Hispanic America

Americans of Hispanic or Latino descent make up to close to 20% of the American population.² We are the nation’s largest minority group and one of the fastest growing.³ In fact, the nation’s Latino population grew 23% from 2010 to 2020 and since 1970, our numbers have increased more than sixfold.⁴ Hispanic people have also been part of the American story from the beginning. Although American history is often taught as a western movement from Plymouth and Jamestown to the Pacific Ocean, there is a perpendicular narrative that moves north from San Augustine and Santa Fe to the 49th parallel and the Great Lakes.⁵ The state names of Colorado (Spanish for “red”), Florida (“flowery”) and Nevada (“snowfall”) have Hispanic origins. The oldest European settlements on American soil, San Juan in Puerto Rico and St. Augustine in Florida, are former Spanish colonies. The constitution for the State of New Mexico was originally written in both English and Spanish. Closer to home, even the first person to record the word “Tennessee” was a Hispanic man. The weaving of the east-to-west narrative with the south-to-north story creates a uniquely American tapestry of history.

Hispanic or Latino (Latinx or Latine):

I have used the terms “Hispanic” and “Latino” interchangeably. Both labels have a long history in the U.S., and both have official government recognition. Hispanic has been officially in use since the 1970s, with Latino added in the 1990s. Notwithstanding their parallel official use, the terms have distinct meanings. “Hispanic” refers to people with an origin in a Spanish-speaking place.⁶ “Latino,” on the other hand, is a function of geography and includes people with origins in Latin America. Thus, a person of Spanish descent would be Hispanic but not Latino and a person of Brazilian descent would be Latino but not Hispanic.

Most Hispanic people in the United States also have roots in Latin America, making them both Hispanic and Latino.⁷ This overlap likely explains why many of us have no strong preference between the two terms. A 2018 Pew Research Center survey asked Hispanic adults living in the U.S. about their preferred pan-ethnic label.⁸ Fifty-four percent expressed no preference, while 27% favored Hispanic and 18% chose Latino.⁹ Interestingly, these numbers have barely shifted since a similar 2002 survey, where 53% indicated no preference, 34% preferred Hispanic and 13% preferred Latino.¹⁰

In recent years, gender-neutral terms like “Latinx” and “Latine” have emerged as alternatives to the masculine-defaulting “Latino.” “Latinx,” which originated in the early 2000s, has gained popularity among queer Latin American communities and academics who seek to challenge the gender binary and embrace gender fluidity.¹¹ However, a 2020 Pew Research Center survey found that only 3% of Latin Americans in the U.S. use “Latinx,” with some criticizing its difficult pronunciation in Spanish and its perceived elitism.¹²

“Latine,” a more recent term, aims to address these concerns by offering a gender-neutral alternative that is easier to pronounce in Spanish. Some argue that “Latine” is a more organic evolution of the language, as Spanish already uses “e” as a gender-neutral ending in words like “estudiante” (student).¹³ However, like “Latinx,” “Latine” has not been widely adopted by the Latin American community in the U.S. Ultimately, the most important thing is to approach these discussions with love and respect. I usually sum it up as follows: “Don’t be too hung up on labels. Whatever you call us, do it with love and you’ll be good.”

Hispanic Naming Conventions

Despite the deep Hispanic roots of this country, Spanish naming conventions are not widely understood in the institutions of our government, including the courts. This can have wide ranging effects from the trivial, like viral videos of mispronunciations, to the serious, such as casting unwarranted suspicion on witnesses like Rosa Lopez in the O.J. Simpson trial,¹⁴ and the tragic, such as the recent complaint from the grieving family of a victim in the University of Idaho murder case after the judge mispronounced their daughter’s name during a hearing.¹⁵

Hispanic naming conventions differ in some ways from the Anglo tradition that predominates across the country.¹⁶ In the Hispanic tradition, a person typically has two surnames: a first surname from their father and a second surname from their mother.¹⁷ For example, a child born to a father with the surname “García Martínez” and a mother with the surname “Rodríguez Pérez” would have the full name “[Given Name] García Rodríguez.”¹⁸

