INSURANCE LAW PROJECT

By Phyllis Frye:

What we are criticizing is what is going on in America today and what we saw allowed last week at the Republic Convention when a bunch of people took over that convention. I have very many friends in the community and in other communities __ some where at the dinner last night __ who agree with what happened at the Republican National Convention when the Log Cabin Republicans, which is the Gay, Lesbian group, went on the air, on the media, on the news reports, on the Today Show, and others and said "we are Republicans, we're proud of being Republicans, we're not proud of what's going on right now and we are not going to endorse the current ticket."

So, I want to make sure that we are not bashing the Republican Party historically, we are not bashing Republicans historically, but we are extremely upset at what we heard and what was allowed to be said and was not repudiated.

Jim Kuhn. Jim Kuhn is going to speak on Insurance Law. Jim was an original director, very first year that the Bar Association of Human Rights was formed. Jim and I have been friends since about 1978. We've marched together. We've been in people's faces. We've said things that people didn't want to hear. He has served on many boards and agencies in our community and currently is the chair of the Gay, Lesbian Switchboard of Houston. The Gay, Lesbian Switchboard of Houston does turn a lot of people onto the Gulf Coast Transgender Community. Jim, I hope that before you leave you encourage them to put transgender into the term, into the name of the switchboard.

I love this man, I truly do. I think you know that I love you. I trust this man and more than any other lawyer, he and I share in problem-solving and when one is out of town or out of pocket we cover each other and protect each other's interest with our clients. Jim has extensive knowledge in the area of Insurance Law. I trust that after today you will be better equipped to stand up to the people who want the premiums but don't want to pay up. Jim.

By Jim Kuhn:

Thank you Phyllis. I have to remember how I came to know Phyllis very well. She was doing an internship while still a law student in the District Attorney's office of Harris County, and I was trying a bar raid case in the County Criminal Court here and that's when we first got to know each other. Phyllis will have to tell you about her experiences sometimes with our Republican District Attorney, when she was there.

We're going to talk today about Insurance Law. What we decided to concentrate on in the discussion group that we've had for the last two days was the remedies that could be applied to existing insurance coverage in the order of the most common kinds of coverage. I will try to explain the coverage as we go along. I am not going to get into great detail about particular Texas Law because it's not relevant to many of you. I will in passing because we do have something here that California has but mostly we're going to talk about what basic reforms need to be made. It would benefit not only the transgenderal community but also the general public in terms of receiving medical care at a price that you can afford.

The only remedy for wrongly withheld benefits is to sue for the amount that has been wrongfully withheld from you and for permissive, not mandatory, attorney's fees. You end up in Federal Court. The Federal Courts here are overwhelmed. They do not like seeing these cases. I've had one judge just look at me and say, "Settle this, I'm not going to try it." Perhaps your best remedy would be to go mediation. The remedy is obvious. Make the attorney's fees mandatory. Otherwise I don't have an incentive to take the case. If you are on disability or seriously ill you're not going to have the money to hire me otherwise.

Also, there ought to be some penalty for the insurance carrier who wrongfully withholds benefits __ some kind of monetary penalty that would be payable to the plaintiff because they have had to wait 2 to 5 years to get the coverage they were suppose to have in the first place.

Many companies are now also going to self insurance programs because they can no longer afford the insurance company's premiums. These are also going to be controlled by the ERISA statute because they are employer funded. The problem we have had is that self-insuring entity for the corporation or something else tend to place caps limits as to what they are going to pay out for certain types of medical illnesses.

The obvious one is AIDS. There's a case out of Houston, the H & H Music Company case. That has been decided by the 5th Circuit which said yes they can place a cap on AIDS coverage. The company in this case put a lifetime cap for AIDS patients of $5,000. That's all you get. It's on its way to the Supreme Court of the United States now. I cannot see any particular legal reason why it will not be upheld.

The remedy for that is to prevent, by legislation, companies from excluding any named medical condition and to require minimum standards of coverage for the self-insuring companies. Right now they don't have that. They can offer you a totally useless policy if they so choose and you buy into. If you work for them what choice have you got.

Other states, most states in fact, have the same remedies that the Federal ERISA Act does. You sue for the benefits and attorney's fees and that's all you get. The states need to be encouraged, where the attorney's fees are not mandatory, to make them so, and put some kind every penalty on these people.

Otherwise they will sit on your settlement check until it comes to trial, and if you have a terminal disease they'll try to wait until you're dead. Most people, when someone dies, the executor of your estate may not pursue the lawsuit even though they're entitled to. And if your testimony has not been recorded by deposition they can't really pursue the lawsuit successfully. I had a case like that. The gentleman passed away before we could get to trial and his surviving parents did not choose to pursue. I really wanted to hit this company over the head because they made the last year of his life absolute hell.

Specific to transgenderals, in the insurance community you need to be very careful when applying for any kind of insurance __ life, health, disability, primarily __ as to what the definition of pre-existing conditions are. You cannot expect to start the transgenderal process and change insurance coverage in mid stream. You're not going to be allowed to do that, you're going to get hit with a pre-existing condition. You need to read each individual policy. They stand and fall as their own individual contracts. You need to decide what the pre-existing condition is. Usually it is anything for which you have sought medical treatment, even a consultation, prior to applying for this policy.

I saw something on AIDS that came out in an American Express Insurance paper recently. It was the cleverest question I've ever seen. "Have you ever been advised about HIV or AIDS." Well, you can't turn on the TV or radio and see a public service having been advised about HIV or AIDS. It gives them, it's a weasel way to get out of paying your benefits. A nice company might refund your premiums, but that is about all you're going to get out of them.

If you have a pre-existing condition you really have to tell them about it. If you conceal it from them they're going to jerk your coverage the first time you ask for it. And you'll have wasted a lot of time and effort. You're going to end up with the medical bills any way.

As transgenderals you need to lobby to have the entire procedure from initial consultation all the way through SRS defined legislatively. I don't know of any other way to do it as a medically necessary condition. Other than that they're going to throw you out. "All this is cosmetic. This is elective surgery." And most policies don't cover either of the above.

The other reform that would be useful to the entire industry would be to permit insurance companies or require them to make their claims procedures uniform to relieve the health care providers from the bewildering forms and diagnostic evaluations which plague them now. I would guess that it adds 10 to 20 percent to the cost of medical care in this country just to shuffle the papers back and forth between the doctor's office and the insurance company. Most doctors I know have one person that they have hired full-time to do nothing but process claim forms. And each insurance company is different. Not to mention what you can get into with Medicare and Medicaid.

Separately, many policies, particularly health, have a conversion clause in them. If you are fired or you lose your job, you take disability. I'm not talking about COBRA here, we'll get to that in a minute. They will allow you to convert your policy from a group coverage to an individual coverage. So long as you pay the premiums your employer stops. There is a problem with conversion coverage. Usually the coverage you get is dramatically less than what you had before. If you have any kind of pre-existing condition, which means you cannot go to a new group or a new policy, you're going to find that your coverage is not what you thought it was.

