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Transcending the Binary: Inclusion for Transgender
and Non-Binary Attorneys

By: Lea S. Gutierrez, Director of Diversity & Inclusion, ARDC

February 24, 2020

In April 2017, the Court amended Supreme Court Rule 794(d) to require all Illinois attorneys to complete one hour of diversity and inclusion and one hour of mental health and substance abuse Continuing Legal Education (CLE) as part of their Professional Responsibility CLE requirement.1 In doing so, then-Chief Justice Lloyd Karmeier stated that the Court had noted that "as Illinois and the Illinois bar have become more diverse, there has been a marked lag in interest in educational programs addressed to facilitating diversity and inclusion generally and in the legal profession specifically."2 The ARDC is also committed to inclusion and wellness, both in terms of the internal environment we create for our employees and promoting these principles within the legal profession. To address the concerns raised by Justice Karmeier, the ARDC has increased the educational programming it provides to the profession on these topics. Although there has been progress in gender representation and inclusion in the legal profession over the years (for example, law schools now graduate slightly more women than men, and women now comprise thirty-eight percent of the legal profession in Illinois3), there is still opportunity for growth with respect to gender inclusion in the profession.

There is a prevalent belief in our society that gender exists on a binary, referring to the classification of sex and gender into two distinct, opposite, disconnected, and fixed forms – male and female.4 It is an "either-or" concept of gender, according to which males are expected to be masculine, and females are expected to be feminine.

Society reinforces binary gender expectations in countless ways, sometimes even beginning before birth. For example, we have gender reveal parties where parents-to-be cut into a cake to reveal pink or blue icing, or blue or pink balloons are released, presumably signaling a boy or girl. After birth, children are overtly and covertly socialized to specific gender roles, typically based on their biological sex. We dress boys in pants, sign them up for sports, and buy them toy trucks; while we don girls in dresses, enroll them in ballet classes, and buy them dolls. The language we learn at a young age is also filled with gender-biased words and phrases, such as "ladies and gentlemen," that reinforce the gender binary and gender roles. The influence of gender roles tends to continue later into life as men outnumber women in professions that involve dominance and strength, like law enforcement, the military, and politics. In contrast, women outnumber men in occupations that require empathy and caretaking, like childcare, healthcare, and social work.6 This adherence to male and female gender roles, while consistent with social expectations, is not necessarily indicative of personal preference.7 In fact, various studies suggest that gender roles encourage self-regulatory behaviors that guide gender-linked conduct.8 This self-regulation influences the talents that men and women cultivate, and the occupational paths they pursue.9 Further, as explained below, two sexes are insufficient to describe the variety that exists among people.

The notion that there are males and females is not false, but it is incomplete. To understand why it is incomplete, we must first understand the difference between sex, gender identity, and gender expression, each of which is independent of the other. Sex typically refers to the organs one has but  also encapsulates one's hormones and chromosomes.10 Gender identity is a person's internal sense of having a particular gender.11 Finally, gender expression refers to the external appearance of one's gender identity, usually expressed by the ways they dress, behave, and interact.12 For many individuals, the sex assigned to them at birth is inconsistent with their gender identity and/or their gender expression.  "Transgender" is an umbrella term used to refer to a person whose gender identity does  not align with cultural expectations based on their assigned sex at birth.13 The term "cisgender" refers  to a person whose gender identity corresponds with their assigned sex at birth.14 Transgender people can identify as binary (meaning male or female) or non-binary (meaning not strictly male or female, some combination thereof, or neither male nor female).15 Since individuals can identify as male or female, something in between, both, or neither, there are actually a myriad of genders, including (but not limited to) agender, bigender, and genderfluid.

