Our courts must be open to all. LeGaL urges NY to include gender identity in court rules

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By: Brett Figlewski and Katie Hansson

Our courts must be open to all. Discrimination, prejudice, and intolerance threaten the rights and liberties of transgender and gender-nonconforming New Yorkers. They also erode public trust in the fairness and integrity of the courts, undermine the confidence in the legal profession, and create barriers to access for those who may need the courts the most.

That is why LeGaL strongly supports a new proposal to amend various court rules to prohibit discrimination based upon gender identity and gender expression.

LeGaL is one of the nation’s first bar associations of the lesbian, gay, bisexual, and transgender (LGBT) legal community and remains one of the largest and most active organizations of its kind in the country. LeGaL is dedicated to improving the administration of the law, ensuring full equality for members of the LGBT community, promoting the expertise and advancement of LGBT legal professionals, and serving the larger community, including through its Helpline and free walk-in legal clinics, as well through direct representation and impact litigation.

According to a recent national survey, out of the more than 1,000 survey respondents who were in contact with courts:

19% reported hearing a judge, attorney, or other court employee make negative comments about a person’s sexual orientation, gender identity, or gender expression.

53% of transgender and gender non-conforming people of color; and

66% of transgender women reported experiencing these comments while in contact with the court system.

Moreover, the rates of employment discrimination against transgender and gender non-conforming people are alarming in New York State.

Of the New Yorkers who responded to the 2015 U.S. Transgender Survey,

65% reported some form of harassment, mistreatment, or negative employment action because of their gender identity or expression.

37% of the transgender New Yorkers surveyed were living in poverty and 18% were unemployed, which was more than three times the national unemployment rate at the time the survey was conducted.

The addition of gender identity and gender expression to Rule 8.4(g) of New York’s Attorney Rules of Professional Conduct will bring New York in line with the Model Rules of the American Bar Association, which in 2016 amended its Model Rules to include a prohibition of harassment or discrimination on the basis of gender identity by attorneys in the practice of law.

The proposal would also bring the courts into conformity with the New York Code of Rules and Regulations, which prohibits discrimination on the basis of gender identity, and New York State court opinions such as Buffong v. Castle on Hudson, holding New York State Human Rights Law prohibition on sex discrimination includes transgender persons.

The injury inflicted by discrimination within the judicial system is most pernicious because the courthouse is “where the law itself unfolds.” The addition of formal rules requiring equal treatment of transgender and gender nonconforming people is an important step toward reducing discriminatory treatment and increasing public trust in the courts. As such, LeGaL strongly supports the proposal to amend various court rules to prohibit discrimination based upon gender identity and gender expression, and we thank you for considering these comments in furtherance of ensuring equal treatment within the court system.

Brett Figlewski is the Legal Director of LeGaL

Katie Hansson is a legal intern at LeGaL, and student at University of Florida Law

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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