Always Evolving
Some people grow up, get married, and have kids.
Some people grow up, fall in love, and create families.
Do these sentences sound the same to you? They are telling the same story, but one tells it in a wider way, opening up space to discuss different kinds of love, marriages, and families. This small exercise was one of the many striking examples of changing language that we discussed on Thursday at a training by Lambda Legal. Lambda Legal is a nonprofit dedicated to the full recognition of the civil rights of the LGBTQI community, through litigation, education, and public policy. I was fortunate enough to attend their training on working with transgender clients this Thursday. Although the presentation had a social work focus, it greatly enhanced my understanding of some of the legal issues and questions that arise for transgender people in all areas of law, including immigration.
Before I begin, I want to explain a little more of the terminology that I'll be using throughout this blog post. "Sex" refers to biology- if a person is born male or female. "Gender" is a social construct, meaning that based on the sex that someone is assigned at birth, society expects that person to behave in a certain way. "Cisgender" refers to people who identify as the sex they were assigned at birth. "Transgender" refers to people who do not identify with the sex they were assigned at birth. Being "transgender" does not require that a person go through medical procedures or take hormones in order to be the opposite sex, and it is possible that people find themselves somewhere in the middle of the male/female binary. While in many circumstances it may seem strange to ask "What are your preferred pronouns?", this question allows people to express themselves in the way that is best reflective of who they are.
It is crucial that attorneys are aware of the language that they use, and the small barriers that this kind of language can create for people.
Think of some of the barriers that cisgender, straight women who have been abused face:
- Police who are unable/unwilling to help in cases of domestic violence;
- People who don't believe what they say or tell them they need to "be a better wife"
- People who question her experiences because "well, he didn't hit you"
- The financial or legal pressures to stay with her husband because she is unable to work or doesn't want to lose custody of her kids.
Now, add on top of this many of the common barriers faced by immigrants:
- Lack of language access
- Little to no knowledge of the immigration system or protections that they can seek
- Lack of trust in police
- Fear of deportation
Finally, consider the barriers for lesbians and transwomen:
- The fear of "coming out"
- The fear that the police may not believe the accounts of violence because of being "transgender"
- Access to domestic violence shelters, or that placement in shelters could be determined by biological sex and not by gender identity
This is just a tiny glimpse into the compounding legal and social problems that many people face, regardless of their gender identity, sexual orientation, or immigration status. By changing our language, we as attorneys can show that we can be one place that is safe, open, and willing to help.
One of the most interesting aspects for the field of immigration law was the question of "transition". We learned that there are three kinds of transition: the social transition, where a person may ask to go by a different name or change pronouns; the medical transition, which actually consists of more than 1,000 different surgeries, lots of different medications, all of which may not be accessible to many people because of preexisting medical conditions or the high cost; and the legal transition, which is the process of changing the name and gender on legal documents. The legal transition is not always available to everyone, depending on particular state laws. Each of these transitions is extremely important to legally recognize. For example, corroborating evidence is an important aspects of an asylum claim. If the claim is based off of being transgender, a court is going to ask that a client show that they are transgender. It is important that the law can recognize all of the different forms that this can take, and that some people may choose to not have surgery, or not be able to change their official documents from their home country.
This is an emerging and important field of law. The challenge to North Carolina's HB2 is based off of the 14th amendment's right to privacy. Defining and redefining marriage has an effect of family-based immigration, property and inheritance, and adoption and child custody. Wider acceptance and recognition of all kinds of relationships is crucial to supporting domestic violence victims. When we assume that men are abusers and women are victims, it is more difficult for everyone to get the help and support that they need, no matter how they identify or their orientation. Questions about evidence needed to prove that a person is "transgender" is crucial to asylum cases, where the emphasis on corroborating evidence can leave transgender clients in a tough spot, because they couldn't come out before, or didn't have a term for how they felt.
It is important that all of us in the legal community assess the language we use in all kinds of cases, no matter the circumstances of our clients. It's also important that we understand the lived experiences of our clients so that we can be more effective advocates. Our profession and understanding of the laws must adapt to include the wider community we serve, and by changing the way we speak, we can show true steps in the right direction.