The National LGBTQ+ Bar Association has submitted comments and signed on to many Amici Briefs that have been used in cases concerning LGBTQ+ issues or issues of discrimination. We have provided these briefs and comments for public viewing.
39 Gender Justice and Survivor Advocacy Organizations Oppose Virginia’s Proposed 2022 Model Policies Requiring Discrimination Against Transgender Children
The National LGBTQ+ Bar and 39 other gender justice, sexual assault survivor, and civil rights organizations, submitted a comment strongly opposing the Virginia 2022 model policies on “privacy, dignity, and respect for all students and parents” in Virginia’s Public Schools. As advocates for gender justice, survivors of sexual assault, and civil rights, we recognize that attempts to punish LGBTQI+ youth for existing cannot be separated from rules attempting to enforce sexist stereotypes and police the bodies of all girls and young women. Where adopted, these proposed rules would require schools to engage in unlawful discrimination against transgender and nonbinary students. The letter emphasizes connections between rules that seek to punish LGBTQI+ youth for existing and the enforcement of sex stereotypes and body policing that harm all girls and women in school, especially trans girls, queer girls, and Black and brown girls.
The National LGBTQ+ Bar and the supporting signatory organizations support the full inclusion of transgender girls, and all transgender, nonbinary, and intersex students. As courts and scientists overwhelmingly have stated, transgender girls are girls. They need and deserve the same thing as their classmates: a safe school environment where they can learn, grow, and be part of a community. When schools single out transgender and nonbinary students for mistreatment, segregation, and second-class status, they are harming these students gravely—they are also failing in their duty to educate cisgender students who will one day need to navigate a multifaceted and changing adult world, where gender diversity is a fact of reality.
The National LGBTQ+ Bar Association and Foundation thanks the National Women’s Law Center for drafting this letter.
Zachary Greenberg v. Jerry M. Lehocky, et al.
In Zachary Greenberg v. Jerry M. Lehocky, et al., a Philadelphia attorney continues to challenge a statewide anti-bias rule that would prohibit attorneys from engaging in harassment or discrimination due to LGBTQ+ status and other protected categories. In an amicus brief filed in Zachary Greenberg v. Jerry M. Lehocky, et al., the National LGBTQ+ Bar joined other affinity bar groups to express strong support for Resolution 109. They explain equality and respect for all individuals lie at the heart of our legal system. Discrimination and harassment by lawyers, including conduct manifesting bias or prejudice towards others, undermine confidence in the legal profession and the legal system. In furtherance of these unassailable principles, in August 2016 the ABA House of Delegates approved Resolution 109 to amend Model Rule of Professional Conduct 8.4 to include an anti-harassment and anti-discrimination provision. Preexisting rules focused on discrimination and harassment in the context of the administration of justice; the amendment to ABA Model Rule 8.4(g) expanded the scope to include all areas related to the practice of law. Amici’s highest priority in supporting the resolution was to assure an end to discrimination and harassment in the legal profession, promoting the equal representation of and opportunity for diverse attorneys. Citing “real life examples from our experiences,” Amici showed the direct link from discrimination and harassment to persistent under-representation of many minority groups in the legal profession.
The district court blocked this Rule because it apparently infringes speech protected under the First Amendment and it is too vague under the Fourteenth Amendment’s Due Process Clause. We urge this Court to reverse the decision. The text and goals of Pennsylvania Rule of Professional Conduct 8.4(g) are not only legal as Appellants’ opening brief explains in careful detail—but also, as explained below, important and necessary to our legal profession.
The National LGBTQ+ Bar Association and Foundation thanks Hogan Lovells US LLP for drafting this letter.
