Kramer Levin’s Jeffrey Trachtman has been working on LGBT rights’ litigation for long enough to see the silver lining in every setback.
After the U.S. Supreme Court announced Monday it would not hear a major case on transgender rights, Trachtman — who filed an amicus brief in the case on behalf of U.S. religions and clergy members that advocate for equal treatment of transgender people — was sanguine.
“It’s a setback, but it’s a detour more than anything else,” he said. “This case has already done a lot to highlight the growing visibility and acceptance of transgender individuals in American society.”
Trachtman. (Courtesy)
At issue in the Supreme Court case, Gloucester County School Board v. G.G., was whether Gavin Grimm, a transgender boy from Virginia, could use the boy’s restroom at his public high school. He sued the school board after it adopted a policy restricting restroom use on the basis of “biological gender.”
The Supreme Court was set to rule on two questions: whether courts should extend deference to an Obama administration guidance that public schools must allow transgender students to use bathrooms matching their gender identities; and whether, regardless of the guidance, Title IX protects students based on their gender identity.
But that first question became moot after President Trump revoked the Obama-era guidance, leading the court to scrap the case.
At the beginning of March, Trachtman and a team of Kramer Levin attorneys had filed their amicus brief on behalf of major religious organizations and over 1,800 individual faith leaders who refuted the argument, made by more conservative religious groups, that requiring school personnel to treat Gavin fairly would infringe on individual religious liberty.
In an earlier brief, those conservative groups had argued interpreting gender identity as a protected class under Title IX would undermine their belief that “a person’s identity as male or female is created by God and immutable.”
“The religious right has tried to create [a] myth of one religious viewpoint, but that’s just not true,” Trachtman told Big Law Business. “No one can claim to be speaking on behalf of religion.”
Trachtman, who led Kramer Levin’s pro bono committee from 1994 to 2011, first got involved in LGBT rights litigation in the mid-nineties through a case brought by former Eagle Scout and assistant scoutmaster James Dale against the Boy Scouts of America, which had kicked him out of the organization after learning he was gay.
The New Jersey Supreme Court first ruled against the Boy Scouts, but the U.S. Supreme Court reversed that decision in 2000. Trachtman and Kramer Levin were asked to write an an amicus brief for PFLAG, an organization for parents, friends and allies of LGBT individuals.
“It was what we used to call the ‘Homo 101’ brief,” he explained, “which was social science about how gay people aren’t mentally ill or won’t molest your children. Stuff that thankfully isn’t needed anymore, normalizing gay people in the mainstream.”
Trachtman later wrote a brief in Lawrence v. Texas — the landmark 2003 Supreme court decision that struck down Texas’ sodomy law — on behalf of social workers and psychology organizations that argued there was no justification for criminal sodomy laws; and he also served as co-counsel with Lambda Legal in Hernandez v. Robles, which sought equal marriage rights under the New York constitution.
Big Law Business caught up with Trachtman to inquire what Gavin Grimm’s case has meant in the context of LGBT rights, religious freedom, and civil rights litigation in the U.S. The following interview has been edited for length and clarity.
Big Law Business: Now that the Supreme Court has declined to hear Gavin Grimm’s case, it will go back to the Fourth Circuit for review. What’s do you think this means?
Trachtman: The court is a political as well as legal institution, and when they make these nationwide rulings there’s some judgment on their part about when the country is ready, as with marriage equality. I’m not saying this case was a turning point of that magnitude, but to say Title IX applies to transgender people is a significant step, and lower courts have recognized that, but there haven’t been a significant number of rulings. It’s not shocking to me that they would want to be conservative and let the law develop further. It doesn’t mean they’re anti-trans, it just means they’re cautious. I think we hopefully still have five votes for a favorable outcome, even if they weren’t ready to do it this round.
BLB: Backing up, how did you get involved with this brief on behalf of religious institutions and individuals?
Trachtman: I reached out to the ACLU when they granted cert in Gavin’s case, and a few weeks later they came back to us and asked us to do a similar brief to the ones we had done in the marriage cases. This was different because, for the first time, we were focused entirely on transgender equality, and I was worried at first that we wouldn’t have the same level of support. But it really was the same. In certain ways, theologically speaking, it’s an easier lift than marriage. Marriage is still intertwined for a lot of people with religious ritual, but this is so much more basic. This is just the essential dignity of individuals, and treating them with respect, and leaving them alone. I think some people have a problem accepting the reality of transgender people, but it’s the same problem we had with gay people. You don’t know people, or you think you don’t know people [who are transgender]. This is really not a big deal, this is just a boy who wants to use the restroom with other boys. There’s just a lot of fear and ignorance about what it means to be transgender. In his school it wasn’t even an issue. But it became a political thing in the school board, as I understand it.
