The inadvertent advocacy of a transgender litigant
I sit alongside my fiancé, hand in hand, about to hear myself for the very first time speak the words that, from my earliest memories are ever present in my mind. I am fearful and nervous. I know that once uttered, she will no longer want to have anything to do with me, much less want to marry me. The conversation continues, and after several false starts I cringe with the disclosure, “I think I’m a girl and I like to dress as such, but I have it under control. Do you still want to marry me?”
It is February 1974, and to my knowledge, neither the language nor the concept of gender diversity exists. I think to myself that I am the only person like this. I am desperate to hear her reply, “Yes, is that all you wanted to tell me?” My trepidation shifts to elation, and a smile will not leave my face. I need this marriage to assure a life partnership with the love-of-my-life, place me firmly in acceptable social construct and hopefully cure me of this anomaly.
On this Saturday night, the two of us, both Army medics, are alone in the deserted lounge of the Women’s Army Corps (WAC) barracks of the US Army Hospital, Occupied Berlin, West Germany. This dark red-brick hospital, encircled by a quaint ivy-covered prison wall, was confiscated from the Nazi SS upon the fall of Berlin near the end of World War II.
Perhaps not the most romantic location to woo for marriage, considering just three decades ago this facility was central to horrific suffering imposed by human medical experiments. Or, perhaps our impending nuptials are not only affirmed, but tainted with a minuscule amount of suffering ultimately to be revealed.
After nearly four decades hence, I will torturously sit on the witness stand in our divorce trial after a lifetime together and after all of the usual occurrences of a marriage: receiving a higher education, raising our two children, purchasing property, being active in community and church, pursuing a career, retiring from the Army Reserves and planning for retirement from a civilian career.
Retirement for us includes my transition of gender, a four-decade-long conversation that eventually brought us to this trial. In private my authentic self is usual, common and accepted between us, but the necessity to promulgate in a sufficient gender transition is not tolerated well by my spouse and becomes the root conflict of the divorce, the basis for the strategy of the litigation and ultimately the reason for advocacy in the Kane County court system.
Soon after the divorce filing in January 2012, it is clear that our love is disintegrated and our marriage is irretrievably broken. I lose weeks in a weepy condition with depression very close to overtaking me. For nearly 40 years, I existed in a condition of self-denial to express the love for my spouse, and now that love is no more. I am a wreck until understanding I now have the freedom to step outside of the facade I impose on myself and fully embrace my authentic self.
I already present as a female in grooming, dress and form, but my genitalia are not correct and my legal name is still officially male. Within six months of the irretrievably broken declaration and months before the divorce trial, all of this is corrected. I am thankful for my medical insurance covering nearly all of the medical costs.
I write in my journal on May 10, 2012, two days after my Gender Reassignment Surgery (GRS): “The unveiling of my corrected anatomy, in an instant seemed to correct all the multitudes of deflating disappointments from viewing that area of my body in the past. How is it the world cannot see what I see? There was a surreal sensation that I had been conditioned to expect that didn’t occur this glorious time…” and “…the transition years, where, at long last, the world translucently perceives what I see and starts to respond as I approach it as female. Ever-present is the indictment of a penis to convict and prove me a charlatan, but now it is gone! In this idyllically happy moment I see what the world sees. Magnificent me, finally!”
At the pretrial conference the attorneys discuss with the judge what name and what pronouns to use for the trial. The case was filed in my then legal male name, but now I am “Vera.” My driver’s license and birth certificate confirm I am Vera and I am female. Why is there any issue how I should be addressed in court?
The judge agrees with the opposing counsel to use a male name and male pronouns so as to not confuse the record. Really? What do other courts do with two opposing litigants of the same gender that have the same family name, stay in a state of confusion? Weak at best! My protest is futile. I thought lawyers and judges took an oath to uphold the laws of Illinois. Under the law I am Vera and female. Incredulously, opposing counsel and the judge ignore the law, and in doing so, demean me by insisting I am male and address me as such.
During the months leading up to our divorce trial there were indications of misinformation from the opposing counsel that disappointedly confused my understanding of our marital relationship. I think to myself, “Counsel just misunderstands, because we (spouse and I) know with certainty we didn’t do that. That’s not an accurate depiction of us.”
Hearing my spouse, under oath, testify to the same morphed history of our lives together, is emotional, difficult to believe and gives cause to doubt my own perspective. I am confirmed and take solace from my lifelong habit of journaling. Listening with a stoic demeanor is not possible, as tears uncontrollably flow down my face. The posturing that is obviously a part of litigation has an emotional consequence. It is clear that post-divorce relational considerations are missing from the conduct of these proceedings as verified by my ex’s Facebook status of “widowed.”