303 Creative LLC v. Elenis
In 303 Creative LLC, petitioners sought permission to refuse service to same-sex couples in the future sale of wedding-website design services, claiming that serving these potential customers could send a message that it does not want to convey because of its owner’s sincerely held religious beliefs. Public accommodations laws ensure all customers can participate in everyday commercial exchanges to buy the goods and services they need from businesses that open their doors to the public. Colorado’s Anti-Discrimination Act (CADA) protects these customers’ equal access and equal dignity by requiring businesses open to the public to sell their goods and services to all customers regardless of protected characteristics. Colorado successfully defeated 303 Creative’s suit to be excused from complying with CADA; 303 Creative then appealed that loss to the U.S. Court of Appeals for the Tenth Circuit. 303 Creative argued that complying with CADA violated its free exercise of religion and free speech rights under the First Amendment to the U.S. Constitution. 303 Creative successfully sought review by the U.S. Supreme Court. The Court agreed to hear the case during its October 2022 term to determine whether a public accommodations law violates the Free Speech Clause when it requires a business to offer all customers its goods and services—including customized goods and services—regardless of those customers’ protected characteristics.
In an amicus brief filed in 303 Creative LLC v. Elenis, the National LGBTQ+ Bar and the other organizations explained how anti-discrimination laws like Colorado’s protect religious minorities as well as LGBTQ people and customers with other protected characteristics, such as race, sex, age, and ability. The brief points to the recent rise in anti-Muslim and antisemitic sentiment; offers real-life examples of businesses discriminating against people of minority faiths; and notes that Colorado in 2019 was the state the with largest number of religious discrimination complaints to the U.S. Equal Employment Opportunity Commission.
The National LGBTQ+ Bar Association and Foundation thanks Columbia Law School’s Law, Rights, and Religion Project, Hogan Lovells US LLP, and Muslim Advocates for drafting this letter.
Taking Offense v. State of California
Taking Offense involves a challenge to a provision of the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights prohibiting long-term care facilities and staff from “[w]illfully and repeatedly” misusing a resident’s name and pronouns because of the resident’s sexual orientation, gender identity, or gender expression. The amicus letter explains that the Court of Appeal erred in treating the statute—which prohibits singling out LGBTQ people for disparate treatment—as a regulation of protected speech, rather than conduct. The letter also explains that the Court of Appeal failed to appreciate the full scope of the harm caused by the intentional misuse of transgender people’s names and pronouns, which occurs in many settings. This form of discrimination also harms people who are not transgender, including those who are (or are perceived as) lesbian, gay, bisexual, or gender non-conforming. Finally, the Court of Appeal’s assumption that such conduct is not “actionable harassment or discrimination” ignores key principles of California and federal nondiscrimination laws. In various other contexts, the intentional misuse of a person’s name or pronouns because of their sexual orientation, gender identity, or other protected characteristic violates the Unruh Civil Rights Act and other state and federal nondiscrimination laws. Pursuant to Rule 8.520(f) of the California Rules of Court, amici curiae respectfully request permission to file the attached brief in support of Defendant-Respondent, State of California.
The National LGBTQ+ Bar Association and Foundation thanks Lambda Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, and ACLU of Southern California for drafting this letter.
Vasquez v. Iowa Department of Human Services
This case challenges Iowa’s law denying Medicaid coverage for gender confirmation surgeries. On June 24, 2022, Kaplan Hecker & Fink attorneys filed an amicus brief at the Iowa Supreme Court in Vasquez v. Iowa Department of Human Services on behalf of organizations representing the LGBTQ+ community, including the National LGBTQ+ Bar Association.This amicus brief, filed in support of the petitioners Aiden Vasquez and Mika Covington, urges the Iowa Supreme Court to hold that transgender classifications face strict scrutiny under the Iowa Constitution. As the brief explains: “It is vital for courts to affirm the dignity of transgender persons and make clear that our commitment to equal protection shields the transgender community. By requiring the government to affirmatively explain and justify transgender-based classifications, strict scrutiny serves to smoke out and deter reliance on biased assumptions . . . Given the absence of any presumptively valid reason to draw lines by reference to transgender status, it is eminently reasonable to demand such justification. By virtue of its commitment to equal protection for all persons, the Iowa Constitution demands nothing less.”
The National LGBTQ+ Bar Association and Foundation thanks Kaplan Hecker & Fink LLP for drafting the letter.