Even though an array of genders exists and there are a variety of behaviors that individuals can exhibit, we live in a cis-centric society that operates under the presumption that everyone fits neatly into the box of their assigned sex at birth. We look at people's gender expression and we make assumptions about how they identify and about their biological sex. If we know (or think we know) someone's biological sex, or we've seen them express their gender a certain way, we also develop expectations that their gender identity and expression will remain consistent. Gender is pervasive in everyday life, from language to fashion norms, to the bathrooms we use, to who is handed the bill at a restaurant. Given the pervasiveness of gender, a cis-centric approach ostracizes and excludes people who do not conform to gender expectations. In the workplace, gender often intersects with workplace protocols, practices, and procedures, such as dress codes and internal forms. This has led to marginalization, disenfranchisement, and discrimination against attorneys (and others in our workplaces) who diverge from the binary structure. In the legal profession, anecdotal evidence suggests that transgender and non-binary attorneys commonly encounter harassment, bullying, and violence; that they fear the loss of work or clients, face social rejection and exclusion, and must overcome barriers to name and sex designation changes. These negative experiences and fears sometimes result in transgender and non-binary attorneys hiding their gender identity in the workplace. The inability of some transgender and non-binary attorneys to be their authentic selves at work not only adversely impacts their wellness, it also prevents the profession from having the unfettered benefit of collaboration with lawyers of all genders. How can we, as leaders, stand up in action and promote inclusion of transgender and non-binary attorneys if we see everything we do through the binary?

The fact is, we don't know what gender identity issues impact the people in our lives. Maybe  the people with whom we interact are transgender and/or non-binary, and we don't know it, or perhaps they have transgender and/or non-binary people in their lives that they care about. And even if none of that is the case, all of us will likely interact with transgender colleagues, litigants and witnesses, opposing counsel, clients, court personnel, and others at some point in the course of our practice. Therefore, instead of presuming that being cisgender is the norm, we should shift our mindset to presuming the opposite. This will force us to evaluate our behaviors and our current workplace processes, practices, culture, and climate relative to transgender inclusion under the premise that many people do not fit neatly into the binary of male or female. Awareness of this issue can help break down the barriers to full equality and inclusion in the workplace and the profession that transgender and non- binary attorneys face.

By presuming that most people are impacted by a broader range of genders than male or female, we might recognize that the forms we use in our organizations do not have gender or salutation options beyond the binary. We may add non-binary options or remove this gendered language altogether. We might also discover that we "out" (or disclose the gender identity of) transgender  people when they are the only people letting us know that they use specific pronouns, and recognize  the need to normalize pronoun sharing for everyone. We may see the importance of using "they" for strangers and people whose pronouns we do not know, to allow them the space to self-identify. We might understand the need to update employee policies related to expectations when interacting with people who are transitioning, or who otherwise may present in a way that is not consistent with gender norms. We may ensure that our firms' medical insurance policies sufficiently address the needs of transgender attorneys and other employees. We also might recognize that the gender binary impacts everyone, not just people who identify beyond its realms, as evidenced by the backlash often faced by cisgender people who stray from gender norms.16 For example, cisgender men are penalized and perceived to have lower status for showing vulnerability and admitting weakness.17 Similarly, cisgender women are viewed as less likeable when they are assertive.18

The presumption that a broad range of gender identities impacts the people we encounter has been eye-opening for the ARDC. This mindset shift has led to us taking some steps on our journey toward being more inclusive and affirming of transgender and non-binary attorneys. For example, in 2017, we included "non-binary" as a gender option during the annual registration process so that attorneys are not forced to identify inconsistently with their gender identity. We have begun to ask attorneys who register as non-binary to provide their pronouns and prefixes so that we do not misgender attorneys when interacting with them, and we plan to extend this practice to all attorneys in the near future. Also, to increase awareness and the cultural competency of our staff when interacting with colleagues, attorneys, witnesses, and others within the regulatory system of all genders, we also provided gender identity education to our entire staff.

While the ARDC has taken some steps toward increased gender inclusion, we recognize that there is still much we want and need to do. We continue to evaluate our systems and processes to ensure that we are respectful and inclusive of attorneys of all genders. We have the unique responsibility of maintaining the master roll of attorneys licensed to practice law in Illinois, and providing access to that list to the public and the courts. However, we've discovered that in doing so, we inadvertently "out" some transgender attorneys by publishing their former names. We are in the process of developing a policy and mechanism for suppressing that name change information to protect the privacy interests of transgender attorneys while balancing our responsibilities to the courts, the profession, and the public.

