As a professional working with family disputes we aim to be inclusive and cater to the diversity of people and issues that we are confronted with. But it is very hard to avoid making assumptions about those we deal with based on their first impression, their presentation, and what they tell us or omit to tell us. As complex beings ourselves, with our own history, we carry with us unconscious biases and assumptions in the way we interpret the world including our clients and their disputes.
We aim to be impartial, non-judgemental and neutral. It is easy to jump to the conclusion that if we behave in this way we are treating everyone the same way and therefore being even-handed and fair to all. But we cannot take away our own upbringing, life experience and cultural and other influences. We may justify ourselves by aiming to treat all those we deal with in the same way. But does this lead to inclusivity and a non-prejudiced approach?
The recent referendum on Marriage Equality made me think about these issues and how they apply to the LGBTQI+ group who face unique social and legal issues whether as individuals, couples or families.
Many of us approach life from an orientation of heteronormativism or cisgenderism. We assume that those we deal with are heterosexual in orientation and that the sex they were assigned at birth is directly connected to their gender, and fits into the male/female binary concept.
But this perspective excludes a small but significant group with a wide variety of sexuality and identity that exist in our community. This is a group at risk and we need to be alert to the power of our assumptions and biases.
Assumptions around Sexuality and Identity
A common assumption about our clients relates to their sex. Most consider options of male or female, but there is another category of “intersex” which does not fall easily into these dominant binary categories. The research indicates that this is more common than realised.
It is also easy to make assumptions about gender. It is not always the case that the gender assigned at birth aligns with the person’s sexual identity. There is a proportionally small but very diverse group who are becoming more and more visible who may be trans or gender diverse, gender fluid, gender queer, or genderless.
Disadvantage in the legal arena and service delivery
There are many situations where those in the LGBTQI+ group find they are not treated as others in society. Some examples include:
- Sharing intimate information
- Bearing the brunt of belittling comments and innuendo;
- Being overlooked for promotion;
- Not having their relationships legally recognised;
- Being regarded as having an unfair advantage in the sporting context due to their hormones that occur naturally;
- In the choice of which toilet to use in a public setting.
These difficulties are particularly apparent for this group when dealing with service providers and the legal system. Examples can include:
- Not being allowed to see their loved ones when they are admitted to hospital,
- Not being allowed to be part of the decision making process around treatment or care options;
- Not being regarded as next of kin for those they are in a relationship with;
- Having less rights than estranged parents
- When referring abuse to authorities;
- In being named as a parent on a birth certificate
- In being regarded by the birth mother that they are not a “real mother’ and have no rights.
The response for many is to develop ways of finding out about a client’s sex, gender and/or sexuality, but do you really need to know about this? Why would this information be important?
- Sex- It is unlikely ever to be necessary to know about your client’s genitals, gonads, or chromosomes.
- gender diversity -this would only be relevant if it was disclosed during a consultation and the client chose to disclose it to you.
- Sexuality-this could only be relevant if the client chose to disclose it and make it relevant to the service provided.
As a general rule, the recommended guidelines are
- Do not assume that your client is cisgender or heterosexual;
- Allow them to decide if and when they want to disclose their gender diversity or sexuality;
- Ensure that you provide a service where it is safe to disclose relevant information if they choose to and are ready to do so.
All LGBTQI+ have to manage their visibility as a member of this group. Despite many advances in this area, there is still significant anti-LGBTQI+ sentiment, and safety from discrimination, ostracism and assault must be managed on a day by day and context by context basis. Many do not want to draw attention to their sexuality as they have come to believe that it is safer for others not to know about their identity , and they need to avoid discrimination.
We need to demonstrate respect for our client’s visibility needs, and create a safe environment for them to feel that they can freely choose their chosen level of visibility. They are the ones who should be in control of their own visibility management.
We must ensure that our approach to clients does not involve inappropriate or instrusive questions, that we do not discriminate against them, apply stereotypes, or inadvertently practice a breach of confidentiality. We need to practice respect , acceptance of identity, apply no assumptions, and ask appropriate questions.
Some useful questions might include:
- How would you like me to call you?
- What are your preferred pronouns?
- How do you describe yourself, your relationship, and your family?
- Who is important to the children?
- Who are the significant people in your life?
- How do you describe your relationship with them?
- How would you like me to call you?
- Can I just clarify what gender pronoun you use?
As mediators the NMAS standards provide specific requirements that we be qualified and expereinced to mediate the clients we work with. In this area this would require that we demonstrate competence, a knowledge of the nature of conflict and the dynamics involved in this area, an understanding of cisgenderism and heterosexism, and provide fair, equitable and impartial mediation without bias in act or omission.
The issues that are likely to arise in this context would include:
- Conflict around visibility management and visibility differences between the parties;
- Power, control and duress, perhaps involving threats of disclosure of identity, or being treated as having less legitimacy;
- Conscious and unconscious bias, for example around the position of children in diverse gender relationships and their best interests in these contexts, or an assumption that a birth mother may be the primary carer, or that one takes on the male stereotype and the other the female role
- Changes in the balance of power.
Power, Violence and Safety
This is a very important feature of the LGBTQI+ group. The power issues can be very complicated and we have a professional obligation to consider the safety and comfort of participants in FDR.[i] These issues can be further complicated by legal parental status, different presentations about the nature of the relationship by different parties, and if they have maintained low visibility.
There can be a very different narrative about the relationship than that of relationships between a man and a woman.
Further complications can result from the wide variety of ways of forming a family, where either the sperm, egg, or woman to carry the child, can come from outside the relationship and involve a range of differing and sometimes inconsistent rights. Changes to the Family Law Act have significantly clarified this situation[ii], but there is still great opportunity for conflict. The legal requirements are complex and appropriate advice is essential at the right time for clarity.
There is a great opportunity for conflict management in this context. LGBTQI+ friendly services are crucial to manage these situations with respect and an understanding of the issues relevant to this area. Aspects that would benefit from clarity would include:
- Careful negotiations for family planning
- Navigate the wide range of issues that may arise in these families
- Manage expectations
- Anticipate changes
- Provide Dispute Resolution mechanisms for future changes.
We are working towards this greater understanding of this group and sensitivity towards their issues at Creative Family Law Solutions. Contact us if you too are working in this area.
 Practice Standards s8.1, 10.1(a) and 7.1
[i][i] Practice Standards ss6.1, 10.1 (a) (i) and 6.2
[ii] Family Law Act s60H s60HA s60HB