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I am believed to be the only trans barrister from a Black, Asian or other ethnic minority group in this country. As a family practitioner, I have seen and acted in many cases where transgender individuals come before the court in relation to their children, within financial remedy proceedings, or as children before the court themselves. Sometimes, they are applying for non-molestation orders or are defending themselves in respect of the same.
In all these cases, a common theme which emerges is that lawyers, witnesses, court staff and judges can struggle to know how to properly address trans people and, at times, ‘walk on eggshells’ to try to do right by them. In writing this article I hope to help fellow practitioners to properly, effectively and comfortably represent and interact with trans people throughout the justice system.
The first major hurdle is the issue of terminology. No one wants to be on the wrong side of this. Here is a basic overview of terminology most frequently arising in family cases. It is not an exhaustive list and not necessarily applicable to all practice areas, but should be a helpful starting point.
First, ‘sex’ refers to a biological characteristic while ‘gender’ refers to social or cultural presentation. A trans person’s identity will most likely refer to their ‘gender’ and that should be the focus of discussions. Remember, trans people deserve the courtesy and validation of their recognised identity.
Secondly, ‘trans’ is an umbrella term – it is typically used to refer to those on the trans spectrum (yes, there is a spectrum). This includes not only those whose gender identity does not correspond to their gender assigned at birth, but also those who identify with the opposite gender and those whose identity is not entirely consistent with (but may contain elements of) the one assigned at birth. To that end, you may come across trans women, trans men, those who identify as non-binary, agender, gender fluid, queer, etc. ‘Trans’ can cover this entire spectrum. Please note that ‘transsexual’ is considered an outdated – and offensive – term. The Equality Act 2010 refers to ‘transexuals’ and I would urge against using this term; we have very much moved on in that respect.
Please also note that not everyone will want to be viewed or referred to as ‘trans’. For instance, those who transitioned at a very young age have ‘passing privilege’ (ie they look, sound and present as their acquired gender without anyone knowing otherwise unless informed) and so they identify simply as a woman or a man. Within that community, some will not want anyone to know that they are trans at all. You may hear the term ‘stealth’ used to refer to such persons.
A further issue to note is that ‘transitioning’ is part of a social process. A trans person may, in fact, have undergone no medical process or procedure. It is about how they identify, not about their medical history.
To enable one to effectively represent trans persons, it is prudent to have some understanding of the issues they face. Trans people can experience social isolation, social stigma, transphobia, violence, discrimination and harassment. The Women and Equalities Select Committee published a report in 2016 which noted the following:
‘Fairness and equality are basic British values… A litmus test for any society that upholds the principles of fairness and equality is the extent to which it supports and protects the rights and interests of every citizen, even the most marginalised groups. While Britain has been among the countries that have gone furthest in recognising lesbian, gay and bisexual rights, our society is still failing this test in respect of trans people, despite welcome progress in recent years.’ (emphasis added)
Given their lived experiences, trans people may have issues around self-esteem and their ability to: work with others in a constructive way if they feel that they are facing some form of discrimination (used here to refer to all of the above adverse issues); challenge others (including lawyers, court staff and judges); and speak up and properly engage with difficult issues. A lifetime of being ‘put down’ can seriously impact on performance in a scary and complex arena – court proceedings.
Therefore, relevant considerations here are:
Judges (and practitioners) have access to the Equal Treatment Bench Book which provides useful guidance on this issue (February 2021 edition, revised in July 2022). I would refer anyone wishing to approach matters in the correct manner to this guidance – in particular, s 12 which deals specifically with trans people. This extract provides a useful starting point:
‘ [E]veryone is entitled to respect for their gender identity, private life and personal dignity. In the case of a trans person, it is a matter of common courtesy to use the personal pronoun and name that they prefer.’