I have experienced this personally. I went from a very nice policy to one that does not cover surgery or outpatient medication. My surgical benefits, $1200, and that's for a triple bypass. And they only pay 80 percent and there's a lower cap.

There needs to be, in this state particularly, because I've seen some policies, conversion policies that are worse than that, where they will pay you up to $40/day for hospitalization. You can't get in a charity ward for $40 a day in this town. There needs to be legislation providing for minimum standards on conversion policies below which the insurance company cannot go. Of course, if you do require them to do that they're going to raise the premium. You have to remember they're in this for profit. They have to pay their stockholder's a dividend.

One thing we did come up at the committee, we suggested to Phyllis and other persons who organized this, That is, in the future conference, you need to devote a section to Medicaid, Medicare, and Social Security. It is very relevant to many people here. We did not get into that because that really wasn't our brief. But a lot of people do end up on disability while going through the transition that you're going through, whether it is an emotional disability or a physical one or everybody has a potential problem with AIDS these days and you may very well end up on Medicaid and Social Security. The system actually does vary from region to region. It determines how well you're going to be received when you're applying for the disability and how many Appellate steps they're going to put you through before you finally get it.

While the particular problems of transgenderals and persons with AIDS or HIV are only going to be adequately dealt with in terms of a general insurance, particularly medical insurance reform, the cost of medical care for the corresponding insurance premiums are completely out of control. Adequate medical care paid for by insurance is becoming the prerogative of the rich and those employed by very large corporations or other organizations. The best local coverage I know of is through the University of Texas system, but they have a great deal of power with the insurance industry.

Small businesses are ones that you might not think particularly are small. I once was involved with a furniture chain that has 10 or a dozen stores in this area and they had to drop their insurance coverage. The employer couldn't pay for it, the employees didn't want to because they couldn't afford it. Your talking anywhere from $300 to $1,000 a month to cover a wife and kids as well as yourself. That's bigger than your car payment, bigger than your house payment.

The insurance industry was completely surprised of course by AIDS, by the epidemic, just like the general public was. And after 12 years they still have not found a way to cope with hundreds and thousands of men and women in their peek earning years becoming disabled and incurring medical expenses in the hundreds of thousands of dollars. I don't know how they're going to. This screwed up the actuarial tables beyond all relief.

The only solution that I have seen and there was some debate in the committee about this is a national system which guarantees basic medical care to everyone regardless of the income. Such a program was going to be expensive but is rather hard for me to believe that increased taxes would exceed the premiums you're already paying. You have to remember that if you want to object to paying taxes take a look at insurance premiums you're paying now. And if you spread that out on national basis they might even go down. A federal bureaucracy would be created. But now we have hundreds, thousands of insurance companies with their own individual bureaucracies and 51 state regulatory agencies. I doubt that a federal one would be that more difficult or complicated to deal with. They already make different judgments which harass and confuse caregivers, harass and confuse the insureds. You and I can't tell from one state to the next what kind of reception you're going to get.

When you go in on the transgenderal issue to an insurance company, to an insurance state board I don't know what they're going to do from State to State. Many people haven't tried quite frankly. A lot of people seem to pay out of their own pocket which is a same.

The very least they've got to go to uniform plain forms and procedures and definitions around here. 

The present system of course does not address preventive medical care any meaningful manner. Medical intervention often comes only in situations which could have been prevented if the patient would have seen a doctor earlier. You don't have to let the flu develop into pneumonia before you go to the hospital but a lot of poor people do just that. They can't go to the doctor and get a flu shot. They end up down in Ben Taub gasping for breath waiting to be admitted to the pneumonia wing of the hospital.

A national health care system would at least eliminate 51 different systems of insurance regulations that we have now. It's sort of an art within each State. Don't ask me what they do in Louisiana. I couldn't begin to tell you of any other State, other than Texas. It's going to take away some rights as well as confer them. You'll lose the bad faith doctrine at least as it applies to medical insurance if you go to a national system. I can't imagine the national government allowing that kind of liability to be placed on it. But by God, if you're getting the basic coverage and you're guaranteed, I think it's worth the sacrifice.

There are only those remedies available now to the owners of individual policies. It's not going to help you if your part of a group.

The obvious things are in the imposition of national standards of medical care as if there would be priorities established by the government which might very well exclude coverage for medical minorities such as transgenderals. Sexual re-assignment surgery is not likely to be covered in such a system unless you convince the government of the need. It's very likely to refuse elective cosmetic surgery as we've discussed before which the insurance companies use now to try to get out of it. I don't know why the federal government would be any more enlightened unless you convince them of it. The issue is going to be to convince whoever is making the decisions, whether it's the legislators or the administrative body, that at least SRS, the medical procedure is listed.

The task is going to be rather daunting however, it might be rather easier in a national system to identify who those decision makers are opposed to the present system. We are dealing with hundreds of thousands of company and 51 State Government. I'm including the District of Columbia.

You got to remember the people who have a lot of money are always going to have better health care than the rest of us. We should be able to try to eliminate inequities and the prioritize the discriminatory priorities within the present system. The right to a healthy life should not depend upon having a healthy income. I'm going to close with that. Thank you.

By Phyllis Frye:

Well Jim that was really terrific and I want to thank you and I want to add a little postscript to what he has just said as he talked about all the jurisdictions and of course those are just within the United States. Then we have Canada. We have those even if that is its own jurisdiction. Other countries have their own setups and it's a very difficult process.

But as I said when I opened up, this problem is the people in the insurance companies want our premiums. They want our money, but they don't like to pay.

I got a call on Tuesday of this week, today is Saturday. A woman from Arizona __ she is post operative transsexual, and she's been for about two years. She had heard about me through the community. She says, I have got a problem. It's an insurance company. And I thought she was going to tell me she had problems on his collecting on her surgery or whatever. She had that a couple of years ago, but she developed recently, within the past month a tumor on her arm, and the insurance company is refusing to pay saying it's SRS related. She said it gets worse. She says, my nephew who is very homophobic, beat me up the other day and broke my nose. And the insurance company is refusing to pay on that because they say it is SRS related. I don't practice law in her State. I gave her someone in an adjoining State. Hopefully they can find her someone because that insurance company needs to be sued.

PROBATE LAW & CIVIL COMMITMENT

David Elliott was a Charter Member of the Bar Association for Human Rights. He also is very helpful in formulating our inclusive by-laws and included in the list of the people that are included along with sexual orientation is gender identification. David has been giving many continuation education programs on Probate Law. I've asked him to head the committee and give you advice on how to protect yourself and your loved ones upon your death through probate strategies and how to be prepared for the threat of civil commitment. David.

By David Elliott

Thank you Phyllis. It's really an honor for me to be here and have Phyllis to have invited me to come to participate in this first conference. It's always fun to talk about probate because I enjoy it so much. A lot of my colleagues think it's deadly dull and they just don't want to have anything to do with it. They don't understand that helping people with what they want to do with their property, provide for their loved ones and look after their loved ones when they are no longer available to give that support and comfort is fun.

