ICTLEP Proceedings III pp 102-106


by Phyllis Randolph Frye:

Ken, that was just absolutely terrific. I'll tell you what Ken has just given you if you get the third Proceedings. He's given you a real checkoff list. When you go back home and you get involved in the gay, lesbian, bisexual, transgender community political groups, and you're getting on their screening committees when they screen judges or legislators or other people that are running for elective office, you now have a checklist of standards and of ethical considerations to quiz these people on. He did a wonderful job of taking about two-thirds of my speech.

When I talk to lawyers about the wonderful things and the very truthful things and the very honest and vital things that he's just explained, a lot of lawyers say, "But when I'm in the trial, when I'm in the courtroom, how do I do this? Does this really work?" So as I talk for just a few more minutes, I'm not going to just talk to lawyers. I'm going to talk to those of you who are not lawyers but are consumers of legal services. Because you need to hold your attorney, that you're giving green money to, to the same standard. And if your attorney, that you're giving green money to, won't abide by that standard, then you need to either educate that attorney or get yourself another attorney.

The thing that you need to do as a lawyer and the thing that you need to as a consumer of law and of legal services, is you need to get the Proceedings and you need to read and study the Proceedings and you need to understand the Proceedings. Because a lawyer who is specialist—all any lawyer is—is a gun slinger. A lawyer is specialist in various areas of law. They're your fighter up there in the court. They may know employment law real good, they may know divorce law real good, they may know a lot of areas real good, but they don't know the subtleties of the transgender issues. That's where the Proceedings come in. If your lawyer isn't willing to study these things after you have read and studied them, then you'll know right from the very beginning that your lawyer really isn't interested in you as a transgendered person, but only in you just as another client. You've got to get these Proceedings both as lawyers and non-lawyers. Hired guns, you see them all the time on television and the westerns. If they aren't looking out to the left, if they aren't watching behind the sign up on the saloon, they're going to get bush whacked no matter how good and mighty and no matter how wide a hat they may wear. Your lawyer cannot allow themselves to be bush whacked. They need to understand the subtleties of a transgender issues. You need to make sure that they do it early: they must do it early.

When you go to hire that lawyer, the best way for you to get a good lawyer is call around in various directories, Yellow Pages, whatever. Ask the receptionist, "Does your lawyer handle such and such; employment law, family law, divorce law, or whatever it is?" Find that out right up front. Then ask, "Is your lawyer comfortable working with a transgendered person?" Because you're fixing to shell out your money.

Then you ask, "How long"—"how much does it cost to buy a half hour of your lawyer's time for an initial interview." You don't want to go to that lawyer for free, not really. Be sure at the beginning by paying the fee whether that lawyer is going to be good on transgender issues. Don't negotiate a contract for two or three or five or $10,000, pay that money and then three weeks later find out that lawyer isn't going to bother reading the Proceedings, and doesn't know anything about transgender issues, and continues using the wrong pronouns. You want to put out that $50 or $60 or $100, or $150 for that half hour. It's the cheapest way. Going into a lawyer for a free interview is not the cheap way: that's the stupid way, because you really don't get to quiz that lawyer. That lawyer is giving you their time, so that lawyer doesn't have to listen to your demands and to your questions. If you're buying that time, that lawyer has to listen.

Now, let me tell you something about trials and about juries and about your adversaries and about settling. Eighty-five percent of what is going to happen—up here in the brain of the jurors or up here in the consciousness of the judge, if you just go to the judge for hearing or whatever, or up here in your adversary's mind—is established very, very, very early. You've got to as a lawyer—and as a consumer legal services you got to insist your lawyer do this— stake out your turf very, very early. Ken did a wonderful job about talking about that. It's an axiom in trial work, that by the time you've done your voir dire—now every state but Texas pronounces that as "voir dire", but in Texas it's pronounced "vor diier"—of that jury and you've had your first argument prior to any testimony going in, that the judge and the jury, eighty-five percent of them, have already made up their minds. Or they pretty much reached an eighty-five percent plateau of making up their minds. If you haven't convinced them by then, if you haven't put your policies out by then convincingly, then you can still win, but you have very much an uphill battle.

There's many ways that you can do this. Other attorneys say to me, "Well how do you voir dire on the fact that your client is transgendered? How do you voir dire on the fact that you're transgendered, Phyllis?" It's very easy." I just say to them, "first thing I need to voir dire you on is the fact that I'm a transgendered individual." And I look at them straight in the face and I don't (whisper) "I'm transgendered. Does anybody have a problem with that? I am transgendered individual and I need to talk to y'all about that. I'm going to explain to you what transgenderism is, and I need to know if you have a problem." Then you go down one at a time to the jury, "Does anybody have a cultural problem, a family problem, a religious problem, an ethical problem? We need to talk about that." They're not going to raise their hands.