Letter to Congress in Support of of the LGBTQI+ Data Inclusion Act (H.R. 4176)
The National LGBTQ+ Bar Association and Foundation calls on Congress to pass the amendment in the nature of a substitute and passage of the LGBTQI+ Data Inclusion Act (H.R. 4176). The LGBTQ Data Inclusion Act, as introduced, would facilitate the collection of voluntary, self-disclosed demographic data on sexual orientation and gender identity across federal surveys. The amendment in the nature of a substitute would add variations in sex characteristics (also known as intersex traits) to the data voluntarily collected, and would accordingly change the bill title to the LGBTQI+ Data Inclusion Act. Collecting this information in federally supported surveys (such as the Current Population Survey and National Health Interview Survey) is essential to improving the well-being of LGBTQI+ populations across key areas of life. Passage of this bill is essential to better understand the experiences of LGBTQI+ communities, generate policy solutions that are inclusive of LGBTQI+ people and their needs, and to evaluate the effectiveness of those policies to reduce disparities and advance equity.
The National LGBTQ+ Bar Association and Foundation thanks the Center for American Progress for drafting the letter.
LGBTQI+ Letter to Policymakers in Support of Abortion
The National LGBTQ+ Bar Association and Foundation calls on policymakers in all branches and at all levels of government to use every mechanism at their disposal to ensure that abortion care remains not only legal, but also available and accessible to all who need it. The LGBTQ+ Bar supports our community’s right to access abortion and also recognizes that many abortion providers also provide culturally competent care to our community. Freedom to end a pregnancy, access contraception, and to access gender-affirming care is essential to our health, dignity and autonomy, and to freedom from discrimination based on sex. Were Roe and Casey to be overturned, our rights to marriage, freedom from discrimination in employment, and ultimately our fundamental right to love who we love would all be threatened.
It is no coincidence that attacks on abortion access and attacks on LGBTQ+ rights are occurring simultaneously and we recognize that these attacks will most disproportionately affect those with fewer financial resources, including, disproportionately, people of color. Should the Supreme Court overturn the precedent that guarantees access to abortion, the LGBTQ+ Bar calls on legislators and other government officials to finally enshrine this right into the law. It is time for every public official who believes in true personal freedom to use their power to work toward reproductive justice for all.
The National LGBTQ+ Bar Association and Foundation thanks the National Center for Lesbian Rights for drafting the letter.
Women’s Health Protection Act (WHPA), S. 1975
The National LGBTQ+ Bar Association and Foundation urges the Senate to bring to the floor and pass S. 1975, the Women’s Health Protection Act (WHPA). The LGBTQ+ Bar supports access to the full range of reproductive health care, including abortion, which is vital to the health, safety and lives of our diverse communities. We know that the harm from the continued erosion of reproductive rights falls hardest on those who experience health disparities due to social, political, and environmental inequities, including LGBTQ people, people with low incomes, Black, Indigenous, and People of Color, immigrants, young people, people with disabilities, and those living in rural and other medically underserved areas.
The National LGBTQ+ Bar Association and Foundation thanks the National Center for Lesbian Rights for drafting the letter.
Dobbs v. Jackson Women’s Health Organization
In March of 2018, Mississippi passed the Gestational Age Act banning all abortions after fifteen weeks, except in cases of severe fetal abnormality or other medical emergencies. The sole clinic in the state providing elective abortions sued Mississippi challenging the constitutionality of the bill. The United States District Court for the Southern District of Mississippi enjoined the Act from enforcement, and the decision was affirmed by the Fifth Circuit. The LGBTQ+ Bar joined 22 other LGBTQ+ advocacy organizations as amici in this amicus brief submitted in support of Jackson Women’s Health in Dobbs v. Jackson Women’s Health Organization. The LGBTQ+ Bar affirms our strong support for the rights of all people to reproductive and bodily autonomy, as well as access to essential reproductive health care services.
