Representing Transgender and Gender Nonconforming Clients - PowerPoint Presentation

1. Representing Transgender and Gender Nonconforming ClientsAugust 27, 2015Brett BalmerOwen Daniel-McCarterDavid FischerSharlyn GraceMonica JamesAmber Miller

2. Agenda2Introductions (David)Overview and “Trans 101” (Sharlyn)Rights at Arrest (Amber & Owen)Case Study (Owen, Brett & Monica)Advocacy in the courtroom (Owen and Amber)Rights of Transgender People in Prisons & Jails (David)Questions

3. Introductions3Brett Balmer, she, The Law Office of the Cook County Public DefenderOwen Daniel-McCarter, he, Transformative Justice Law ProjectDavid Fischer, he, Health & Medicine Policy Research Group-Court Involved Youth ProjectSharlyn Grace, she, National Lawyers Guild of ChicagoMonica James, she, Transformative Justice Law ProjectAmber Miller, she, The Law Office of the Cook County Public Defender

4. Sharlyn“Trans 101” 4

5. Transgender Youth in the Criminal Legal SystemLesbian, gay, bisexual and transgender youth represent about 15-17% of the incarcerated youth population nationally, but only about 4-7% of the general youth population.70% of LGB/T justice-involved youth surveyed by the Equity Project reported that police mistreatment was a serious problem for LGB/T youth.LGB/T youth report higher rates of harassment, discrimination, sexual assault, and sexual misconduct than their straight, gender conforming peers.5

6. Transgender Adults in the Criminal Legal System22% of transgender individuals interacting with police reported harassment due to bias; 29-38% as reported people of color (NCTE 2011 Survey);16% of transgender individuals reported some incarceration (compared to 2.7% for general population); 47% as reported by Black survey respondents (NCTE 2011 Survey);Transgender prisoners are sexually abused at nearly 10% the rate of prisoners in general (4% in prisons and 3.2% in jails). (BJS, 2014)6

7. Why This Matters to Criminal Defense Attorneys7Developing client trust and providing support beyond legal expertise;Increasing client comfort in environments where behavior may matter; andAn additional vector for client-centered advocacy: better outcomes in placement/sentencing/treatment.

8. With those goals in mind….8This is a brave space, so ask questions!This is for your benefit, so ask questions!Ask us questions even if you don’t feel you have the right words;Ask us questions now so you don’t have to ask your clients later; andAsk us questions as things come up in the future. We are resources going forward, as well.

9. Language: SexSex:The biological condition of male, female, or intersex. Sex is a combination of chromosomes, hormones, genitalia, gonadal tissue and secondary sex characteristics. Sex is assigned at birth, generally based on an examination of external genitals. Sex exists on a spectrum.MaleFemale9

10. Language: IntersexIntersex/Disorders of Sex Development:People whose sex development differentiates from “typical” male or “typical” female development. This differentiation can be caused by any number of conditions and can happen at many different points of sex development.10

11. Language: Sexual OrientationSexual Orientation:Who you are attracted to physically, sexually, romantically, etc. (“LGBQA”);Sexual orientation develops around puberty/middle school;Understanding sexual orientation is a key developmental task of adolescence.11

12. Language: Gender IdentityGender Identity:A person’s sense or experience of belonging to a particular gender category as a man (boy), woman (girl), or an identity outside of our man/woman structure. Gender identity is an internal sense of gender that is separate from one’s sex assigned at birth.12ManWoman

13. Language: Gender Identity“Transgender”:An umbrella term that encompasses a wide range of identities and experiences for people whose gender identity/expression differs from conventional expectations of the sex they were assigned at birth. “Cisgender”:Describes people whose gender identity has not differed from the sex they were assigned at birth, and who generally fit into traditional gender norms.13

14. Gender Expression:The way a person expresses their gender in clothing, mannerisms and appearance, generally described as masculine or feminine. Gender expression is also rooted in culture, location, and era. Gender expression exists on a spectrum. “Gender Nonconforming”:Describes people who may not identify as transgender, but whose gender expression falls outside of traditional expectations of the sex they were assigned at birth.MasculineFeminine14Language: Gender, continued

15. Sex, Gender Identity & Gender ExpressionPeople can fall at different places on all three spectrumsSex Assigned at BirthGender IdentityGender ExpressionMaleMasculineManFeminineFemaleWoman15

