Skip to main content

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann. Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?"

I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “Who am I?” in the most basic form because most of us don't ask two simple questions:

My Preferred Name or Nickname is: _________________

My Pronouns are: _________________

     Who am I?

Before continuing, I want to acknowledge that I may not be the best person to write this article because I have not personally experienced any societal pressure regarding how I self-identity. I was assigned male at birth (AMAB) and identify as male (this is referred to as cis-gender). I am also white living in a predominately white town, county, state, and country. I am heterosexual. I am tall, broad-shouldered, and I have a deep voice. All of these things mean that when someone sees me in my community many of the assumptions they make about me are probably correct without my having to say anything about how I identify.

This is privilege because I am acknowledged and respected for how I identify myself, without ever having to explain it or feel excluded. It is privilege because it is not a benefit that everyone enjoys. I get to define myself and my hope is that you, the reader, will see that everyone should have the same right to define themselves without having to explain it or feel excluded.

Although I may not be the best person to write this post, I believe it is also important for allies to share their support and to acknowledge that while my voice comes from a place of privilege, it is also my responsibility to use that privilege to support those denied the same voice. In doing so, though, I'm going to rely heavily on the resources and assistance of others who speak from personal experience.

     Educate Yourself

In the past, I made assumptions about how I to refer to clients, and what pronouns they use. I am guilty of asking my clients only for a full legal name. If I asked a client what name to use, it was often a lawyer-like leading question: "I prefer to use first names, is that okay with you?" I never asked about pronouns. This is partly because I hadn't had enough education about the many ways in which people might self-identify, but primarily because of the silent but present privilege inherent in my own identity.  I didn't think it was important because it wasn't important to me.

I can honestly say, in my lifetime, no one has asked me what my pronouns are and have always assumed my pronouns are he/him. As I explained above, this has never been a problem for me because those are the pronouns that reflect my cis-gender identity. I had to educate myself about the question “Who am I?” to realize the frustration I may be unintentionally causing my clients. Luckily, we live in an era where resources are available and plentiful to educate oneself about the complicated nature of identity. 

I took a course offered by Massachusetts Continuing Legal Education on Transgender Persons & the Law (that program is still available as a webcast here) and I recommend it. You can also find resources online or from your local LGBTQ+ groups.  One site that has particularly helpful resources is the Trans Student Educational Resources site, including a visual breakdown of the differences between gender identity, gender expression, and sexual orientation, the Gender Unicorn.

Graphic by TSER, click for more info.
As a visual learner, I found this resource particularly helpful.  They have also provided a table describing some of the most common gender pronouns, and an explanation of their use:

Graphic by TSER

     Why ask about Pronouns?

To show respect for our clients and each other, we should be asking, not assuming, "Who are you?" To those of us who do not have the burden of explaining why we identify as we do, it may seem as if correct pronoun use is not a huge deal. However, for those who find themselves misgendered and with the need to explain who they are at a fundamental level day after day, the need to explain and educate others can go far beyond being annoying to exhausting and even trauma inducing.

At the MCLE program I attended, one of the panelists made a very simple point: what does it cost you to provide this level of respect to others? Essentially it costs you nothing. The small amount of time it takes to learn about and familiarize yourself with pronoun options is nothing compared to the positive impact it can have on someone who feels accepted and recognized, especially if that is not a common occurrence for that person.

Particularly for lawyers and mediators, the importance of having our clients feel heard is paramount to an effective client relationship. Below are links to a few articles discussing the effects of misgendering, and how asking about pronouns can affect a person’s mindset and health:

Health Line: What Does It Mean to Misgender Someone?

The Aragon Outlook: The Power of Pronouns: How misgendering can affect student health

The Undeniable Ruth: Which Pronouns do you Prefer?

     Next Steps

Hopefully at this point you agree about the importance of allowing everyone to self-identify. So, what can you do to help?

Ask the Question

When we know better, we can do better. What does that mean for our clients with respect to pronoun use and gender? It’s really simple: stop making assumptions and ask a question right up front. Lawyers and mediators should add a line to intake and scheduling forms so that clients can answer the pronoun question, without feeling the need to educate or explain how they identify.

