A work injury or injury caused someone else’s negligence can cause many complications. But what happens when an injury case comes up during when the accident victim is involved in a gender transition or has changed genders?
Every injury claim is different. A gender transition raises some unique issues in an injury case, but those issues are manageable and need not hurt a case with good communication between an attorney and client.
Here are a few issues about representing transgender individuals in injury cases that have come up in my experience.
Why is a gender transition relevant to an injury claim?
In short, an injury claimant gives up a lot of privacy when they make a claim. The Rules of Civil Discovery give insurance companies a lot of power to go through a claimant’s medical history. Some studies have shown a relation to spinal fractures and the hormones used in male to female transitions. In a case involving a back injury involving a man changing genders, the insurer may try to pin the cause of a fracture on hormones used in a gender transtion rather than an injury.
Many injury claims involve either a mental injury or a claim for pain and suffering. These claims can open up discovery about a claimant’s mental condition. Some, but not all transgender individuals, suffer from gender dysphoria which is anxiety or mental distress over a person’s gender identity. Again if a transgender individual is claiming mental distress from an injury, an insurer may try to shift that mental distress onto the gender dysphoria rather than the injury.
But many people, whether transgender or cisgender, have some preexisting physical and/or mental health conditions that could complicate an injury claim. Transgender individuals just have some conditions that are unique to them.
Attorneys for insurance companies frequently ask injury victims if they have used another name in the past. This question is asked to discover things like previous accidents, medical care and experience with the legal system. It’s not unusual for women to have a maiden name and a married name. In the case of a person who changed genders, the prior names question can reveal the individual changed genders.
Protecting privacy and dignity in litigation
Just because an injury claimant loses a lot of privacy in litigation, doesn’t mean they lose all privacy. Questions, whether in writing or oral can not be “unreasonably embarrassing”. If question are unreasonably embarrassing, an attorney can move for what is called a protective order to limit questioning. Discovery in an injury case gives insurance companies access to all sorts of information. But not all information about an individual may be relevant in their court case An attorney can file a motion in limine to protect private details about a client’s life, like a gender transition, that might not be relevant to their claim from a jury.
In Nebraska and most states, motions in limine, may not be helpful to claimant’s in workers’ compensation cases because cases are heard by judges rather than juries. In other words, the finder of fact is going to know all sorts of things about a claimant that might not have anything to do with their work injury. In my experience, judges in the Nebraska workers’ compensation court do a good job of screening out irrelevant details in deciding cases. A gender transition may be of little relevance to a workers’ compensation claim.
The importance of a trusting attorney-client relationship
Transgender individuals have unique issues in injury cases, but like any other client a trusting attorney-client relationship is key to a good case outcome. Communications between a client and attorney are almost always confidential. Part of the reason for that privilege is that client’s need to tell attorneys things they wouldn’t tell their co-workers, friends or even family. When it comes to issues of gender identity and gender transition, a workers’ compensation or personal injury attorney needs to know about those issues early in a case so they can effectively advocate for their transgender client. As an attorney, I don’t want to find out for the first time at my client’s deposition that they are undergoing a gender transition Even routine matters like be kept up to date on a name change can help an attorney update medical releases so they can update medical records.
Effective advocacy in an injury claim isn’t just getting a good case outcome, it also means protecting the privacy and dignity of the individual during the litigation process. Transgender clients should feel comfortable communicating about issues with gender identity with their attorney, so their attorney can protect their interests during litigation.