Wednesday October 16, 2019

#ChangeLawyers I’m a trans lawyer. Last week, I fought for trans rights at the Supreme Court.

When I walked into the Supreme Court last week to defend the rights—and lives—of transgender people, I felt the power of the many people who have fought before us and the magnitude of the day became clear. It had been a long week, a long six months, a long 10 years, culminating in what could go down in history as a watershed moment for lesbian, gay, bisexual, transgender, and queer (LGBTQ) civil rights.

For me, as a transgender lawyer fighting for my own dignity and for critical protections of my community, it was both a defining moment in my life and a humbling reminder of how much work lies ahead.

On October 8, the Supreme Court heard arguments in three cases that addressed whether firing a worker for being LGBTQ is sex discrimination, which is prohibited under the Title VII of the Civil Rights Act of 1964. I am one of the lawyers representing Aimee Stephens, the plaintiff in one of the three cases the Court heard this week. Aimee was fired from her job in 2013 after telling her employer that she is transgender and would come to work as her true self—a woman. The two other cases that were argued that day involved men who were fired when their employers found out they were gay. Though the cases directly involved transgender and gay plaintiffs, the questions before the Court implicated the entire LGBTQ community and beyond.

I have spent the past six months immersed in the cases, living and breathing the legal issues, the personal impact, and the historical significance. Even though we largely understand these cases as LGBTQ cases, the Court’s ultimate decision will implicate everyone regardless of sexual orientation, transgender status, or gender identity. Why? Because, as James Esseks, the director of the ACLU LGBT & HIV Project explains, without protections from sex discrimination, we could “return to a world where employers can fire anyone—straight or [not], transgender or not—for not being the ‘right kind’ of woman or man.”

The central legal question presented in the cases is quite simple: When an employee is discriminated against because they’re LGBTQ, is it “because of sex” that they faced discrimination? Lower courts have largely held that it is—in other words, discrimination against LGBTQ people is considered a form of a sex discrimination. After all, you cannot even define sexual orientation or transgender status without referencing sex (however sex is defined). As a result, the courts have recognized this common sense proposition—that if someone is fired because they are a different sex than the one assigned to them at birth or because they are attracted to people of the same sex, the discrimination is, at its core, undeniably “because of” the person’s sex.

For this reason, trans people have enjoyed federal legal protections from sex discrimination for nearly 20 years. But while the legal question was a simple one, the political and social dynamics surrounding the cases were anything but simple, and the outcome is decidedly uncertain. Why are things so uncertain in this particular moment? In part because the Trump administration has been invested in transforming the federal judiciary—he’s appointed dozens of conservative justices including two who sit on the Supreme Court. What’s more is that once any case gets to the Supreme Court, the outcome is uncertain because the justices there are not bound in any way by lower court precedent. And the risk is always that all your protections get taken away.

Entering the courtroom on Tuesday, I was filled with a combination of dread, gratitude, determination, and sadness. On the one hand, it was such an honor to be a part of the team that would defend our client and name the injustice that she faced before the highest court. My colleagues at the ACLU and I had debated and workshopped thousands of permutations of questions and answers over weeks and months, and now we had a chance to show how fiercely we were prepared to fight for trans lives.

At the same time, as a transgender person, the idea of debating my basic humanity in the theater of the courtroom before powerful decision makers was deeply unsettling. I braced myself for the familiar barrage of confusion, repulsion, dehumanization, and mockery that often come from the powerful when speaking on trans existence.

Read the story on SELF

Speaking of… A small city lawyer is suing the nation’s largest drug companies

Paul Farrell, Jr. was looking through the West Virginia Code a few years ago when he came across a statute saying a county has the legal right to abate a “public nuisance.” Typically, that would mean things like trash heaps in someone’s front yard.

But Farrell decided it might also describe prescription opioids.

Farrell is a small-city lawyer in a place often described as the epicenter of the opioid crisis. His hometown has been flooded by pills — “a tsunami,” he says. A thousand people have died of drug overdoses here in less than two decades.