When a couple marries, neither spouse changes their surnames.¹⁹ So in the example above, upon marriage the husband would retain the surnames “García Martínez” and the wife would retain “Rodríguez Pérez”. This differs from the common Anglo tradition where the wife often takes her husband’s surname upon marriage.²⁰ Their children, however, will bear a combination of the parents’ first surnames.²¹ This represents the coming together of two families. So, the children of our example couple would bear the surnames “García Rodríguez.”²² The mother’s maiden name is thus not a “secret” in Hispanic culture, but a core part of her own identity as well as her children’s.²³ Using the mother’s maiden name for identity verification, as many American institutions currently do, therefore makes little sense for Hispanics.²⁴

Sometimes Hispanics use a hyphen to connect the two surnames.²⁵ This artificial addition is simply a practical response to computer systems that sort or store names incorrectly without it.²⁶ These cultural differences can cause confusion and frustration for Hispanics interacting with legal and government institutions.²⁷ Even with a hyphen, Hispanics are often misidentified by just one of their surnames.²⁸

Some are pressured to choose between their surnames.²⁹ As a result, many Hispanics feel a lack of respect and loss of identity when engaging with schools, government offices, and courts.³⁰ Some Hispanics will succumb to the pressure to drop their second surname. For instance, when yours truly joined the Army, I was pressured to drop my second surname, Martinez, and did so. It is a decision I regret. Women are also often pressured to take on their husband’s surnames, as my parents were during a recent hospitalization.

Some states are taking steps to better accommodate these naming traditions. In 2022, Louisiana changed its laws to once again allow Hispanic children to be given proper surnames combining the father’s and mother’s last names, after a 2016 law had restricted this practice.³¹ This change addressed a situation where, due to the prior law, “it basically looked like my daughter was my husband’s sister and not his daughter . . . There are a lot of cultural implications that come with that.”³²

Names Matter

A name is central to a person’s identity, and using it correctly conveys respect for that person’s family and heritage. Following Hispanic naming customs matters greatly for lawyers and courts.³³ As our nation becomes more diverse, the legal system has an obligation to adapt its practices accordingly. Simply asking a Hispanic client or witness for their preferred form of address is a good start.³⁴ Long Hispanic surnames should never make anyone feel unwelcome or out of place in a courtroom.³⁵

Lawyers and courts must strive to address Hispanic clients, witnesses, and other participants in the legal system properly and respectfully. Doing so is not only a matter of common courtesy, but also essential for building trust, rapport and effective communication.³⁶ Mispronouncing or misspelling someone’s name can make them feel disrespected, misunderstood, and alienated from the legal process.³⁷ On the other hand, taking the time to learn and use a person’s correct name shows that the lawyer or court values that individual and their cultural identity.³⁸ Small acts like referring to people by their chosen names, can make a big difference in building trust and perceptions of fairness in the courtroom.³⁹ When judges speak to the people before them, they should strive to “summon the best of them and not assume the worst.”⁴⁰

As the Hispanic population continues to grow and shape the demographics of the United States, it is increasingly important for the legal profession to adapt and become more culturally competent.⁴¹ Understanding and respecting Hispanic naming conventions is a critical part of this effort.⁴² By doing so, lawyers and courts can help ensure that the legal system is accessible, welcoming and fair for all.⁴³ No one should feel pressured to change or abandon their name to fit into the dominant culture’s expectations.⁴⁴ Instead, our legal institutions should embrace and celebrate the diversity of names and cultural traditions that make up the rich tapestry of American society.⁴⁵

Litigation is an inherently dehumanizing exercise in either the civil or criminal context. For the most part, parties must sit in a room while people speak around them and about them, and they cannot interject to correct the record or defend themselves.⁴⁶ Lawyers speak for them but are bound by procedural and substantive rules and by cultural norms surrounding when and how to appropriately speak for their clients.⁴⁷ When parties can speak, they do so under immense stress and after sufficient preparation and consultation with their lawyers.⁴⁸ In the criminal context, the accused must first be advised of her right to testify, and she’s often advised against doing so by her lawyer.⁴⁹ The least lawyers can do is to make sure our clients are addressed properly. It is one small way we can safeguard the dignity that they deserve.⁵⁰

