and negatively impact rapport and trust Cultural Competency in Hawai‘i: with a client and create an unsupport - ive and exclusive work culture and Affirming environment. Hawai‘i has often been at the fore - Identity and Expression front of the nation in regard to the rights of sexual and gender minorities, espe - By Ian F. Tapu and Rebecca A. Copeland cially now in the realm of and expression, as evidenced by the nu - merous legal protections that exist. The state has expanded protections by pro - hibiting discrimination based on 13 and gender identity or ex - “Let’s pression 14 in education, public accommo - go around the dations, 15 housing, 16 and employment. 17 room and share our In 2011, the scope of the Hawai‘i name and pronouns.” Civil Rights Commission’s “My name is Kaleo and I mandate was amended to in - go by he/him/his.” 1 clude gender identity or ex - “I’m Vanessa and use she/her/hers.” affirms their gender identity and pression as a “form of sex 18 “My name is Alex and my pronouns expression. In the latest 2017 Gallup discrimination.” According to 2 are they/them/their.” poll, 4.5 percent of U.S. adults and 8.1 the Hawai‘i Legislature when it amended 3 “I’m Charlie and I use zie/zim/zir.” percent of millennials, defined as those the statute: born between 1980 and 1999, identify as Did you know these conversations lesbian, gay, bisexual, or . 8 Your Committee finds that discrimi - are occurring more frequently in Additionally, the Williams Institute at nation on the basis of gender identity Hawai‘ii? UCLA estimates that there are 8,450 or expression is abhorrent and, ac - Hawai‘i has always celebrated its di - transgender individuals in Hawai‘i, rank - cording to testimony submitted to your Committee, a true problem for versity. The Aloha State is a melting pot ing the Aloha State number one in terms of people, cultures, and experiences from transgender individuals. According of the highest percentage of adults who to the 2009 National Transgender around the world. As current and aspir - identify as transgender. 9 ing legal professionals, working in Discrimination Survey, transgender Transgender and other gender non - individuals experience unemploy - Hawaii’s legal community with those conforming individuals face the addi - ment and poverty at twice the rate of from all backgrounds requires a high level tional burden of being misgendered or the general population and ninety- of cultural competency and understand - “deadnamed” in day-to-day affairs. Mis - seven percent of the Survey’s respon - ing. In fact, the Hawai‘i State Bar Associ - gendering is the act in which someone in - dents reported experiencing ation (“HSBA”) states as one of its main tentionally or unintentionally uses harassment or mistreatment while at goals is “[t]o eliminate unfair bias, preju - pronouns or honorifics that the person work. This measure intends to send dice and discrimination and to create does not use. Deadnaming is when a per - the message that Hawaii’s laws pro - tect against this type of discrimina - meaningful opportunities for underrepre - son is called by the person’s “birth name” sented groups in the legal system.” 4 tion, whether based on actual or or “given name” with which the person perceived sexual orientation, and Expanding the legal profession’s ca - no longer identifies. Misgendering and pacity and sensitivity toward sexual and that this type of discrimination is ille - deadnaming can lead to feelings of anxi - gal and unacceptable. 19 gender minorities, a term which we use to ety, low self-esteem, negative body image, refer to those who identify as lesbian, gay, and isolation from family, friends, and The Legislature also noted that the bisexual, asexual, , transgender, or coworkers. 10 If someone suffers from amendment was not a new change in the non-binary, directly supports HSBA’s aim , being misgendered or law, but rather to bring the statute in line “[t]o promote the integrity and compe - deadnamed can also heighten the effects 5 with Hawai‘i Civil Rights Commission’s tency of lawyers in Hawaii.” In particu - of dysphoria. 11 In fact, in a 2014 study, existing interpretation of “sex” to include lar, it is important to have cultural 32.8 percent of those who were misgen - 6 “gender identity or expression. 20 competency regarding transgender, non- dered felt stigmatized and also had a re - 7 Additionally, in 2015, the binary, and other gender nonconforming duced sense of strength and continuity in Hawai‘i legislature extended the individuals in a way that validates and their identities. 12 The effects can directly