For a trans person, what cannot be overstated is the burden of recognising who you truly are (having been pigeonholed into a category based on your genitalia at birth) and building the strength and confidence to ‘come out’ as your authentic self to those whose opinions you value most and whose rejection would be devastating to you (family, friends, employers/colleagues, etc). Should/when a trans person manage(s) to find the strength to go through this process and live their real lives, they will then spend years trying to conform to social norms around their identity – whether through legally changing their name, using (and most times emphasising to others) their pronouns, and/or undergoing medical procedures including highly invasive and risky surgeries. When they are then misgendered (ie referred to as the wrong gender through incorrect pronouns or titles) or are ‘deadnamed’ (ie referred to by the name given at birth rather than their chosen name), they can feel invalidated, undermined, and their self-esteem can be attacked or even shattered (through repeated episodes).
It is therefore incumbent on practitioners and judges to ensure that there is proper recognition of trans people by their chosen names and pronouns. It is also important to guard against attempts in litigation to purposely use this to attack/place pressure on the person – eg the other side misgendering or deadnaming to undermine that person. In family proceedings, where tempers can be high and acrimony between the parties is not uncommon, this may well come into play. Be alive to it. Where there is no legal necessity to misgender/deadname, and where the person repeatedly does so (and it can no longer be said to be an innocent mistake), be ready to stand up against this.
My own approach is to ensure that everyone, including the judge, is aware of the ‘rules’ (I use this term informally and loosely) at the start of proceedings. Should a trans person’s name be legally changed, very rarely will it be necessary to refer to that person by any other name both orally and in court documents (including court orders and judgments). Where a person has not legally changed their name, I usually include a short recital on the first order to indicate the person’s legal name but that they prefer to be referred to as ‘X’ and then all subsequent documents may refer to the person as ‘X’. Remember that there is no legal reason why someone cannot be referred to by their chosen title – Mr, Miss etc. Trans people do not need to prove, legally or otherwise, that they can be referred to by any specific title or pronoun that they choose.
Linked to this issue, practitioners should be alive to issues of privacy. While some trans people are very open about being trans, not all are. I hope it will be obvious from the above as to why some trans people may not wish for the public or their family to be aware of their identity. Risks relating to stigma, safety, wellbeing and rejection remain very real for trans people even in 2023.
In the realm of family law, Sir James Munby (then President of the Family Division of the High Court) issued this statement in 2014:
‘The facts of the individual cases in which the disclosure question will arise are likely to vary widely. In some instances it will be relevant to the issues to know that an individual has a transgender history. In others it will be entirely irrelevant. Disclosure should not [be] permitted in those cases where it is unnecessary and irrelevant to the issues. There is a need for judges to be aware of and astute to the issues.’
In family proceedings, the issue of a parent being trans may be an important part of the case (eg if applications for contact are being blocked as a result of this). However, there may well be cases where this is not relevant or where the person does not wish for others to know of their identity. I have come across this scenario with Gillick competent trans young persons who may not wish for an estranged parent to be aware of their chosen identity. Be alive to the competing interests that may arise and be prepared to champion the cause. Remember, adverse outcomes can cause extreme psychological distress, place the person in danger or result in ostracization.
The Bench Book guidance on this issue is particularly helpful:
‘A person’s gender at birth or their transgender history should not be disclosed unless it is necessary and relevant to the particular legal proceedings.
‘Where a person has applied for, or obtained a Gender Recognition Certificate, s 22 of the Gender Recognition Act 2004 (‘GRA’) makes it an offence for someone who has obtained ‘protected information’ in an official capacity to disclose that information to any other person. Protected information is information about a person’s application for legal recognition of their ‘acquired gender’ (as gender identity is referred to in the GRA) or, if they have legal recognition, their transgender history. There are a number of exceptions to s 22, one of which, s 22(4)(e), is that it is not an offence to disclose protected information if the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal. This affords judicial protection. However, there also appears to be a policy intention behind s 22, ie that disclosure is permissible only if made for the purpose of court proceedings. That is to say, only where it is relevant to the fundamental purpose of the proceedings themselves.’