Prosecutors also have a role to play in affirming the dignity of defendants through how they are addressed. Prosecutors should make a point to refer to the accused by their names in court and in motions, rather than just as “defendant.”⁵¹ “Labels matter: illegal alien vs. undocumented resident; felon vs. formerly incarcerated person; rape victim vs. survivor. How we describe people impacts how we perceive them — and how they perceive themselves.”⁵² Using someone’s name is a “simple request” that acknowledges their inherent humanity.⁵³

More broadly, there is a pressing need for the legal profession as a whole to become more culturally competent. Law schools should be required to include cultural competency coursework as part of their accreditation standards.⁵⁴ Continuing legal education requirements should also mandate training on bias, diversity and cultural competency for practicing attorneys.⁵⁵ Proper respect for diverse naming traditions should be part of a larger shift towards cultural awareness in the profession as the population it serves becomes increasingly diverse.⁵⁶

‘It Is Never Too Late to Do Right’

Our legal system strives to provide equal justice for all, but it often falls short of that ideal. For too long, Hispanic Americans have encountered a system that fails to understand and respect a core part of their cultural identity — our names. When lawyers and judges disregard Hispanic naming traditions, it sends a message that Hispanic culture does not belong. It makes our courtrooms feel unwelcoming to Hispanic participants and can lead to confusion, alienation and mistrust.

But there is hope. As my abuelita Doña Luz used to say, “Nunca es tarde si la dicha es buena” — it is never too late to do right. By making a concerted effort to understand diverse naming customs and to address people respectfully, legal professionals can take an important step towards building a more inclusive, humane and culturally competent justice system. Law schools, bar associations and court systems all have roles to play in normalizing this practice and equipping current and future generations of lawyers and judges with the necessary cultural awareness. Though seemingly small, consistently using correct names and titles can make a real difference in how Hispanic people experience and perceive our courts and legal institutions. As the Hispanic population continues to grow, embracing this change is not just the right thing to do — it is necessary to preserving the integrity, fairness and legitimacy of our legal system. The time has come for our profession to adapt, to celebrate diversity and to extend the dignity and respect that all people deserve. |||

WILLIE SANTANA is an Assistant Federal Defender in Greeneville. He earned his law degree from the University of Tennessee College of Law in 2014. Santana previously served as a visiting assistant professor of law at Lincoln Memorial University's Duncan School of Law and has experience in private practice, prosecution and public defense. He is the founder of HOLA Lakeway, an organization supporting immigrant communities, and one of the founders of the Knoxville Latino Bar Association, where he serves as the initial Membership Director. In 2021, Santana received the Tennessee Bar Association's Claudia Jack Award for his efforts in challenging unconstitutional pretrial practices.

