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LGBTQ+ Lawyers Experience Breakthroughs and Setbacks: Comment on Blanck, Hyseni, and Altunkol Wise’s National Study of the Legal Profession
Published online by Cambridge University Press: 12 July 2021
Extract
The past decade has seen numerous positive developments in both legal and policy protections for those who identify as lesbian, gay, bisexual, trans, or queer (“LGBTQ+”). Progress in this area has been decidedly uneven, however, and significant barriers still exist which thwart the full legal and societal acceptance of LGBTQ+ individuals. Unfortunately, as the groundbreaking study by Peter Blanck, Fitore Hyseni, and Fatma Altunkol Wise shows, LGBTQ+ identifying lawyers, especially those with intersectional identities, continue to experience discrimination and bias in their workplaces.1
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- © 2021 The Author(s)
Footnotes
†
Wesley D. Bizzell, a Senior Assistant General Counsel and Managing Director of Political Law and Ethics Programs for Altria, is extremely active in promoting diversity and inclusion within the legal and corporate communities. He currently serves as President of the National LGBTQ+ Bar Association, the leading association for LGBTQ+ lawyers, judges, and other legal professionals. He has been named by London’s Financial Times (2017 and 2018) and Yahoo Finance (2019 and 2020) as one of the 100 worldwide OUTstanding Leading LGBT+ Corporate Executives for his work on diversity and inclusion issues. Chambers and Partners also named him the 2019 In-House LGBT+ Equality Lawyer of the Year for his dedication and commitment to LGBTQ+ diversity programs and his efforts to advance LGBTQ+ professionals in the law. He is a 2014 Leadership Council on Legal Diversity Fellow and is a co-founder of Altria’s LGBTQ+ Employee Resource Group, Mosaic, where he chairs its Culture, Inclusion, and Connection Committee.
Mr. Bizzell graduated with a B.A. in justice, magna cum laude, from the American University in Washington, D.C. and received a Master of Social Work with a focus in public policy from the Catholic University of America. He received his J.D., magna cum laude, from Georgetown University Law Center, where he was elected to the Order of the Coif and served as an editor for the Georgetown Law Journal.
References
1 Blanck, Peter, Hyseni, Fitore & Altunkol Wise, Fatma, Diversity and Inclusion in the American Legal Profession: Discrimination and Bias Reported by Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+, 47 Am. J.L. & Med. 9, 44 (2021).Google Scholar
2 See, e.g., M. V. Lee Badgett et. al., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008, 84 Chi.-Kent L. Rev. 559, 594 (2009).
3 Obergefell v. Hodges, 135 S.Ct. 2584, 2585 (2015).
4 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1731 (2020).
5 See, e.g., Exec. Order No. 14,004, 86 Fed. Reg. 7471 (Jan. 25, 2021); Lucas Acosta, President Biden Issues Most Substantive, Wide-Ranging LGBTQ Executive Order in U.S. History, Hum. Rts. Campaign (Jan. 20, 2021), https://www.hrc.org/press-releases/president-biden-issues-most-substantive-wide-ranging-lgbtq-executive-order-in-u-s-history [https://perma.cc/SP9G-94JX]; Geoff Bennett & Adam Edelman, Biden Reverses Trump's Transgender Military Ban, NBC News (Jan. 25, 2021), https://www.nbcnews.com/politics/white-house/biden-reverse-trump-s-transgender-military-ban-n1255522 [https://perma.cc/W33J-2Q4M].
6 2020 Va. Acts 1140.
7 Human Rights Campaign, Corporate Equality Index 2021: Rating Workplaces on Lesbian, Gay, Bisexual, Transgender and Queer Equality 6 (2021), https://reports.hrc.org/corporate-equality-index-2021?_ga=2.203809042.386268155.1617162870-1436600013.1611731475 [https://perma.cc/JCN5-8MCP].
8 Id.
9 The Business Coalition for the Equality Act. Hum Rts. Campaign (March 17, 2021), https://hrc-prod-requests.s3-us-west-2.amazonaws.com/Keep_Updated_-_Company_List_For_Website_-_Business_Coalition_for_Equality.pdf.
10 The Am Law 200 is the American Lawyer magazine’s top 200 revenue grossing law firms. The Am. Lawyer, The 2020 Am Law 100, Law.com (Apr. 21, 2020), https://www.law.com/americanlawyer/rankings/the-2020-am-law-100/ [https://perma.cc/94TA-HJSU]; The The Am. Lawyer, The 2020 Am Law 200, Law.com (May 18, 2020), https://www.law.com/americanlawyer/rankings/the-2020-am-law-200/ [https://perma.cc/5K4R-E3T8].
11 Human Rights Campaign, supra note 7, at app. A.
12 For more information on the National LGBTQ+ Bar Association’s Lavender Law Conference and Career Fair, see The 2021 Annual Lavender Law Conference and Career Fair, Nat’l LGBT Bar Ass’n, https://lgbtbar.org/annual/ [https://perma.cc/GPK8-A3TE].