I think we all realize that there's a great necessity for leaving a will, whether we have a little property or even almost no property or have vast sums of estates totaling millions of dollars. We all want to be sure that our property goes to those persons or institutions that we support and feel and care for. There's some people that may not agree with me and those are probably Howard Hughes' heirs. You recall that there was a lot of litigation over Howard Hughes' estate when he died about 10 years ago or so. I think it may have been longer than that now, but in any event there were wills coming out of the woodwork. People were claiming they had a will that left his entire fortune to them. Medical centers were receiving copies of wills in the mail giving part to them and part to other people who drafted these purported wills. But at the final end it came down to the State of Texas, to determine who Howard Hughes' heirs were, and they all love to say where there's no Will, there's a way. Because without Howard Hughes dying without a Will none would have the great wealth they now have. But we don't know whether Howard intended it that way or not but we're not going to take Howard's approach to life or to death for that matter.

In all states that I am aware of, wills transfer property to the beneficiary. These are your probate assets as opposed to assets like your IRA account, your life insurance, your private retirement accounts. All of those things are what we call contract oriented. Those items, like life insurance products, have a beneficiary clause and that beneficiary clause determines where the proceeds of that life insurance will go. If your beneficiary clause says to my spouse or to my children, it's going to go there and whatever you write in your will is going to have no control whatsoever. However, if that clause should fail and there's not an alternative in your insurance policy or your IRA beneficiary designation then it will go into your estate and be governed either by your will or, if you don't have one, by the laws of the jurisdiction in which you live.

Obviously, I am most familiar with Texas probate laws and if you talk about having no will in Texas there are two classes of distributions that can be made with your property. If you are married in a traditional, for lack of a better term, government sanctioned marriage, and all the property is acquired during your marriage, then it's all going to be considered community property. In Texas, half the community property, and you look at it as a whole, is owned by both parties. Half of the community property goes to the surviving spouse. The other half of the community property falls to the children, if there are any. Hopefully, if you have children, that's where you want it to go if you don't have a will.

It's important to know that if you don't have a typical marriage you can plan for your spouse by doing a will. But as I said, Texas law does not provide for that person without a will. Everything would go to your heirs. Your heirs are going to be determined by State Law in Texas and in most other jurisdictions with which I am aware.

Texas law would give your estate to your children first or their descendants. If there aren't any children, it would give it to your parents. If your parents are deceased, your brothers and sisters, if any, would get it. If you don't have any brothers and sisters and you don't have any lineal descendants, i.e. your children and grandchildren, then it goes upward to your grandparents and great grandparents and then laterally at each level until they find a living heir. We've had numerous cases where an individual has died and was an only child of an only child. You go upward to a great grandparent and then laterally, and you can end up with literally hundreds of descendants because it falls to the level where there's the first surviving heir and then comes down again through their families. It's very complex and very difficult and you don't want to deal with that, or you don't want your heirs to have to deal with that so make a will; that's the simple solution.

There are alternatives to having wills during your lifetime if you feel that you want to be sure that it goes where you want it to go. I'll touch on these briefly as I go along. They include things like gifts and trusts and contracts.

One problem that you have to deal with or that many people have to deal with, and it's not limited to our community, is where an ancestor, a parent, or a grandparent has decided to disinherit us because of our lifestyle. These are difficult to deal with. They are painful, and it's, I think, important during our lives to try to overcome that if we can at all. That's as Judge Andel said the other day on his address this is where we get into bridge building. I think it's important to deal with these family matters in a different context.

One of the things that you do with a will is you transfer property, as I've said. You resolve the issues about certain properties going to certain places rather than having one person end up with your property or two different people ending up with the same piece of property __ with interest in the same piece of property. You can avoid that partitioning problem.

There are tax considerations if you have a taxable estate. Under current federal laws, $600,000 is exempt; the first $600,000 of your estate is exempt from federal tax. There are numerous state jurisdictions, however, who do impose inheritance taxes that are in addition to the amount that would be relieved by federal law.

Some of the issues that came up in our committee meeting are generally involving name changes and gender identification problems. I think the name change issue is the easiest issue to be dealt with. When you are in your alter ego and you are operating, perhaps living, as two individuals, and if you are in traditional marriage as many are, the name change issue I think is best handled by not causing any problem to your estate by not having any property in that alternate ego's name. If you have in fact changed your identity and you only live in your second ego, it's important to have all your property changed to that name, and this should be done during your lifetime of course. However, in will planning I would suggest that you confide in your attorney. You're going to build an attorney-client relationship there. If you are still maintaining a secret identity as to this, he or she can put this issue in your will by just stating simply that you were formerly known as another name. If he just stated that if you've been known formerly as Jack and you are now Jill, just stating that Jill's will leaves everything to her friends and family, the loved ones that she wants to protect and care for, property that may have been missed during Jill's lifetime and still remain in Jack's name is going to be out there. And it's going to be difficult to transfer without further litigation. You want to avoid that. Be sure you either transfer or have it in the will that Jill was also known as Jack and make some statement, and it can be a very benign statement so that you don't inflict a lot of pain on your family. We know that that's one of the issues that we have to deal with.

I think if you come from other jurisdictions other than Texas you probably get a lot more advertisements about in novo trust, lifetime trust, management trust. They are the same vehicle, they just have different names for it. These allow you to avoid probate in your jurisdiction. This is where you are transfer all your assets. You have to be careful about transferring all of your assets or as much of your property that is advised that you transfer. Some things you shouldn't transfer but those I think depend upon the various jurisdictions as you may reside in. Basically speaking, you want to put all your assets in this trust. The trust is in place for a number of years, or even a short period of time, in most jurisdictions. It's very difficult to overcome the dispositive provisions of that trust. The Trustee that you've appointed to take over after your death, because you'll probably be the Trustee during your lifetime, can only follow the terms of the trust. If the trust says, "Leave all my property to George," George is going to get all your property because the Trustee has no other authority other than to transfer that property to George. He owns the property and he must transfer it to George or any other person or entity that you have chosen to leave it to in your trust agreement. Whereas in a will if you've left everything to George and a parent or a sibling comes along and says, "George had undue influence over this person," and can show that but for George's influence this will would have never been drafted. It's a heavy burden for the contestant to overcome and there are numerous other ways to contest a will as well but generally undue influence is the most prevalent contest in this arena.

If the will is totally invalid and you've left no other will that can be brought in and proved up under certain circumstances, then the State's going to determine who get your property. That sibling may, in fact, inherit your estate and George or your other loved ones may get nothing. It's difficult to think about these things, but it's important for your well being during your lifetime and for those you love.

It's also important to select the proper fiduciary, the executor of your will, or the Trustee of your trust. These are persons that you need to be able to rely on to carry out your wishes in a independent executorship under a will in Texas. The independent executor steps literally, or figuratively, into the shoes of the decedent, carries forth his business as though he were the decedent. You move forward. The only difference is obviously he's just going to wind up the affairs for the decedent and pass that property as the decedent wished in his will. And that's why the selection is important because you don't want him or her tying up your property for any length of time. You want to be sure that he doesn't actually have pressure put on by other family members who didn't get what they call their share or didn't get anything. This selection is very important.

