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Back to Table of Contents Many immigration practitioners may be unfamiliar with the unique legal issues that transgender people face. The purpose of this chapter is to orient attorneys who may have little to no experience working with transgender clients. It contains basic definitions and tips to help make one’s practice culturally competent to serve transgender clients. An understanding of the terminology used by transgender communities is key to effective representation of transgender clients. Below are some common terms and explanations of their meanings. In all instances, self-identification is paramount. Many people have a gender identity that is different than what one might presume based on sex stereotypes. Therefore, it is important to understand how your client self-identifies, and to not make assumptions. [1]In all instances, self-identification is paramount. 1.1.1 Gender Identity Gender identity is one’s internal, deeply felt sense of being male, female, something other, or in between. A person’s gender identity is an integral part of who he or she is. For transgender people, their birth-assigned sex does not correspond to their gender identity. Gender expression refers to characteristics and behaviors such as outward appearance, dress, mannerisms, speech patterns, and social interactions that are socially perceived as masculine or feminine. Transgender is an umbrella term for people whose gender identity and/or gender expression differs from the sex they were assigned at birth or the stereotypes associated with that sex. The term may include transsexuals and others who do not conform to gender stereotypes. Many transgender people identify as female-to-male (FTM) or male-to-female (MTF). People who transition from FTM may be referred to as “transgender men.” People who transition from MTF may be referred to as “transgender women.” Transgender people may or may not access transition-related health care (hormone treatment, surgeries, counseling, etc., ) as part of their transition. The word “transgender” is an adjective used to describe people and should never be used as a noun that stands alone. For many people, “transgender” is not a gender distinct from “male” or “female”; many transgender individuals identify as male or female. Also, the term “transgendered” is generally disfavored because, as a verb, it emphasizes the transition process rather than the identity of the individual. Although some doctors require transgender individuals to undergo counseling and receive a diagnosis of “gender identity disorder” prior to sex reassignment surgery, being transgender is not a disorder. “Transition” is the process of changing a gender expression from one gender to another. There are many different ways to transition. For some people, it is a complex process that takes place over a long period of time, while for others it is a one–or two-step process that happens more quickly. Transition may include “coming out”: telling one’s family, friends, and/or co-workers; changing one’s name and/or sex on legal documents; accessing hormone therapy; and possibly accessing medically necessary surgical procedures. It is important to note that it is not necessary for someone to undergo transition-related surgeries to transition. The decision of whether to undergo surgery—and what surgeries to have—is a very personal choice and varies widely. Many transgender individuals cannot afford surgeries, while other individuals do not feel that surgeries are necessary to complete their transition. Further, there is a common misconception that there is one single surgery that a person must undergo in order to change his or her gender. In reality, there are multiple surgeries that a person may undergo as a part of transition. An important point to understand is that “completed” transition means something different for everybody. For example, while some FTM transgender men have “top” surgery to remove breasts, many do not undergo phalloplasty (surgical construction of a penis) because the surgical techniques are generally not well-developed. “Transsexual” is a term most commonly used to describe someone who transitions their gender. It includes people who were identified as male at birth but whose gender identity is female (MTF), people who were identified as female at birth but whose gender identity is male (FTM), and people whose gender identity is neither male nor female. It is a common misconception that the term “transsexual” is used only to refer to people who have undergone transition-related surgeries. Because of the issues discussed above, this is not the case. Sexual orientation is a person’s emotional and sexual attraction to other people, and it is often based on the gender of those to whom he or she is attracted. A person may identify his or her sexual orientation as heterosexual (straight), lesbian, gay, bisexual, or something else entirely. It is important to understand that sexual orientation and gender identity are different things. A person’s gender identity is not dictated by his or her sexual orientation. Just like a non-transgender person, a transgender person may identify as straight, gay, lesbian, bisexual, or something else. Note: Some transgender people identify as gay before their transition, and may continue to do so afterward. For example: Roberto was always feminine and felt more comfortable in the company of females, yet was also sexually attracted to males. As a teenager, he had relationships with other males. Roberto began to transition in his 20s and now lives as a woman, goes by the name of Roberta, and continues to be attracted to men. Because Roberta has identified as a gay man for so long, she continues to identify as both a gay man and a transgender woman. Roberta uses the female pronoun and, at times, the male pronoun. LGBT stands for “lesbian, gay, bisexual, and transgender.” This acronym is often used to describe a community with many common interests. Although their life experiences may be very different, LGBT people are often faced with similar discrimination and harassment. As discussed above, these identities often intersect. For example: a woman may identify as transgender and a lesbian, meaning she is a woman who was assigned male at birth, and who is sexually attracted to women. By way of contrast, a “butch” lesbian may consider herself gender nonconforming without necessarily identifying as transgender. Intersex is a term used for a variety of conditions in which a person is born with sex chromosomes or a reproductive system that are not clearly male or female. People with intersex conditions may identify as male, female, and/or transgender. 