20 October 2019 HAWAII BAR JOURNAL right of individuals to petition to change LGBT community. There are a variety of At minimum, include a gender noncon - gender markers on birth certificates with - other ways in which individuals who are forming option for those who do not out having to undergo invasive surgery or part of a sexual or gender minority may identify within the binary of male or fe - hormonal transition. 21 Further, effective interact with the courts and members of male. For those who have not been able July 1, 2017, Rule 2.3 of the Hawai‘i Re - the bar. to legally change their name, allow for a vised Code of Judicial Conduct was What can we as members of the bar section in which the individual can write amended to prevent judges and lawyers do? Consistent with the HSBA goal “[t]o down their identifying name in addition from manifesting “bias or prejudice, or eliminate unfair bias, prejudice and dis - to their legal name – then use that identi - engaging in harassment” based on gender crimination and to create meaningful op - fying name and/or identifying pronoun identity or expression. 22 portunities for underrepresented groups when speaking to that person, and when While these legal developments are in the legal system[,]” we encourage referring to them to others. noteworthy, sharp societal disparities still members of the bar to endeavor to un - exist for the transgender community. In derstand the complex and varied experi - • Avoid asking transgender and gender 2018, the Hawai‘i State Department of ences and issues of those who are nonconforming individuals to educate Health conducted a study and published members of sexual and gender minori - others about gender identity and expres - its findings in the Hawai‘i Sexual and ties, especially those who identify as trans - sion. Doing so can feel tokenizing and Gender Minority Health Report. Ac - gender or non-binary. Here are a few exhausting. For those clients and/or cording to the study, as compared to cis - practical tips: coworkers who identify as transgender, it gender 23 heterosexual youth, transgender would be impossible to speak for the en - youth are four times more likely (and les - • Use inclusive language. Avoid using tire transgender community because bian, gay, bisexual youth are two times language or asking questions that implic - every experience and voice is unique to more likely) to skip school because they itly or explicitly assumes another person’s the individual. feel unsafe. 24 Forty percent of transgender gender identity or sexual orientation, or youth have been bullied either at school excludes those who do not identify within • Do not “out” individuals. This applies or electronically. 25 And transgender the male/female binary. For example, say in any and all contexts whether in court, youth are three times more likely to con - “everyone,” not “ladies and gentlemen.” at the office, when you speak about some - sider suicide and make a suicide plan one to others, in correspondence, or in than non-. 26 Fifty-eight • Do not ask “Are you a guy or a girl?” pleadings. The only time it is acceptable percent of respondents in a 2015 national Instead, you may ask, “What pronouns to tell a third party information about survey by the Center for Transgender do you use?” There has been a shift from someone else’s sexual orientation and/or Equality said “they were denied equal using the term “preferred gender pro - gender identity is if you were given ex - treatment or service, verbally harassed, noun” because a person’s pronouns are press permission to do so. Just because and/or physically attacked in the past not just a preference, but central to their some may know of a person’s sexual ori - year.” 27 identity. Additionally, make it common - entation and/or gender identity does not Do these issues impact the members place in introductions and group ice mean that everyone does, and does not of the HSBA? Yes. Sexual and gender breakers to include pronouns in your mean that the person wants everyone to minorities interact with the bar in a vari - work place or in other environments, in - know. is profoundly personal ety of ways just as with all members of cluding other organizations that you are and a life-long process. There is a legiti - our community. Members of the LGBT involved with. mate fear of ridicule, harassment, vio - community come into our courts as lence, and losing loved ones. judges, court staff, attorneys, witnesses, ju - • Consistently use the name and pronoun rors, or parties represented by an attorney that conforms to the other person’s gen - • Do not use outdated terminology. Here or appearing pro se . Attorneys, judges, and der identity. Again, if you are unsure, ask are some terms that may be considered court staff should understand how to in - for their pronouns. In addition to using offensive and that should be avoided: sex - teract with all individuals in a respectful the identifying name and pronoun in all ual preference, tranny, homosexual, and way to fulfill the judiciary’s policy of non- correspondence and court documents, re - hermaphrodite. Use “transgender” in - discrimination. Individual members of quest that co-workers, opposing counsel, stead of “transgendered.” 28 If you are the bar also have contact with clients, op - court staff, and judges also do the same, ever in doubt, ask. Customs, norms, and posing counsel, co-counsel, families of and ensure that your request is followed. language are continually in flux in many clients or opposing counsel, and many areas, and this area is no different. Words others who may not identify within the • Update your office forms and applica - that may have been considered accept able binary, or who are otherwise part of the tions to eliminate gender identification.