Phyllis asked me to talk about the guardianship issues in Texas. The jurisdiction of Texas really has a very progressive guardianship plan, I feel. Guardians can be appointed, after a hearing that shows that the person is incompetent. Incompetency, to my mind, is not getting caught for crossdressing. It's not getting caught for having activities of being involved in transgender activities. Those I believe do not rise to a level of incompetency in Texas.

In Texas you can be committed for behavior generally that is either dangerous to you physically or dangerous to someone else. I guess the most serious issue here would be considerations of suicide, but I think even here a short-term commitment is all that would be permitted. It's certainly not, I don't believe in Texas, illegal to try to commit suicide from the point of view of a jail term. In some jurisdictions I know that it is and we must keep these matters in the forefront, if this is a problem. We need to deal with it and the best place to do that is with professional care.

Guardianships in Texas allow you to designate who you want to be your guardian in the event of incompetency. If there is a fear of incompetency or being judged incompetent in Texas __ from the point of view from having a catastrophic illness or an injury that leaves you such that you are unable to look after yourself or your business __ during your planning with your attorney, have designated a guardian. A written designation, properly executed, can choose the person you want to be your guardian.

I briefly touched about will contest. One of the things you want to do, and I think we are more susceptible to that kind of challenge to our estate planning than any other, is to go through the things that are important to avoid. You want to draft the will as tightly as possible. You want to be sure that you have the proper number of witnesses. If there's any indication, because of an illness or something, that may leave you partially incompetent or occasionally incompetent, your attorney should be cognizance of the fact of having numerous witnesses that could testify to their belief that you are competent at the time you executed the will. It doesn't matter that you were incompetent 2 minutes ago. The question is, are you competent right at the instance you sign your will. Do you know the objects of your bounty? Do you know who you want to leave your property to? Do you know the extent of your property? Do you know the affect of what you're doing? These are the issues that they have to address right at the instance of will execution. This is what we call testamentary capacity.

I know of a case in Houston where there was a lawyer who had had severe bouts with depression was taking some medication. Occasionally or even frequently, he was not cognizant of what was going on around him. But in those recent moments he knew what he wanted to do. He had a lawyer in his law firm draft his will and this law firm of 15 partners all signed his will as witnesses. He had an unusual lifestyle. He left his will, he left his property to non typical or atypical beneficiaries, by that I mean not family members. He was fearful that there will be a contest over his estate. Well, if you have 15 witnesses who are going to be paraded up to that witness stand to testify that this person is competent, you're going to be deterred from having that will contested successfully on the basis of incompetency.

I spoke earlier about undue influence. In Texas the undue influence is evidenced by the person who, or someone, who has control or access to the testator and could show that that access leaded to an action by the testator to leave his property in a matter which would otherwise have not been written. The testator leaves all of his estate to one charitable institution, for instance, it may not even be what we would call a charitable institution, but someone has gotten to him and has supported him and influenced him to draft a will leaving it this way. That's not to say that this happens very often. Or he leaves it all to one person because he befriended him late in life and said, "Well, John, you've got to leave your entire estate to me because I have taken care of you the last 2 months of your life and I've been good __ I've cared for you and you have to leave it all to me." He gets the lawyer in, and he tells the lawyer what to draw. This is undue influence. This doesn't happen very often that we catch, but I think it happens more than we would like to acknowledge. Now to general planning of your estate, you should plan to give your estate to your loved ones, to those institutions that you care about, and you want to support. I know you're all familiar with the well known ones. In addition to those there are foundations that support our own interests, including the Winslow Street foundation and others, and all these other institutions that are bona fide and need our support. But these are our own personal decisions that we have to make in planning our estate as well as what we want to give to our families. 

The other is a power of attorney for health care. Recent legislation has mandated powers of attorney for health care on a federal level and most hospitals require you have to have one when you check in to make sure that if something happens to you that you are unable to direct your own medical care that you have appointed someone to make those decisions when you are unable to do so. So your will, your general durable power of attorney for health care, your general durable power of attorney, and your designation of guardian generally make up your estate planning package. Some of us also include what we call a directive to physicians. This directive to physicians is for those of us who have decided that we don't want any heroics to maintain our lives. This tells our physician, "Look, if you're fairly certain that it's going to take all this medical treatment to keep me alive and I'm not going to recover from this illness and it's only going to prolong my life unnecessarily, pull the plug." That's generally what we do with directive for physicians.

I recently had a client come to me who is very religious. She believes that some day, it could be tomorrow or it may be years from now, for whatever catastrophe she may suffer they'll find a cure for it. She wants the doctors to prolong her life for as long as possible. We don't see that very often because I think that's the standard __ the standard in the medical profession is keep trying to save them. This one was giving the doctor direction, "Please try to save my life as long as you can in the hopes that you could find a cure." That's an individual decision that each of us has to make.

So, generally to wrap up, I think, we want to make our gifts designate our beneficiaries properly under our wills and in our other assets, our insurance policies, our retirement accounts, our Keough plans, any of those things that we have, you want to be sure your designation is correct as to your beneficiaries so that you don't get caught by having someone contest it.

It's important that you also keep in mind, if you have children, that you designate a guardian in the event of your early demise. You don't want the Court awarding that guardianship of your minor child to someone who does not espouse your beliefs. You want your children to know that they're going to be cared for much the same way as you would care for them if you were alive. 

If you're doing an estate planning and you have a large estate, then you make lifetime gifts, you set up trusts for yourself and for your children. You also make charitable gifts; you do all of these sorts of things; and you have a lot of fun picking out who you want and what organizations you want to benefit. 

That basically gives you a view of probate. I know it's dull, and I know it's difficult for a lot of people to talk about and even think about because it talks about our mortality, but I tried in my practice to try to get my clients to look at it from a point of view that, "I have 2 estates." It's a little mind game I play. If I could give everything I own away today, but still be able to maintain my lifestyle the way I live now who, would I give everything to? What gifts would I make that would please not only me but the recipient? It's an easy way to make a decision and it makes you feel good. When you walk out of that lawyer's office having made that plan, you ought to feel good about it because you've taken care of yourself and you've taken care of your family and loved ones. Thank you.

By Phyllis

David, you just did a wonderful job and I appreciate it. You know he talked a little bit about __ really talked quite a bit about will contest. As transgendered persons that's something that we should really be careful and protect ourselves against. As he said, get yourself an attorney.

The other thing that I want to emphasize that he said is be honest about your gender self with your attorney. You have attorneyclient privilege. Some people in our communities have very deep closets, that's their business. I'm not going to pass judgment, that's their business. But they have got to be open and up front and honest with their attorney. If it is a family attorney, and they don't want the family attorney to know because it's a family friend, then find another attorney to do your will and let the family attorney do everything else. But you've got to be up front about your gender self in case, after you are gone, some issue comes up. If it comes up and it's thrown into disarray, all of your wishes to protect all of your loved ones, could be thrown in such serious jeopardy that they'll all go down the toilet. Besides no matter how deep your closet, is when you're dead, you're dead. Give up the closet.