So Farrell, 47, made a federal case out of the catastrophe. He’s now one of three lead attorneys in the national prescription opioid litigation, the biggest and most complicated civil case in U.S. history.

The first courtroom showdown is set to begin next week in federal court in Cleveland. Farrell won’t argue the case before the jury. Instead, he’s one of the backstage masterminds of the litigation, which now includes more than 2,600 communities. The plaintiffs argue that the nation’s biggest drug companies — manufacturers, distributors and retailers — recklessly peddled opioid painkillers and fueled a wave of addiction.

The public nuisance strategy he helped craft has the advantage of requiring abatement — meaning the drug companies could be required to pour billions of dollars into communities across the nation that have been devastated by the epidemic.

“They broke it. So they need to fix it,” Farrell said of the drug companies. “I want them to stop killing people. I want mothers to stop giving birth to babies addicted to opium. I want my friends and my friends’ children to stop overdosing. I want to stop going to funerals.”

Read the story on Washington Post

More of This Courts across the country deal series of defeats to Trump Administration

Federal judges in New York, Texas and California sided against two of the Trump administration’s key immigration initiatives Friday, the latest lower court ruling against the president’s push for new physical and administrative barriers to migrants.

In El Paso, the court ruled the Trump administration’s attempt to reprogram military funds for the construction of border fencing was a violation of appropriation laws, a decision that could freeze work on the barrier in that area.

And in separate rulings in New York, California and Washington state, judges partly blocked the implementation of the “public charge” rule that aimed to disqualify immigrants from receiving green cards if they use public benefits or the government considers them likely to do so.

The decisions were the latest setbacks to the administration’s broader attempt to tighten the legal immigration system at the same time the president is seeking to erect hundreds of miles of towering steel barriers along the Mexico border using billions of dollars diverted from military budgets.

In the U.S. District Court for the Western District of Texas, Judge David Briones sided with the plaintiffs — El Paso County and the Border Network for Human Rights — and gave them 10 days to file a proposal for a preliminary injunction. Briones, a Clinton appointee, denied the administration’s motion to dismiss the suit, which was filed in April.

The decision Friday is the first instance of a local jurisdiction successfully suing to block construction of Trump’s border barrier. El Paso County authorities argued it would inflict harm to the local community’s reputation by creating an impression that the city is dangerous and unwelcoming.

David Bookbinder, an attorney for the plaintiffs, called it a “nice, neat, small ruling” that avoided broader constitutional questions about the president’s authority. The ruling instead zeroed in on what the judge said were violations that exceeded the executive branch’s authority to divert money appropriated by Congress for a specific purpose.

Bookbinder said it would take his clients “a few days” to determine what government activity they will seek to halt. The injunction probably would extend beyond El Paso County into areas of New Mexico, he said.

“It’s going to be a question of geography,” he said. “We’re going to have to specifically describe the areas of the border where the president will not be able to construct the wall.”

Trump this year diverted $3.6 billion in military construction funds to pay for hundreds of miles of 30-foot-tall steel bollard fencing. The administration has built 71 miles of new barriers so far, but Trump has promised to complete nearly 500 miles by the end of next year.

El Paso County Attorney Jo Anne Bernal said the county commissioners took a potentially risky step in suing the president but said the action was necessary because his portrayal of the border as a dangerous area was damaging the economy and other important aspects of community life.

Listen to the podcast Washington Post

More of This Too California Justices of color included in progressive SCOTUS dream list

Californians comprise one-quarter of the 32 plaintiffs lawyers, academics, state and federal judges, civil rights advocates and others who should be considered by Democratic presidential contenders for any new opening on the U.S. Supreme Court, the progressive group Demand Justice said Tuesday in pitching a list of would-be justices.

