I would go a step further and state that a transphobic and degrading comment from an attorney to a litigant is unethical.
More to the point, I think the initial question shows that there are good intentioned people who are trying to get it "right" but aren't quite sure how.
First, a bit of terminology: transsexual is an antiquated term. The common parlance is that you use the word "transgender" to refer to someone whose gender identity does not match their sex assigned at birth.
Second, pronouns and their proper usage aren't tied to any sort of "surgery"--what does the client's spouse's appendectomy gave to do with anything? People can choose the pronoun they use and that people should refer to them using. It has nothing to do with what gender marker is on an identification document (like a driver's license, passport, or birth certificate). There are different requirements for changing a gender marker on various documents and, as of February of 2019 when the Babs Siperstein Law goes into effect, for folks born in NJ there's no more antiquated "surgery" requirement to change a gender marker on a N.J. birth certificate.
Second, is there a reason WHY gendered designations need to be in your MSA and how--in 2018-have you not represented a same-sex couple who both use "husband" or "wife"? Use first names or Plaintiff/Defendant.
Third, I appreciate that you're asking US this question but what about asking the litigant or their counsel? They know best what they call themselves and there's no need to speculate. As attorneys we have the ability to make the divorce process accessible and smooth for all types of litigants. There is a power dynamic at play: we get to set the rules and they should be fair to all. If you had a client how used an Anglicized version of their legal name, would you ask them how they'd like to be referred to in the document that would govern their interactions with their ex and their children for the rest of their lives? I hope so so just apply the same rules to LGBT people.
Fourth, consider the LGBT Rights Section of the NJSBA a valid secondary source (after the concerned party themselves). There are a number of us who are joint members of both that Section and the family bar (I'm the chair of the LGBT Rights Section and a family lawyer). Not only can you email or call individual members like me, but we often put on CLEs on cultural competency, terms, and how to make yourself and your practice LBGT competent. We are also happy to do joint programming with the Family Law Section, have done so in the past, and I think we're about due for another. The problem is that folks who need the information don't necessarily seek it out (or put their bodies in the seats) so we are perpetuating the issues. Encourage your colleagues to educate themselves--use a buddy system and bring a friend to every CLE you attend. I'm also glad to personally welcome you at the door, provided you email me a current picture first!
Finally, thank you for asking questions! I hope my morning response has been useful for your case. If you'd like to discuss further, please email me directly or give my office a call.
Best
Celeste Fiore, Esq.
They/them/theirs
50 Church St. Suite 106
Montclair, NJ 07042
973-868-0958
973-860-0739 (fax)
www.argentinolaw.com
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