So you go one at a time. "Will you promise me, Juror No. 1, that this is not going to effect ——. Will you promise me now?" Now, you're telling them—it's not an oath because they haven't raised their hand—but you really talk to them one on one. "Will you promise me ——?" Go down the rows and all of the religious bigots, they come up to the surface. They come up the surface. "Well, you know, I got a religious problem with that or the Bible says so and so." My reply is "Hey, that's great, no problem." Then when it's all over with you go to the judge and you can usually get them struck for cause. The bigots, man, they just come up. They come on up. They rise like fish to the bait.

It's really a joke, it's a good joke, amongst the D.A.s in Harris County that the very first trial I ever had was a gay cop in an Official Misconduct case. This was seven years ago. And the D.A. was with Special Crimes because it involved a public official. The D.A.s just knew this was going to be lay down because they were going against Phyllis Frye, that freaky trans_____ whatever it was, and her faggot, goddamn cop, police officer, and it's her first trial and oh, man, Special Crimes, and all this other stuff. The reason why I know this story is because recently I was talking to an attorney that I've known for years. She is a D.A. who was recently transferred to Special Crimes. We were working a case together for a hired client of mine. She says, "You know, I just got recently appointed to Special Crimes and some of my colleagues who have been in that division recently found out that you were representing. They told me the story—it's a Special Crimes story. The story is that Phyllis Frye voir dired the jury, and the first thing that comes out of her mouth is "I'm transsexual. Does anybody got a problem with it?" And the second thing is "And my client is gay. Does anybody got a problem with that?" They knew it was a lay down for them, but two days later, I won. Not Guilty!

I've got a probate story. I'm going to give you a bunch of quick antidotes. I've got a probate story. A woman who is transsexual really didn't pass that well, but that's her business. The other attorney was really making a big deal about "he"—because this was a transgendered woman—"he" and was calling her by his earlier man's name and all this other stuff. Every time I talked to this bitch lawyer on the phone about this case I would refer to my client as "her" and her woman's name, and the other attorney would refer to my client as "he" and whatever her name used to be. Finally we came down the hearing and as soon as that person started that stuff up again, I said, "Judge, will you kindly instruct this attorney that my client is standing here and my client is a woman, this is my client's name, and these are her pronouns." And the judge looked at me, and the judge looked at the other attorney and he says, "You see her, that's her name and those are her pronouns and that's the way it's going on the record." No big deal. You just do it.

I had another client who was a homeless person who's transgendered. I took her through when she signed a pauper's oath to get her name changed in Texas. Under the old law, the County Attorney had to come and defend the County Treasurer on pauper's oaths which meant that all the court fees were waved. We were just as bold as could be, and we just walked up there and we laid out our case. "Yes, this person is transgendered, hasn't worked for a long time and is homeless and has been getting trash from this group and trash from this group. And the homeless shelters won't take her because she's not a man, and the homeless shelters won't take her because she's not a woman and all this other stuff and yadi-yadi-yada. And to make the point, Your Honor, that she deserves to have a pauper's oath, I'm going to do my services for free." The attorney from the county said, "Well, Your Honor, I really don't have a problem with that." And the judge looked at that County Attorney and says, "Well, that's the only human thing to do," and gave us the pauper's oath.

A divorce case where the wife had to get another attorney. Stake out your territory early. Stake out your territory early. Those of you who are consumers of legal services you make your lawyer know your issues, transgender issues. They're in the Proceedings. We will take plastic. This is your document. My client had already estranged herself from her spouse. The wife was suing. I got notice that we were going to have a temporary hearing for temporary orders. If you lose temporary errors you've got an uphill battle. Before there's a temporary hearing, usually the two attorneys get together and see what they can agree on. We went into one of empty jury rooms to start negotiating before we met with the Master, the Associate Judge. "Do you know your client is transgendered?" I said, "Yeah. Did you know I'm transgendered too?" "Oh, really?" And we started talking. And after forty-five minutes the wife's lawyer was on my side. And it was so bad that after three weeks she had to fire him and get herself another attorney.

A divorce case where there's children involved. Where there's children involved there's going to be an "ad litem" lawyer. Your lawyer knows transgendered issues, if your lawyer has a copy of the Proceedings. As soon as your lawyer files for the divorce for you, or you are sued for the divorce and you go get your lawyer, insure there is a motion for an ad litem to represent the children. I assure you that opposing spouse is going to be feeding those children all kinds of garbage. You want an ad litem attorney to make sure that that child is protected from as many things as we can protect that child from. Put in your Motion for an Ad Litem—or if you are on the receiving end and you are answering the Motion for the Ad Litem—not only do you agree but you specify that we want an ad litem who is familiar with transgender issues. Demand an ad litem who has read and studied the Proceedings from the International Conference on Transgender Law, who understands transgender issues, who has read Transgender Nation by Gordene MacKenzie, who understands The Uninvited Dilemma by Kim Elizabeth Stuart. You rattle all that out in your answer or in your motion. You make darn sure that you get an ad litem who's going to understand what's going on.

