The Power of Words by Debra E. Guston

Fall 2009

One of the joys for me in practicing law has been the ability to write and the challenge of expressing my views and clients' views to courts and adversaries. Words, to lawyers, are critical and in my practice, which has focused in large part on the needs of the gay, lesbian, bisexual and transgendered community ("GLBT"), words have substantially greater impact than one might think. In the twenty-one years I have been practicing, the legal and political systems still have not adequately addressed the practical realities that GLBT clients and attorneys face. Even simple terminology used to describe an intimate relationship can create several legal issues. For example, a same-sex marriage or civil union from one state may not be recognized in another. Even among the states that do extend legal recognition to same-sex unions, the terms "civil union" and "domestic partnership" can vary dramatically, and the laws are constantly changing.

While it is commendable for an attorney to adopt the social view that GLBT clients should receive the "same" representation as their straight counterparts, this is simply not possible under our current legal system, and many attorneys lack a sufficient knowledge base to properly advocate for GLBT citizens. As a result of this confusion, many GLBT clients receive advice that is incomplete, or often wrong. Commonly, in the estate-planning context, a GLBT couple is unaware of the quality of title of their home. Indeed, some attorneys never think to research or explain this crucial information because in the case of straight married couples there is no need--the surviving spouse automatically takes title and has the creditor protections afforded to married couples. This, unfortunately, cannot be assumed in the case of same-sex couples, and my office spends a considerable amount of time working on corrective deeds to remedy such lapses. This is merely one example of how attorneys and clients alike must appreciate GLBT issues and the legal nuances they present.

Adoption and family law are also arenas where GLBT couples have vastly different needs. For instance, many lesbian couples are informed that placing the non-biological mother's name on a child's birth certificate will sufficiently ensure the second mother's status as a legal parent. However, GLBT clients should also be aware that a birth record may not be given full faith and credit in other states or nations, so while this measure may result in the non-biological mother receiving recognition as a legal parent in New Jersey, she will still need a judgment for adoption if the couple relocates to other states. Again demonstrating that being a "parent" means something different to everyone, including the legal systems of varying jurisdictions.

For law firms seeking to recruit GLBT employees, words are equally significant, and oftentimes a few choice phrases can be extremely meaningful to GLBT attorneys seeking an open and friendly environment in which to practice. Consider the matter of the law firm's web site or recruiting literature, which are among the first places prospective associates research a firm. Many of these documents simply state that the firm adheres to federal and state anti-discrimination laws. Rather if a firm enumerated the exact classes of people who are protected, GLBT attorneys would find comfort and confidence in the firm's commitment to GLBT issues. Indeed, it is extremely affirming to see in print phrases such as "domestic-partner status," "civil-union status" and "gender identity."

Similarly, the amount of effort required to add the words "domestic partner" and "civil union partner" to social invitations is, of course, miniscule, but the payoff is huge. By the same token, updating manuals, forms and policy statements sends a subtle but significant message of inclusiveness.

Words also have power in the application process. Many GLBT attorneys are hesitant to list membership in GLBT organizations on their resumes, for fear of revealing their sexual orientation. The result is that many of these candidates do not sufficiently disclose the full extent of their accomplishments. Employers and law schools can assist in this regard by sending a strong message that participation in such organizations is highly valued. Providing opportunities for community volunteering or matching donations to GLBT or HIV/AIDS organization will also send prospective employees a message that the leadership of an organization is open to GLBT employees and issues.

In order to stay abreast of matters concerning GLBT attorneys; and to better serve GLBT clients, I strongly urge my colleagues to keep themselves informed through periodicals, continuing education, and memberships to GLBT legal organizations and relevant sections of their state bars associations. This is a very open and welcoming community, and can oftentimes provide important perspectives and insights into GLBT issues, not to mention important GLBT terminology. New attorneys in this practice area need not worry that experts will be irritated by their lack of knowledge, or treat information in an overly propriety manner. We are all fighting the same battle.

I do believe that attorneys do their best work when they open themselves up to learning from each other, gaining insight from both victories and mistakes. I decided to become a lawyer in the 1980s because I wanted to become an advocate for gay and lesbian clients, and, frankly, because I saw an opportunity to build a niche that would distinguish me from other private-practice attorneys. During that period, I was fortunate to find a few excellent mentors and advisors who shared their experiences and hard-won wisdom. Their generous tutelage enabled me to comprehend the challenges before GLBT attorneys and clients and begin working toward solutions. Most importantly, my years of practice have highlighted the power of words and an appreciation that a careful understanding of words and their cultural and legal impact can build successful results for clients, lawyers and businesses.

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Debra Guston, Esq. is a partner with the law firm Guston & Guston, LLP in Glen Rock, New Jersey. Ms. Guston's practice involves wills, estate planning, gay and lesbian rights, family law, corporate, commercial, municipal court and adoption issues. She represented the first couples in Morris, Ocean and Passaic counties to be granted second-parent adoptions.

Ms. Guston is the past chair of the GLBT Rights Section of New Jersey State Bar Association, a member of NJSBA's Family Law Section Executive Committee, a member of the Board of Trustees of Companion Animal Advocates, and a member of the Board of Directors, ACLU-NJ. She is the former president of the Lesbian and Gay Bar Association of Greater New York, and the former secretary of the National Gay and Lesbian Bar Association.

Ms. Guston has provided pro bono counsel to the Transition Assistance Fund, Inc. (a non-profit providing financial assistance to indigent transgendered people seeking medical care), the Garden State Equality (a political action committee supporting candidates who support GLBT issues) and the Chai Project (NJ needle exchange program). She has also authored several Family Court Rules portions of LexisNexis's New Jersey Court Rules Annotated 2008-2009, and has lectured for organizations such as Gay Activists' Alliance of Morris County, Rainbow Families of N.J., Parents and Friends of Lesbians and Gays, Lambda Legal Defense and Education Fund and the Bergen and Passaic County Estate Planning Councils. She is a frequent lecturer to legal audiences in NJ and other states on GLBT law topics and writes frequently on the subjects of adoption law, family law, and estate planning. She is a past contributing editor to West Group's Sexual Orientation and the Law.

Ms. Guston received her B.A. cum laude from Mt. Holyoke College, her M.A., from Emerson College, and her J.D. from the Cardozo School of Law.