By: Sophia Hall & Bill Gabovitch
Share some of your reflections regarding the impact your identity has had for you in your early law school career
Not dissimilar to being gay a generation ago, or not even that long ago, my fear was that being trans was such an underrecognized and underdiscussed concept that my classmates would not really be able to see me as an individual or human being. I really felt like if I came out at the beginning of law school everyone would be like “that’s that transgender law student” and I would be walking around as if I was wearing some kind of neon sandwich board. Not disclosing my identity though, made it difficult for me because I went to law school to advocate for my community, to do transgender civil rights.
So, what changed?
I got an internship at the ACLU National LGBT and HIV Project. I ended up interning there during the time that the Supreme Court decided US v. Windsor, the precursor to Obergefell v. Hodges. We at the ACLU were counsel on that case for Windsor. During my internship, I was able to work on some of the post decision matters. I was able to meet Edith Windsor. That year, we marched at the front of the New York City pride parade because everyone was so thrilled about that work. And it was so powerful to meet the attorneys there and see how passionately they advocated and how hard they had worked for decades to secure that victory.
I remember that I saw my supervising attorney read the decision and then weep, because the decision talked about it being a good thing for gay people to parent, and for decades the attack had been that it was a bad thing for gay people to be around children, especially in the educational context. You are seeing a similar rhetoric now being used against transgender people. It is the same playbook that you see time and time again. I thought then that this is the work that I came here to do. If I am not even willing to say that I am trans to anyone in the legal community, how can I really advocate for my community when I am afraid to be honest about who I am. I came back from that summer and started coming out to my friends.
What ultimately motivated you to come out as trans in law school?
It was a very personal decision for me. It was very difficult to be honest about my lived experience and that made it very difficult for me to make honest connections with the people around me. Look at the facts of a case like Bostock v. Clayton County. The named Plaintiff, Gerald Bostock, was fired not because he said he married a man or anything like that but because his employer found out that he was in a gay softball league. And when historically people have said to gay people “don’t flaunt it because it is sexual” what is overlooked is that it is not sexual any more than a husband talking about a wife is sexual. It’s like, “What did you do on the weekend? Oh, I went to the movies. I got my nails done. I stayed home.” But you have to lie. You are always thinking that you can’t tell anyone about the softball league because then they might come to a game and find out that we are all gay. This isolates people socially and it prevents people from making authentic human connections. In a professional setting, it prevents people from making the kind of connections that help them succeed in the workplace.
I held off coming out for so long because I was really worried that coming out as trans would limit my ability to advance my career. I was worried about being tokenized or marginalized, and not getting certain kinds of opportunities if people found out that I was transgender. At that time, there were even fewer out transgender attorneys than there are now. And there were very few of them who were, for example, law firm partners. There has still never been an Article III judge who is openly transgender. And so, I worried that it would prevent people from being able to evaluate my abilities on the merits. I was also concerned when it came to things like clerkship applications where I needed to decide whether I should cleanse my resume of LGBT affiliations because it might make me less attractive to judges. These are the kinds of things that when you don’t belong to marginalized communities, you don’t have to spend your time thinking about and it’s actually The mental bandwidth of putting so much time and energy into thinking of these components that holds people back. Part of it was that I didn’t want that to be me and ultimately, I didn’t want the next generation to have the same kinds of agonizing thought processes.
What does mentorship look like for you now?