The Bible says you're going to give up the ghost, give up your closet when you give up the ghost. 

So instruct your attorneys that in your will contest provisions that they put in the following. The Winslow, W_I_N_S_L_O_W Street Fund. And the Winslow Street Fund, as I said last night, is the transgender community personally endowed fund and is a cash sponsor of this conference. After they found out this conference was coming off, Winslow Street awarded to us, their very first grant. We not only received the first grant, we received the largest grant. The Winslow Street Fund, No. 6 Cushing, C_u_s_h_i_n_g, Street, Suite No. 200, Waltham, Massachusetts 02154, area code (617) 899_2212 and fax is (617) 899_5703. Make sure that whenever you do get your will made, and by the way they are 501 foundation, that a copy of that will is faxed or mailed to the Winslow Street Foundation. That is to protect your loved ones. And it wouldn't hurt if you gave them a little money as a primary beneficiaries.

The last thing David spoke of and I want to emphasize, in most jurisdictions it is very difficult to commit you civilly. Do not fall into that myth. Do not fall into a stereotype. Do not fall into that intimidation by your so_called loved ones. Do not fall into that trap that they're going to lock you into a locked room. I had an occasion where a member of our community was filing for a divorce and the female spouse prepared the proper affidavits and had my client picked up by constable. This person was taken to the mental health facility of our county, and I got a call the next day. In this jurisdiction you must be evaluated by two doctors. Within either 3 or 4 days I don't recall there had to be a hearing. By law there has to be a hearing on probable cause: essentially it was "had the law been followed." Not whether it had merits, but has the law been followed. That is important. It keeps any old law bubba from picking you up if the proper affidavits weren't filled out and the proper doctor's reports aren't done and everything is not just right. Know that you're going to see a judge at some time with an attorney or if you can't afford an attorney you will have an appointed attorney.

By David:

EMPLOYMENT LAW AND POLICY PROJECT

By Phyllis:

It's time to start and we're going to talk about employment law and policy. But before we talk about employment law and policy I want to tell you a little bit about the person who should be here at this moment making this presentation. Her name is Laura Smiley. She is an attorney, a member of the transgender community, and she hails from Denver, Colorado. She's a member of the Board of the International Foundation for Gender Education. She is also on the Winslow Street Foundation which gave this conference a grant and covered almost all of our advertising budget. Laura could not come, but Laura was very helpful in helping me take the idea for this conference and making it happen.

There was actually two people who were very fundamental in the formulation of the early planning. One was Laura Smiley. The other one was Merissa Sherrill Lynn who is Executive Director, IFGE. Those two people helped me in August, early August of 1991 and in subsequent months to formulate and focus and bring about the early presentation of the words that attracted y'all to come here. Y'all, that's a Texas word, y'all. 

By Diana [C]icetello:

Yes.

By Phyllis:

Let the record so reflect.

Employment Law and Policy is very very important to us so let me give you an example of why. December of 1977 was an extremely bleak month for my spouse, Trish, and myself. I had been unemployed for 19 months since I was last fired for being a "dress-wearing freak." Trish's job was not generating quite what we needed because at that time when we were both employed we had accumulated much debt. And also because her profession just didn't pay back in the 70's. Several years later her profession enjoyed a substantial pay raise but that was later. We had used all of our savings which wasn't a lot learning how to downgrade our standard of living. When you lose your job, or if you lose your job, you will learn how to downgrade your standard of living. Someone was talking about that to me yesterday and we both got very indignant about some of the people in our community who are fearful of their standard of living being downgraded because if they take a risk to be who they are they might have to downgrade from a BMW down to an Oldsmobile. Well that's not what I'm talking, I'm talking about basic necessities.

We felt very alone because neither of our families would have anything to do with us. Later, much later, her mother eventually came around and became one of our allies, but that was later and it remains weak.

The fight to change the ordinance was not making much headway. At the time Houston had a cross dressing ordinance. I had already been lobbying against it for about a year. Everyday I never knew when I went out if I'd be arrested. Everyday Trish never knew when she left for work if I'd be home from job hunting or lobbying or if she would find out that I was in jail. The ordinance was overturned in 1980, but that was later.

Christmas of 1977 was going to be meager. Yes, we had shoes. Things had not gotten that bad, but they were not winter shoes. We had some warm clothes, but they were becoming a bit tattered. It was depressing as hell. It was just depressing.

About the only things we did have were each other. We had and still have our faith in God, and at the time we had a very strong church family. Even though she and I loved each other, and we still do, and even though we were best friends, and we still are, those years of hardship bonded us together. She's talked about this time to many people and said, "you know I thought about leaving, but Phyllis didn't do anything wrong. All she was trying to be is who she is." Times like what we went through can either completely shatter a relationship or really forge a bond and those times bonded us together.

We felt that our faith was being tested much as in the story of Job. But no matter how bad it was, we always tithed and we still do, ten percent of our gross. Our church family helped to keep the loneliness and isolation at bay. At that time we were with the Metropolitan Community Church of the Resurrection in Houston, Texas. Many of you know the Universal Fellowship of Metropolitan Community Churches has many MCCs throughout the world. We sang in the choir at that time.

Each year at MCCR, as in most other churches, they have a White Christmas Offering where people bring canned and non-perishable goods each Sunday in December, wrap it up in white paper and place it at the alter. Poor families are given it the day before Christmas. And as I was key punching out this article and as I am saying it now I still get emotional and I start to cry again because they brought that food to us. We were the white Christmas family that year. It was quite wonderful.

We were brought eight boxes of food, all wrapped in white paper. We unwrapped it all. We put it in categories and we took out ten percent because we had a transgendered friend who had been living on the street, because she'd lost her job, and we gave that food to her. And the three of us cried a lot. And Joan, I don't know where you are right now, I haven't seen you in a couple of years, but I still remember then, and I hope you're making it. I know she's gotten a job since then in her engineering technology field. With the money that we'd saved from not having to buy food for the next several weeks we were able to buy warm shoes and we each got a warmer coat.

As you know my spouse and I did survive and now we're prosperous. The other transgendered person I referred to does have a job. I want you to know that I will never forget that day and that time. I do want you to know that if I can make it back then, you can make it today.

Now Employment Law and Policy. A job is radically important. We're going to be talking about health law, and we've talked about insurance law. People want our money for premiums, but don't want to help us out when we've got problems. We talked about probate law and the different ways people have tried to scare us about civil commitments. We're going to talk about criminal law and all the laws that make our life miserable. If some of us do get arrested for whatever reason, even if it was a driving-while-intoxicated, if we are cross dressed, we'll go through hell in jail before we're bonded out. We're going to talk about family law and custody of our children and divorce and things of that nature. Anti-discrimination in law in general will be discussed by Helen Cassidy, another kick-ass person, you're going to love her. Keith Stewart was tame. If we have our jobs we can survive the rest of it. We can somehow make due, we can buy time until the rest of it finally works out for us. And so it's drastically important that we are able to keep our jobs; that we are able to get some kind of job. 