22 October 2019 HAWAII BAR JOURNAL in the past may now be considered offen - the diversity of the Aloha State, let our 9 ANDREW R. F LORES ET AL ., H OW MANY ADULTS sive, hurtful, or improper. Pacific ancestors continue to lead the way. IDENTITY AS TRANSGENDER IN THE UNITED ______STATES ? 3 (2016), https://williamsinstitute.law.ucla.edu/wp-con - • If possible, display welcoming signs and tent/uploads/How-Many-Adults-Identify-as- 1 other indicators that your office or firm is Some individuals who use masculine pronouns Transgender-in-the-United-States.pdf . a safe space for members of sexual and identify as a female, and some individuals who use feminine pronouns identify as male. As sug - 10 Stephanie Kapusta, Misgendering and Its Moral gender minorities. Consider including gested in this article, it is a best practice to always Contestability , 31 HYPATIA 502, 504-06 (2016). your own pronouns in your letter or email ask someone what pronouns they use. 11 signatures; for example, “Pronouns: According to the American Psychiatric Associ - 2 The use of “they/them/their” pronouns has ation: “Gender dysphoria involves a conflict be - She/Her/Hers.” In fact, an increasing become increasingly common. In 2016, the tween a person’s physical or assigned gender and number of organizations include a per - American Dialect Society officially sanctioned the gender with which he/she/they identify. son’s pronouns along with other identify - the singular use of “they.” Additionally in 2017, People with gender dysphoria may be very un - ing information provided in their email the Associated Press Stylebook, which is consid - comfortable with the gender they were assigned, signature line. ered to be the foremost authority on grammar sometimes described as being uncomfortable and word choice in journalism, added “they” as with their body (particularly developments dur - a singular, gender-neutral pronoun. The Wash - ing puberty) or being uncomfortable with the ex - • Re-sign your single stall restrooms as ington Post also recently announced its approval pected roles of their assigned gender. People “Gender Neutral.” 29 Consider also doing of the singular “they.” These are only a few of with gender dysphoria may often experience sig - so for other restrooms. the many examples of the use of “they” as a gen - nificant distress and/or problems functioning as - der-neutral pronoun. sociated with this conflict between the way they feel and think of themselves (referred to as expe - 3 • Show support and be accommodating Zie (pronounced “Zee”)/Zim/Zir are non-bi - rienced or expressed gender) and their physical in any way that the situation may call for. nary pronouns similar to they/them/their. Non- or assigned gender.” American Psychiatric Asso - Be flexible. Put yourself in someone else’s binary pronouns are pronouns that do not ciation, Parents & Families, Gender Dysphoria, associate a person with a particular gender and https://www.psychiatry.org/patients- shoes. Think: What if this were my child, are particularly used within the transgender and my spouse, my friend, my family member, families/gender-dysphoria/what-is-gender-dys - genderqueer communities. Similarly, other indi - phoria (last visited Apr. 18, 2019). my loved one? How would I want them viduals also use the pronouns It/Its. Williams In - to be treated? What if it were me? How stitute, Pronouns , 12 Kevin McLemore, Experiences with Misgendering: would I want to be treated? https://lgbt.williams.edu/resources/trans-re - Identify Misclassification of Transgender Spectrum Indi - sources/pronouns/. viduals , 14 J. OF THE INT ’L SOC ’Y FOR SELF & IDENTITY 51 (2014). This is not to be an exhaustive list. 4 Hawai‘i Bar State Association, Governance , 13 In fact, there are so many more concepts, https://hsba.org/HSBA/ABOUT_US/Gover - HAW . R EV . S TAT . § 515-2 (2018) ; HAW . R EV . nance/HSBA/About_Us/Governance.aspx?hke STAT . § 489-2 (2011 & S upp. 201 8); H AW . R EV . words, and ideas – and so many issues y=61f455cd-e768-470c-8750-4243223f861d. STAT . § H AW . R EV . S TAT . -1 (2015) . Sexual that face members of our community orientation is defined as “having a preference for 5 who are transgender and gender noncon - Id . heterosexuality, homosexuality, or bisexuality, forming – that all cannot be addressed in 6 Transgender is “[a]n umbrella term for people having a history of any one or more of these a single article. However, it is the intent whose gender identity and/or expression is dif - preferences, or being identified with any one or more of these preferences. ‘Sexual orientation’ of this article to start a discussion, and ferent from cultural expectations based on the sex they were assigned at birth. Being transgen - shall not be