1.2 Tips on Showing Respect to Transgender Clients Transgender clients are not fundamentally different from non-transgender clients. They have the same need for resolution, respect, effective representation, and returned phone calls. Most often, the unique challenges they face originate from discomfort or disinterest on the part of others. For some transgender people, past experience with this discomfort or disinterest may lead them to be wary about opening up to new people. This barrier may be something the practitioner will need to overcome in order to provide effective representation. An honest and open relationship between attorney and client is integral to effective advocacy, and creating this relationship begins with a genuine showing of respect and support. Below are a few tips on ensuring that transgender clients are comfortable. Practice Tip: Similar to a client who may have changed her name through marriage or one who prefers “Liz” to “Elizabeth,” a transgender client will appreciate your ability to respect his or her choice of name and pronoun. It is very common to assume that you know a person’s gender or gender identity based on sex stereotypes. In most cases, you will “guess” correctly. However, some people’s expression or identity is non-stereotypical or different than what you might assume or expect. Therefore, it is important to be open to someone’s self-identity. If you are unsure, it is appropriate to ask how the person would like to be addressed. Practice Tip: If you believe your client may be transgender, but you are not sure how to question him or her respectfully about gender identity, ask a broader question such as, “In immigration, being lesbian, gay, bisexual, or transgender could be legally relevant to your case. Do you identify with any of these categories?” If you are unsure of the pronouns to use when referring to your client, it is appropriate to politely ask. For example, you can ask, “Are you most comfortable being referred to with male or female pronouns?” Sometimes, the legal challenge facing a transgender person is unrelated to his or her gender identity. It is important not to focus so narrowly on the fact that a person is transgender that you end up making that characteristic more important than the actual reason the person is seeking your services. It also is important that you help your client focus on the real issue and steer him or her away from focusing on gender identity if that is not the core legal issue. Still, in the immigration context, it is quite likely that a person’s gender identity is central to his or her legal situation. It is important to talk to your client about his or her identity and the social group created through that identity. It is possible that your client’s identity—and even the gender description—will be unclear. Reassure your client that if he or she is transsexual, it is okay to describe him- or herself based on gender identity (for instance, someone who is FTM may be reluctant to identify himself as a man). It also is important to be aware that individuals from other countries may not use our terminology to describe themselves. Always follow yBack to Table of Contentsour client’s cues. Even if your client clearly appears to be a transgender woman to you, if your client identifies as an effeminate gay man, don’t impose your own definition on the client. Conversely, if your client doesn’t “look transgender” to you, you should still use the name and pronoun that your client feels comfortable using. 1.2.3 Access Community Resources Because so many legal issues concerning transgender people are issues of first impression or are still being developed, it is important that you connect with knowledgeable attorneys as you begin to frame your legal arguments. For recurring issues, there may be a tried and true approach that is not well-known outside of the community of advocates who specialize in transgender issues. Too often, well-intentioned attorneys create bad law simply because they do not fully understand the issues. This manual provides basic information about legal issues facing transgender immigrants, but you still should talk to others who have worked on similar cases. 1.2.4 Use the Correct Name, Gender Marker, and Pronoun in All Correspondence and Filings Except in extremely rare circumstances, it is very important that you use the name and pronoun that corresponds to a person’s gender identity (for example, if your client transitioned from male to female, use female pronouns). In addition, your client may choose to use a name that is gender-neutral or not associated with the pronouns he or she prefers. It is important to be aware of and respect this decision. It may be necessary to footnote the person’s prior name or to explain in a cover letter with an application to U.S. Immigration and Citizenship Services (USCIS) that you will be referring to your client using the current name and gender even though some of the documents are still in the prior name or gender. It also is important that you respectfully urge immigration officers, U.S. Immigration and Customs Enforcement attorneys, immigration judges (IJs), and other government officials to do the same. Often, clients will tell their attorneys their legal name (i.e., their birth name) rather than the name they feel comfortable using. If your client’s legal name clearly does not match his or her corrected gender, you should ask whether there is another name that is preferred. Practice Tip: If a transgender client has not legally changed his or her name, record both the client’s preferred and legal name on your intake form. For example, a transgender man whose preferred name is Mark, but was called Diana at birth, would be recorded as Diana “Mark” Smith. All employees should be told to refer to this client as Mark at all times. 1.2.4.1 File in the Correct Name as Early in the Immigration Process as Possible It is easier for your client to begin his or her immigration record with the name that corresponds to the gender identity. Therefore, especially for immigration clients, it is important to do all that you can to get your client’s paperwork in order to file the application in the correct name (i.e., someone who is MTF can file in her female name). Chapter 3 goes into this issue in depth. If your client has not legally changed his or her name, however, you will generally not be able to file in the name your client chooses. Nonetheless, it is best to explain in the cover letter to USCIS that your client is transgender and generally goes by a different name. Practice Tip: It is important when dealing with USCIS that you do not give the impression that you are trying to commit fraud or conceal your client’s identity. At the same time, you want to be sure that any correspondence on your client’s behalf is respectful of his or her identity. In writing to USCIS, you may want to begin a letter as follows. “Diana ‘Mark’ Smith” is a transgender man. Although his legal name remains “Diana,” he uses “Mark” for most purposes and is in the process of legally changing his name. We will refer to him as Mark.” 1.2.5 Make Sure Your Office Has Transgender-Friendly Policies Your intake forms should allow for an “also known as” (AKA) and should encourage or allow people to identify their sex based on their current gender identity. Your restrooms should be accessible to people based on their gender identity (as opposed to their birth sex or genital anatomy). Where possible, it is always a good idea to have a gender-neutral option available. However, use of a gender-neutral bathroom should be optional for anyone who wishes to use it; a transgender client should not be forced to use a gender-neutral bathroom, and forcing the person to do so may be unlawful. Finally, your coworkers should be trained in basic transgender cultural competency. As discussed in other parts of this manual, whether a transgender person has transitioned and what kind of transition-related medical care he or she has received often will be legally relevant to the case. As an attorney, you must learn to ask personal questions in a respectful way. Sample Intake Questions
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