NOTES

1. William Shakespeare, Romeo and Juliet, Act 2, Scene 2.
2. Cary Funk & Mark Hugo Lopez, Pew Research Center, “Hispanic Americans’ Trust in and Engagement with Science” 1, 5 (2022), www.pewresearch.org/science/2022/06/14/a-brief-statistical-portrait-of-u-s-hispanics/.
3. Id.
4. Id.
5. Felipe Fernández-Armesto, Our America: A Hispanic History of the United States 4-5, 28-29 (1st ed., W. W. Norton & Co. 2014); Laura E. Gómez, Inventing Latinos: A New Story of American Racism 20-25 (The New Press 2022).
6. Mark Hugo Lopez, Jens Manuel Krogstad and Jeffrey S. Passel, “Who Is Hispanic?, Pew Research Center” (Sept. 3, 2023), www.pewresearch.org/fact-tank/2022/09/15/who-is-hispanic (explaining the differences between the terms “Hispanic” and “Latino”).
7. Luis Noe-Bustamante, Lauren Mora and Mark Hugo Lopez, “About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It,” Pew Research Center (Aug. 11, 2020), www.pewresearch.org/hispanic/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it/. (“The terms ‘Hispanic’ and ‘Latino’ are pan-ethnic terms meant to describe — and summarize — the population of people living in the U.S. of that ethnic background. In practice, the Census Bureau most often uses the term ‘Hispanic,’ while Pew Research Center uses the terms ‘Hispanic’ and ‘Latino’ interchangeably when describing this population.”)
8. Ana Gonzalez-Barrera, “The Ways Hispanics Describe Their Identity Vary Across Immigrant Generations,” Pew Research Center (Sept. 24, 2020), www.pewresearch.org/fact-tank/2020/09/24/the-ways-hispanics-describe-their-identity-vary-across-immigrant-generations.
9. Ana Gonzalez-Barrera, “Pew Research Center Final Topline” 9, Pew Research Center, https://pewrsr.ch/4dvHPv6.
10. (Respondents to similar 2002 Pew survey indicating no preference between terms.).
11. Tess Garcia, “Latine vs Latinx? What Young People of Latin American Descent Think of These Terms,” Teen Vogue (Oct. 12, 2022), www.teenvogue.com/story/latine-latinx-debate-hispanic-latino (discussing the origins and rationale behind the term “Latinx”).
12. Luis Noe-Bustamante, Lauren Mora and Mark Hugo Lopez, “About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It,” Pew Research Center (Aug. 11, 2020), www.pewresearch.org/race-and-ethnicity/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it/. (Many also worry that when a largely non-Spanish speaking group imposes a term that does not align with Hispanic language traditions, it can feel like an unfair imposition on our culture.)
13. Id.
14. Jim Newton and Andrea Ford, “Key Simpson Witness Admits Contradictions,” L.A. Times, Mar. 3, 1995, at A1 (“Newspapers in El Salvador have reported that Lopez has used a number of different names, but she explained in court Thursday that the names were drawn from different sides of her family. That is not uncommon in Latin American countries, however, and many immigrants also find that their names are jumbled by officials when they enter the United States.”)
15. Andrea Blanco and Rachel Sharp, “Grieving Relatives of Slain University of Idaho Students Complain After Judge Mispronounces Victims’ Names,” The Independent UK, May 22, 2023 (reporting that the grieving family of a victim in the University of Idaho murder case complained after the judge mispronounced their daughter’s name during a hearing).
16. Manuel A. Pérez-Quiñones, “Hispanic Last Names: Why Two of Them?,” UNC Charlotte (Aug. 1996), https://webpages.charlotte.edu/mperez19/twolastnames.html (explaining differences between Hispanic and Anglo-American naming conventions).
17. Sylmarie Dávila-Montero, “I Have Two Last Names — Here Is Why They Both Matter,” Diverse: Issues in Higher Educ. (Dec. 7, 2020), www.diverseeducation.com/opinion/article/15108289/i-have-two-last-names-here-is-why-they-both-matter. (“In Puerto Rico, as in many Hispanic cultures, the first surname comes from the father’s first surname, and the second one comes from the mother’s first surname.”)
18. Pérez-Quiñones, supra note 12 (providing example of how Hispanic child’s surnames are derived from parents’ surnames).
19. Dávila-Montero, supra note 13 (“Within the Hispanic tradition, the woman does not change her surnames when she gets married.”)
20. Id. (contrasting Hispanic practice with Anglo tradition of wife taking husband's name).
21. Pérez-Quiñones, supra note 12 (explaining how children receive one surname from each parent).
22. Id. (continuing example of child's surname formation from earlier in the article).
23. Id. (“[M]y mother’s maiden name is Quiñones. Corporations need to use some other piece of information as an identifying characteristic, in particular one that is not publicly available.”)
24. Id.
25. Id.
26. Id. (“You might have noticed that in many cases, a hyphen is added to separate the two surnames. This is done artificially to satisfy the strict implementation of software systems that assume that a space is not a legal entry in the last name field.”)