16. Example 1:Sex, Gender Identity & Gender ExpressionSex Assigned at BirthGender IdentityGender ExpressionMaleMasculineManFeminineFemaleWomanThis person might describe their gender identity as falling underneath the transgender umbrella, because their gender identity is different from the sex they were assigned at birth, and may describe themselves as a transgender woman16

17. Example 2:Sex, Gender Identity & Gender ExpressionSex Assigned at BirthGender IdentityGender ExpressionMaleMasculineManFeminineFemaleWomanThis person might describe their sex assigned at birth as intersex, and their gender identity as male17

18. Example 3:Sex, Gender Identity & Gender ExpressionSex Assigned at BirthGender IdentityGender ExpressionMaleMasculineManFeminineFemaleWomanThis person might describe themselves as cisgender, because their gender identity corresponds to the sex they were assigned at birth, and they generally conform to a feminine gender expression18

19. Using Respectful LanguageAsk a person what name and pronouns they use;Refer to people as the gender they identify with, NOT the sex they were assigned at birth;Do not “out” a person as trans unless you have spoken to them and received their permission first.Do not ask a client what their genitals look like, if they have had “the surgery” yet, etc.19

20. Amber & OwenRights at Arrest20

21. Rights at Arrest21Chicago Police Department General Order G02-01-03INTERACTIONS WITH TRANSGENDER, INTERSEX, AND GENDER NONCONFORMING (TIGN) INDIVIDUALSI. PURPOSEThis directive:A. establishes policies for interactions with transgender, intersex, and gender nonconforming (TIGN)individuals to provide for their safety. Consistent with the General Order entitled "Human Rights and Human Resources," Department members will:1. treat all persons with the courtesy and dignity which is inherently due every person as ahuman being. Department members will act, speak, and conduct themselves in aprofessional manner, recognizing their obligation to safeguard life and property, and maintaina courteous, professional attitude in all contacts with the public.2. not exhibit any bias, prejudice, or discriminate against a TIGN individual or group of TIGNindividuals.B. defines certain terms which pertain to processing TIGN persons under Department control.C. establishes procedures for processing TIGN arrestees under Department control.

22. Rights at Arrest22http://directives.chicagopolice.org/directives/General Order 02-01-03: Interactions with Transgender, Intersex, and Gender Nonconforming (TIGN) Individuals.Special Order 06-01-02: Detention Facilities General Procedures and Responsibilities.Section III.A.11: Searches will be conducted by Department members of the same sex as the arrestee.Section III.A.18: Arrestees will NOT be allowed to keep drugs or medication with them while in custody.Section III.A.19: The designated holding facility of TIGN arrestees will be Central Detention. Upon completion of the preliminary investigation, TIGN arrestees will be fingerprinted and photographed in the district of arrest’s designated holding facility before being transported to Central Detention consistent with the procedures outlined in Department directives “Field Arrest Procedures,” and “Interactions with Transgender, Intersex, and Gender Nonconforming (TIGN) Individuals.”Section III.A.24: Documenting medical information.Special Order 06-04-03: Processing Juvenile Arrestees Charged as Adults: Section III.A.5: “if warranted, process TIGN juveniles in accordance with procedures outlined in the Department directive entitlted, “Interactions with Transgender, Intersex, and Gender Nonconforming (TIGN) Individuals.”Special Order 02-03-03: Building Partnerships with the Community: mentions in a note under Section III.B.3 that district commanders may consider other subcommittees such as Lesbian-Gay-Bisexual-Transgender.Employee Resource E05-08-01 Recommended Reading List for the Field Training Officer Exam: 5th one on the list is GO02-01-03. (note: an employee resource, while listed with department directives, it is NOT a directive in that an officer could not be disciplined for failing to comply with this resource).

23. Amber & OwenAdvocacy in the Courtroom23

24. Advocacy in the Courtroom24ARTICLE VIII. ILLINOIS RULES OF PROFESSIONAL CONDUCTRule 8.4. Misconduct(a) A lawyer shall not:(b) (5) engage in conduct that is prejudicial to the administration of justice. In relation thereto, a lawyer shall not engage in adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, or national origin, disability, age, sexual orientation or socioeconomic status. This subsection does not preclude legitimate advocacy when these or similar factors are issues in the proceeding;Rule 63CANON 3A Judge Should Perform the Duties of JudicialOffice Impartially and Diligently(8) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so.

