hermaphrodite - People are not hermaphrodites. It should not be used to refer to a person. It is not a medically accurate term for intersex people and it is stigmatizing. Slide24

There is no nationwide collection of this data. Many transgender people are not open about their transgender status.

The Williams Institute at UCLA School of Law estimated in 2016 that there were 1.4 million transgender adults in the U.S. or 0.6% of the U.S. population. This estimate is double the estimate that The Williams Institute made in 2011. How many transgender people are there?

1

400000

,

,Slide25

Gender Dysphoria

Gender dysphoria - A clinical psychiatric diagnosis, first listed in the DSM-V, that describes an intense, continuous distress resulting from an individual’s sense of the inappropriateness of their assigned sex at birth. In previous versions of the DSM, gender dysphoria was known as gender identity disorder (GID).

“…APA recognizes the efficacy, benefit and necessity of gender transition treatments for appropriately evaluated individuals…”

—American Psychological Association, Resolution on Transgender, Gender Identity and Gender Expression Non-discrimination “…An established body of medical research demonstrates the effectiveness and medical necessity of mental health care, hormone therapy and sex reassignment surgery as forms of therapeutic treatment for many people diagnosed with GID…” —American Medical Association, Resolution 122 (A-08) Slide26

Transition

What does it mean?“Transition” or “gender transition” describes the time when a person begins to living as the sex with which they identify rather than the sex they were assigned at birth. Transition

may or may not include medical or legal aspects such as taking hormones, having surgeries or correcting the sex designation on identity documents.Social transition is the most important aspect for transgender people, and sometimes the only one. Slide27

Myths About Transgender People

All transgender people have the same experiences.All transgender people must undergo a certain set of social and medical processes in order to be men or women.All transgender people are men or women.

(Some transgender people are neither or both.) There are set beginning and end points to transitioning. A transgender person must have a certain anatomy before they can be treated as who they are as men, women, neither or both. Slide28

Surgery

Some but not all transgender people need surgery. Some people need surgery and cannot get access to the health care they need.

Whether or not a transgender individual has had surgery or will ever have surgery, they are who they say they are. It isn’t appropriate to ask about what surgery or surgeries a transgender person has had. Unless the case is about this type of medical care or treatment, no one needs to know. Slide29

Experience of a Lambda Legal Client

I Believe in Me

“At 23, I decided to live my life as a woman, full-time, in every way. A lot of people ask me, ‘What is it like?’ That’s like trying to ask me to describe air. It just is for me. I can’t really describe it to you because for me, it just is. But without it, I’m not me.”

—Donisha McShan, Lambda Legal clientSlide30

SEXUAL ORIENTATIONSlide31

How many LGB people are there?

An estimated 3.5% of adults in the U.S. identify as lesbian, gay or bisexual.That adds up to 8 million people.As of October 2015, 486,000 same-sex couples were married in the U.S., approximately 45% of all same-sex couples. Slide32

Faggot/Fag

- This is a slur to most people and should not be used.*

Dyke - This is also a slur to most people and should not be used.*

Homo - Pejorative term for homosexual.* Homosexual - This is an outdated term that most people do not use to identify their sexual orientation.*Sexual preference - Sexual orientation is not a preference or a “lifestyle.” “Sexual orientation” should be used when talking about someone’s attraction to another person. *There are some people who use these terms to describe their own identity. You should not use these terms unless the person indicates it is what they wish YOU to call them. Terminology to Avoid Slide33

Experiences of LGBT People

Custody and Adoption - LGBT people have faced vast discrimination in custody and adoption cases. Bisexual people, in particular, face incredibly discriminatory treatment in this context. In S.B. v. L.W. the Mississippi Court of Appeals upheld a lower court’s decision by finding that “[I]n addition to the mother’s bisexual lifestyle, the chancellor was disturbed at the mother’s lack of financial and emotional stability.”

Immigration - In Garcia-Jaramillo v. INS, the immigration board rejected a man’s marriage as a sham marriage after asking “an inordinate number of questions concerning [his] homosexuality” and found that because of his past homosexual inclinations, his opposite-sex marriage must be a sham. The immigration board never addressed the possibility that the man was bisexual.Slide34

Experiences of LGBT People

In 2002, the Chief Justice of the Alabama Supreme Court cited scripture in a judicial opinion involving a child custody case, referring to gay and lesbian partners as “immoral,” “detestable,” “an inherent evil” and “inherently destructive to the natural order of society.” Slide35

What does each term mean?

What is an example of a sexual orientation?How do each of these concepts relate with each other?

Recap: Gender Identity vs. Sexual Orientation vs. Gender ExpressionSlide36

Model Code of Judicial Conduct, American Bar Association (ABA)

Canon 2A judge shall perform the duties of judicial office impartially, competently and diligently.Ethical Considerations Slide37

Rule 2.3 - Bias, Prejudice, and Harassment

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age,

sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.Ethical Considerations Slide38

Comment on Rule 2.3

[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and

irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased. [Emphasis added]

Ethical ConsiderationsSlide39

Model Rules of Professional Conduct – American Bar Association

Maintaining The Integrity Of The Profession

Rule 8.4 MisconductIt is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.Ethical Considerations Slide40

Model Rules of Professional Conduct Rule 8.4

NEW MISCONDUCT RULE!(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Ethical ConsiderationsSlide41

Model Rules of Professional Conduct Rule 8.4

Comment 3

[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

Ethical ConsiderationsSlide42

Model Code of Conduct for Court Professionals

National Association for Court Management (NACM)Canon 1.3 FairnessA court professional shall conduct his or her work without bias or prejudice including, but not limited to, bias or prejudice based upon race, gender, skin color, religion, age, sexual orientation, national origin, language, marital status, socioeconomic status or physical or mental challenge.

