Trial Magazine

When you represent LGBTQ clients, you must represent them ethically and to the best of your ability, just as you would any other client. However, that isn’t as easy or straightforward as it sounds. It can be hard for LGBTQ people to feel safe, even in dedicated safe spaces. Just recently, an assailant entered an LGBTQ nightclub in Colorado and opened fire, killing five people and injuring at least 19 others.¹ But when you represent LGBTQ clients, your office should be as safe a space as possible.

Your firm may not specialize in LGBTQ law—most don’t. However, it is more likely than not that your firm has LGBTQ clients, even if you are not aware of any. There are many reasons why a client may choose not to reveal their LGBTQ status, especially if their particular legal issue is unrelated. So, in that case, why does it matter if a client is LGBTQ when your representation has nothing to do with their gender identity or sexuality?

Your LGBTQ clients likely have spent their lives assessing and evaluating every new environment and acquaintance for safety. They probably ask themselves: Am I safe here in this space with these people? If I mention my same-gender spouse, will I be dropped as a client, or will my lawyer not work as diligently for me? Am I going to be physically safe here?

As plaintiff attorneys, we need our clients to trust us so we can best represent them. You can reassure your LGBTQ clients that your firm is a safe space by respecting who they say they are, eliminating problematic terminology in your office, and supporting the LGBTQ community in your area.

What Does LGBTQ Really Mean?

LGBTQ is an umbrella term for anyone who self-identifies as non-straight or non-cisgendered—it stands for lesbian, gay, bisexual, transgender, and queer/questioning.² It’s not perfect—gender expression and sexuality are spectrums, and different people choose to self-identify with varying levels of specificity. You will often see it written as LGBTQ+, indicating that these five letters don’t fully express the range of human sexuality and gender expression.

The LGBTQ community is constantly evolving and adapting, and the variety of our terminology reflects that. It is not possible to identify the full spectrum of human sexuality and gender expression in this article. However, a baseline understanding is necessary when working with the LGBTQ community. For example, there is often confusion over the difference between gender identity and sexuality—gender identity is the gender that each person sees themselves as, while sexuality is who they are attracted to. For more information on LGBTQ issues and terminology, I suggest visiting the websites for PFLAG, The Trevor Project, Human Rights Campaign, or GLAAD. These are just a few of the amazing organizations working for LGBTQ rights.

Use the pronouns and terms your clients tell you they prefer when communicating with them or about them.

Working With LGBTQ Clients

As you would with any client, take the time to talk with your LGBTQ clients and learn what they need. Is your client in a same-gender marriage? Are they transgender and having issues with accessibility to services? Are they worried about the ability to get an unbiased jury or judge? Find out their concerns, and work to address them.

Pronouns. Use the pronouns and terms your clients tell you they prefer when communicating with them. Keep in mind that some words are more loaded than others, and personal history is a big factor in what terms a person chooses. For example, the word “queer” is being actively reclaimed by the LGBTQ community to take it back from its long history as a highly derogatory term used to abuse and shame LGBTQ people.³ Not everyone embraces it for themselves, however, and many older LGBTQ people may never feel comfortable with it.

Ask your clients what terms they want you to use and abide by their wishes. One way to incorporate this question in an organic way is to ask for preferred pronouns in the intake paperwork. But be aware that some people may not feel comfortable telling you their pronouns or LGBTQ status when first meeting with you. They may be checking their safety, and once they feel comfortable, they may decide to clarify their status.

Review your firm’s boilerplate documents for any gendered phrasing and eliminate it.

Remember that transgender people often will go by a different name (and related pronoun) than what is listed on their legal documentation. Until that can be rectified, you may have to use their legal name and pronouns on certain occasions. However, when you are talking to your client or discussing the case within your firm when they are not present, use the name they have chosen. It is vital that their wishes be respected even when they are not present—otherwise the respect you are showing them is nothing but lip service.

In addition, review your firm’s boilerplate documents for any gendered phrasing and eliminate it. For example, replace “husband” and “wife” with the gender-neutral term “spouse.” Eliminate the default “he/him” and instead ask open-endedly for preferred pronouns on your intake paperwork.

If you are not in a position at your firm to make these changes, look at your firm leadership and identify who would be best to speak with. This can be hard, especially if you are at the junior level or if you are a new hire at the firm. But if this is something you believe needs changing at your firm, talk to whoever is responsible for updating the forms as a starting point.

Educate and be inclusive. Stop “harmless” jokes—they have no place in an ethically run, client-forward law firm. Sometimes, certain terms are used purposefully to demean, to set LGBTQ people apart, and to be “funny.” Other times, the speaker may not know that they’re being offensive or enforcing stereotypes. Make sure everyone in your firm knows that joking about sexuality and gender, just like any other minority population, is offensive and will not be tolerated. These can be hard, uncomfortable conversations to have, but they are crucial. If you are not a member of your firm’s leadership team, you can still speak up in the moment. It is hard, but this is how change happens.

