David Brown On Fighting To End Transgender, Nonbinary Bias

By Emma Cueto | November 3, 2019, 8:02 PM EST

Longtime civil rights attorney David Brown took over this year as legal director for the Transgender Legal Defense and Education Fund, a nonprofit that works to end discrimination against trans and nonbinary people, amid growing awareness about transgender issues but also an “uptick in general demonization.”

David Brown

The organization works on a variety of issues, from helping transgender people navigate the process of legally changing their names to bringing litigation to advance trans rights.

Brown joined TLDEF after two years as director of The Lawyering Project, an organization focused on reproductive rights, though he has been involved in TLDEF as a board member for years before becoming head of its legal team.

He spoke with Law360 about his decision to take the legal director job, the status of transgender rights today, and whether he’s worried that current advances will be followed by a backlash.

What made you want to join TLDEF?

Gender discrimination lies at the root of so many of the challenges that so many people face in our country. Gender underscores things that are both discriminatory and also so inherent in our culture that people take them for granted and don’t even recognize them as discrimination. I think TLDEF’s work opens the opportunity to surface some of those things and to fix them and make the playing field more level for everyone.

Specifically, trans and gender nonconforming people are discriminated against in so many completely unacceptable ways and so marginalized in our society in completely unacceptable ways. And I think right now folks are just now becoming aware of those problems in the broader society, and there’s a lot of readiness to fix those problems. And I think TLDEF is well-positioned through its legal and public education work to bring folks who are ready — even though they may not know it yet — to come to the struggle.

So it’s a very exciting time to be at TLDEF because the public awareness around gender identity and expression discrimination is increasing. Transgender and gender nonconforming folks are increasingly coming out of the closet and seeking full acceptance. And there is both litigation underway around the country and before the Supreme Court and legislation in Washington and many states that seek to address some of these problems.

And TLDEF is a unique organization in that it is transgender-led. I think we are really primed to bring transgender leadership to bear on a lot of these issues in ways that nobody else is, and to bring an intersectional perspective.

What are some of the big issues in trans civil rights right now that TLDEF is tracking?

One of the biggest issues that we look at is health care. There are a lot of health plans and employers that don’t understand the law, and are misled into discrimination against transgender folks, especially when they seek gender-affirming health care. We are in the process of submitting comments to the [Trump] administration’s attempt to roll back guidance around that issue under the [Affordable Care Act].

We are also suing the state of North Carolina, jointly with Lambda Legal, regarding their state health plan’s exclusion of gender-affirming health care. So we see those things a lot.

TLDEF is usually successful at bringing folks to the table. When they realize that their health care discriminates, it’s often just a matter of education and negotiation. It’s unusual for people to want to deprive folks of necessary health care. But occasionally, especially when politics come into play, we often have to bring those cases into litigation.

And we also work on discrimination in other areas. Government bureaucracies, getting ID documents and things like that, can be a big issue for transgender and nonbinary folks. We are litigating currently a law that makes it impossible for people with certain criminal histories to change their names in Pennsylvania.

We also are poised to expand our work in a number of areas, potentially including economic justice, safety and elder issues. The sky is the limit.

I understand you were also involved in the Harris Funeral Homes v. EEOC case the Supreme Court is considering right now, about whether trans people are protected by the Civil Rights Act.

TLDEF is very proud to be both an amicus and counsel of record for 32 other transgender organizations and civil rights organizations who submitted a brief.

It’s a case about whether Title VII of the Civil Rights Act protects transgender folks from employment discrimination. It could well be a watershed case for transgender and nonbinary people — either way.

If the Supreme Court affirms what virtually every lower court has found in the past decade or more — that these laws do prohibit employers from firing someone because they are transgender — then we are poised to ensure that that rule is uniformly applied throughout the country.

And if the decision is adverse, then we are poised to distinguish it in any number of state and local jurisdictions and also on federal grounds for other reasons, to ensure that an unfortunate decision by the Supreme Court doesn’t actually create opportunities for people to discriminate illegally.

The transgender community is a lot more visible today than in the past. Do you find that ultimately helps the push for transgender rights? Does the increased visibility make you worry about backlash?

I think people are much more receptive to arguments that transgender people have a right to live full lives free of discrimination. I think both courts and the general public are ready to ensure that people put a stop to discrimination against transgender folks. I think people are just much more likely to have an openly transgender or nonbinary loved one, because people are coming out of the closet.

On the backlash side, I think there are always backlashes when things change and previously marginalized groups are claiming a seat at the table. That’s no different here. So especially with the uptick in general demonization that’s coming out of many politicians’ mouths these days, transgender people have experienced a resulting increase in violence, and there’s a real, urgent need to combat that.

So even though on the legal front things have progressed significantly, there’s been an increase in murders. Transgender people are often put into a position of unsafety by discrimination — they lose their job, they lose their home, and they end up in situations where they are especially at risk for violence. So there’s a real, urgent need to work on both preventing violence and working on the type of discrimination that can make people vulnerable to violence.

You’ve been doing civil rights work for a long time, for one cause or another. What made you want to work in this arena, and what keeps you motivated to keep doing this work?

I think it comes back again to gender. Most of the work that I’ve done turns on fighting back against gender stereotypes or misogyny at some level. I think these types of assumptions about how men and women are supposed to behave fundamentally holds people back in our society.

For me, I’m gay, and I think people have a lot of gender-based expectations about how people should be in society, and being gay frustrates those. And so knowing how limiting fixed and baseless gender roles can be, I’ve always had an interest in pushing back against that.

--Editing by Aaron Pelc.

All Access is a series of discussions with leaders in the access to justice field. Questions and answers have been edited for length and clarity.

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