13 Law School Nondiscrimination Statements, Nat’l LGBT Bar Ass’n, https://lgbtbar.org/climate-survey/law-school-nondiscrimination-statements [https://perma.cc/L57Q-GAP9].
14 A total of 205 institutions are accredited by the ABA. 204 confer a Juris Doctorate degree; the other ABA approved school is the U.S. Army Judge Advocate General's School, which offers an officer's resident graduate course. Id.
15 The Nat’l LGBT Bar Ass’n, Law School Campus Climate Survey: An Executive Summary 1 (May 15, 2020), https://lgbtbar.org/wp-content/uploads/sites/6/sites/8/2020/05/Law-School-Campus-Climate-Survey-Executive-Summary-2019-2020-5.pdf [https://perma.cc/33BW-JNB3]. As the National LGBTQ+ Bar Association has noted the Campus Climate Survey “serves as a yardstick by which to measure LGBTQ+ inclusion in legal education, while our Companion Toolkit provides guidelines to help schools meet their own goals for support and inclusion. Id.at 6.
16 Criminal Justice Info. Servs. Div., 2019 Hate Crimes Statistics Table 1: Incidents, Offenses, Victims, and Known and Offenders, Fed. Bureau of Investigation: Uniform Crime Reporting (2019), https://ucr.fbi.gov/hate-crime/2019/topic-pages/tables/table-1.xls [https://perma.cc/JB74-MSFN]; see Lou Chibbaro Jr., FBI Report Shows Increase in Anti-LGBT Hate Crimes, Wash. Blade (Nov. 20, 2019, 1:47 PM), https://www.washingtonblade.com/2019/11/20/fbi-report-shows-increase-in-anti-lgbt-hate-crimes [https://perma.cc/8SMW-AJDJ].
17 For example, GLAAD catalogued 181 anti-LGBTQ+ statements and actions by the Trump Administration since January 2017. GLAAD Accountability Project: Donald Trump, 45th President of the United States, GLAAD, https://www.glaad.org/tap/donald-trump [https://perma.cc/89WK-RKYK].
18 As noted by the American Civil Liberties Union, a record number of anti-transgender bills were introduced in state legislatures in 2020. Trans Rights Under Attack in 2020, Am. Civ. Liberties Union, https://www.aclu.org/issues/lgbt-rights/transgender-rights/trans-rights-under-attack-2020 [https://perma.cc/47TR-L5V8].
19 Peter Blanck Ynesse Abdul-Malak, Meera Adya, Fitore Hyseni, Mary Killeen & Fatma Altunkol Wise, Diversity and Inclusion in the American Legal Profession, First Phase Findings from a National Study of Lawyers with Disabilities and Lawyers who Identify as LGBTQ+, 23 U.D.C. L. Rev. 23, 32 (2020).
20 U.S. Comm’n on Civil Rights, Working for Inclusion: Time for Congress to Enact Federal Legislation to Address Workplace Discrimination Against Lesbian, Gay, Bisexual, and Transgender Workers 10 (2017), https://www.usccr.gov/pubs/docs/LGBT_Employment_Discrimination2017.pdf [https://perma.cc/B75N-W5HU].
21 Out Leadership Launches First-of-its-Kind Summit on Board Diversity, Releases New Research on Board Diversity Impact, Out Leadership (Feb. 2, 2021) https://www.prnewswire.com/news-releases/out-leadership-launches-first-of-its-kind-summit-on-board-diversity-releases-new-research-on-board-diversity-impact-301219765.html
22 LGBT Representation Among Lawyers in 2019, Nat’l Ass’n for L. Placement (Jan. 2020), https://www.nalp.org/0120research [https://perma.cc/8V3Y-WZ6G].
23 Id.
24 2017 Workplace Equality Fact Sheet: Lesbian, Gay, Bisexual, and Transgender (LGBT) Workplace Discrimination at a Glance, Out & Equal (Nov. 15, 2017), http://outandequal.org/2017-workplace-equality-fact-sheet/ [https://perma.cc/AES5-YS8D].
25 Sharita Gruberg, Lindsay Mahowald & John Halpin, The State of the LGBTQ Community in 2020: A National Public Opinion Study, Ctr. for Am. Progress (Oct. 2020), https://www.americanprogress.org/issues/lgbtq-rights/reports/2020/10/06/491052/state-lgbtq-community-2020/ [https://perma.cc/X2J5-RCCY].
26 Id. at 4.
27 Alex Vandermass-Peeler et al., Diversity, Division, Discrimination: The State of Young America, PRRI (Jan. 1, 2018), https://www.prri.org/research/mtv-culture-and-religion [https://perma.cc/JT8E-FTDF]. Unfortunately, the experience of young Americans does not offer much positive news either. According to a recent survey of young Americans aged 15 to 24, 83% of those who identified as LGBTQ+ report having witnessed someone being mistreated because of their gender identity or sexual orientation or to have personally experienced such mistreatment. In addition, nearly one-third (32%) who identified as LGBTQ+ reported that they personally had been mistreated or targeted because of their sexual orientation or gender identity, with a majority (56%) saying they feared for their safety, and roughly as many (54%) believing the acts were direct and purposeful. Such discrimination is often also intersectional, in addition to other discrimination based on the individual’s race, gender, religion, or nationality.
