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Identify your assumptions in client dealings

Identify your assumptions in client dealings

By Alice Cooney


Daniel Witthaus is the founder and CEO of the National Institute for Challenging Homophobia in Education (NICHE). He has some advice for young lawyers.

Those who identify as lesbian, gay, bisexual, transgender, intersex or queer (LGBTIQ) can find life, let alone the legal system, full of challenges around equality and inclusion. Founder and CEO of the National Institute for Challenging Homophobia in Education (NICHE) Daniel Witthaus has made a commitment to improving the lived experience of all those who identify with the acronym, and he offers some tips for young lawyers.

The Victorian government has taken steps in recent years to improve the experience of LGBTIQ people, including the appointment of the first Commissioner for Gender and Sexuality, Rowena Allen in 2015.

Gay and Lesbian Health Victoria advised the Royal Commission into Family Violence that “research indicates that, while Australians’ attitudes to sexual diversity have improved in the last 10 years, still one in eight women and one in four men think sex between two men is 'always wrong', and one in six men and one in eight women think sex between two women is 'always wrong'." (Royal Commission Final Report, 2016)

Is the justice system well equipped to accommodate LGBTIQ people?

"You’ve got this system that is over capacity, under resourced, time poor, very specialised with hardworking people who are good at what they do. The problem is, in that environment, people will generally not be looking for diversity, they need to just get the job done. If it comes up, they will integrate and address it, but otherwise they will focus on just doing their job.

"This makes for another barrier for those trying to access the justice system when they also identify as being outside the mainstream in some way, whether that be sex, sexuality or gender identity.

"Even if people interact with the mainstream, they are highly unlikely to disclose who and what they are. If they do they are under duress and then they are loathe to share the information unless they have to. There is good reason for this reticence considering the collective history of homophobia/transphobia."

Mr Witthaus talks of his work as focusing on engagement with hospitals, government, police, community health workers, teachers. He is confident systemic change to how the justice system recognises, protects and responds to LGBTIQ people can be facilitated, but like any drastic amendment to the status quo, it takes time.

I am already an LGBTIQ ally – what more should I be doing?

"I think the good news is there is a whole bunch of people who are well meaning, well intentioned, motivated and on side but they are so scared of offending someone. Over two decades of interviewing LGBTIQ people about their lives and their interaction with the mainstream, they aren’t asking for much. You don’t have to be a content expert, but like anyone who is wanting to access an imperfect mainstream structure, they want to know they can be in a pretty good conversation with you. You should demonstrate that you are on their side, and that you are open to their experience.

"People can be alienated by thinking what does LGBTIQ have to do with me, and my job and my work place? Why are we spending time on this when we are over capacity and under resourced? There are so many different issues, but I don’t have the time. However, what we’ve found is clear: if you make things better for LGBTIQ people, you make things better for everybody." Openness, experience and collaborative learning will reap benefits for everyone.

Lawyers are trained to consider the overall picture and then identify the main issues in a situation – this requires assumptions and presumptive reasoning.

Mr Witthaus notes there are times when the way a person identifies will not be relevant, but “every single one of us knows that the more information we have, the better we can do our job and the more effectively we can work with clients. You don’t need to know everything, but this could be in some cases a very useful piece of the puzzle . . . if you can ask questions that allow people to give that information then they can have the choice to do that, which is very empowering.”

What are your top tips for young lawyers working with those who identify as LGBTIQ?

1. Any chance you get to hear about the lived experience of an LGBTIQ person – take it. Encourage people to talk with you – it’s not enough to have a gay best friend. Being open to the experience of another group of people is more than just talking to one person about their life, particularly where they may have felt supported by you as their friend. This is the first step to recognising where the access and inclusion issues might lie in your practice and improving them.

2. Do your best not to assume automatically that a person is heterosexual and cisgender (the opposite of transgender, for example, born male, identifies as male). You can ask people, what are your pronouns and what is your preferred name? You can also be open to the fact that people might not identify with any gender or could be in the process of transitioning. If you must know (for data collection purposes for example) whether they identify as male or female, explain why you need this information – if you don’t need it there may be no need to respond.

3. Type LGBTIQ and your part of the legal profession into a search engine and see what comes up. There is some research so find out what is out there and find out the gaps. Then work towards improving those resources.

4. Consider the language you and those around you use. Just as we would encourage people to be mindful of sexist comments – don’t leave it unchecked or unnamed. You don’t have to be an LGBTIQ warrior, although I encourage everyone to give it a go – change the conversations with the people around you.

5. Rainbow is a sign of hope for lots of people – lots of members of the profession are wearing the rainbow lanyard, which is a really good starting point, but then it’s how you back it up. Overwhelmingly there are positive experiences, but in the meantime, it can be clunky and awkward. With minimal investment, you can change someone’s life. The Victorian Equal Opportunity and Human Rights Commission states it clearly that “we are not all the same, but we are all equal”.

ALICE COONEY is a solicitor at the Office of Public Prosecutions and YL Editorial Committee chair.

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