Most judges, even partially biased, are interested in the best welfare of the child. If you let the judge know that there's some good stuff out there, that judge is going to be hard pressed not to appoint an attorney that's going to be familiar or going to promise to become familiar with your transgender literature. If you know that hasn't happened then there's always another recourse. You can try to recuse the judge or can you try to move for another ad litem. Get it on the record. Take it up to an appeals court. All you're asking for is somebody that's unbiased who has studied the issues. I did that and now the ad litem is on our side.

An involuntary civil commitment was another case. A divorce where the wife put the husband in the county mental ward because my client was transgendered. We got my client out within the minimum amount of time the statute allowed. At the hearing we just argued it up front. I ripped the county psychologist apart who endorsed the fact that my client was crazy because my client was transgendered. And the judge, when it was all over with said to the psychologist, "Go home and send no more." [Bad pun, but try story.] The judge instructed my client to go to the doctor that I recommended. From then on in the divorce, we were on even ground."

I'm going to talk a little bit more about criminal court where a transgendered person was arrested. I heard about it and went up there a couple of days later and asked the judge if I could be appointed to represent this person in the criminal matter. She already had an appointed attorney, but the judge knows who I am, said, "Oh, please, please, yes because I know you'll do it right and I know it won't blow up on me in an appeals court. So please do that." He appointed me, and he gave the other attorney some other work. My client told me that the first day she had been there in court—she had been arrested, and after night a jail (obviously since she was nonsurgical or preoperative, she had spent her time in the men's jail) she was just really a sight—she was scared. Everybody was giggling at her. Everybody was laughing at her. The D.A.s were laughing at her. Her attorney was very uncomfortable with her. These were for two felony offenses, and they were both trumped up by homophobic and transphobic cops. When it was all over with, I got her a two-year deferred adjudication. That means that there's no record if she fulfills the probation. Even though these were felony offenses, we're going to get them terminated after seven months next week.

I staked out my position early; transgender issues early. On the criminal cases for you lawyers, the first thing you need to do—if you're appointed or you get a criminal case where somebody's been arrested appropriately or inappropriately for prostitution or whatever—you need to get them bailed out first. You need to get them bailed out first. You cannot take a plea even for time served, which means they're going to get out that afternoon. You cannot take a plea even for time served on a petty case because then that person has a criminal record. You must insist on a reasonable bail. You must insist on personal recognizance bond. If the judge won't give you a personal recognizance bond, ask for to be put on the record. Have a hearing and say, "Judge, I've already talked to the D.A. and the D.A. will roll the case, four days credit for two. She'll be out this afternoon. But, we want a try this before a jury and on the record. We want a pretrial release bond, Judge. If I pled guilty, she'd be out today anyway, so you don't have anything to lose." You've got to do that.

Throw out words like "42 United States Code 1983" which makes it a civil rights case. Throw out the Dee Farmer case where "Chief Justice Renquist and even Scolia agreed. In the Dee Farmer case, in the nine to zero unanimous decision that came out of the Supreme Court, with respect to the prison's decisions there is a level below which the standards cannot fall even for the lowly transsexual." Put that stuff out there. Then recuse your judge if they won't help you. Drag out the "Policy for the Imprisoned: it's in your second Proceedings. Drag out the "Bill of Gender Rights": it's in your second Proceedings. Reference ICTLEP. Drag out the page close to the very front where the State Bar of Texas has blessed this law conference. Drag out the health law standards.

Ladies and gentlemen, if you go to hire a lawyer, be willing to pay your lawyer a good fee because the only thing your lawyer can sell is her or his brains.

One last thing on employment case strategy. Not only do we have the "Employers Manual" which is a good guide and can be read into the record as evidence because it's part of our first Proceedings. We now not only have "Co_workers' Manual" [in Proceedings II], we also have the "Gender Change Employability Issues" which is that marvelous statistical study which is in the second Proceedings. And you can read that into the record. We also have the Boulton & Park study that's going to be part of the third Proceedings [see Appendix D]. You now have things that you can enter into the record and use as evidence.

That is your ethics talk. Those of you who are not lawyers, that's what you need to demand of your lawyer. Demand, demand from your attorneys early on, early on, early on. Be willing to pay your attorneys what they're worth.

All material on this website
copyright to Phyllis Randolph Frye. Esq.
(unless otherwise annotated)
© January 2001, Houston, Texas

Page last updated: Sunday, April 01, 2001 10:15 AM