We are good people. The transgendered community is just like every other cross section of society. There are those of us who are college educated. They're are those of us who might have a 6th grade education. There are those of us who work real hard. There are those of us who don't. There are those of us who are physically impaired. There are those of us who are not. There are those of who are criminally inclined. There are those of us who are not. We're just like every other cross section because we really don't have a thing in common except for the fact that we are repressed for the same reason. That is, we're trying to be who we are.

When you really get down to the core of it, what are we doing? All we're doing is being who we are. You know there was a Broadway musical many years ago. The song was, "I've got to be me, I've got to be me." Everybody says I've got to be me. You see the free spirits, and you see __ as Ray Hill called them __ the mossbacks, you see the football players, you see the jocks, you see the country/westerns, you see everybody else. They want to be who they are, but they don't want us to be who we are. All we are doing, if we are not transsexuals or cross dressers in the transvestite area, all we are doing is occasionally cross dressing, putting on different clothing.

For that they do all the things that we know. And they take away our jobs, even if it's the job that we're trained to do, and they won't let us get another job. They won't let us keep another job. We are unable to contribute something back to society, and that goes to self worth and that goes to self esteem. Someone I am really coming to know better and better has been unemployed for a long time. I think it's due to the recession more than anything else, but she is one of us. She's been out of work for quite a while. Recently I was able to get her a job. It doesn't pay worth beans, and it's a part-time job, but it's a job. It's something for her to get up in the morning, to think about, to get dressed for, to go to, to meet other people, to interface. They know she's transgendered. And you know what? This charitable organization is just thrilled at what she's doing, and, her esteem is getting all these wonderful strokes. She knows she is contributing, she knows she's bringing in a little bit of money to offset her expenses and she's being told what a wonderful person she is. She's been told what a wonderful job she does and she's getting to interface and continue to practice her new presentation.

Well you can't crossdress on the job 'cause you can't wear women's clothes 'cause you're still a male. Or in the female to male, hey you can't wear men's clothes 'cause you're still a woman. And you can't get your names changed until you go to court and you can't get your birth certificate changed until you go to court. That's what I call in committee a "poof." Poof means legally you're a female woman then "poof", legally when the judge says so granted and signs the order, you're the other. And you're always legally either woman or a man. But this court says, hey if you're a transsexual, you ain't a woman, if you're transsexual you ain't a man, you're just a damn transsexual. Okay. That's where we are.

We don't have any legal rights as to our jobs, none. 

There's a whole lot of other cases in here. She goes through them meticulously time after time after time. And court after court after court has said legislatively, as we read the history when the laws were created, it goes back to the Civil Rights Act. Sex means sex. We're going to give it its plain meaning. It doesn't cover you. You're out of court! You're out of court! Out of court! Out of court!

Interestingly, I do want to say this with respect with the suspect class. One of the reasons that I have pushed and prodded and yelled and screamed that whatever jurisdiction you're in, if you're in another country and you're lobbying, if you're in another state or you're in another city and you're lobbying to be in some type of legislation to protect you either in job or housing or anything else and you're trying to get yourself put into the laundry list, if you think you are protected under sex, read the definition of sex in that statute. Honey, if you ain't in there, you ain't in there.

If you think you're going to get in under the term gender, you better read the definition of gender in the statute. If it doesn't say transgendered, transsexual, cross dressing, you ain't in there.

And if it says sex orientation and it relates to gay and lesbian people, guess what, you're not in there.

I'm an Anglo and yet I'm a member of the Mexican-American Bar Association. And you know what, those are fine people, and I enjoy them, and they enjoy me. In the last judicial screening meeting, when they found out that a couple of judges had given my clients hell in court and reluctantly signed the order, they chose to endorse the other candidate on one race. They also chose, even though they were going to endorse this incumbent in the other race, to send four members of the group to talk to that judge and say don't do it again or we ain't going to endorse you again. They said if they discriminate against transgendered persons they discriminate against hispanic people. That's politics.

And we've got to rebuild our bridges. That's what Judge Andel was talking about. That's politics. And when you get an endorsement card from an organization that you believe in, you follow it or you follow most of it. Because that's where the downline ballots come. You already know who you're going to vote for, for president, you already know who you're going to vote for Senator, you already know a lot of people you're going to vote for. But who do you know that you're going to vote for J.P? J.P. is the one who is going to enforce that eviction notice. That family law judge, and if you live in a county that's smaller so that is just one of your civil judges, that's the one who's doing to give your spouse a temporary restraining order. Temporary restraining orders are ex parte, in other words, for a short period of time that temporary restraining order governs until you get a chance to present your case at a hearing. You aren't even heard for a temporary restraining order, did you know that? You ain't even heard. You don't even have to be served yet and the judge makes a decision. It's a temporary one but the point is all that stuff can go on, like take your kids away, all kinds of things. Unless those judges are sensitized in their screening meetings as to who you are. I've sat through a lot of screening meetings and judges have come and State Representatives come and State Senators have come, and members of the City Council have come and members for candidates for County Commissioner's Court have come, and they've met Phyllis Frye. I've said, "Hey, these are our issues and you know what, I'm a good person and all the people on the screening committee that are there with me know me, and they know I am a good person." We network. My organization supports their endorsement cards and their organization supports my endorsement cards. That's politics.

Everybody has asked me where I get all these neat speakers this week. Well, I work with these people. I lobby with these people. I network with these people. I know these people, and you can too. That's politics.

I don't care if you never join a party. What I am describing is politics.

Now, there are two very interesting cases that we don't have any follow up on. I want to tell the lawyers that are reading this and listening to this, and I want to tell the non-lawyers that are reading and listening to this, that if they got an employment problem to get this information to their lawyers. Two cases, one in 1985 and one in 1986, were both against federal government agencies. People sued, they were transgendered people, and it had to do with jobs. As usual, the company or the bureau or the department filed for summary judgment saying you don't have anything, toss this out before we all spend a lot of money. Both times it was the Federal District Court in Washington, D.C. In both cases the Court said this transgendered person has standing to proceed with this lawsuit. The reason why there is no more history on either one of them is, pure speculation, probably because they were settled. In other words, the person was either re_hired or kept on the job or got some good money in their pockets to leave.

The cases are Doe vs. USPS, United States Postal Service, 37 FEP cases 1867, and the other is Blackwell vs. the Treasury Department and that's in the Volume 41, year is 1986 and these were all fought out under the Rehabilitation Act of 1973.

I encourage the lawyers to glean these cases to find out what's going on. I encourage the none lawyers to get this to their lawyers to glean these cases and come up with strategies.

At least we can have standing.

At least in the Appeals Court if we win in the District Court and they appeal or if we lose in the District Court and we appeal, there's a good chance, if we do our politics right and we do our education right, that there are going to be some good judges. If we get a president whose going to appoint some different judges in the Federal Courts we might start getting some opinions that are going to help us out.