Comments to the Department of Housing and Urban Development’s joint proposed rule “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs”
Sharonell Fulton v. City of Philadelphia
The City of Philadelphia learned that two of the agencies it hires to provide foster care services to children in the public child welfare system would not license same-sex couples to be foster parents based on the agencies’ religious beliefs. The City informed both agencies that City contracts prohibit such discrimination and stopped referring children to them. One of the agencies sued the City, claiming that the right to free exercise of religion entitles it to a taxpayer-funded contract to perform a government service even though it is unwilling to comply with the City’s requirement that contract agencies accept all qualified families. The amici urges that excluding LGBTQ+ people from foster parenting undermines the goal of placing our most vulnerable children in homes that are in the best interest of the child.
Comments to the Department of Justice and Department of Homeland Security’s joint notice of “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review”
In June, the Trump Administration released a draft rule that would effectively eviscerate the U.S. asylum process. Despite these dramatic changes being proposed, the Administration gave the public a mere thirty days to respond, in the midst of a global pandemic. These regulations erect new barriers at every stage of the asylum process and roll back decades of established legal precedent. Concerned about the impact this proposal would have on vulnerable LGBTQ+ asylum seekers, the National LGBTQ+ Bar (then the “National LGBT Bar Association”) coordinated with several LGBTQ+ immigration organizations and submitted its own comments.
The LGBTQ+ Bar’s 19 pages of comments raise more than a dozen specific objections to the rule and detail how the proposed rule would cut off existing avenues to safety for LGBTQ+ asylum seekers. If this rule were enacted, it would deny protection to tens of thousands of LGBTQ+ asylum seekers who are currently entitled to asylum under our current system.
Gerald Lynn Bostock v. Clayton County, Georgia
Altitude Express, Inc., and Ray Maynard v. Melissa Zarda and William Moore, Jr.
R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission and Aimee Stephens
In these cases, three employers subject to Title VII hope to carve out discrimination against LGBTQ+ employees from the law’s protections. This court should reject the discredited idea that employers may discriminate in employment decisions to appease customer prejudice.
Doe v. Arrisi, et al.
The plaintiff, under New Jersey law, is forced to keep her birth certificate marked as male because she does not wish to have an invasive medical procedure, despite her diagnosis of gender dysphoria under the ADA. The amici urge the court to deny the Defendant’s Motion to Dismiss the Plaintiff’s ADA and Rehabilitation Act claims.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Couple David Mullins and Charlie Craig went to Masterpiece Cakeshop in July of 2012 to order their wedding cake. Cakeshop owner Jack Phillips refused to bake the cake based on his religious beliefs. A Colorado law prevents businesses that provide public accommodations from discriminating based on a range of factors, including sexual orientation. Mullins and Craig filed a compliant with the Colorado Civil Rights Division (CCRD) and the CCRD ruled in their favor. After a CCRD victory in the Colorado Court of Appeals in 2015 , the Supreme Court agreed to hear the case.
G.G., By His Next Friend and Mother, Deidre Grimm v. Gloucester County School Board
Note: This case was originally before the Supreme Court before the decision was vacated and sent back to the 4th Circuit Court of Appeals. G.G. is a student at a public high school. He wishes to use the restroom aligning with his gender identity. The Gloucester County School Board held multiple public meetings to decide whether or not he would be allowed to use the boys’ restroom and ultimately passed a resolution prohibiting any transgender students from using the restrooms aligned with their gender identities. This brief urges the court to rule that, under Title IX, G.G.’s gender identity is protected and that he must be allowed to use the restrooms, locker rooms, and other facilities matching his true gender identity.
Gloucester County School Board v. G.G., By His Next Friend and Mother, Deidre Grimm
G.G. is a student at a public high school. He wishes to use the restroom aligning with his gender identity. The Gloucester County School Board held multiple public meetings to decide whether or not he would be allowed to use the boys’ restroom and ultimately passed a resolution prohibiting any transgender students from using the restrooms aligned with their gender identities. This brief urges the court to rule that, under Title IX, G.G.’s gender identity is protected and that he must be allowed to use the restrooms, locker rooms, and other facilities matching his true gender identity.
