Transgender Competency For Pennsylvania Judges and Court Managers May 16th – May 18th and June 12th-14th, 2018 Presenter: Ethan Rice, Fair Courts Project Attorney, Lambda Legal [email protected] Much of the information included in these materials is from a 2015 First Judicial District Education Committee Trans-Competency training program held in Philadelphia. It has been modified and updated by Judge Joseph Fernandes, Court of Common Pleas, Philadelphia, Thomas Ude, Jr., Legal and Public Policy Director, Mazzoni Center, Andrea Farney, Esq., Triquetra Law, and Ethan Rice, Fair Courts Project Attorney, Lambda Legal. TABLE OF CONTENTS Program Outline ………………………………………………………………………………… 3 Relevant Vocabulary ……………………………………………………………………………. 4 Cultural Competence/Courtroom Etiquette ……………………………………………………... 7 Courtroom Scenarios ……………………………………………………………………………. 8 Ethical Obligations of the Court ……………………………………………………………….. 10 Case Law ……………………………………………………………………………………….. 12 Statistics on PA Transgender Individuals ……………………………………………………….26 Statistics on LGBT Youth ……………………………………………………………………… 27 Statistics on LGBT Violence and Experiences within the Justice System …………………….. 28 Additional Resources …………………………………………………………………………... 29 2 TRANSGENDER COMPETENCY: For Pennsylvania Judges and Court Managers Brief Outline for 90-minute program 1. Introduction of the speaker and of the program (2 minutes) 2. Cultural Competence, Terminology, Gender Identity and Transgender Status (28 minutes) • Related to sexual orientation, gender identity and expression and their meaning • Characteristics that define a person’s sex • Gender transition facts and myths • Discuss Gender dysphoria • Intersex individuals • Non binary identities • Discuss biased perceptions and their harmful effects of the person economic stability, physical and mental health, and compounding forms of race or ethnic discrimination • How should a judge address transgender parties, attorneys, and other individuals in the courtroom? How should a judge react if an attorney is using the opposing party’s or counsel’s gender identity in a vulgar way based on street myths? Provide tips and guidance. 3. Best practices in the courtroom (30 minutes) • Addressing explicit and implicit bias and disrespect by others in the courtroom whether it be parties, court employees or attorneys o Dress codes, vulgar or rude comments about the person’s physical appearance, names & pronouns o Does it matter if person is in Family, Civil or Criminal court? Discuss any differences/similarities. o Ethical responsibility of judges and court employees • Constructed and communicated stereotypes and the impact of bias on juries o Questioning jurors and witnesses about sexual orientation and gender identity • Discuss the importance of fair, independent and impartial courts. 4. Best Practices in the courthouse and with court employees (30 minutes) • How can court managers and other court employees ensure a welcoming environment for transgender court users? • What scenarios are likely to occur? • Employment Discrimination and transgender status • What about Title VII of the Civil Rights Act of 1964? o Is gender identity, or more specifically being transgender, a protected characteristic in itself? • Discuss whether gender dysphoria is recognized as a potential disability under the ADA. • What is the state of the law in Pennsylvania vis-à-vis the status of the Federal law? Does Pa state law provide more, less or no protection at all for this type of discrimination? o What is the impact on transgender persons from policies that mandate cultural competency and non-discrimination using as example the Unified Justice System of Pa policy on Non-Discrimination and Equal Employment Opportunity? 3 RELEVANT VOCABULARY There are as many ways to be transgender as there are transgender people. While you may hear the phrase “transgender community,” it should not be taken to mean that all trans people are identical, that they have the same experience or understanding and view of gender. The language trans people use to describe themselves, their bodies, their gender and their sexual orientation varies from person to person. Ally refers to people who confront and challenge different forms of discrimination in themselves and others. Androgyne is a term used to describe persons who may identify and/or express their gender as both male and female, neither male nor female, or in between male and female. Assigned sex/Sex assigned at birth refers to the sex one was assigned at birth. Most often this assignment is made on the basis of the appearance of external genitalia. BiGendered refers to a person having two genders, exhibiting cultural and physical characteristics of male and female roles. Cisgender (pronounced “sis-gender”) and