In particular, I would encourage practitioners to be alive to the issue of privacy as the President’s transparency project comes into effect within family proceedings. Given the risks to trans people, there may be a need for reporting restrictions. It will be worth ensuring that this is identified in any case where the media may attend. Some cases may be suitable for the media to attend while others, particularly those involving trans individuals who need their identity to be kept private, may not. Practitioners would do service to their trans clients/witnesses by being alert to this issue.
In proceedings relating to and/or involving trans youths (under 18s), practitioners should be very aware of the heavy impact of (a) navigating their identity at such a young age and (b) feelings of rejection and invalidation that can come from relatives and those referencing them in court proceedings not properly recognising who they are. Remember that trans youths are at a much greater risk of suicide, with a recent study from the Canadian Medical Association Journal identifying that trans teens are 7.6 times more likely to attempt suicide when compared to their cisgender peers.
I have come across cases where barristers repeatedly refer to trans girls as ‘he’ or where judges give ex tempore judgments which involve the use of the wrong pronoun/name. This is then on the record for these minors in formal proceedings. Similarly, in care proceedings and where plans of adoption are proposed, child permanence reports (CPRs) misgendering/deadnaming children needs to be considered. For instance, a child who is then adopted and later receives this report may not know that they have an older sister because their CPR refers to a ‘brother’ throughout. From an early stage, every effort should be made to identify and remedy these issues – even if it will involve challenging your own clients, judges or professional witnesses (social workers, experts, guardians, etc).
While it is a matter of law that trans people should be protected, please also remember – above all else – to be kind. Sometimes kindness is all that you can offer and, a lot of the time, that is all that is needed.
‘[E]veryone is entitled to respect for their gender identity, private life and personal dignity. In the case of a trans person, it is a matter of common courtesy to use the personal pronoun and name that they prefer.’ Equal Treatment Bench Book 2022, s 12
This is an abridged version of an article that first appeared in Family Law.
Reagan Persaud is a barrister at Spire Barristers. She practises exclusively in children law and has been recognised in the Legal 500 for a number of years, most recently as a ‘force to be reckoned with’. She has a particular interest in cases involving trans children and regularly delivers training to professionals about how to safeguard the interests of trans children. She is considered a leader in the field of child protection when it involves trans-related issues.
I am believed to be the only trans barrister from a Black, Asian or other ethnic minority group in this country. As a family practitioner, I have seen and acted in many cases where transgender individuals come before the court in relation to their children, within financial remedy proceedings, or as children before the court themselves. Sometimes, they are applying for non-molestation orders or are defending themselves in respect of the same.
In all these cases, a common theme which emerges is that lawyers, witnesses, court staff and judges can struggle to know how to properly address trans people and, at times, ‘walk on eggshells’ to try to do right by them. In writing this article I hope to help fellow practitioners to properly, effectively and comfortably represent and interact with trans people throughout the justice system.
The first major hurdle is the issue of terminology. No one wants to be on the wrong side of this. Here is a basic overview of terminology most frequently arising in family cases. It is not an exhaustive list and not necessarily applicable to all practice areas, but should be a helpful starting point.
First, ‘sex’ refers to a biological characteristic while ‘gender’ refers to social or cultural presentation. A trans person’s identity will most likely refer to their ‘gender’ and that should be the focus of discussions. Remember, trans people deserve the courtesy and validation of their recognised identity.
Secondly, ‘trans’ is an umbrella term – it is typically used to refer to those on the trans spectrum (yes, there is a spectrum). This includes not only those whose gender identity does not correspond to their gender assigned at birth, but also those who identify with the opposite gender and those whose identity is not entirely consistent with (but may contain elements of) the one assigned at birth. To that end, you may come across trans women, trans men, those who identify as non-binary, agender, gender fluid, queer, etc. ‘Trans’ can cover this entire spectrum. Please note that ‘transsexual’ is considered an outdated – and offensive – term. The Equality Act 2010 refers to ‘transexuals’ and I would urge against using this term; we have very much moved on in that respect.