We also must strive to make our firms diverse and inclusive workplaces.⁴ This makes clients feel safe—and it’s also a good business practice. Diverse people bring diversity of thought, which can lead to creative solutions to problems.

Courtroom Considerations

Court can feel like a minefield for LGBTQ clients, especially in highly conservative areas. Your clients know that jurors may bring prejudices and biased viewpoints into the courtroom, despite how much they try to be impartial. Clients may have a very real fear that they will lose their case not on the merits but because a juror was unable or unwilling to put their personal prejudices aside and be impartial. Do your best to stop these potential issues by using voir dire questionnaires and motions in limine.⁵

When your client is LGBTQ, but the case is not about their sexuality or gender identity, consider whether to disclose their LGBTQ status at all. This may impact your case strategy—including what claims your client will bring.

For example, when representing a lesbian client who is alleging medical negligence claims in a conservative jurisdiction, you may choose not to name her spouse as a plaintiff or make claims for the spouse’s consortium damages. By not making her a plaintiff, you can take the focus off the marriage, which could potentially distract jurors.

To root out bias during jury selection, use a carefully crafted questionnaire in voir dire to give potential jurors the ability to self-select out in private. Ask potential jurors on the questionnaire whether they can be truly fair and impartial to someone whose LGBTQ status is against their fundamental beliefs.

Also consider filing motions in limine on preferred pronouns and names, including or excluding marital or dating history depending on the relevance, and including or excluding your client’s sexuality or gender identity.⁶ Ask the court, court officers, and opposing counsel to address your client by their preferred name and pronouns before the jury is brought in.

Object on the record to slurs, misgendering of transgender clients, and other microaggressions that arise—for example, snide remarks, refusing to acknowledge partners and spouses, or making offhand (or off-the-record) jokes. This will be case dependent, and you also must keep your client’s comfort and safety in mind.

Use special caution if your client is an LGBTQ child. Never “out” a child in open court—use judge’s chambers if disclosure is necessary. With all clients, if your client’s concerns conflict with your ability to diligently and competently represent them, you’ll need to have a conversation about the right path forward together.

Be an Ally in the Community

Support LGBTQ organizations in your community, and learn about the LGBTQ experience. AAJ’s LGBT Caucus is open to anyone who is LGBTQ or an ally and is a great place to start your learning.⁷ In addition, your local community most likely has LGBTQ organizations that you can reach out to for volunteer opportunities, or even just to call and ask questions.⁸ The more you know about how being LGBTQ impacts lives daily, the more you will be able to connect with and understand your clients—and make appropriate decisions in your legal strategy. For instance, in the earlier example about not including a same-gender spouse as a plaintiff, the legal team could only make that determination after analyzing the best tactic for the LGBTQ client.

Your LGBTQ clients expect and deserve the same competent representation as any other client. They also expect and deserve attorneys who will take the time to learn what their concerns are, honor their identities, work to keep them safe, and strive to have firms that are nonjudgmental and accept everyone.⁹

Amy Heins is an attorney at Monge & Associates in Charleston, S.C., and can be reached at AmyH@monge.lawyer.

Notes

1. Dakin Andone, Colorado Springs Suspect Formally Charged With 305 Counts in Club Q Shooting, CNN, Dec. 6, 2022, https://www.cnn.com/2022/12/06/us/club-q-shooting-suspect-charges/index.html.
2. For further information, visit Human Rights Campaign, Glossary of Terms, https://www.hrc.org/resources/glossary-of-terms. As a starting point, the term “gay” refers to those who are “attracted to members of the same gender,” “lesbian” refers to “a woman who is . . . attracted to other women,” and “bisexual” refers to those “attracted to more than one sex, gender or gender identity.” “Transgender” refers to those “whose gender identity and/or expression is different from cultural expectations based on the sex they were assigned at birth.” “Queer” is used to “express a spectrum of identities and orientations that are counter to the mainstream.” Id.
3. Juliette Rocheleau, A Former Slur Is Reclaimed, and Listeners Have Mixed Feelings, NPR, Aug. 21, 2019, https://tinyurl.com/5bf2ptw6.
4. For more on fostering diversity at your firm, see Karine Joy (KJ) Williams, The Building Blocks of Equality & Equity, Trial, Jan. 2021, at 40.
5. For more on uncovering potential jurors’ biases about LGBTQ people, see Stephen Skinner, Don’t Be Blindsided by LGBTQ Bias, Trial, Jan. 2021, at 50.
6. For more, see id.
7. For more information on AAJ’s LGBT Caucus, visit www.justice.org/community/caucuses/lgbt-caucus.
8. For example, AAJ member Ben Cooper supports the LGBTQ community in Ohio by volunteering at a name change clinic. See Maureen Leddy, An Impact, One Form at a Time, Trial, Aug. 2021, at 60.
9. The author thanks Michael Whitsitt of Monge & Associates in Charleston, S.C., and Matt Adair of Miller Weisbrod Olesky in Dallas for their contributions to this article.