After I graduated, I ended up being involved with a group of attorneys that ultimately banded together, and they were both cisgender and transgender attorneys. We formed a new bar association called the National Trans Bar Association (NTBA). Of course, there has been a national LGBT Bar Association, where historically transgender lawyers meet each other. But we really saw a need for this bar association that was focused on transgender attorneys because of that feeling of a lack of mentorship and support and not being connected to attorneys who knew how to navigate different kinds of challenges associated with being transgender in the legal profession. And they can be things as simple as when you apply for the bar exam you have to disclose any former names. People ask questions like “Do I have to disclose my former name if I have changed it legally? Will that “out me” before these courts? Will that affect how judges perceive me?” We give them mentorship about things like this. For example, I put in those forms, “I respectfully decline to share my former legal name because I changed it before I even entered law school, not to mention before I practiced law, and it has no legal relevance to my admission. If you have questions about that, please feel free to contact me.” I’ve actually gotten handwritten notes from clerks of court saying your note was very moving and got me to think of this issue in a way that I have never thought of this before. NTBA also operates a mentorship program that pairs mentors, who are more experienced attorneys with mentees who are often law students or young attorneys, to help people navigate questions like that.
I think mentorship is so important because I teach law students every day now and they really don’t know anything about the legal profession typically unless there are lawyers in their families or they worked as a paralegal. Students really have no idea what they are getting themselves into in so many different ways. They then often have this shopworn conventional wisdom that they pass around on what they are supposed to do with their careers that doesn’t survive first contact with the reality of practice. I always tell my students you should be spending ten times less time talking with your fellow students and ten times more time talking with practicing attorneys because you are going to learn so much more from doing that, grounded in reality and experience. That is true generally, and specifically with having to navigate being transgender or being nonbinary and what that means in terms of how people are going to treat you, how that might play out in different practice settings with client interaction and court interaction. It’s the kind of thing that is really helpful to talk over and to create a relationship with someone that can be a sounding board because they have more experience. It’s critical that we nurture and support young professionals to be the best lawyers that they can be, to find careers that are fulfilling to them, and to provide some space for them so that they can have a life outside of work. It is an important responsibility that we have for the next generation of attorneys.
Tell us generally about your work at Harvard Law School (HLS).
The LGBTQ+ Advocacy Clinic started in January 2020 as a pilot at HLS in response to an ongoing demand from students. There is a huge appetite from the students to learn about gender and sexuality law, and to engage in LGBTQ+ work. This is one of the most live legal issues of our time, at the intersection of law, politics, social events and lived experience. The LGBTQ+ community is also a growing percentage of the law school population. Our Lambda student legal group at HLS for example has over 200 members out of 1500 students. So, we have more than 10% representation. Students really want to understand, intellectually and in the prism of their legal education, what is going on in this area and understand it using the tools they learn to use in law school.
I also teach a course on Gender Identity and Sexual Orientation at HLS where I have two main objectives: to teach the substance of this area; and to encourage students to think about how to use law for social change. My course looks at impact litigation, amicus strategy, policy reform, and legislative reform. We discuss activism through a review of boycotts and public campaigns. We discuss which of these strategies make sense at different times and on different issues. The common approach in law school is sometimes that if you have a hammer, everything looks like a nail. My course encourages a different sort of thought. I am really trying to get them to see beyond the casebook.
Students can take my course whether or not they are in the clinic. The clinical aspect of the program, however, is where the students can come in and get to work. This clinic is distinctive because we focus on both impact litigation and policy advocacy, while thinking about how we can strategically leverage our institution, our students and our community relationships. We also try to lean into the benefits of being housed in an institution like Harvard. We think of ourselves as partners to LGBTQ+ non-profit groups. Those groups are often very much focused on immediate battles. There are presently over 200 anti-LGBTQ+ bills and someone has to challenge them. That can sometimes make it harder to do medium and longterm work that is more about establishing a strategic future of this area of practice. Our clinic also focuses on marginalized people within the community.
We have also published an Intersex Legislative Advocacy Toolkit in connection with InterACT, which is the world’s leading intersex advocacy organization. The toolkit is designed to help activists at the state level who are interested in passing bills that either raise awareness or protect rights. We also helped Free State Justice defeat a Maryland bill that had a transgender sports ban, by providing testimony from my colleague who is a transgender woman and who has deep ties to Maryland.
Tell us about a couple of your most significant cases.