I still do not understand how we ended up in a trial given the simplicity, though somewhat significant, marital estate. I could not communicate with my spouse after the first meeting with her attorney. The opposing counsel thwarted all attempts of settlement. Even a customary 50/50 split of all assets, to which I contributed 98 percent, was not considered, they wanted considerably more.
There are indications, as disproportionate fees mount up (twice as much for the opposing counsel), that other factors are at play. Could it be that my being actively transgendered, presenting in my preferred female gender, is influencing this litigation? Should it? Whether the opposing counsel is acting on a strategy to ensure his best financial outcome or following the instruction of his client, he masterfully distracts my testimony with a hint of delight.
For three afternoons the trial holds me as an emotional hostage, so despondent about the shocking treatment at the hand of the opposing counsel and allowed by the presiding judge. The first afternoon was difficult, but the subsequent afternoons were worse. The initial pain was numbing, knowing what is to come on days two and three becomes progressively burdensome.
I can tolerate the insinuations that describe me with opprobrium, I can handle the lack of courtroom courtesy that seems all too common in divorce trials, I can maintain composure with the specious statements of financial improprieties and I can even function through the fabrications of our history, but I am vulnerable.
After 50 years of denying my authentic self, I am finally and magnificently me. It is as if I held my breath for 50 years and finally I am able to breath. When the opposing counsel, despite my objections, continually and inappropriately addressed me with contra-gender pronouns, salutations and not by my legal name, it felt like he was suffocating me. He saw me struggling for my breath and tightened his chokehold all the more.
The horror of this event cannot be overstated. It was devastating. Compounding the trauma was the lack of protection for my legal rights from the person I least expected - the presiding judge. Instead he was in alliance with the opposition counsel’s bigoted discrimination. I was a non-person at this point, nearly invisible to justice, being punished for daring to not conform to a foundation-less social construct. Not the best performance of the judicial system.
The Illinois Human Rights Act is supposed to protect me. The Act prohibits discrimination against any individual because of sex or sexual orientation, 775 ILCS 5/1-102 (A), (E), (F). Section 1-103 (O) of the Act defines “Sex” to mean the status of being male or female. My status as to being female is incontrovertible, as documented on my birth certificate, passport, professional licenses, driver’s license and other forms of identification. The Act specifically addresses my situation, “gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”
The Illinois Constitution protects me in Article I, Section 18, which states: “The equal protection of the laws shall not be denied or abridged on account of sex (my female status) by the State or its units of local government (circuit court system) and school districts.” We have good laws. It is those who have sworn to uphold those laws who, in this instance, failed.
After the drama of my divorce, I felt the need to do something to correct the mishandling of my gender status with an Attorney Registration and Disciplinary Commission (ARDC) complaint against the opposing attorney. His magniloquent reply regretfully resulted in the ARDC taking no action. Hopefully he learned something, and in the future, will be just a bit more responsible.
After the final orders were issued, I wrote a letter to the presiding judge informing him of my desire for resolution and sent a courtesy copy to Chief Judge Judith Brawka of Kane County. I expressed my preference to informally meet with the presiding judge, believing an educational conversation would suffice, though alternatively a Judicial Inquiry Board (JIB) complaint would be submitted. I heard nothing from him, but was informed he self-disclosed, and proceeded to file the complaint with the JIB. An opportunity for healing was lost for the both of us.
I never intended that the ARDC or the JIB would punish the opposing counsel or the presiding Judge. I simply wanted to educate these two gentlemen, believing if somehow they could be made aware of their indiscretion and made to understand how hurtful their actions were, then acceptance by exposure could occur and save another person from a similar fate. And I, as I define myself, would have a voice, bind my wounds and promote healing from this experience.
The JIB is prohibited from disclosing specifics regarding its decision, findings or information about its deliberations of any matter. Therefore, I do not know if the extraordinary results in Kane County were recommended by the JIB or proactively enacted by Chief Judge Brawka. I suspect the later.
Shortly after the conclusion of both the ARDC and JIB investigations, Chief Judge Brawka initiated an education and training program concerning the response of the justice system to LGBT individuals. This progressive undertaking accomplished for all of the justice partners in the Kane County justice system, far more rigorously, what I hoped to accomplish with two of the users.
On August 6, 2014, the 16th Judicial Circuit Court of Kane County entered into a new era of compassion, understanding and advanced therapeutic jurisprudence by implementing a mandatory diversity training program that dispelled much of the abuse persons of diversity are subjected to all too often.
We are all people deserving of basic human dignity. Illinois has enacted progressive laws that protect the human rights of all of us. With the help of enlightened judges such as Chief Judge Brawka, there is hope that our judicial system will not only be more just, but also be an example to society at large. ■