When I was young, they would say, “You can’t have a gay person as a teacher because they will sexually assault the kids.” Right now it’s the same level of ignorance and fear [about trans people]. It’s cruel, because you can create a stigma for no reason. We’ve come a long way in the last few years. Visibility is always the first issue. Having characters on TV and celebrities who can be recognized makes a huge difference.
BLB: This wasn’t the first brief you’ve written on behalf of religious organizations in support of LGBT rights. You wrote similar ones in United States v. Windsor, in which the Supreme Court struck down part of the Defense of Marriage Act, and Obergefell v. Hodges, which recognized same-sex couples’ constitutional right to marry. What is the goal of this kind of brief?
Trachtman: It’s essentially gathering together all the mainstream religious organizations that are moving towards equality and acceptance. What you have in the gay rights area is a lot of more conservative religious denominations (and activist groups associated with them) coming in and saying, “Religion stands for this and religion stands for that.” We’re there to show that the religious landscape in the United States has always been diverse, that it has more conservative and more liberal strains. It was fascinating to see, from the early marriage cases to 2015, how more and more religions came to our side. By the time we got to the later cases, we had the Episcopal Church, and Conservative Judaism, and individual clergy from all the mainstream faiths, and you had the Presbyterian Church either fully on board with marriage or at least wrestling with the topic and giving their clergy some freedom to bless unions.
Doing these briefs is frankly fairly easy, because I have great associates and good relationships with these various institutions. [Kramer Levin associate] Kurt Denk really did a tremendous amount of work. He’s a former priest, so he can really talk the talk more than me. He can relate to the religious people through greater personal experience, since I’m not actively religious. I have a respect for religion and religious people, and the great tradition in the United States of religious tolerance.
BLB: A lot of coverage of these kinds of cases has framed the current struggle as one between religious freedom and equal rights. Do you think these two Constitutional values are in conflict?
Trachtman: I think it’s largely a phony issue, and it’s largely a matter of the religious right wanting to impose their views. Since they’re losing the culture wars, they’ve adopted a strategy to cry persecution themselves. I’m sure there’s a lot of unhappiness about the changes in society and the changes in law, but in the end it doesn’t affect them. Personal religious observance is protected, the right of the church to decide who can get married in that church, the core religious doctrines are completely sacrosanct and protected. But when you start functioning in the public sphere, it changes. If you run a catering hall, the fact that you have religious views doesn’t allow you to stop following civil law. If you start substituting black for gay, it starts to get easier. If you say “Oh I’m sorry, I don’t want to serve a black person at my lunch counter for religious reasons,” that doesn’t work. You don’t have a right to walk around in the world and never see something that offends your religious sensibilities.
BLB: Even though Gavin’s case won’t be heard by the Supreme Court, it received a lot of press attention. What role has it played in advancing trans rights?
Trachtman: The ACLU did a lot of public education work around the case, and Gavin was willing to put himself out there, and his family as well. In social media and otherwise, there was a lot of outreach and consciousness raised. And so I do think it moved the needle. All of the briefs, not just ours. Now this whole body of material is out there, it’s publicly available, and it’ll be source material for future cases.
BLB: What about your brief in particular?
Trachtman: Our brief organized and mobilized a lot of points of view, but they were already there. There has been a lot of support and response from organized religion, and that will continue in a significant way. The work is being done on the ground by faith institutions; we just marshaled it and presented it.
In terms of writing, this was truly a new brief, compared to the last one. It had the same rhetoric about religion in America, the Tocqueville quotes, etc., but the body of it about transgender individuals was different from the marriage stuff. So now it’s easier to say [to religious organizations], that this is basically the same brief from Gavin’s case and get them to sign on [for future cases]. We can file this brief whenever we’re asked to, the bulk of the work has been done. There’s been public education done and the material is available for further use, so it moves the ball forward.
BLB: Do you think you’ll be filing another one again soon?
Trachtman: We’ll be responsive to what the people litigating the cases think is the most helpful. The ACLU knows we’re here. Lambda Legal knows we’re here. And we stand ready to be supportive.