As we are housed in a legal services center, we think about who are the poor and marginalized within the LGBTQ+ community and we are focused on supporting their needs. That includes especially disproportionally LGBTQ+ people of color, transgender, gender non-conforming, gender non-binary, intersex people and LGBTQ+ elders and people who belong to Southern rural and faith communities.
In the fall, we settled an impact case that we co-litigated with the Center on Constitutional Rights called Lopez v. New York City Department of Homeless Services. This case involved Mariah Lopez, a Black Latina transgender woman, who was discriminated against while briefly homeless and living in shelters. It started with her being denied the right to bring in her service animal. She then experienced a great deal of verbal and sexual harassment from that shelter system and also a denial of adequate medical care. After doing interviews with dozens of transgender people in the shelter system we found that Mariah’s experience was unfortunately representative. We managed to achieve a landmark settlement where the New York shelter system, for the first time, agreed to engage in comprehensive anti-discrimination training with respect to transgender and gender non-conforming individuals in their shelter system. They also agreed to open specific transgender and gender non-conforming shelter units in every borough, except Staten Island where they don’t have shelters, by the end of this calendar year. That was a huge victory for the community.
In the beginning of this year, we filed a case: Amaya Cruz v. Miami Dade County, with co-counsel from the Southern Law Poverty Center and the Transgender Legal Defense & Education Fund. This case involves three young transgender people who were arrested in the Summer of 2020 while protesting at vigils for Black Lives Matter and Black Trans Life Matters. They were arrested for the sort of charges you typically see during protest arrests: breaking curfew or occupying a site illegally. Our clients were subject to horrible and degrading treatment while held in the local jail. The two transgender women plaintiffs were asked if they were sex workers. One of our clients has a disability involving an extra appendage on her hand, and the police caused a lot of pain to her when she was fingerprinted. The police engaged in unnecessary strip searches of our clients, and isolated them from the other inmates. It is a clear example of why many transgender people are afraid of involving themselves in civil protest because there is this fear of their treatment if arrested.
One primary benefit for the students is that we do this work in partnership with other organizations. The students work with attorneys on the cases for the whole term, and when they are on the cases they participate on all our case calls. They join the attorneys and staff and talk about what is going on and why we are doing things. It truly gives them this ability to understand how this work happens on the ground, why we are making the decisions we are making, and how the work fits in to a bigger strategy. I think it is a very valuable opportunity for the students to be working with leading civil rights organizations as well as our inhouse attorneys.
Thoughts on the recent wave of anti LGBTQ+ laws and policies?
This is not the first wave of anti-transgender or anti-LGBTQ+ legislation. There have been certain parts of our political framework that have been using our community writ large as a cultural war flashpoint for generations. What is depressing to me is that the playbook never changes. They never apologize. LGBTQ+ people are not a threat, or a phase, or a joke. We are just human beings who are asking to live our lives and have homes, jobs, families and friends like anyone else. In the 70’s, the culture war was over whether gay people could be teachers and scout masters. When that idea started losing salience, the culture warriors started saying that gay people would end up destroying the institution of marriage. And when they lost on that and realized they were losing steam, they decided to leave gay people alone and target transgender people. Then they fearmongered about what would happen if transgender people would be allowed to change their IDs or use the bathroom. They have now turned to trans youth and women’s sports. There are now curriculum bills designed not just to prevent LGBTQ+ issues from being discussed in school, but also to prevent LGBTQ+ youth from reporting bullying at school. All of these efforts are particularly despicable because they target young people. And they target young people when we know darn sure that this kind of targeting that makes it much more likely that these kids are never going to make it to adulthood, and if they do they are going to be scarred and traumatized.
The opposition does not have science on their side. They don’t have empirical data on their side. They don’t have common sense on their side. We are a more powerful community than we have been in the past because of the fact that we are willing to come out and live authentically, and because we have the support of people who are not part of our community such as our family members, friends and loved ones. Ultimately, I am optimistic that we will be able to defeat these latest attempts to demonize our community, but at the same time I am cognizant, doing the work day to day in the trenches, of the immense human damage that is being done.