The other part of federal is the EEOC, the Equal Employment Opportunity Commission, where again we have nothing. I remember in 1976 when I filed. They investigated it for a year and-a-half, and they said, "Ms. Frye, you have been discriminated against, make no doubt about it, but it's not illegal. I'm sorry. Go and get yourself an attorney and try it." In Canada I've been told by a participant in the committee, contingency contracts are illegal. I don't know for sure that's what I've been told. If they're illegal and you are poor or you are indigent or you cannot afford it, you go to a Canadian legal aid clinic. They determine whether it's something they want to fight or not. Essentially, their legal aid clinic is the same as the U.S. EEOC who decides whether you have something to fight or not. If you don't have anything to fight, which is what the U.S. EEOC told me, what do you do in Canada or any other jurisdiction that does not allow contingency contracts?

Alice Oliver-Parrot got up here yesterday and talked about the lawyer is the only thing that stands between you and the State and that you've got to cherish the legal profession. Sure there's jerks in the legal profession: there's jerks in any profession. But by large as a profession, we stand between you and the State. We are your mouthpiece.

The reason why we have contingency contracts for these issues and other issues is because the people that fired you, they've got all the money in the world. They've got corporate lawyers who are going to bill them; so, corporate lawyers don't care whether you settle any time soon or not. They've got staffs, and they've got fax machines, and they've got Lexis and Westlaw __ which are the computerized law search stuff. They've got their books, and they've got their cozy offices and all that other stuff. You who have just been fired don't have anything. Not only that, you don't have your income. You probably don't have any savings. If it's not a job discrimination, but it's a personal injury, how are you going to fight an insurance company? Most of the time you need a lawyer on contingencies because you can't afford it.

If you win and if there is some good money coming out of it, all the out-of-pockets are going to come out of the top whether you paid them or your lawyer paid them. Then you're going to divide it according to the contract. If you lose, your lawyer doesn't get anything. So that person has taken a financial risk.

That's what's going on in the federal level both of the United States and Canada. I got a lot of letters from other countries. They said, "Is this going to be a United States law conference", and I said, "Come to the law conference and participate in the committee because this conference is going to be what you want." So those of you who are reading and those of you who are listening, if you want more input from more countries you better come to the next conference. We'll put in anything that shows up in the committees.

State law. You're going to hear a lot about tonight from Charlie Baird, that's one of the reasons I asked him, about the new federalism. States are beginning to come up with their own laws to protect people.

And as we know, and you go back by your history, there was a time especially during the civil rights fights and especially during the days prior to feminist victories that the federal courts were where you got relief because the states were awful. It's beginning to change. And it's beginning to be where the federal floor for protection is getting pushed so far down that a lot of the states are stating, as Ray Hill would call it, bullstuff. I usually don't use that word but I've cursed enough on the record. Bullstuff! These States are going to protect their citizens and they're going to create a higher floor.

If you are a lawyer reading or listening to this or if you're going to go into a fight make sure your lawyer understands this. If your States gives you a good protection and your State's laws floor is higher than the federal floor do not plead anything that has to do with federal law. Do not plead the Federal Constitution. Do not plead Title VII. Don't plead any of that stuff but your State. Here's why. Because it'll go all the way up to appeal to your State's highest court. If it's ruled for your and money bags wants to appeal it they can take it to the federal system and suddenly the federal laws which have the lower floor begin to be applied so you lose all your protection. Therefore, plead State Law.

Jessica Sterns __ we had the privilege of meeting her recently __ lives in New Jersey. Jessica Sterns is an airline pilot. Jessica Sterns is a veteran of Viet Nam. She is, one year older than I, a very proud woman, a very strong woman, a very emotionally strong woman. Continental Airline said, "bye" and they tried to get rid of her. She said, "No, I am going to fight." She hired a New Jersey lawyer, and the New Jersey law has an interesting caveat.

I think the Washington State law does too. Roxanne, by the way, I hope I remember if you want me to put your card and address in the proceedings, do you want me to?

By Roxanne:

Sure.

By Phyllis:

Roxanne is an investigator dealing with these areas for Washington State or the city of Seattle, I don't remember which but the point is she is on our side.

They have a suspect classification called perceived handicap and this follows handicap. Essentially it says, even if you aren't handicap, if the person discriminates against you because they think you're handicapped, because they treat you like you're handicapped, you fall under the statute and you're going to be protected. Well, they were treating Jessica as though she were handicapped. She sued Continental Airlines, who's based in Houston, Texas in New Jersey state court under New Jersey state law. Continental Airlines said, "Hey, that's easy. We're in another state. We'll remove it to federal court under federal diversity. We'll get one of those judges whose been appointed for life by the conservative presidents, and we'll just take care of this." The luck of the draw they got somebody else. And the federal judges applied that state law and ate Continental up. 

Now a lot of this is conjecture because under the settlement Jessica couldn't tell me anything, but it has to be what happened. I don't know what her settlement was, but they settled, and she's flying airplanes. We met her. She came to Houston about a month ago. She was in flight training, and I got a hold of her. The committee that put this thing on for y'all had the privilege of buying her dinner that night and sitting with her and hearing her war stories although she did not reveal __ for anyone at Continental whose read this proceedings __ the terms of the settlement and she should receive an applause.

[Applause] That's state laws and other state laws.

Local discriminations, I'm not going to get into them. There's a bunch of them. Colorado has several good city non-discrimination laws and the bigots in that state are trying to get them removed by a state amendment to the State Constitution. That's all being argued.

In the states that are trying to get rid of this stuff what they're going to do is, by a simple majority vote, knock out all these other ordinances. I believe that the courts should say, "If you give a right and you later want to remove it, you're going to have to do it, not by a majority vote, but by a 2/3 vote or 3/5 vote, something higher than just the majority vote." That's just ranting and ravings of Phyllis Frye and you can take it for whatever it's worth.

Americans for Disabilities Act. The Americans for Disabilities Act hasn't done anything for us. I really don't want to be listed in there because I don't think I have a disability. I'm incensed, and I resent the fact that we were put in with pyromaniacs, kleptomaniacs, drug addicts, child molesters, pedophiles and all those other people. We ain't those people. We are good people. We are very good people.

We now go to the employer's handbook. We went through this in committee, and it goes into a tremendous amount of explanation. It has become a question/answer booklet. It's extremely well done. The committee chewed up a lot of paragraphs, spit them back out. I think the final edition is going to be great.

But, as some of the federal cases did, and as this does, and in my own situation when I got fired, and most calls that I get from people that I have to defend, and most of the employers that call me and say what in the world do we do with this person: it always revolves around the potty.

Every time I say that, Helen Cassidy cringes. It infuriates her and y'all will hear more about it when she talks. The restrooms is what drives them all nuts. They don't know what to do with us in the bathrooms.

The problem was is that none of those one holers were anywhere close to where my classes were, to anywhere close to the law library, anywhere close to my study carole. After a couple of weeks I was getting along relatively good. Nobody hit me yet. Nobody screamed at me yet. I got tired of walking half way across campus to go to the bathroom. I mean __ think about it. You're sitting here eating lunch. Somebody's talking, and you need to go to the restroom you just get up, quietly you just go a few doors down, use the restroom and come back. In the situation I was in, you would have to think about it at first urge and you would have to walk up a couple of flights or down a couple of flights of stairs or take an elevator and walk all the way across to find your assigned restroom or one of the few assigned restrooms. Well ladies and gentlemen, you're really going to have to think about it. You're going to have to go at first urge.