construed to protect conduct other - begin the process of building a bridge to der does not imply any specific sexual orienta - wise proscribed by law.” Sexual orientation and a more supportive and welcoming bar for tion. Therefore, transgender people may identify gender identity are different concepts, and apply individuals from all walks of life, includ - as straight, gay, lesbian, bisexual, or in some to different ways in which a person may self-iden - ing those from the transgender and non- other way.” Human Rights Campaign, Sexual tify. See footnote 10 (definition of gender identity or expression). binary community. Hawaii’s rich culture, Orientation and Gender Identity Definitions , https://www.hrc.org/resources/sexual-orienta - 14 HAW . R EV . S TAT . § 515-2 (2018) ; HAW . R EV . along with the sister islands that make the tion-and-gender-identity-terminology-and-defini - fabric of Polynesia, can be a lesson in in - STAT . § 489-2 (2008 & Supp. 20 18); H AW . R EV . tions (last visited Apr. 7, 2019). STAT . § 378-1 (2015) . State law defines gender clusivity. We need only look to the m ahu 7 Someone who is non-binary is not male or fe - identity or expression to “include a person’s ac - of Hawai‘i, the leiti of Tonga, and the male, may identify as both, may not identify with tual or perceived gender, as well as a person’s fa‘afafine of Samoa, to understand that any gender, or their gender may change over gender identity, gender-related self-image, gen - our Pacific heritage has long acknowl - time. National Center for Transgender Equality, der-related appearance, or gender-related expres - edged the beauty, value, and power of Understanding Non-Binary People: How to Be Respectful sion, regardless of whether that gender identity, gender-related self-image, gender-related appear - people beyond the heteronormative, and and Supportive (Oct. 5, 2018), https://transequal - ity.org/issues/resources/understanding-non-bi - ance, or gender-related expression is different recognizes the complexity of the human nary-people-how-to-be-respectful-and-supportive. from that traditionally associated with the per - experience beyond the binary of male son’s sex at birth.” 8 and female. In celebrating and affirming Frank Newport, In U.S., Estimate of LGBT Popu - lation Rises to 4.5% , GALLUP (May 22, 2018). (Continued on page 26 )

October 2019 HAWAII BAR JOURNAL 23 GENDER IDENTITY 22 Haw. Rev. Code of Judicial Conduct R. 2.3 length to the word and can cause tense confusion Continued from page 23 (2017). The revisions in the Code of Judicial and grammatical errors. It also brings transgen - ( ) Conduct are in accord with the Hawaii Judici - der into alignment with lesbian, gay, bisexual, ary’s long-standing non-discrimination policy and queer. You would not say that Elton John is 15 HAW . R EV . S TAT . § 489-3 (2008 & Supp. 2018). which includes protection for individuals based ‘gayed’ or Ellen DeGeneres is ‘lesbianed,’ there - 16 HAW . R EV . S TAT . § 515-3 (2018). on gender identity or expression and sexual ori - fore you would not say Chaz Bono is ‘transgen - entation. dered.’”); Planned Parenthood, Transgender 17 HAW . R EV . S TAT . § 378-2 (2015). Identity Terms and Labels, 23 is the “term for someone who exclu - 18 HAW . R EV . S TAT . § 368-1 (2015); see also Act 34, https://www.plannedparenthood.org/learn/sex - sively identifies as their sex assigned at birth. Relating to Civil Rights, H.B. No. 546. S.D. 1, ual-orientation-gender/trans-and-gender-non - The term cisgender is not indicative of gender 26th Legislature (2011). conforming-identities/transgender-identity-terms expression, sexual orientation, hormonal -and-labels (last visited Apr. 7, 2019) (“Adding -ed makeup, physical anatomy, or how one is per - 19 STAND. COM. REP. NO. 1128 (2011). The to the end of transgender is not grammatically ceived in daily life.” Trans Student Education Legislature also found that including gender correct. You would not say that someone is Resources, LGBTQ+ Definitions , identity and specifically in the gayed, womaned, or Latinoed. Similarly, you http://www.transstudent.org/definitions/ (last statute was necessary because “all members of wouldn’t call someone transgendered.”). visited Apr. 18, 2019). the community should have equal access to em - 29 HAW . R EV . S TAT . § 489-2 (2008 & Supp. 2018) ployment opportunities without regard to their 24 AW TATE EP T OF EALTH AWAI I EX H . S D ’ . H , H ‘ S - provides that “[p]lace of public accommodation” gender expression or identity. Similarly, everyone UAL AND ENDER INORITY EALTH EPORT G M H R 2018 means “a business, accommodation, refreshment, should feel safe and secure in the workplace, 37 (2018). entertainment, recreation, or transportation facil - without fear of harm or humiliation.” STAND. 