LGBT Legal Progress: 1988 - 2038

Much of the progress towards freedom and equality occurs in legislatures and courts, making a legal education a necessity. This past weekend I had the pleasure of attending the 25th anniversary conference of Lavender Law in San Francisco. Lavender Law is the national LGBT bar association, led by D'Arcy Kemnitz, and in attendance, speaking on plenaries and workshops, as well as networking in the audience, were some of the greatest legal minds of the LGBT community.

These included: James Esseks of the ACLU, the winner of the organization's highest honor, the Dan Bradley award, for his lifetime of work culminating just months ago in the U.S. v Windsor victory at the Supreme Court, Paul Smith of Jenner & Block, who argued the historic Lawrence v Texas case at the Supreme Court, Shannon Minter of NCLR (National Center for Lesbian Rights) who argued the Prop 8 case in California, Sharon McGowan of the Office of Personnel Management who had argued the historic trans rights case, Schroer v Billington, Tico Almeida of Freedom to Work who recently won the first private business case under Macy, and is leading the sexual orientation discrimination suit against ExxonMobil, and the legal team from the Transgender Law Center in Oakland which won the Macy v Holder case, leading to the expansion of Title VII of the 1964 Civil Rights Act to include trans and gender non-conforming persons.

The bar association has evolved considerably over the past 25 years, having included a Trans Law Institute for the past four years. Begun by trans employment lawyer and Lambda Legal board member Jillian Weiss, who recently won the third case for a trans plaintiff under Title VII, and now ably assisted, by Dru Levasseur, Director of Lambda's Trans Legal Project, the Institute brought together trans lawyers from both LGBT organizations and private practice. The highlight, as in previous years, was a review of the victories of the past year as enumerated by Jill, but this year we were honored to be joined by the "trans bench," Judges Phyllis Frey and Vicky Kolakowski. All two of them. That might not sound like much, but it's two more than when the Institute was created. Phyllis, as the legal grandmother of the trans community who had founded ICTLEP (International Conference on Transgender Law and Employment Policy) back in the early 90's, and from whom I learned much in those days, was honored with a speaking role in the plenary reviewing the successes of the past 25 years.

The Institute has benefited by the increasingly visible roles of many of the younger generation of trans lawyers, including Dru Levasseur of Lambda, Ilona Turner of TLC whose work was referenced in the historic Glenn v Brumby decision, Harper Jean Tobin, the brilliant federal policy analyst at NCTE who is responsible for most of our federal legal progress, and Alison Gill, now ably representing The Trevor Project after years of service with GLSEN. It's heartening to know we're no longer completely dependent on our gay and straight allies for legal support, having reached a state of mutual respect and support.

Most pleasing to me is the increasing recognition by the gay community of the importance of the Macy decision. While many of our leading LGBT organizations continue to minimize the decision, sometimes going so far to claim it applies only to federal government employees, thereby depriving trans persons of knowledge of their federal rights, most of the lawyers who presented at the conference and with whom I spoke understand its historic value. And Shannon Minter, NCLR's senior counsel who happens to be a trans man, went so far as to state during the closing plenary his hope that with marriage equality sweeping the country, the main obstacle to the courts' recognition that sexual orientation is a form of "sex" - that recognizing such would lead to same-sex marriage - should soon fall and allow all gay persons, gender conforming as well as the gender non-conforming already covered under the Macy decision, to be covered under Title VII. That will be a day worthy of great celebration.

So what are the main challenges ahead? First, the entire community needs to spend the resources to educate the general LGBT population as well as the legal profession that trans persons are covered under Title VII and need to heed the EEOC's plea and bring their claims to the Commission. The Commission's staff has been laboring these past 16 months to educate the staff at all 53 offices and to update their website and documentation to make it easier to file such claims based on gender identity and expression. They are also encouraging claims specifically dealing with discrimination on the basis of sexual orientation - that's the way the ball is moved down-field.

Next, there was a plaintive plea by Scott Schoettes for the legal community to pay attention to HIV and AIDS, a topic that has disappeared from the Lavender Law agenda over the past decade. It was emphasized that this issue is particularly acute for trans women of color, whose infection rate was reported to be as high as 40 percent.

James Esseks, in his Dan Bradley award acceptance speech, used the bully pulpit to exhort his colleagues to take the campaign by the right wing to expand "religious liberty" very seriously. While freedom of religion is a founding American principle, and one we all recognize and respect, it is increasingly being used by conservative fundamentalists to claim victimhood as LGBT equality marches forward.

I was pleased to attend a workshop on intersex persons and the law, particularly since I'm physically as well as neurologically intersex. The intersex community won a huge victory a decade ago when Professor Mickey Diamond assisted activists in addressing the American Academy of Pediatrics and they powerfully challenged the pediatric surgical profession to cease operating on babies born with ambiguous genitalia. Now adolescent and adult persons with Disorders of Sexual Development (I prefer the term Variations of Sexual Development) are stepping forward to demand their rights based on the principles of bodily autonomy and self-determination. We're fortunate that allies in Australia and Germany are way ahead of the curve on this issue.

Finally, an issue which is specifically relevant to the Lavender Law Conference but has significance to the larger issue of open trans service in the military, is the need to invite back the JAG Corps to the Conference's Job fair. An effort was successfully advanced by some trans leadership last year to have their invitation to participate in the Job Fair revoked because the military is not accepting of open trans service. However, those most impacted by this decision, the trans soldiers and sailors serving covertly, and the veterans who have completed their service, were not consulted. Now represented by SPARTA, they strongly want to increase gay participation in the JAG Corps so as to have allies working within the system to remove the archaic medical obstacles to open trans service.

The next 25 years will see full marriage equality and civil rights, full LGBT military service with anti-discrimination protections, efforts to end the AIDS epidemic once and for all, and the implementation of these rights to change the lived reality of all, and in particular those with the greatest need. So we hope.