Ethical ConsiderationsSlide43

Trainers: On this slide, please insert the rules of the jurisdiction where the training is taking place in order to make it more relevant for the participants..

Ethical ConsiderationsSlide44

Each group will receive a scenario for discussion and will report back to the larger group.

ScenariosSlide45

Think of the big picture:

What will the experience be for a court user or client, starting from the first interaction with staff, security or you yourself, right on through to the completion of the case?

BEST PRACTICESWays to create a respectful environmentSlide46

BEST PRACTICES

Address Explicit Bias and DisrespectImmediately respond to jokes or disrespectful comments about an individual's actual or perceived sexual orientation, gender identity or expression or HIV status.If this happens during a court hearing, judges and attorneys should respond promptly so that inappropriate comments, and the person who made them, can be addressed immediately. If the statement was made on the record, the response and any reference to the response should also be on the record.Slide47

Always use the pronouns and titles that align with a court user’s or client’s gender identity (sometimes called “preferred pronouns”).

Attorneys should take the lead on informing the court of a court user’s pronoun or honorific.Judges should ensure that a sidebar or bench conference takes place to address the issue instead of addressing it publicly, if it is not otherwise addressed.

BEST PRACTICESSlide48

BEST PRACTICES

Avoid using gendered language such as “Ms.” or “Mr.,” “ladies” or “gentlemen” until you are sure of the gender identity of the party or parties.

Dress codes should not be enforced by gender. Transgender and gender-nonconforming people must be allowed to dress consistently with their gender identity or gender expression. Slide49

Use the court user’s name in use (sometimes called preferred name) in the courtroom, EVEN if it is not their legal name.This is especially important when calling a case to be heard or when talking about your client to the court or in other ways making a name known to the other people in the courtroom.

BEST PRACTICES

TIPS

If you use worksheets in the court room or intake forms at your firm or legal organization, ask about preferred pronouns and names.If you don’t know the preferred name or pronoun, use the last name until you do. For example, “Gonzalez” or “Parties on the Gonzalez case” or “Plaintiff Gonzalez” or “the Petitioner.”Slide50

Make sure front line staff are trained to work respectfully with transgender and gender-nonconforming people. Every staff member should know and abide by all the best practices.

Often the first people that a court user or client will come into contact with are security staff or front office staff.Providing identity documents (ID) to security or other staff can be a very intimidating experience for transgender people. Often IDs do not match in terms of name or photograph with the person who is presenting the ID.

BEST PRACTICES

Courthouses and Law OfficesSlide51

What to consider before asking about someone’s gender identity, sexual orientation or HIV status in court:

Is the answer to the question necessary for the proceeding?

Would you be asking this question if you presumed the person was a cisgender person and/or a straight person?Will you disclose the individual’s sexual orientation, gender identity or HIV status without their permission by asking the question?

What about the safety of the individual after they must answer your question?What confidentiality requirements do you have around this information?”BEST PRACTICESIn the CourtroomSlide52

BEST PRACTICES

EvidenceOppose the introduction of evidence of actual or perceived sexual orientation, sexual conduct, gender identity or expression or HIV status unless these characteristics are relevant to an issue in the proceeding.Oppose the introduction of such evidence when it is an attempt to embarrass an individual, attack his or her character or play to the biases of decision-makers.Slide53

BEST PRACTICES

Conduct voir dire in a manner that is respectful of people’s right to confidentiality regarding their sexual orientation, gender identity or expression and HIV status and that avoids involuntary outing or undesired visibility and challenge preemptory strikes that appear to be based on sexual orientation, gender identity or HIV status. Avoid questions that specifically focus on marital status and instead frame questions to identify anyone with whom the potential juror may have a significant personal relationship.Slide54

Judges should respect individuals, including their desire to change their names to correspond with their gender identity.

Frequently, judges deny name changes for transgender individuals for reasons that do not comport with statute. BEST PRACTICESName changesSlide55

Restrooms

Transgender people must be allowed to access the restroom that corresponds to their gender identity. Nondiscrimination provisions in certain jurisdictions require this access.Title VII of the federal Civil Rights Act protects this right for employees, and the Equal Protection Clause of the U.S. Constitution protects this right for transgender people when accessing government-controlled facilities.Slide56

Why is this important?

Bias, disrespect, harassment or lack of courtesy by any judge, court employee or attorney erodes public trust and confidence in the ability of the court to judge cases fairly or treat LGBT people appropriately when called as a witness or juror. Implicit and explicit bias poses a serious threat to securing fair and impartial courts. Slide57

THANK YOU!

Questions?

Contact:Ethan Rice

Fair Courts Projecterice@lambdalegal.org http://www.lambdalegal.org/issues/fair-courts-project