Think Immigration: For Pride Month, and Every Month of the Year – Gender Affirming Language in Immigration Court

As nonbinary (and proudly they/them wielding) immigration attorneys, we grapple with a barrage of daily, often invisible questions and calculations that shape our experiences in court. For example, how do we ask the Court to refer to us correctly? What are the consequences (for ourselves and for our clients) of speaking up when we are referred to by the wrong name, pronouns, or honorific? Moreover, how can we be zealous advocates for our gender-expansive clients when we are reticent to even speak up for ourselves? These questions unfairly burden gender-expansive advocates with the responsibility of navigating gender discrimination for ourselves and for our clients, thereby obscuring the most relevant question: how can we - advocates, administrators, attorneys, judges - build a more gender-affirming courtroom together?

To begin answering this question, we (Sarah, L, and Shira) co-authored Gender Affirming Language in Immigration Court - a practice advisory that outlines how gender-expansive identities can be affirmed in court and provides a point of reference for advocates committed to ensuring that people of different gender identities are respected in court. This advisory is a first-of-its-kind supportive tool for gender-expansive practitioners and clients - and for all attorneys looking to create a safe and fair courtroom. It represents the kind of tool the three of us always wanted to have - one that establishes a baseline understanding of gender-expansive cultural humility, recommends gender-affirming practices for court proceedings, and outlines professional conduct requirements for attorneys, interpreters, and judges. The resource includes:

• A primer on gender identity and terminology, the importance of learning and using the right language (both in and out of court), and the relevance of gender-expansive identities in court;
• Detailed discussion of the many ways attorneys and immigration judges can affirm gender interpersonally and through the use of pre-existing court procedures;
• A deep dive into affirming gender in other languages when working with interpreters;
• Potential professional consequences for attorneys and judges who fail to use gender-affirming language; and,
• Recommended changes to EOIR procedures to create gender-affirming courtrooms system-wide.

Best practice pointers interspersed throughout the practice advisory explain why acknowledging and understanding gender expansive identities is vital to a functioning courtroom and examples of how to easily and effectively integrate gender affirmation into daily practice.

This advisory is designed for counsel for noncitizens, attorneys from the Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA), immigration judges, and immigration court interpreters for use in a multitude of ways. For practitioners, this practice advisory can serve as a guide to a new, culturally competent understanding of gender that can be used to improve transparency and build trust with clients, colleagues, and interpreters. In it, we detail how to affirm clients’ identities prior to court, use gender-neutral honorifics, and apologize for any mistakes with example conversations. This practice advisory can also be used as a citation for practitioners advocating for respecting gender-expansive identities in court, including in written filings, captioning and referring to a case, and during hearings. Further, this advisory can be used by professors across disciplines to support students who are appearing in court for the first time. Finally, for court administrators and judges, this practice advisory examines the potential professional consequences for failing to appropriately address gender-expansive individuals in court and provides a framework to begin examining much-needed procedural changes to institutionalize gender-affirming practices in court.

As nonbinary people ourselves, we know that every queer person feels affirmed in a different way, and understandings of gender fluctuate constantly. While this advisory can hardly be expected to capture every nuance, we lean into this complexity with an understanding that everyone is the expert in their own experience. For other gender-expansive advocates, we want to reiterate that your expertise belongs in this space and your voice matters to us. We encourage you (along with other readers and users of the advisory) to submit feedback on ways we can update, improve, and bolster the information in this advisory it to capture even broader ranges of experience. To provide feedback, please email: spitney@benachcollopy.com.  This new resource represents an overdue entry of gender-affirming practices in the courtroom, and we look forward to progressing with you in mind.

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Those looking to learn more can avail themselves of an opportunity for a web training being held on Tuesday, September 6, 2024, at 2:30 pm Eastern U.S. Time: Gender Affirming Language in Immigration Court.

Sarah Pitney
FIRM: Benach Collopy LLP
LOCATION: Washington, District of Columbia USA

L Gagne
ORGANIZATION: Acacia Justice Center
LOCATION: Washington, District of Columbia USA

Shira Hereld
ORGANIZATION: Rocky Mountain Immigration Action Network (RMIAN)
LOCATION: Westminster, CO USA