LGBTQ Legal Issues

LGBTQ rights should be protected with 'proactive policymaking,' ABA entity leaders urge

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Nearly a decade ago, one of Bobbi Bittker’s three kids came out as transgender.

While she and her family were supportive, she quickly understood that other LGBTQ kids were rejected by their families or denied access to vital medical and legal resources. That deeply bothered Bittker, an attorney who has long been passionate about civil rights.

“I realized everybody can’t get what my child is able to get only because they aren’t privileged—privileged to have an accepting family, privileged to have access to medical insurance, privileged to live in New York, where the state and the laws are supportive and inclusive,” says Bittker, who is also a member of the town board in Bedford, New York. “Everybody should be able to have that.”

Bittker got involved in the Section of Civil Rights and Social Justice’s Sexual Orientation and Gender Identity Committee and now serves as its chair. Because she believes in “proactive policymaking,” she focuses her attention on drafting trans-oriented resolutions and reports to put before the House of Delegates, she says.

The House of Delegates, the policy-making body of the association, convenes twice a year at the ABA annual and midyear meetings. It considers and votes on a range of measures proposed by ABA sections, forums, divisions, standing committees and commissions as well as state, local and specialty bar associations. Once they are approved, the association can publicly advocate for these policies, including through letters to the U.S. Congress, ABA presidential statements and official comments on proposed administrative rules.

In 2020, Bittker drafted a resolution that opposes all legislation, regulations and policies that discriminate against individuals who are transgender or nonbinary on the basis of gender identity or that impose barriers to obtaining or providing medical care to affirm individuals’ gender identity.

Smiling womanBobbi Bittker says the ABA should be alert to legal issues that could become “future tinderboxes” for the LGBTQ community. Photo by Stephen Morton.

Bittker, through her personal experience, had encountered the idea that parents were subjecting their children to gender affirmation surgeries that weren’t medically or psychologically sound, she says. Anti-LGBTQ bills aiming to prevent transgender minors from obtaining gender-affirming healthcare and penalize supportive health care providers and parents also had begun to proliferate.

“We saw this kind of thing coming up the pike, and it was a concern,” Bittker says. “Especially when you talk about mental health for trans and gender nonconforming youth, the idea they are able to get some kind of medical intervention is life-changing and lifesaving.

“And so if we were able to put out a resolution that other people could look toward and say, ‘Hey, the leading legal institution in the country says this is something we should not impose barriers to,’ hopefully that has some pull.”

The House agreed and passed the resolution.

‘Future tinderboxes’

At the 2021 ABA Annual Meeting, the House adopted two more resolutions focused on LGBTQ youths. One opposes all legislation, regulations or policies that prohibit transgender students from participating in athletics in line with their gender identity. The other urges lawmakers, education officials and school boards to include the contributions of LGBTQ individuals in publicly funded elementary and secondary schools’ curricula.

Bittker drafted the latter resolution, which also encourages the inclusion of age-appropriate LGBTQ-inclusive sexual health education in public school curricula. She says ABA leadership on this issue is needed more than ever as states such as Florida have restricted instruction on gender and sexuality and allowed their schools to remove books with LGBTQ characters.

“We identify these issues as future tinderboxes,” Bittker says. “And I will say these resolutions were adopted with overwhelming support. Free speech, bodily autonomy, the rule of law, these are all priorities in the Section of Civil Rights and Social Justice, but they are also rights supported by the entire bar association.”

Bittker drafted another resolution—which asks medical professionals to obtain consent from minors with intersex traits before doing medical or surgical intervention—that the House approved at the midyear meeting in February.

Bar hurdles

Nathan Bruemmer, who serves as vice-chair of the Section of Civil Rights and Social Justice Sexual Orientation and Gender Identity Committee and as the section’s liaison to the Commission on Sexual Orientation and Gender Identity, proposed a separate resolution that the House also considered and adopted at the February meeting.

This resolution encourages bar licensing groups to remove mandatory questions about sexual orientation or gender identity status from their applications. If candidates voluntarily disclose their sexual orientation or gender identity, it asks that the information be kept separate from their personally identifiable information.

Bruemmer, who is transgender and transitioned before law school, says he struggled with the bar application process. Now an attorney at Blackburn Law Firm in St. Petersburg, Florida, he wants to ensure other transgender law students don’t experience burdensome questions about their name changes or unwanted disclosure of their prior legal names.

Checkbox asking for gender informationImage from Shutterstock.

“When I started to pursue getting my bar license, my journey presented hurdles that were unexpected, and there weren’t experts who really knew how to navigate that,” says Bruemmer, who worked as an educator and nonprofit executive before graduating from law school in 2017. “My being trans became a big part of even getting through character and fitness.”

“Not that I didn’t meet a lot of the great attorneys who came before me, who frankly weren’t that much older than I but had been laying some of the foundations to be in the profession … but there was still a lot of work to be done about what it means to be a part of a marginalized community and become a practitioner.”

Now, Bruemmer says, it’s up to state and local bar associations to look at the new ABA policy and advocate for changes to bar applications in their jurisdictions.

Bittker adds that they have worked on resolutions in partnership with other national organizations, which also advocate for them in their communities. This includes the National LGBTQ+ Bar Association, Lambda Legal and InterAct, which undertakes legal advocacy on behalf of children born with intersex traits.

Bittker also has seen other national and international organizations, including the Intersex Campaign for Equality and the United Nations, promote the ABA’s policies.

“Even though we don’t have the legal pull to do things beyond our borders, the American Bar Association has such respect that when resolutions like these are adopted, it becomes international news,” she says. “These statements go a long way, and advocates all over are picking up on them.”

The Commission on Sexual Orientation and Gender Identity—which also sponsored all of these measures—plans to propose another resolution at the ABA Annual Meeting in August that specifically opposes state legislation and rules that harm the transgender community.

Lesbian, Gay, Bisexual, Transgender and Queer Pride Month is celebrated each year in June. The ABA Diversity, Equity and Inclusion Center offers resources and additional information here and here.

See also: “States drive a wave of bills affecting transgender youth”

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