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New York courts consider policy to stop judges from discriminating against trans people

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The New York state court system is considering an amendment that would add gender identity and gender expression to the court’s nondiscrimination policies. Nondiscrimination policies for judges, lawyers, court officers, and others in the court system already include sexual orientation, but the co-chairs of the Richard C. Failla LGBTQ Commission of the New York Courts, appeals Justices Elizabeth Garry and Marcy Kahn, said the current policy is not inclusive enough, according to the New York Law Journal.

Kahn told the Journal that it would be one of the very first nondiscrimination policies of its kind in the nation’s court systems.

“A person’s gender expression or gender identity is very different than their sexual orientation… In order to make sure we don’t act based on stereotypes or prejudices, or inferior ideas about who a person is, we need to expand the reach of our policies,” Kahn told the publication.

The comment period for the amendment will end on Jan. 22, 2018.

Dru Levasseur, director of the transgender rights project for Lambda Legal, said that it is indeed one of the first policies of its kind. Pennsylvania’s judicial system includes gender identity and expression, but other states have not caught up yet.

“It’s important and necessary step and I think it’s wonderful to New York taking these steps forward,” Levasseur said. “The trend toward courts incorporating such inclusive language is incredibly important, particularly because the number of calls we receive at Lambda Legal each year for people who experience discrimination when accessing the judicial system.”

Transgender people experience all kinds of degrading treatment, such as judges denying them their name changes, citing the Bible as they do so, or proposing they choose gender-neutral names if they were to receive a name change.

In 2016, a Georgia judge, J David Roper, told a transgender man that he could change his name to Rowan because it was sufficiently gender-neutral to him, but that he couldn’t allow the middle name, Elijah.

“I will allow a gender-neutral name change that will benefit the general public because I don’t want them to have to go through the embarrassing issue of trying to figure out what to do with you when you present, in your appearance today, with a female name, particularly if you had on a uniform and you were dressed like a man,” Roper said.

This year, the Georgia Court of Appeals unanimously overruled the judge’s ruling.

According to Lambda Legal’s analysis of bias in courts, anonymous surveys that have been conducted by judicial commissions and bar associations to look at prejudices against gay and lesbian people (they did not look at gender identity, race, and class), found that the majority of gay and lesbian litigants had observed a “hostile and threatening” environment. A 2013 document produced by staff at the Legal Aid Society and Sylvia Rivera Law Project for the New York Judicial Institute instructs judges and justices on proper treatment of transgender litigants. It suggests judges and justices ask themselves if a question is necessary for the proceeding or conversation and avoid questions specific to their experiences as a trans person unless the person shows a willingness to talk about it and to consider the unique impact of a decision on trans people, such as the impact of common jail practices.

According to Levasseur, transgender people commonly experience discrimination such as the use of the wrong pronouns, mentioning someone’s being transgender where it was not relevant to the case, and telling a trans woman she was not allowed to come back into the courtroom dressed as a woman.

“That was very degrading because the judge didn’t understand that she was a woman and he would never say that to a [cisgender] woman,” Levasseur said. 

This treatment often stops transgender people from accessing their rights and going to court.

“I hear over and over from people that they’re afraid that as a trans person, their dignity will be stripped from them in many different ways, whether it’s remarks in the courtroom or not being addressed or referred to as to who they are or having intimate details about their bodies and inappropriate questions come up during trial. These are things we see in cases, where trans people have their lives and bodies inspected for public display.”

Transgender people are already overrepresented in prisons and jails, particularly transgender women and gender non-conforming people, at 21 percent and 16 percent of adults who reported spending time in jail, according to a May 2016 report from the Movement Advancement Project and Center for American Progress. (Editor’s note: ThinkProgress is an editorially independent news site housed within the Center for American Progress.) Transgender people are already pushed into the criminal justice system because of police profiling, violence from police when seeking assistance, and criminalization of sex work, HIV criminalization laws, the report explains.

The barriers to employment and housing that transgender people experience often result in greater economic insecurity and homelessness, thus transgender people’s participation in underground economies that are monitored by police. Black transgender people had higher rates of unemployment and eviction rates than white transgender people. Black transgender people had a 28 percent unemployment rate compared to 12 percent for white trans people. Fighting both racial discrimination and discrimination as transgender people, trans people of color are particularly vulnerable to police and court mistreatment.

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