25 ity of any kind whose goods, services, facilities, COM. REP. NO. 5 (2011). According to the Id . at 30. privileges, advantages, or accommodations are Legislature: 26 Id . at 33. A 2018 study by the American Acad - extended, offered, sold, or otherwise made avail - emy of Pediatrics found a staggeringly high rate able to the general public as customers, clients, or Your committee finds that all members of of suicide and attempted suicide amount trans - visitors.” HAW . R EV . S TAT . § 489-4 (2008 & Supp. the community should have equal access to gender youth: 2018) further provides that “[t]he provision of employment opportunities without regard separate facilities or schedules for female and for to their gender expression or identity. Simi - Nearly 14% of adolescents reported a pre - larly, everyone should feel safe and secure in vious suicide attempt; disparities by gender male patrons, does not constitute a discrimina - the workplace, without fear of harm or hu - identity in suicide attempts were found. Fe - tory practice when such separate facilities or miliation. male to male adolescents reported the high - schedules for female and for male patrons are The 2009 National Transgender Dis - est rate of attempted suicide (50.8%), bona fide requirements to protect personal rights crimination Survey illustrated the excessive followed by adolescents who identified as of privacy.” Restroom facilities for the use of not exclusively male or female (41.8%), rate at which transgender individuals expe - one person do not qualify for this exception. male to female adolescents (29.9%), ques - rience unemployment, harassment, and tioning adolescents (27.9%), female adoles - poverty in comparison to the general popu - cents (17.6%), and male adolescents (9.8%). lation. Identifying as non-heterosexual exacer - Ian F. Tapu is a third-year student at the Discrimination based on gender iden - bated the risk for all adolescents except for tity or expression is a form of discrimina - those who did not exclusively identify as University of Hawai‘i William S. Richardson tion that is not expressly protected under male or female (i.e., nonbinary). For trans - School of Law and is the current President of the the law. Your committee finds this bill is gender adolescents, no other sociodemo - necessary as it will provide recourse for graphic characteristic was associated with Lambda Law Students Association. Rebecca A. those who experience such discrimination, suicide attempts. Copeland is a solo appellate practitioner. She sits and ultimately discourage such conduct from occurring, especially in the workplace. Russell B. Toomey, Amy K. Syvertsen, & Maura on the several legal and LGBT community Shramko, Transgender Adolescent Suicide Behavior , Id. 142 PEDIATRICS (Oct. 2018), boards, including as Co-Chair of the Hawai‘i https://pediatrics.aappublications.org/content/1 Judiciary’s Committee on Equality and Access to 20 Id. 42/4/e20174218?sso=1&sso_redirect_count=1 &nfstatus=401&nftoken=00000000-0000-0000- the Courts, Secretary of the Hawai‘i LGBT 21 HAW . R EV . S TAT . § 338-17.7 (2010 & Supp. 0000-000000000000&nfstatusdescription= Legacy Foundation, and as a member of the ERROR%3a+No+local+token (last visited Apr. 2018). In amending the statute governing birth HSBA’s Committee on Diversity, Equality, and certificates, the Hawaii Legislature found “that 7, 2019). the Law. As a then-board member of Equality the majority of transgender individuals do not 27 The Report of the 2015 U.S. Transgender Sur - choose to undergo sex reassignment surgeries for vey, https://www.transequality.org/sites/de - Hawai‘i, she successfully advocated during the various reasons, including prohibitive costs and fault/files/docs/usts/USTS%20Full%20Report 2015 and 2016 Hawai‘i legislative sessions for other medical and personal reasons. Thus, the %20-%20FINAL%201.6.17.pdf. current statutory reference to a sex change oper - the passage of the Transgender Birth Certificate ation is outdated. This measure would make it 28 E.g., GLAAD Media Reference Guide, Trans - Bill and the Transgender Insurance Bill, both of easier for transgender individuals to request a gender , https://www.glaad.org/reference/trans - which were signed into law. She is also the new birth certificate, allowing them to more gender readily amend their legal documents, including (last visited Apr. 7, 2019) (“The adjective transgen - mother of a transgender son. driver’s license and other forms of identifica - der should never have an extraneous ‘-ed’ tacked tion.” STAND. COM. REP. NO. 1043 (2015); onto the end. An ‘-ed’ suffix adds unnecessary accord STAND. COM. REP. NO. 1524 (2015).

26 October 2019 HAWAII BAR JOURNAL