Demand Justice had said it was preparing a list of Supreme Court shortlisters, in part to spur a broader dialogue among Democratic presidential hopefuls about the high court. Then-candidate Donald Trump posted two Supreme Court candidate lists, picking primarily from prominent conservative state and federal appeals judges. Republicans widely praised Trump for his lists.

The progressive group’s Supreme Court shortlist, which is not affiliated with any one Democratic candidate, includes household names in litigation, judiciary and academic circles. There are no current Big Law partners, by design, on the list.

“None of the lawyers on our list are corporate lawyers, in keeping with our call for the next president to avoid nominating any more lawyers who have been partners at corporate law firms or in-house counsel at large corporations,” Demand Justice said in a statement. “Instead, our list boasts a wide range of former public defenders, public interest lawyers, academics, and plaintiff’s lawyers.”

Demand Justice took some criticism recently for its proposal that any next Democratic president shun nominating a current or former Big Law partner. That proposal, according to critics, “will likely exclude many first-generation black and Latino attorneys from the federal bench.” The critics argued that a stint in Big Law is not an uncommon move by many young lawyers to alleviate the pressures of crushing law school debt.

Read the story on Law.com

Less of This These judges are perpetuating debtors prisons 

A decade after he was first sentenced in Philadelphia Common Pleas Court, Maurice Hudson still could not come up with $1,941 in outstanding court costs — and, at a February hearing, it was clear Judge Genece Brinkley was out of patience.

“Each time, he has come back here with excuses,” Brinkley said of Hudson, who at 19 was convicted of a robbery and sentenced to two to four years in prison.

“I’m struggling out there on the streets,” Hudson, now 29, told her. He had come home on probation, gotten married, and become a stay-at-home father of two young girls with special needs. He earned only $150 a week as a part-time janitor. “I keep hearing it every time I come in front of you, ‘I’m not trying.’ How is it I’m not trying?”

To Brinkley, there was only one way to teach Hudson: an additional 1½-to-3-year sentence in state prison. She said it was “absolutely necessary to vindicate the authority of the court.”

Appeals courts have ruled people cannot be incarcerated for nonpayment without a determination that they are actually able to pay. Yet, in Hudson’s case, said Cheryl Brooks, a Philadelphia public defender, “he was essentially jailed for his poverty.”

Hudson’s case illustrates a reality for hundreds of people on probation or parole across Pennsylvania: Failure to keep up with court-ordered payments remains a common reason for judges to revoke supervision and impose more probation, more parole, or even more incarceration, keeping people under court control for years on end.

“It’s an ongoing, systemic problem,” said Andrew Christy, an attorney with the ACLU of Pennsylvania. He wrote, in an amicus brief in Hudson’s case, that the practice “turned Pennsylvania’s jails into a form of modern debtors’ prisons.”

Last year, Hudson spent about six months in Delaware County jail for falling behind on $350 in monthly child support owed to his older daughter. He said the repeated incarceration was a barrier to getting on his feet; he was home just over a month when he was incarcerated again for the probation violation.

Read the story on Philadelphia Inquirer 

SCOTUS Watch The Supreme Court is about to hear an abortion case that will impact women of color

With the new conservative majority brought in by President Trump’s appointment of alleged sexual predator Brett Kavanaugh and Justice Neil Gorsuch, it was just a matter of time before the Supreme Court agreed to review an abortion case.

Last Friday, the Supreme Court of the United States (SCOTUS) agreed to review a restrictive abortion law from Louisiana, one that is nearly identical to the Texas law struck down in Whole Woman’s Health v. Hellerstedt 2016. The 2014 Louisiana law would require any doctors performing abortions in clinics to have admitting privileges at nearby hospitals. The question for SCOTUS now is whether this law places and undue burden on people’s access to abortion. When reviewing the Texas version of this case, the Court majority — supported by now-retired conservative Justice Anthony Kennedy — found that there were no health benefits in requiring abortion providers to have privileges at a hospital and that the law did in fact place undue burden on those seeking abortions.