27. Id. (explaining why many Hispanics hyphenate their surnames).
28. Dávila-Montero, supra note 13 (describing difficulties and frustrations Hispanics face when American institutions mishandle their surnames.)
29. Id. (“Even with the hyphenation, I still am [miscalled Ms. Montero].”)
30. Id. (“‘You should consider using just one last name,’ I have been told.”)
31. Andrés Fuentes, “Louisiana Law Allows Hispanic Surname Tradition to Thrive Again,” FOX8 (Nov. 19, 2022) www.fox8live.com/2022/11/19/louisiana-law-allows-hispanic-surname-tradition-thrive-again/.
32. Id.
33. See generally Deborah J. Cantrell, “The Role of Equipoise in Family Law,” 14 J.L. & Fam. Stud. 63, 71-72 (2012) (discussing the importance of respecting client autonomy and dignity in the legal process).
34. See Dávila-Montero, supra note 13 (“Most importantly, if you still feel unsure about how to refer to a person that has two surnames, just ask them.”)
35. See Id. (“I hope that my long-hyphenated name could motivate others and get to mean what others’ long-hyphenated Hispanic sounding names have meant to me: a form of representation of the Hispanic culture in higher education.”)
36. Susan Bryant, “The Five Habits: Building Cross-Cultural Competence in Lawyers,” 8 Clinical L. Rev. 33, 41–46, 73–75 (2001).
37. See Pérez-Quiñones, supra note 12 (describing the frustration and alienation Hispanics feel when their names are mispronounced or misspelled).
38. See Dávila-Montero, supra note 13 (“Calling someone by [their] right surname can generate a sense of belonging.”).
39. Victoria Pratt, “Why Dignity and Respect Matter in Our Courts,” 48 Litigation 29 (2022).
40. Id. at 29.
41. Jeffrey S. Passel, Mark Hugo Lopez and D'Vera Cohn, “U.S. Hispanic Population Continued Its Geographic Spread in the 2010s,” Pew Research Center (Feb. 3, 2022) www.pewresearch.org/short-reads/2022/02/03/u-s-hispanic-population-continued-its-geographic-spread-in-the-2010s/.
42. See supra Part III (explaining Hispanic naming conventions and the importance of understanding and respecting them).
43. Luz E. Herrera, “Reflections of a Community Lawyer,” 3 Mod. Am. 39, 40-41 (2007) (emphasizing the need for cultural competence in serving diverse client communities).
44. See Dávila-Montero, supra note 13 (“’You should consider using just one last name,’ I have been told.”)
45. See Id. (“As we work towards increasing the numbers of underrepresented individuals in higher education, lets also work on understanding each other’s cultures. At the end, true diversity can only be achieved when we all understand each other's cultures and respect them.”)
46. See generally Alexandra D. Lahav, “The Roles of Litigation in American Democracy,” 65 Emory L.J. 1657, 1682-83 (2016) (describing the passive role of litigants in the adversarial system).
47. See Model Rules of Prof'l Conduct r. 1.2(a) (Am. Bar Ass’n 2021) (“[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”).
48. See generally Renée McDonald Hutchins, “You Can’t Handle the Truth! Trial Juries and Credibility,” 44 Seton Hall L. Rev. 505, 518-19 (2014) (discussing the anxiety and pressure witnesses face when testifying in court and how “[fear] of appearing” and a witnesses “emotional level” impacts their credibility).
49. See generally Jeffrey Bellin, “The Silence Penalty,” 103 Iowa L. Rev. 395, 398-401 (2018) (explaining the strategic considerations that often lead defense lawyers to advise their clients not to testify).
50. Katherine R. Kruse, “The Human Dignity of Clients,” 93 Cornell L. Rev. 1343, 1353-58 (2008) (discussing the importance of respecting client dignity in the attorney-client relationship).
51. Akhi Johnson, “What's in a Name? A Small Step Prosecutors Can Take to Build a More Humane System,” Vera Institute of Justice (Jul. 24, 2020) www.vera.org/news/whats-in-a-name-a-small-step-prosecutors-can-take-to-build-a-more-humane-system.
52. Id.
53. Id.
54. Latonia Haney Keith, “Cultural Competency in a Post-Model Rule 8.4(g) World,” 25 Duke J. Gender L. & Pol'y 1, 35 (2017).
55. Id. at 38.
56. While this article focuses on Hispanic naming traditions, the principles of respect and dignity discussed here apply equally to other cultures with unique naming customs, such as Sikhs, who may use the surname “Kaur” for women and “Singh” for men regardless of marital status, or some married Korean American women who may retain their birth surname as their middle name followed by their husband’s surname. These principles also extend to transgender, non-binary and genderfluid individuals who may adopt names that affirm their gender identity. Legal professionals should strive to understand and respect the naming traditions and choices of all the diverse communities they serve.