Berthiaume v. Smith et al
During jury selection in which Raymond Berthiaume, a gay man, was the plaintiff, two potential jurors were struck by the defense. The court refused to allow the plaintiff to present arguments evidencing that the potential jurors had been struck for their actual or perceived sexual orientation, creating additional road blocks to in the plaintiff’s right to a fair trial. The brief urges the court to hold, as the Ninth Circuit has, that sexual orientation is subject to heightened scrutiny and recognized as part of the Batson Challenge.
Lee v. United States
Mr. Lee, an individual lawfully living in the United States for more than 25 years, pleaded guilty to possession of ecstasy after his attorney incorrectly informed him a guilty please would not result in deportation. The petitioner’s case addresses the harsh penalty faced by some immigrant families as a result of interactions with the US criminal justice system. Currently, minor non-violent offenses may result in the deportation of non-citizens, even if those individuals are lawful permanent residents.
Lee v. Tam
Simon Tam, of the band The Slants, filed suit after the band name was rejected for trademark purposes. The defense argues that this rejection is not a violation of the Free Speech Clause of the First Amendment because potential marks that disparage a group or race of people do not further the provision of goods or services through commercial transaction.
Obergefell et al v. Himes
In 2014, four separate cases challenging same-sex marriage bans were consolidated into one case before the United States Court of Appeals for the Sixth Circuit. The challenge claimed that the various bans on same-sex marriage were unconstitutional.
Latta v. Otter
Four lesbian couples, two of whom were raising children, were represented by the National Center for Lesbian Rights in filing a suit in late 2013 challenging Idaho’s ban on same-sex marriage.
Bourke v. Beshear
Gregory Bourke and Michael DeLeon were legally married in Canada but found that their marriage was not recognized in the state of Kentucky. They filed suit challenging Kentucky’s law on behalf of themselves and DeLeon’s adopted children. They were later joined by three couples married in other states and continued to challenge Kentucky’s refusal to recognize valid marriages from other jurisdictions.
DeBoer v. Snyder
April DeBoer and Jayne Rowse, a lesbian couple in Michigan, had three adopted children between the two of them. Michigan law restricted second-parent adoptions to married couples and, because Michigan did not recognize same-sex marriages, DeBoer and Rowse were not able to adopt each other’s children. After initially challenging the adoption law itself, their petition was eventually amended to reflect the underlying issue of Michigan’s ban on same-sex marriage.
Tanco v. Haslam
In 2013, Tennessee had in place a law which prohibited the recognition of same-sex marriage. Three married couples, all who had married in other states and moved to Tennessee, filed a suit claiming that the law violated both their right to equal protection and to travel between states.
United States v. Windsor
Edith Windsor was married to Thea Spyer in Canada in 2007 and their marriage was recognized in New York where they lived. The two had been together for 44 years when Spyer died in 2009. Due to the Defense of Marriage Act (DOMA), Windsor was unable to claim the estate tax marital deduction that same-sex couples routinely receive. This discriminatory law required Windsor to pay over $350,000 in federal estate taxes. Windsor requested a full refund from the government, but the IRS rejected that claim because of DOMA. The case passed through district court and the court of appeals in New York before being slated to come before the Supreme Court in March 2013.
Hollingsworth v. Perry
California’s Proposition 8 case considers the constitutionality of an amendment defining marriage as solely between a man and a woman. The case was first filed in May 2009 and asked for a preliminary order blocking Proposition 8. In August 2010, Judge Vaughn Walker struck down Proposition 8 on the grounds that it violated due process and equal protection clauses of the California Constitution. After a lengthy appeals process, in February 2012, the Ninth Circuit court upheld Judge Walker’s ruling declaring Proposition 8 unconstitutional. The United States Supreme Court will hear the case in March 2013.
Golinski v. Office of Personnel Management
In 2008, Karen Golinski tried to enroll her spouse, Amy Conninghis in her employer-provided insurance plan. When she was denied, she filed a complaint under the Ninth Circuit’s Employment Dispute Resolution Plan that the denial of coverage for her spouse constituted prohibited discrimination. In January 2009, Chief Judge Alex Kozinski ruled that the denial did violate the Ninth Circuit’s employment policies because heterosexual court employees were able to receive benefits for their spouses. The Office of Personnel Management then claimed that the Defense of Marriage Act (DOMA) prevented coverage for the spouses of lesbian and gay federal employees. Golinski is now suing the federal government for equal benefits for her wife.