Experts tend to agree with the Court’s decision in the 2016 case. In-clinic surgical abortions are an extremely safe medical procedure, with very rare instances of hospitalization. Hayley Farless, a reproductive-justice activist, tells Teen Vogue, “Anti-choice politicians like to frame these oppressive laws as being intended to help women, but…clinic restrictions like this do absolutely nothing to improve health care outcomes for a procedure that is already extremely safe.” She says that laws like the one in Louisiana have a singular purpose: to “shut down clinics that provide abortion care.”

The closure of abortion clinics through targeted restriction on abortion provider (TRAP) laws can have devastating consequences. Farless points out that even without these laws going into effect, 89% of counties in the US didn’t have abortion clinics as of 2017, due to the multipronged attack on bodily autonomy with the onslaught of heartbeat bills, ultrasound requirements, and mandatory delays.

When Jessica found herself pregnant at 29 by an abusive partner in St. Louis, Missouri, she researched abortion clinics. She was “surprised to find out that there is only one [clinic] in all of Missouri.” Fortunately, this sole abortion provider was only 15 minutes away from her house, which was especially important since, in Missouri, there was a mandatory 72-hour waiting period after initial abortion consults. She dwells on this waiting period a lot, she says, considering if “the clinic was on the other side of the state, [I] would have been out a lot of money for travel expenses. Plus, [I] would have had to make the trip twice.” That is two trips to the doctor, at least two days off work, and two requests for rides if you don’t have a car. "It’s a pretty oppressive policy in a lot of ways,” which she thinks is on purpose.

This 72-hour waiting period after a counseling appointment was only the first policy aimed to force her to carry the pregnancy to term. During her first appointment, Jessica says she had to speak to three different people. She got blood work done first. Then she was required to have a vaginal ultrasound, where the practitioner had to ask her if she wanted to see the ultrasound images. After this she spoke to a counselor, who was required to give her all of the options instead of abortion, which Jessica says was “clear propaganda.” During this initial consult, Jessica cried with shame. Now she is “ashamed not of [herself] for doing what was best for [her] and [her] life, but with the legislators and lawmakers that are supposed to represent [me] and other women everywhere.”

Read the story on Teen Vogue 

Watch This

Do you ever wonder if you could clerk for a judge or maybe become a judge someday? Are you concerned that you do not have the right qualifications? Join us for a rare webinar on the unique barriers that law students of color might experience when considering clerking and how to overcome them. Our panelists will help demystify the clerkship process, provide concrete tips and resources, and discuss the important role that clerkships can play in building a diverse and more progressive federal judiciary. 

Hosted by ChangeLawyers℠, ACS, and Equal Justice Society. 

BREAKING THE SILENCE ABOUT OUR STOLEN SISTERS
This event is part of our Women’s Building Women Speaker Series where we bring together women leaders and activists whose work may not be getting the attention they deserve (both the women and the issue). This is an evening of conversation to build awareness and inspire action.

We will be "Breaking the Silence" around Missing and Murdered Indigenous Women & Girls, as well as women whose lives were stolen as they migrated from Central America to the United States. We will also update our audience about local government efforts to combat gender based violence in San Francisco.

Register here >

Work for the Alameda County Public Defender's Office
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With financial support from California ChangeLawyers, the Alameda County Public Defender seeks to hire its first Federal Litigation Fellow to provide pro bono representation to immigrants facing deportation in affirmative federal challenges before U.S. District Courts.

Deadline October 7. Apply here >

Work at Movement Law Lab

​From understanding history and theories of social change, to navigating the courts and the media, to drafting legislation and litigation on behalf of individuals and organizations—being a movement lawyer requires more skills than ever before.

The Director of Training is a key position in MLL’s growing team. This person will be the chief architect of the Lab’s training interventions to increase the quality and scale of movement lawyering. This person will work closely with the Executive Director, Purvi Shah, and the Lab’s partner organizations. 

Apply here >