Be thoughtful about the way you ask the question. While some people state that they “prefer” certain pronouns, others find the idea that it is a “preference” offensive because we never refer to cis-gender individuals as “preferring” their gender, it just is who they are. On an intake avoid asking what they prefer, and ask simply “What pronouns do you use?” or “My pronouns are:_________.”

In conversation, start with an introduction “I’m Justin Kelsey, my pronouns are he/him.” This invites the question possibly without even having to ask it by demonstrating first that you are open to the other person identifying their pronouns as well.This can be done when communicating electronically as well.  You can set a tone of open acceptance by proactively identifying yourself even if it is not something you have historically felt the need to do. Lawyers and Mediators should be including this information in their e-mail signatures. Below is a sample:

Peace 
Justin L. Kelsey, Esq.  
he/him

Collaborative Divorce  |  Mediation



  T:    508.655.5980

  E:    jkelsey@skylarklaw.com

  in  Linkedin  

   t:    @skylarklaw

  

You may also want to consider adding pronouns to your social media profiles. These are easy steps that demonstrate to our clients (and our colleagues) that we have a basic understanding of the need to be correctly identified through correct pronoun use in personal interactions.

Listen to the Answer

Once you know someone’s pronouns, use their pronouns without judgment and without questioning. If you have questions, remember that it’s not their job to educate you about the concept of gender identity.  Consider reviewing the resources we’ve provided above instead of asking questions of someone who may already be exhausted or traumatized from being misgendered during their lifetime (for more information watch this video on Thing Not to Say to a Non-Binary Person) This is especially true when you have not established a relationship that includes trust and understanding.

If and when you engage in a dialog with someone about gender, LISTEN first. If you feel like you want to ask questions, always ask yourself if your question could cause additional trauma and if it’s something you could educate yourself on later without placing the burden on your client.

We all make mistakes as well. When using pronouns that may be different than you’re used to it may be uncomfortable at first. Just remember how uncomfortable it must be for the person who is misgendered throughout their life, and if you make a mistake, simply apologize.

Finally, Get Political

It is important to think about the big picture here and to be supportive at a political level too. Ruth Carter, a non-binary lawyer, author, and speaker, kindly agreed to assist me in reviewing this article and has written a helpful piece about the need for non-binary gender recognition on government IDs.

Here in Massachusetts, there is a chance to vote on transgender rights on November 6th. The ballot Question #3 asks MA voters to essentially affirm a law already passed by the legislature that would prohibit discrimination in public accommodations based on gender identity, further described here.

If you are a MA resident, we encourage you to vote YES on Question #3, and to spread these educational resources about identity so others, especially those in privilege, can better understand the complicated nature of identity and how easy it is to show respect for another person’s identity simply by having an open and curious mind, which is the most important tool a lawyer and mediator has to offer.

UPDATE: Question 3 passed with almost 70% of the votes, a resounding affirmation that Massachusetts residents support transgender rights and protections and refuse to stand for discrimination based on gender identity.  While this is a positive sign, the law itself does not prevent people from being discriminated against.  In order to continue to do better, we must insist on enforcement of the law, seek out and share educational resources about gender identity, and continue to work together towards better understanding of each other.  The success of question 3 is a step in the right direction, now let's keep asking the right questions.

Thank you to Ruth Carter, Jennifer Hawthorne, and Rackham Karlsson for their assistance in editing and reviewing this article.

Comments

  1. Justin, Thank you for this article and for always raising awareness in a thoughtful and helpful way. I frequently ask my clients, "How can I help you? What are your goals?" and now, I will add (slightly modified) "Tell me more about who you are and who you want to be after the divorce?"

    ReplyDelete
  2. Wow, Justin! What a well written and on the mark article. As a privileged white cis woman and LGBT Allie, thank you. It is almost daily that I encounter someone who is trying to understand another’s pronouns or that pronouns are important. It is almost weekly that I have the privilege to hear of a person’s own, or a loved one’s, gender transition. I’m proud to be a psychotherapist and Family Mediator living and practicing in Massachusetts.

    ReplyDelete

Post a Comment

Popular posts from this blog

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an