Perhaps it is time for more of our profession, individually and organizationally, to change the lens through which we view gender. Lawyers are often employers, and we are charged with understanding and creating laws that shape our worldview. This gives us a unique power and responsibility to foster change. By presuming everyone we meet is affected by gender identity beyond the binary, we might just discover the unique and important role attorneys must play in supporting inclusion and begin to create a profession and world that is more inclusive of attorneys of all genders.


1 Supreme Court of Illinois. (2017, April 3). Illinois Supreme Court Amends Rule on Minimum Continuing Education Requirement. Retrieved from https://courts.illinois.gov/media/pressrel/2017/040317_2.pdf. Last visited February 13, 2020.

2 Id.

3 Making Strides Toward Gender Equality in the Legal Profession. (2019, July 2). American Bar Association. Retrieved from https://www.americanbar.org/groups/business_law/publications/committee_newsletters/bcl/2019/201902/fa_7.
Last visited February 18, 2020; Annual Report Highlights. (2018). Attorney Registration and Disciplinary Commission. Retrieved from https://www.iardc.org/AnnualReport2018Highlights.pdf.Last visited February 18, 2020.

4 "Gender Binary." Urban Dictionary. January 5, 2010.
https://www.urbandictionary.com/define.php?term=Gender%20Binary. Last visited February 11, 2020; Lorber, J. and Moore, L.J. (2007). Gendered Bodies, Feminist Perspectives. Los Angeles: Roxbury Publishing.

5 The Boston Globe, The Percentage of Women and Men in Each Profession, https://www.bostonglobe.com/metro/2017/03/06/chart-the-percentage-women-and-men-each- profession/GBX22YsWl0XaeHghwXfE4H/story.html. Last visited Feb. 11, 2020.

6 Id.

7 Diamond, M. (2002). Sex and Gender are Different: Sexual Identity and Gender Identity are Different. Clinical Child Psychology and Psychiatry 7(3): 320-334.

8 Dreaming Big: What's Gender Got to do with It? The Impact of Gender Stereotypes on Career Aspirations of Middle Schoolers. (2012, October). Center for Gender in Organizations, Simmons School of Management.
Retrieved from https://www.simmons.edu/sites/default/files/2019-03/Insights%2035.pdf. Last visited February 18, 2020. See also, Bussey, K. and Bandura, A. (1999). Social Cognitive Theory of Gender Development and Differentiation. Psychological Review, 106(4): 676-713.

9 Id.

10 Johnson, J. and Repta, R. (2002). Sex and Gender: Beyond the Binaries. Designing and Conducting Gender, Sex & Health Research: 17-39.

11 Boskey, E. (Sept. 28, 2019). What Does It Mean to Be Non-Binary or Have Non-Binary Gender? Retrieved from
https://www.verywellmind.com/what-does-it-mean-to-be-non-binary-or-have-non-binary-gender-4172702.

12 Sexual Orientation and Gender Identity Definitions: Human Rights Campaign. Retrieved from
https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions. Last visited February 10, 2020.

13 Id.

14 Boskey, supra.

15 Understanding Non-Binary People: How to Be Respectful and Supportive. National Center for Transgender
Equality. Retrieved from https://transequality.org/issues/resources/understanding-non-binary-people-how-to-be- respectful-and-supportive. Last visited February 10, 2020.

16 Working Beyond the Gender Binary. Gender and the Economy. Retrieved from https://www.gendereconomy.org/working-beyond-the-gender-binary/. Last visited February 11, 2020.

17 Mayer, D.M. (2018, October 8). How Men Get Penalized for Straying from Masculine Norms. Retrieved from
https://hbr.org/2018/10/how-men-get-penalized-for-straying-from-masculine-norms. Last visited February 18, 2020.

18 Id.