Please also note that not everyone will want to be viewed or referred to as ‘trans’. For instance, those who transitioned at a very young age have ‘passing privilege’ (ie they look, sound and present as their acquired gender without anyone knowing otherwise unless informed) and so they identify simply as a woman or a man. Within that community, some will not want anyone to know that they are trans at all. You may hear the term ‘stealth’ used to refer to such persons.
A further issue to note is that ‘transitioning’ is part of a social process. A trans person may, in fact, have undergone no medical process or procedure. It is about how they identify, not about their medical history.
To enable one to effectively represent trans persons, it is prudent to have some understanding of the issues they face. Trans people can experience social isolation, social stigma, transphobia, violence, discrimination and harassment. The Women and Equalities Select Committee published a report in 2016 which noted the following:
‘Fairness and equality are basic British values… A litmus test for any society that upholds the principles of fairness and equality is the extent to which it supports and protects the rights and interests of every citizen, even the most marginalised groups. While Britain has been among the countries that have gone furthest in recognising lesbian, gay and bisexual rights, our society is still failing this test in respect of trans people, despite welcome progress in recent years.’ (emphasis added)
Given their lived experiences, trans people may have issues around self-esteem and their ability to: work with others in a constructive way if they feel that they are facing some form of discrimination (used here to refer to all of the above adverse issues); challenge others (including lawyers, court staff and judges); and speak up and properly engage with difficult issues. A lifetime of being ‘put down’ can seriously impact on performance in a scary and complex arena – court proceedings.
Therefore, relevant considerations here are:
Judges (and practitioners) have access to the Equal Treatment Bench Book which provides useful guidance on this issue (February 2021 edition, revised in July 2022). I would refer anyone wishing to approach matters in the correct manner to this guidance – in particular, s 12 which deals specifically with trans people. This extract provides a useful starting point:
‘ [E]veryone is entitled to respect for their gender identity, private life and personal dignity. In the case of a trans person, it is a matter of common courtesy to use the personal pronoun and name that they prefer.’
For a trans person, what cannot be overstated is the burden of recognising who you truly are (having been pigeonholed into a category based on your genitalia at birth) and building the strength and confidence to ‘come out’ as your authentic self to those whose opinions you value most and whose rejection would be devastating to you (family, friends, employers/colleagues, etc). Should/when a trans person manage(s) to find the strength to go through this process and live their real lives, they will then spend years trying to conform to social norms around their identity – whether through legally changing their name, using (and most times emphasising to others) their pronouns, and/or undergoing medical procedures including highly invasive and risky surgeries. When they are then misgendered (ie referred to as the wrong gender through incorrect pronouns or titles) or are ‘deadnamed’ (ie referred to by the name given at birth rather than their chosen name), they can feel invalidated, undermined, and their self-esteem can be attacked or even shattered (through repeated episodes).
It is therefore incumbent on practitioners and judges to ensure that there is proper recognition of trans people by their chosen names and pronouns. It is also important to guard against attempts in litigation to purposely use this to attack/place pressure on the person – eg the other side misgendering or deadnaming to undermine that person. In family proceedings, where tempers can be high and acrimony between the parties is not uncommon, this may well come into play. Be alive to it. Where there is no legal necessity to misgender/deadname, and where the person repeatedly does so (and it can no longer be said to be an innocent mistake), be ready to stand up against this.
My own approach is to ensure that everyone, including the judge, is aware of the ‘rules’ (I use this term informally and loosely) at the start of proceedings. Should a trans person’s name be legally changed, very rarely will it be necessary to refer to that person by any other name both orally and in court documents (including court orders and judgments). Where a person has not legally changed their name, I usually include a short recital on the first order to indicate the person’s legal name but that they prefer to be referred to as ‘X’ and then all subsequent documents may refer to the person as ‘X’. Remember that there is no legal reason why someone cannot be referred to by their chosen title – Mr, Miss etc. Trans people do not need to prove, legally or otherwise, that they can be referred to by any specific title or pronoun that they choose.
