February 24, 2025

Navigating Transgender Legal Issues: Insights from the Virginia State Bar Annual Meeting

At a recent panel discussion during the 2024 Virginia State Bar Annual Meeting, legal experts convened to address the complex and evolving landscape of transgender legal issues. The panel—featuring Sasha Buchert from Lambda Legal, Brian Goodman from Fairfax County Commonwealth Attorney's Office, and Craig Konnoth from the University of Virginia School of Law—provided valuable insights for attorneys seeking to better serve transgender clients and navigate related legal challenges.

Understanding Terminology and Respect

Buchert opened the discussion by emphasizing the importance of understanding terminology. She distinguished between sexual orientation (romantic attachments) and gender identity (one's internal sense of gender), as well as gender expression (how one presents themselves through mannerisms, dress, or grooming). Buchert stressed the significance of using correct language, noting that outdated or inappropriate terms can alienate clients.

Key points included:

  • Use "transgender" as an adjective, not a noun (e.g., "a person who is transgender" rather than "a transgender").
  • Prefer "trans man" or "trans woman" over outdated terms like "MTF" or "FTM."
  • Avoid phrases like "biological sex" or "transgendered."
  • Recognize the importance of using correct pronouns.

Buchert also outlined different aspects of transition, including social transition (coming out to family, friends, and colleagues), legal transition (updating identity documents), and medical transition (hormonal therapy and surgeries).

Ethical Considerations in Representation

Goodman addressed ethical considerations when representing transgender clients. He emphasized the paramount importance of confidentiality, citing Rule 1.6 of the Virginia Rules of Professional Conduct, which states that all information gained in professional relationships is confidential if the client wishes it to be so, even if publicly available.

Goodman cautioned against sharing case details on social media without client consent, even if intended to promote one's work. He stressed that clients should control their own narratives, as attorneys may not fully understand what information could be embarrassing or harmful to disclose.

To build trust and ensure client satisfaction, Goodman recommended:

  1. Noting the client's name and pronouns in all legal documents, including a footnote in briefs or a note to the judge at the start of proceedings;
  2. Being mindful when discussing sensitive topics related to anatomy or physiology, only doing so when necessary for legal purposes; and
  3. Apologizing sincerely and promising to do better if mistakes are made.

Legal Challenges and Legislative Trends

Konnoth provided an overview of recent legislative trends affecting transgender rights. He noted a significant increase in anti-trans laws, particularly those targeting sports participation, bathroom access, healthcare, and identity document changes.

While Virginia has seen the introduction of bills related to medical care, sports, and schools, none had passed as of the panel discussion. However, Konnoth highlighted concerning developments in other states, including:

  • Attempts to restrict interstate travel for accessing gender-affirming care,
  • Efforts to criminalize or classify gender-affirming care as medical malpractice,
  • Limitations on mental health care for transgender individuals, and
  • Executive orders limiting healthcare access for transgender adults.

Konnoth contextualized these efforts within a broader agenda by certain activist groups to limit healthcare access for LGBTQ+ individuals and women, noting that some cite the Dobbs decision as a legal basis for their arguments.

Best Practices for Attorneys

Drawing from the panelists' insights, attorneys working with transgender clients should consider the following best practices:

  1. Educate yourself on current terminology and respectful language use.
  2. Prioritize client confidentiality and allow clients to control their own narratives.
  3. Use correct names and pronouns in all legal documents and court proceedings.
  4. Be prepared to address potential discrimination or challenges in various legal contexts, including employment, healthcare, and education.
  5. Stay informed about evolving legislation and legal precedents affecting transgender rights.
  6. Approach sensitive topics with care and only when necessary for legal purposes.
  7. Be willing to apologize and improve if mistakes are made.

Conclusion

As the legal landscape for transgender rights continues to evolve, it is crucial for attorneys to stay informed and approach these issues with sensitivity and respect. By understanding the unique challenges faced by transgender clients and adhering to ethical best practices, lawyers can play a vital role in advancing equality and ensuring fair representation for all.

The panel discussion at the Virginia State Bar Annual Meeting serves as a reminder of the ongoing need for education and advocacy in this area of law. As society's understanding of gender identity progresses, the legal profession must adapt to provide competent and compassionate representation for transgender individuals navigating a complex and often challenging legal system.