25. Advocacy in the Courtroom25II.) IL Human Rights ActPublic Act 093-1078775 ILCS 5/1-102. Declaration of Policy.It is the public policy of this State: (A) Freedom from Unlawful Discrimination. To secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her race, color, religion, sex, national origin, ancestry, age, marital status, physical or mental handicap, military status, sexual orientation, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations.775 ILCS 5/1-103. General Definitions.(O-1) Sexual orientation. "Sexual orientation" means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth. "Sexual orientation" does not include a physical or sexual attraction to a minor by an adult.

26. Owen, Brett & MonicaCase Study26

27. DavidRights of Transgender People in Prisons and Jails 27

28. Overview: The rights of transgender prisonersClassification and housingHormone therapyGender expressionSafety from violence and harassmentBody searchesTraining for staff28

29. Protections for Transgender Prisoners29JTDC LGBTQI PolicyCook County Jail Transgender PolicyIllinois Department of Juvenile Justice Lawsuit/IDJJ PoliciesIllinois Department of Corrections GuidelinesPREA Standards:115.31/115.231/115.33115.41/115.241/115.341115.86/115.186/115.286/115.386

30. PREA“consider on a case-by-case basis whether a placement would ensure the resident’s health and safety. The resident’s own views with respect to their own safety shall be given serious consideration.” Staff must be trained to work with transgender and gender nonconforming residentsResidents must be screened (asked about their sexual orientation and gender identity/expression)May not isolate transgender residents based solely on their classification as transgender and/or gender nonconformingMust be allowed to shower separately from other residentsMay not conduct pat downs or strip searches for the sole purpose of determining genital status30

31. Illinois DJJ Policies04.01.303-Programs & ServicesProhibits discrimination, harassment, and anti-LGBTQ comments and threats from staff, residents or volunteers, and staff will respond proactively to reports of discrimination, harassment or threats. Staff cannot defame LGBTQ identities, suggest that a LGBTQ resident change their identity, or suggest that their identity is wrong or deviant. They should be referred to mental health if they wish to talk more.Staff cannot “out” residents to other residents or anyone outside of the facility. Libraries will include LGBTQ affirming books, movies, magazines, media, etc.Staff and volunteers are required to be trained annually on LGBTQ issues, and residents should be informed of this policy at intake.04.01.130-Programs & ServicesLGBTQI youth can’t be placed in housing or on units only based on their sexual orientation, gender identity, or gender expression. Decisions about where to house transgender, gender non-conforming and intersex youth will be made on a case-by-case basis, with consultation from mental health and the medical director, taking the resident’s own views on their safety into consideration. Case files reviewing threats to safety of transgender, gender non-conforming and intersex youth will be revisited at least twice a year.

32. Illinois DJJ Policies4.03.104-Medical HealthDecisions about transition related care (specifically hormones and gender related surgeries) are made on an individual basis with the consultation of mental health and the medical director.Medical procedures include a detailed examination of genitals.The Gender Dysphoria Committee (GDC) shall review the case and make the final recommendation for housing and any additional matters that may be of issue such as, but not limited to, hormone therapy, clothing, showers, searches, etc. The review and recommendations shall be documented on the Gender Dysphoria Committee Recommendation. 05.01.302Transgender, gender non-conforming and intersex youth will choose the gender of staff performing pat downs and strip searches, except in exigent circumstances when performed by a medical professional. These circumstances will be documented. Transgender, gender non-conforming and intersex youth cannot be searched for the sole purpose of determining genital status.Medical care

33. JTDC PoliciesA MDT makes decisions about name and pronoun useageResidents must be allowed to groom in a manner consistent with their gender identityCase-by-case housing decisions33

34. Cook County Jail34A Gender Identity Team makes decisions regarding treatment and support, including access to hormonesHousing decisions are made on a case-by-case basis

35. Illinois Department of Corrections35Decisions are made by the Gender Identity Disorder teamHousing decisions are made on a case-by-casesHormone decisions are made by GID Team

36. Questions?36

37. Contact Information37Brett Balmer: brettbalmer@hotmail.comOwen Daniel-McCarter: owen@tjlp.orgDavid Fischer: DFischer@hmprg.orgSharlyn Grace: sharlyngrace@gmail.comMonica James: monicaj@tjlp.orgAmber Miller: amberkmiller@gmail.com