cis are adjectives you might hear, particularly in the context of trans issues; it is the antonym of transgender. Cisgender describes people whose gender identity is consistent with the sex that was assigned to that person at birth. Latin root, “cis” is the opposite of “trans.” Gender expression refers to a person’s behavior and attributes that society perceives as masculine, feminine, or androgynous, such as clothing, hairstyles, etc. Gender identity also called “brain sex,” is one’s deeply felt internal sense of being male, female, both, or neither. It is the primary determinant of sex. Note: gender identity and gender expression do not necessarily correlate and may vary over time or context (e.g., a person could have a female gender identity and a masculine [“butch”] gender expression; a person could have a male or androgyne gender identity and a gender expression that varies between masculine and feminine depending on context). Gender Dysphoria A clinical psychiatric diagnosis, first listed in the DSM-V, that describes an intense, continuous distress resulting from an individual’s sense of the inappropriateness of their assigned sex at birth. In previous versions of the DSM, gender dysphoria was known as gender identity disorder (GID); the criteria listed to diagnose Gender Dysphoria was intended to reflect better and more thorough knowledge. The use of these diagnoses to access treatment, and their status as psychiatric (rather than medical) issues and diagnoses, remain controversial. Note: Not all transgender people experience this condition or meet the criteria for this diagnosis. Gender nonconforming refers to people who do not conform to society’s expectations for people of a given gender or do not conform to expectations for people of any gender. 4 Intersex is an adjective that is an umbrella term used to describe people who have one or more of a range of variations in sex characteristics that fall outside of traditional conceptions of male or female bodies. For example, intersex people may have variations in their chromosomes, genitals, or internal organs like testes or ovaries. Some intersex characteristics are identified at birth, while other people may not discover they have intersex traits until puberty or later in life. Often intersex people are subjected to surgery on their genitals as newborns or children, and might have been raised with hormone therapy and further surgeries without the person’s consent. Today, many intersex people demand the right to self-determine the form of their own bodies, opposing treatments on infants. LGBT stands for Lesbian, Gay, Bisexual, and Transgender. Same-Gender Loving is a term used in some communities (often African-American) for people who love, date and/or have an attraction to people of the same gender. Often use by those who prefer to distance themselves from the terms they see as associated with primarily white LGBT community or movements. Sexual Orientation is a person’s romantic, physical and/or sexual attraction to same-sex and/or different-sex people. Sexual orientations include: gay, lesbian, bisexual and others. Sexual orientation is distinct from gender identity and gender expression. SOGIE is an acronym for sexual orientation, gender identity and gender expression. Trans is an acceptable abbreviation of transgender or transsexual. Do not use “Tranny” as this is a derogatory and unacceptable abbreviation. Transgender refers to many different kinds of people who experience some discomfort with their sex assigned at birth or expected gender role, including transsexual individuals and other gender variant people. Many gender variant people may not identify with the term transgender. Transgender people may choose to alter their appearance through style and dress. A transgender person might or might not engage in hormone therapy or have surgeries or other procedures so that their bodies match their gender identities. Transition refers to a process or time when a person begins living as the gender they identify with rather than the gender that was assigned to them at birth. It is a complex process that can occur over a long period of time. Transition is highly individualized, and may include some or all of the following personal, medical, and legal steps: telling one's family, friends, and co-workers; using a different name and new pronouns; dressing differently; changing one's name and/or sex on legal documents; hormone therapy; and possibly (though not always) one or more types of surgery. The exact steps involved in transition vary from person to person. Avoid the phrase “sex change.” Transphobia is the systemic, societal, and individual fear, dislike, intolerance, and hate that is felt, expressed, and used to oppress transgender people every day.