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Bar News - November 16, 2016


Family Law: Practice Tips for Representing Transgender Clients in Divorce

By:

The topic of gender dysphoria has quickly become a common theme in US popular culture. From Caitlin Jenner’s nationally publicized story of transitioning to storylines on television such as NBC’s Chicago Med and CBS’s Code Black, transgender issues are becoming more prevalent in mainstream media. Yet many legal professionals do not understand what it means to be transgender, or the legal and practical issues that arise when marriages involving transgender people come to an end.

Gender dysphoria (formerly gender identity disorder) refers to the persistent sense of mismatch between one’s experienced gender and assigned gender. A transgender person is one who expresses a gender identity that differs from the one assigned at birth. Transgender individuals choose to begin living their lives as the gender with which they identify; gender dysphoria is the underlying cause.

Transgender people face many unique challenges in navigating the divorce process, and it is important for practitioners to better understand what it means to be transgender, identify the challenges clients may face, and provide respectful and effective representation. Without the proper education, legal professionals run the risk of making what is already a difficult time for those who are transitioning and their families even more painful.

The ending of a marriage is a very emotional time, and if one party identifies as transgender, the issues can become more complicated. The transitioning person’s spouse and children have to adjust to the changes as well as the loss of the marriage. Often, the transition comes as a surprise to family and friends. It can be quite shocking and difficult to accept.

Common issues in transgender divorces include: insensitive family, accusations that the transitioning party poses a threat to the minor children, alienation of the transitioning spouse, and uneducated or insensitive legal professionals.

The adoption of best practices is essential to creating and maintaining trust with any transgender client or spouse. Following our experience representing transgender clients or spouses, we offer some practice tips:

1. Understand pronouns are important.

This can be a very confusing time for both parties. The transgender party may be feeling excited about his or her new life, while the spouse may be grieving the loss of the person they married. Ask your client to share preferred pronouns during your initial meeting. Ask the Court and opposing counsel to refer to your client with the preferred pronouns. Remind your staff to be mindful of the pronouns they use in correspondence and interaction. If a mistake is made with a person’s name or pronoun, apologize, correct it and move on.

2. Use proper names.

Many transgender people adopt a new name upon transition and will take steps to have his or her name legally changed to match their new gender identities.

This becomes important when completing the Vital Statistics form during a divorce. Do you file the form using the party’s legal name as of the date of the marriage? Do you complete the form using the party’s current legal name? A phone call to your local family division clerk may provide you with guidance, but there may be no definitive answer to these questions. It may be worthwhile to note to clients that the court may not know the best way to ensure they have the information they need, as their case is not commonly seen.

3. Be aware of the unique challenges your client may face.

According to a 2011 study by the National Gay and Lesbian Task Force, “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” transgender people reported:

  • unemployment at twice the rate of populations as a whole;
  • harassment on the job;
  • mistreatment on the job;
  • career interruption;
  • denied employment, promotions, and termination; and
  • high rates of poverty.

When thinking about issues such as spousal support and property division, consider the future earning potential of the transgender party and the ability to find employment or maintain current employment during the transition.

4. Education is essential.

Advise your client that not all legal professionals understand what it means to be transgender. Clients may face invasive questions by people with little to no understanding, or may hear things that are hurtful, regardless of intention. Accusations may be made that the transgender party is being “selfish” or that his or her transition poses a threat of hardship or embarrassment to the parties’ children. Simply because a party is transitioning or has transitioned does not mean that he or she is deserving of less parenting time or is not capable of being a good parent.

5. Consider Alternative Dispute Resolution

ADR can be helpful in almost all family law cases, and transgender divorce is no exception. However, there are reasons why ADR may be particularly appropriate for transgender divorces.

First, ADR is private. Participants can choose the professionals they work with to ensure sensitivity and privacy.

Second, ADR methods are client-driven. In ADR, clients can decide who and what is fair. They do not have to worry about a person unknown to them standing in judgment of their choices.

Third, as it applies to Collaborative Law, there is an opportunity for the parties (and counsel) to work with a coach who can help educate the parties and counsel on transgender issues and challenges. The process can become helpful in terms of how to handle to the process with children. By implementing these best practices, family lawyers can continue to provide high-quality legal representation and create a welcoming environment for transgendered people and their families.

For more information on transgender family law, suggested reading includes Transgender Family Law: A Guide to Effective Advocacy, edited by Jennifer L. Levi and Elizabeth E. Monnin-Browder.

Authors’ note: This article is written based on our experiences in handling transgender divorces from the practitioners’ perspective and is not an attempt to speak for all practices or all transgender persons.


Kelly Thom

Jessica Ecker

Kelly Thom and Jessica Ecker are attorneys with the firm of Weibrecht Law. Both focus their practices on family law. Ecker is a certified marital mediator and trained in Collaborative Law. She practices in New Hampshire and southern Maine.

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