So they called me in, and I told them what I just told you. I asked how many people are complaining? Four people in five weeks have complained. I said, "tell those four people that I use this women's restroom because it's near where I study. I use this women's restroom because it's near where I take classes. I use this women's restroom because it's near the law library, and the other eight women's restrooms in the law school I don't use. Tell them to use the others." It sounded reasonable and that's what happened.

I also know in the committee that one of our persons works for a large company. They wanted to keep her so they said, "We have men's and women's. Everybody knows you because you've worked here before and you're working now. We want to keep you but there's some people that are uptight about it. We don't want to give you a special potty just for you because that's embarrassing. So if you have to go to the bathroom, you're pretty close to the elevator, you're only on the third floor, just go down to the main lobby where there's a general public men's restroom and a general public women's restroom and it's not specific for you and use whatever restroom you want to use." That really didn't call any attention to her. It didn't make her feel like she had her own special potty. It wasn't stupid. It made sense. She's coping quite well, and so is everybody else. 

There's a million ways to handle the restroom other than fire somebody! Now, what are strategies for change? Well they're very simple __ education. Education. Education. Out of this law conference is going to come a proceedings. Send it to your employer, don't send it to the CEO of a big company. He isn't going to read it. Send it to the Personnel Manager if you have a big company. And put a little letter on there. If you're afraid they're going to read your handwriting, if you're afraid they're going to know whose typewriter it came off, go to a local print shop. Every print shop has a typewriter that you can rent or borrow, type it on their typewriter. And just say, "Hey I work for you. Some day I might transition, and I'd like for you to know a little bit about what's going on to think about it."

If you're afraid that they're going to find out who you are, then lie and say, "I used to work for you and I want you to know that I was here." Write them and say, "I'm thinking about applying for work with you some day soon I just wanted you to know." There are a million ways to take the light off yourself if you're scared about it. But make sure your employer knows.

And if you buy your own proceedings and you don't want to send the whole proceedings then copy the small section. We're not going to give an entire permission for everybody to Xerox the whole thing but go ahead and copy the pages of the law, go ahead and copy my presentation, send it to your employer with a little letter.

Also make up a little introductory letter if you are coming out of the closet, and tell them a little bit about yourself. I used an introductory letter with my neighbors when I transitioned. I just drafted a two-page letter, told them all about me. How many of your neighbors do you know? Do you know where they were born? Do you know whether or not they were Eagle Scouts? Do you know whether or not they hold four degrees? Do you know whether or not they're licensed in three states? Do you know whether or not they care? Do you know whether or not they're adopted? Do you know whether or not they have gay children or their children or sisters or brothers or mothers have died of AIDS or had been gay bashed or maybe they've been raped and they've been in the closet all their life about it. They might have some sensitivity as to who they are.

If none of that works, sue the bastards!

I'm a trial lawyer, and I'm going to tell you about suing. A lawsuit revolves around two things; one is the law and the other is evidence. I don't care how good the law is, if you don't have the evidence you're out. No jury is going to find in your favor if you don't have evidence.

You may not have the statutory law. You may not have the federal law. You may not have the local law, but you know what you might have? You might have their own policies and practices to hang them with. If they're a big company and they got standard hiring practices and they got standard firing practices and they violate their own practices in the United States, the Federal Constitution will come to your help because they've violated the due process clause. And you are in court. And they can't summary judgment you out.

So, if you are transgendered and you're in the closet or you think this might be an issue some day, you have right to go to your employment counselor, to your human resources professional and a lot of people are evaluated on a yearly basis. You were probably given, you probably have it stuck somewhere, and if you don't then get another copy, get a copy somehow of your company's hiring policies and your company's firing policies. And don't leave it in your desk at home 'cause when you're fired the guards are going to keep you off. They're going to give you a box that's got your pencils, and it's got your envelopes but it doesn't have anything else out of your desk.

You're entitled to some of it by discovery but that's tough to get. Take it home. Every 'atta girl, every 'atta boy you've gotten, take it home. Every commendation you've gotten, take it home. Every pay stub that you have, keep it. Show a length of time that you've worked for them. Show progressive pay raises, both in merit and inflationary. Show bonuses. If you're a school teacher and you get letters from the parents that are good letters, keep them. Keep all that stuff.

Go to Radio Shack or some place else and get the little machine that hooks on your telephone, don't get the little rubber stick'em on the bottom, get the hard wire. And have it ready to go so that if there's any calls that you get from supportive co-workers or from bad co-workers or from your boss or anybody else you record them. Why do I say supportive co-workers? I don't care how much someone likes you, if you get fired and they know that their job's in jeopardy if they come forward, there's a good chance you lost that testimony. But you can squeeze it out of them in deposition. If they begin to lie or they get cold feet and you've got the tape. "But didn't you say this?" And you pick up the tape of such and such. You've got to have evidence.

Now, you also need to go to the drug store or grocery store or any place else that has little spiral books that you can carry in your pocket or your purse. At the end of the day, if someone's been rude to you, if someone's said something good about you, if some instances happen __ you need to go to the restroom, close the stall, sit down on the pot, and write down what happened. Write the date of what happened. Write exactly everything that went on. Write the names of people that were involved. What's going to happen two or three months now when this thing finally blows up and you're crying and you're sitting in your attorney's office and you're saying "but all these people did this" and "you know what the other day, somebody heard this." Who was it? "Well, it was Joe and Mary and Sue." Well, what day was it that Joe was there and what exactly did Joe hear? "Well, I know Joe heard something, but I don't remember exactly what Joe heard, but Mary might have heard it." You've got it all in the book.

If you've recorded something on tape, things could get misplaced on the tape. Your lawyer doesn't want to listen to eight hours of tape. Number your tapes, date your tapes, and if you've got a tape entry, put it into your memo book.

In Texas, and I think this is pretty well universal in most jurisdictions, in evidence when you're at trial three years later and you pull out that book you can use that book in one of two ways. Before you get on the witness stand or even if you're on the witness stand and you're a little confused, you can pull out that book and you can refresh your memory. And if that book is a book, not looseleaf pages, and is in your own handwriting and is meticulously kept as a diary is kept, you can testify. You can use that to refresh your memory on the stand. And if three years later you've forgotten what happened you can read from your diary as past memory recorded. So either way, you can get it in. If you've got the evidence, they're going to squirm.

Now, if you don't think I do this, let me tell you what happened. I've got a sweet person who is not only handicapped physically, she's got multiple sclerosis. She's in a wheel chair, her hands are kind of like this, and she has a terrible speech impediment. Not only is she non_white, which is not an impediment except our society makes it, but she's a lesbian on top of it. And she rides Metrolift in our city. And she was putting up with with all kinds of trash.

We had a couple of hearings and her testimony was just awful. The Judge wasn't giving us a whole lot of help. I taught her to do exactly what I told you to