Gill v. Office of Personnel Management
In 2009, the Gay and Lesbian Advocates and Defenders (GLAD) filed the lawsuit in the District Court of Massachusetts. The plantiffs, Nancy Gill and Marcelle Letourneau, challenged the constitutionality of section 3 of the Defense of Marriage Act (DOMA), which defines the term marriage as “a legal union between one man and one woman as husband and wife.” In July 2010, District Judge Joseph Louis Tauro ruled that section 3 of DOMA was unconstitutional. Later, Judge Tauro stayed the implementation of his verdict in order to allow an appeal from the Department of Justice (DOJ). In January 2011, the DOJ filed a brief in the First Circuit Court defending DOMA, but on February 25, the DOJ decided it would “cease to defend” the case. This challenge marks the first time that a case filed against DOMA has reached a federal appellate court.
Christian Legal Society v. Martinez (U.S. Supreme Court)
In 2010, the National LGBTQ+ Bar Association (then the “National LGBT Bar Association”) and its Law Student Division teamed up with 55 LGBTQ+ law student groups at our nation’s top law schools to file an amicus brief in Christian Legal Society v. Martinez. In 2004, the Christian Legal Society’s chapter at the University of California-Hastings filed a lawsuit after the school denied a funding request because of the group’s anti-LGBTQ+ discrimination policy. The question before the Court was whether the “Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.” The U.S. Supreme Court, in a 5-4 decision, affirmed the University of California-Hastings’ decision to deny funding to student groups that discriminate against its LGBTQ+ students.
In re Marriage Cases (California Supreme Court)
In 2007, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted an amicus brief supporting the freedom to marry for same-sex couples and played a critical role in arguing that lesbian and gay couples should receive equal treatment under the law.
Lawrence v. Texas (U.S. Supreme Court)
In 2003, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted an amicus brief supporting the plaintiff’s right to sexual privacy in the case which struck down the Texas sodomy law, holding that intimate consensual conduct was part of the liberty protected by due process under the Fourteenth Amendment.
Rumsfeld v. FAIR (Third Circuit Court of Appeals & U.S. Supreme Court)
In 2004, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted amicus briefs challenging the constitutionality of the Solomon Amendment, which permits the military to recruit on college campuses despite the conflict between the “Don’t Ask, Don’t Tell” statute and the non-discrimination policies of many colleges that prohibit discrimination based on sexual orientation.
In re Guardianship of Kowalski (Minnesota Court of Appeals)
In 1991, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted an amicus brief in support of the successful appointment of Karen Thompson as guardian for her lesbian partner, Sharon Kowalski, after she became incapacitated in a car accident. This case garnered national and international attention because Kowalski’s family contested the appointment of Ms. Thompson.
Partner with the National LGBTQ+ Bar Association
The National LGBTQ+ Bar Association is proud to offer our advocacy services as amicus curiae and our support for organizations in cases or initiatives that align with the LGBTQ+ Bar’s vision and mission.
The Association does so by partnering with like-minded, progressive organizations to take positions on issues such as LGBTQ+ equality, the right of all LGBTQ+ people to live free from discrimination and continuing commitment to diversity in the legal profession. The Public Policy Committee of the National LGBTQ+ Bar Association advocates on behalf of justice for the LGBTQ+ community in all of its diversity through, among other things, written legal advocacy.
The LGBTQ+ Bar seeks opportunities to work with other organizations in the future by drafting or signing on to amicus briefs and assisting with initiatives on civil rights issues important to our members. If you are currently working on a case or issue which you would like the National LGBTQ+ Bar Association to support, or if you would like further information, please contact our Executive Director, D’Arcy Kemnitz. Additionally, please keep the National LGBTQ+ Bar Association’s Public Policy Committee in mind when you are developing initiatives in the future.