Safeguarding Identity and Addressing the Legal Needs of LGBTQ+ Newcomers

September 16, 2024
Ari M.K. Jones, Esq

This blog post from Oasis Legal Services addresses key legal concerns for LGBTQ+ newcomers. It covers topics such as confidentiality, document updates, and referral strategies to help service providers better support LGBTQ+ clients.

Navigating a new country can be challenging for anyone, but for LGBTQ+ newcomers, the journey often comes with unique complexities. As service providers, we play a vital role in offering support that’s not only practical but also compassionate and affirming. Affirming LGBTQ+ newcomers involves recognizing, validating, and supporting individuals’ gender identity and expression and sexual orientation by creating an environment where people feel respected, accepted, and empowered to be and express who they are. For more general tips and tools on welcoming LGBTQ+ newcomers, refer to this recent blog post by Episcopal Migration Ministries’ Rainbow Initiative.

In this blog post, we discuss the legal considerations that can impact the well-being and security of LGBTQ+ newcomers as they establish themselves in the United States. From safeguarding privacy to updating identity documents, there are a variety of ways we can build a safe and welcoming environment for LGBTQ+ clients.

Uphold Confidentiality and Respect Individual Preferences

Confidentiality is a key practice for building and maintaining trust with LGBTQ+ newcomers, and it’s important to tailor your support to each client. LGBTQ+ newcomers may not have shared information about themselves with all members of their family or community. For example, you may be working with a gay father who may not be “out” to his children about his sexual orientation. Or you may be working with a transgender woman who has not transitioned publicly; she may not feel comfortable dressing in women’s clothing in public, and she may not want her community to know about her chosen name. It’s important to use her chosen name and pronouns when working with her privately, but check how she wants to be addressed in public to avoid “outing” her to the community. Be mindful of how you refer to LGBTQ+ clients in your waiting room or in group spaces, like support groups.

In both examples, the key is to ask the client how they want to be addressed and what information they feel comfortable sharing in different settings. This should be done in the first client meeting. You can explain that you want to affirm the client’s identity and keep them safe.

To build trust with clients, you can also explain your professional duty of confidentiality as lawyers and that those working with lawyers cannot legally share a client’s information outside their organization without the client’s permission. Keep in mind that when working with interpreters, clients may have concerns about confidentiality if the interpreter is part of their community, especially when the community is small or closeknit. Clients may be less forthcoming in front of an interpreter who they think might share details about their identity with other community members, so it may be helpful to use a remote interpretation service like a language line.

Maintain Clear and Accurate Data on Client Information

Once you learn a client’s preferences about their information or how they want to be addressed, make sure you have an appropriate, confidential, and reliable place to store this information. A client database or case management system with space for notes like this is vital. It’s also helpful for your system to record both the client’s legal name or sex and their affirming name, gender marker, and pronouns. Make sure you can easily access and use the information the clients provide. It should also be accessible to the staff members who come into contact with the client so they don’t “out” the client or use unaffirming names, pronouns, or other information when talking to them. At the same time, be aware that, subject to Freedom of Information Act (FOIA) requests, data entered could become available to federal or state agencies that request it, depending on contractual limitations and other regulations regarding confidentiality. Attorney–client privilege and health-related privacy protections still apply to protect clients’ data.

Protect Sensitive Health Information

LGBTQ+ clients may also have health conditions that they want to keep private. For example, clients who are medically transitioning or who are HIV positive may not feel comfortable sharing this particular information with others. Before sharing their health information with other providers, get the client’s explicit permission to share specific or sensitive information through a Release of Information (ROI). It’s essential to clearly explain the purpose of the ROI and the reasons for sharing this information with specific parties in relation to the client’s case. Often, clients are overwhelmed by paperwork and may sign forms without fully understanding them, especially in legal settings. Explaining ensures they are aware of who will receive their information, why it is being shared, and how it will be used. Keep in mind that just because the client has been comfortable with your sharing some information, like their name or contact information, they will be comfortable with your sharing their health information.

Update Identity Documents

Many LGBTQ+ clients want to update their names and/or gender markers on their identity documents and other records. For example, newcomers who were harmed by a family member may no longer want to use a family name shared with that person, and transgender newcomers may want to select a new, gender-affirming name or appropriate gender marker. A “gender marker” refers to the gender signifier on identity documents, such as M for male, F for female, or X for a third gender.

Be prepared to address how different agencies process these changes. For example, USCIS allows for “self-attestation” for gender markers, which means anyone can elect to change the gender marker on their documents without the need for separate evidence of the change. On the other hand, USCIS does require a legal document (like a court order or marriage certificate) to update one’s name. Advocates for Trans Equality provides information about different states’ and agency policies. Keep in mind that it may not be possible or safe for a client to update the original birth certificate or passport from their country of origin. To avoid possible future legal issues, refugees and asylees should consult a legal professional before requesting that a foreign consulate update their passport or other legal identity documents

In the United States, it’s common for newcomers to have updated some, but not all, of their legal documents when changing their names or gender markers. There is no requirement that a transgender or gender non-conforming (TGNC) person have the same name or gender marker on all their identity documents, but it may be helpful to always carry legal evidence showing that the documents belong to the same person. For example, if a client has a foreign country passport in their birth name and a green card in their chosen name, they should bring the court order with their name/gender marker change to appointments to show that both these documents belong to them.

Address Immigration Challenges for Couples

Sometimes LGBTQ+ newcomers may face difficulty resettling with or petitioning for their partners because they were unable to legally marry in their country of origin or country of last residence. U.S. Citizenship and Immigration Services (USCIS) provided guidance on this issue in 2022. When a couple cannot have their marriage legally recognized in the place of celebration due to “restrictive laws or practices in their country of origin or country of first asylum,” their relationship may still be recognized as an informal or “camp” marriage. This may allow couples without a legal marriage to benefit from U.S. policies for reuniting married couples. USCIS provides instruction on how to request recognition of the marriage. Not all relationships will qualify, even under this guidance, and many LGBTQ+ couples are forced to live separately until the newcomer in the U.S. can petition for their partner or the couple can legally marry, often in a third country.

Connect Clients with Specialized Legal Resources

You may encounter legal questions from LGBTQ+ newcomers that your agency isn’t well positioned to address. For example, many LGBTQ+ newcomers will face discrimination in employment, housing, and medical treatment. As a trusted provider, they may come to you for support, so it’s important that you know where to refer them. To get LGBTQ+ legal advice, you can contact Lambda Legal’s helpdesk or the National Center for Lesbian Rights. For transgender–specific issues, you can contact the Transgender Law Center’s Helpdesk or Advocates for Trans Equality. If you’re looking for local resources, you can use the database from InReach, or search for the local LGBTQ+ Bar Association to access their lawyer referral service.