Linked to this issue, practitioners should be alive to issues of privacy. While some trans people are very open about being trans, not all are. I hope it will be obvious from the above as to why some trans people may not wish for the public or their family to be aware of their identity. Risks relating to stigma, safety, wellbeing and rejection remain very real for trans people even in 2023.
In the realm of family law, Sir James Munby (then President of the Family Division of the High Court) issued this statement in 2014:
‘The facts of the individual cases in which the disclosure question will arise are likely to vary widely. In some instances it will be relevant to the issues to know that an individual has a transgender history. In others it will be entirely irrelevant. Disclosure should not [be] permitted in those cases where it is unnecessary and irrelevant to the issues. There is a need for judges to be aware of and astute to the issues.’
In family proceedings, the issue of a parent being trans may be an important part of the case (eg if applications for contact are being blocked as a result of this). However, there may well be cases where this is not relevant or where the person does not wish for others to know of their identity. I have come across this scenario with Gillick competent trans young persons who may not wish for an estranged parent to be aware of their chosen identity. Be alive to the competing interests that may arise and be prepared to champion the cause. Remember, adverse outcomes can cause extreme psychological distress, place the person in danger or result in ostracization.
The Bench Book guidance on this issue is particularly helpful:
‘A person’s gender at birth or their transgender history should not be disclosed unless it is necessary and relevant to the particular legal proceedings.
‘Where a person has applied for, or obtained a Gender Recognition Certificate, s 22 of the Gender Recognition Act 2004 (‘GRA’) makes it an offence for someone who has obtained ‘protected information’ in an official capacity to disclose that information to any other person. Protected information is information about a person’s application for legal recognition of their ‘acquired gender’ (as gender identity is referred to in the GRA) or, if they have legal recognition, their transgender history. There are a number of exceptions to s 22, one of which, s 22(4)(e), is that it is not an offence to disclose protected information if the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal. This affords judicial protection. However, there also appears to be a policy intention behind s 22, ie that disclosure is permissible only if made for the purpose of court proceedings. That is to say, only where it is relevant to the fundamental purpose of the proceedings themselves.’
In particular, I would encourage practitioners to be alive to the issue of privacy as the President’s transparency project comes into effect within family proceedings. Given the risks to trans people, there may be a need for reporting restrictions. It will be worth ensuring that this is identified in any case where the media may attend. Some cases may be suitable for the media to attend while others, particularly those involving trans individuals who need their identity to be kept private, may not. Practitioners would do service to their trans clients/witnesses by being alert to this issue.
In proceedings relating to and/or involving trans youths (under 18s), practitioners should be very aware of the heavy impact of (a) navigating their identity at such a young age and (b) feelings of rejection and invalidation that can come from relatives and those referencing them in court proceedings not properly recognising who they are. Remember that trans youths are at a much greater risk of suicide, with a recent study from the Canadian Medical Association Journal identifying that trans teens are 7.6 times more likely to attempt suicide when compared to their cisgender peers.
I have come across cases where barristers repeatedly refer to trans girls as ‘he’ or where judges give ex tempore judgments which involve the use of the wrong pronoun/name. This is then on the record for these minors in formal proceedings. Similarly, in care proceedings and where plans of adoption are proposed, child permanence reports (CPRs) misgendering/deadnaming children needs to be considered. For instance, a child who is then adopted and later receives this report may not know that they have an older sister because their CPR refers to a ‘brother’ throughout. From an early stage, every effort should be made to identify and remedy these issues – even if it will involve challenging your own clients, judges or professional witnesses (social workers, experts, guardians, etc).
While it is a matter of law that trans people should be protected, please also remember – above all else – to be kind. Sometimes kindness is all that you can offer and, a lot of the time, that is all that is needed.
‘[E]veryone is entitled to respect for their gender identity, private life and personal dignity. In the case of a trans person, it is a matter of common courtesy to use the personal pronoun and name that they prefer.’ Equal Treatment Bench Book 2022, s 12
This is an abridged version of an article that first appeared in Family Law.
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