Gender, Legal Ethics, Media and Journalism, New York Times, War on Terror

Trans-Action Attorney

How open should transgender lawyers be about their lives and backgrounds?

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Last month, Grantland published a story that led to great harrumphing across much of the internet. Titled “Dr. V’s Magical Putter,” it profiled a golf-club inventor whose big secret — that she was transgender — was revealed slowly, teased until the end like a mystery novel. The eponymous inventor’s death was treated as a mere plot point, puzzled over like everything else about the woman’s life. If you haven’t read the piece yet, I heartily encourage you to do so. I’ll wait.

This weekend, the New York Times published a story that will likely lead to very little harrumphing. This story, the profile of a transgender attorney who represents terror suspects, was written not as thrill-packed pulp fiction, but rather as the sober account of a ballsy attorney who deserves our approbation. If you’ll excuse that last sentence’s shameful bit of wordplay clowning, I promise you the rest of this post will be wholly serious. Because the New York Times story is important both for what it says about a life lived honestly and for what it says about the progress we’ve made in accepting such honesty.

So now, let us name all the interesting things about attorney Zoë J. Dolan. I mean, besides the umlaut….

As the Times makes clear nearly from the get-go, Zoë J. Dolan is a badass. She is currently part of the defense team for Osama Bin Laden’s son-in-law. The Times notes that she is proficient in Arabic and is the only member of the defense who has government clearance to evaluate classified documents related to the case. In the third paragraph of the Times article, it notes matter-of-factly:

But Ms. Dolan, 36, has another distinguishing attribute: She is transgender, an aspect of her personal life that she says she has not raised with Mr. Abu Ghaith or any other client.

As noted above, the Grantland article from last month about a transgender golf club inventor did not address gender identity in such a straightforward way. Thousands of words into the profile, here is how that story revealed the subject’s gender identity:

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He was clearly trying to tell me something, which is why he began emphasizing certain words. Every time he said “she” or “her” I could practically see him making air quotes. Finally it hit me. Cliché or not, a chill actually ran up my spine.

“Are you trying to tell me that Essay Anne Vanderbilt was once a man?”

Luckily for us, the New York Times omitted whether any spines were chilled during the writing of their profile.

Of course, the subject in the Times piece is different than the woman profiled by Grantland. Unlike Essay Vanderbilt, whose life was shrouded in mystery all the way around, there is an openness by Dolan that undercuts any attempt to treat her life like a cheap Agatha Christie paperback:

Ms. Dolan, who has a criminal and civil practice in New York and Los Angeles, has not hidden her gender transition from friends, relatives and colleagues.

She raised it in an interview last year with a women’s empowerment website, which she links to on her own site, and she has mentioned it in applications to join panels from which lawyers are drawn to represent indigent defendants. She also noted it a few years ago while representing a terrorism defendant in Brooklyn, during interviews for her security clearance.

“It occurred to me in the process,” she said, “that they might be concerned that if I had a secret it would render me susceptible to improper foreign influence — in other words, that I could be blackmailed.”

Ms. Dolan said she was relieved to find that her “relationships with other lawyers, referrals and career development all seemed unaffected” by her decision to disclose her background.

The note of relief that Dolan sounds at the end there is important to remember. Although the New York Times quotes those in the legal profession who applaud Dolan’s choice to be open about her life and background, there is still a desire by some quoted to speak about how the world should be rather than how it is. To wit:

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But how diversity plays out in individual court cases is less frequently examined. Two professors of legal ethics said that Ms. Dolan had no obligation to inform her clients of her gender transition and that they had no right to know about it.

“The Constitution guarantees the effective assistance of counsel only,” said Stephen Gillers, of New York University School of Law. “Sexual identity, like race, ethnicity and religion, has no bearing on whether a lawyer will be effective.”

Rebecca Roiphe, of New York Law School, added that even if a client believed such information was crucial in deciding whether to retain a lawyer, “I still don’t think it’s necessary to reveal that piece of information.”

“There is no requirement that you reveal everything about your personality in your representation,” Ms. Roiphe added, “because your personal and professional identities are distinct.”

I don’t know whether there is an ethical obligation to reveal issues of gender identity to your client. However, I can say with absolute certainty that identity issues could have an impact on whether a lawyer will be effective. The idea that justice is blind is purely aspirational. We may want it to be true, but it can never be. We may all agree that race does not play a role in how good an attorney is, for instance, but I can assure you that if I had been picked up for littering in Philadelphia, Mississippi in 1956, I’d have retained a lawyer as white as the driven snow. Of course, that’s an extreme example. But it underscores the fact that our system of justice is, no duh, hamstrung by all the petty prejudices and biases that plague us all. Except me. Cause I’m perfect.

Now, there is no indication that Dolan has suffered professionally because of her identity. In fact, the article mentions that she has encountered support throughout her career. But she is not naive. The article ends thusly:

Ms. Dolan acknowledged that as her background becomes more widely known, clients who learn about her gender transition may reject her as their lawyer. “Based on my experiences in personal life,” she said, “I think it is very likely to happen at some point.”

“But,” she added, speaking generally and not addressing any pending matter, “I believe that standing up to be counted is more important than business, and more rewarding in the end.”

I can’t think of anything to say here that isn’t over-the-top cheesy. So I’ll just stop talking now.

Terror Case Has Lawyer With Several Distinctions [New York Times]
Dr. V’s Magical Putter [Grantland]

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