Representing Transgendered Clients in the Criminal Justice System

Man holding a transgender flag

Hand With Painted Transgender Flag

Transgendered clients come from all walks of life.

It is the duty of an attorney to represent with a client-centered approach. But what does this mean in practice, when an attorney may not have much experience—in practice or in life—with transitioning, transgender, and nonbinary people?

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

What I Learned While Representing a Transitioning Client

Recent personal experience representing a 17-year-old transitioning individual was a learning opportunity for me. It was a lesson in the value of humility and the importance of listening to my client.

My client was charged with an offense that he felt was driven by discrimination against his transgender identity. From the beginning of our engagement, I was direct and upfront with my client about my goals in working with him and what I didn’t know. I asked my client to teach me about his identity. Simply asking his pronoun preference paved the way for his willingness to share his story.

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

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

Tips for Working with Transitioning, Transgender, and Nonbinary Clients

Some practice pointers for criminal defense attorneys working with transitioning, transgender, and nonbinary clients:

  1. Know when to acknowledge what you do not know. For some attorneys, the transgender and nonbinary world is an unfamiliar place. This can lead to new conversations, expectations, and realities that may feel uncomfortable. In fact, if you feel uncomfortable, it probably means you’re doing the right thing in recognizing what you don’t know and asking questions you don’t know all the answers to! Helpful resources: a. Human Rights Campaign b. National Center for Transgender Equality
  2. Do not assume. If you do not know someone’s gender preference or preferred pronouns, it’s best to ask and listen. Listen to learn and not to respond. Listen to how the client refers to themselves. Do not share a transgender or nonbinary individual’s transition with others without permission as some may not feel comfortable sharing their outing. It is important not to assume your client’s preferences.
  3. Acknowledge and verify feelings. More than likely, a transgender or nonbinary client has been discriminated against. Even more likely is that you have not been discriminated against in the same way that your client has. We have all had our feelings hurt by someone before and we can all empathize with the feeling of pain. You should be a source of support and comfort for the individual.
  4. Prepare your client. To judges and court officials, clients start out as just names on a piece of paper. Our job as defense attorneys is to humanize our clients before the court. This challenge is even more prevalent when the name is one your client no longer identifies with. Warn your client that officers of the court may solely rely on their legal name and birth sex on legal documents. It is important to be forthcoming with your client about the challenges they will face in a system that has not been designed or adapted to respect changed or fluid gender identities.
  5. Be an ally. Above all else, you are your client’s biggest advocate. You are representing them in what could be the most difficult time in their lives, and it can be filled with discomfort and discrimination. It is important as an attorney to remain steadfast in your loyalty to your client. Acknowledge what you do not know, never assume, validate feelings, prepare, and be the ally. Listen to the story your client shares and remain dedicated in your opportunity to advocate for and alongside them.

About the Authors

Elizabeth Duggan is an Associate Attorney at Cofer & Connelly, PLLC. The case referenced above was ultimately dismissed thanks to her diligent advocacy.

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

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