28 Ian Johnson & Darren Cooper, LGBT Diversity: Show me the Business Case 21 (2015), http://www.outnowconsulting.com/media/13505/Report-SMTBC-Feb15-V17sm.pdf [https://perma.cc/FY5M-QQMD].
29 Julia Dawson et al., LGBT: The Value of Diversity 3 (2016), https://plus.credit-suisse.com/rpc4/ravDocView?docid=QYuHK2 [https://perma.cc/4DBH-3PDM].
30 Blanck et al., supra note 1, at 49.
31 According to the National Association for Law Placement, in 2016, the average number of billable hours required of a first-year associate was 1,892 hours, and the average number of billable hours required for first-year associates at firms with more than 700 attorneys was 1,930 hours. Update on Associate Hours Worked, Nat’l Ass’n for L. Placement (2016), https://www.nalp.org/0516research [https://perma.cc/UH8X-ZJPC].
32 At least 55% of large law firm attorneys report working more than 60 hours per week on average. Natalie Rodriguez, The Least-Stressed Attorneys in a Stressed-Out Profession, Law360 In-Depth (July 23, 2018), https://www.law360.com/articles/1065415/the-least-stressed-attorneys-in-a-stressed-out-profession [https://perma.cc/PJA6-GBJ9].
33 Id.
34 See Blanck et al., supra note 1, at 17-22.
35 See id. at 14.
36 EEO Data Collection, U.S. Equal Emp. Opportunity Commission (May 7, 2020), https://www.eeoc.gov/employers/eeo-data-collections [https://perma.cc/A38X-8ME4].
37 See Kellan Baker et al., How to Collect Data About LGBT Communities, Ctr. for Am. Progress (Mar. 15, 2016), https://www.americanprogress.org/issues/lgbtq-rights/reports/2016/03/15/133223/how-to-collect-data-about-lgbt-communities/ [https://perma.cc/DCX4-E85R]; Diversity Best Practices, Self-Identification of LGBT Employees (2015), https://www.diversitybestpractices.com/sites/diversitybestpractices.com/files/import/embedded/anchors/files/_attachments_articles/rr_lgbt_self-id.final_.pdf [https://perma.cc/5EZL-88XE]; Human Rights Campaign, Collecting Transgender-Inclusive Gender Data in Workplace and Other Surveys, U. Sask. C. Med., https://medicine.usask.ca/documents/research/edi-transgender-inclusive-gender-data.pdf [https://perma.cc/79MR-M8HL]; Out & Equal, Where Are Our LGBT Employees? (2009), https://www.bsu.edu/-/media/www/departmentalcontent/counselingcenter/pdfs/safezone%20out%20at%20work/hrc-where%20are%20our%20lgbt%20employees.pdf?la=en&hash=82A00EDD1EC72B18B00902827E5097116CDCD4FF [https://perma.cc/72W8-ZR66]; Stonewall, Do Ask, Do Tell: Capturing Data on Sexual Orientation and Gender Identity Globally (2016), https://www.stonewall.org.uk/sites/default/files/do_ask_do_tell_guide_2016.pdf [https://perma.cc/4RA8-E6GR]. While the data may be used for statistical analysis and tracking, personally identifiable information should always be kept confidential and should not be shared an employee’s manager or co-workers.
40 IBM has created a thoughtful guide on workplace climate surveys that include LGBTQ+ employees. Gena Cox et al., Getting LGBT+ Inclusion Right in Employee Surveys (2017), https://www.ibm.com/downloads/cas/WVRO4E5Z [https://perma.cc/3UHA-ADRX].
41 Much has been written about how women’s diversity programs primarily benefit white women. Similarly, efforts to make workplaces more welcoming to LGBTQ+ individuals cannot just benefit white LGBTQ+ employees and perpetuate racial disparities that already exist within the LGBTQ+ community. Cf. Courtney Connley, How Corporate America’s Diversity Initiatives Continue to Fail Black Women, CNBC: make it (Jan. 12, 2021, 2:11 PM), https://www.cnbc.com/2020/07/01/how-corporate-americas-diversity-initiatives-continue-to-fail-black-women.html [https://perma.cc/Z8U5-54PM].
42 James Lawther, Solutioneering, SquawkPoint Organisational Mechanics (Dec. 29, 2015), https://www.squawkpoint.com/2015/12/solutioneering/ [https://perma.cc/G6RR-N6XV].
43 Cf. Gena Cox et al., supra note 40 (finding that employers should start with employee listening efforts in order to better identify the unique needs of the workplace).