It’s been decades since the last major federal civil rights law was passed, leaving advocates for greater social equality relying on laws crafted a generation or two ago. And for many of the nation’s most vulnerable populations, vindicating those rights can be a difficult task, as a recent study by the Legal Services Corporation found.
But many organizations and individuals are working to change that, to stand up with marginalized groups and push civil rights forward. One such group is the Transgender Legal Defense & Education Fund, a nonprofit advocacy group—and Logikcull user. Transgender Legal works towards “ending discrimination based upon gender identity and expression and to achieving equality for transgender people.” Logikcull recently spoke to Jillian Weiss, executive director at Transgender Legal, about impact litigation, the future of transgender rights, and the role discovery plays in her advocacy.
The Role of eDiscovery in Civil Rights Litigation
At Transgender Legal, Weiss oversees litigation in federal courts across the country, from Washington State to Florida, Illinois to Kentucky. That litigation is focused on fighting discrimination against transgender individuals in the realms of employment, education, healthcare, and public accommodations.
Many of those cases pit transgender litigants against relatively well heeled opponents, “major corporate interests and major law firms who have tons of resources,” Weiss says.
And while arguments about equality or the proper interpretation of “sex” in civil rights laws might capture the popular imagination, many of these cases turn on discovery, where disparities in resources can have a major impact.
“There are very few organizations that admit to discrimination,” Weiss says. As such, “discovery is key.” She explains:
There are a few that have tried to make arguments saying that transgender people are not protected under federal law, but the fact is that most federal courts recognize that transgender people are protected from sex discrimination under the civil rights laws. That leaves issues of fact.
These cases are always messy. There’s always back and forth about who did what and who said what to whom. So it comes down to documentation and discovery.
That makes it even more important to find on-point documents efficiently and affordably, even when you’re buried under a mountain of ESI.
“Many defendants want to err on the side of caution, shall we say, and provide as much documentation as possible,” Weiss explains. A typical case for Transgender Legal may involve 100,000 documents, though some could involve “many hundreds of thousands,” according to Weiss.
In cases involving mixed motive discrimination, for example, “it’s particularly important to be able to sort through all the different emails and statements, so that these words can be isolated and you can begin to look at the mindset of the decisionmaker.”
“Surprisingly, documents are often provided that will be indicative of discrimination,” she says. “It’s our obligation to be able to find it. There’s no way to do that without some kind of electronic sifting.”
From Doc Review to the Supreme Court Docket
One of the biggest transgender legal rights battles in recent years has been Gavin Grimm’s fight to use the boys room at his rural Virginia high school—a fight that made it all the way to the Supreme Court but which wasn’t, ultimately, resolved there.
Grimm, who was born female but identifies as a man, was initially permitted to use the facilities that comported with his gender identity. That is, until a public backlash changed the school district’s mind. After that, when nature called Grimm was relegated either to the girl’s room or a hastily converted broom closet.
Grimm, backed by the ACLU, sued. After a win in the Fourth Circuit, his case was on its way to the Supreme Court. But, while Grimm’s suit focused public attention on the rights of transgender students, it was largely about administrative law—specifically, the amount of deference owed the Department of Education’s interpretation of Title IX. The DOE under the Obama administration had interpreted Title IX’s prohibition against sex discrimination in education to extend to discrimination based on gender identity. The law, under this reading, thus required schools to treat students in line with their gender identity and expression.
But that guidance was rescinded under the Trump administration, leading the Supreme Court, in a one-sentence summary disposition, to reverse Grimm’s Fourth Circuit win and remand the case for further litigation.
“While Gavin’s case was not decided by the Supreme Court,” Weiss says, “nonetheless it really has brought consciousness to this very, very important issue of how we support our transgender children.” Indeed, Transgender Legal submitted an amicus brief to the Supreme Court in that case, detailing the experiences of 101 transgender Americans and the role that nondiscrimination protections have played in their lives, urging the Court to recognize transgender individuals "as part of the American community and afforded the same rights as everyone else."
Grimm’s case has become a “touchstone,” Weiss says, a characterization that echoes Grimm’s treatment in the Fourth Circuit. In a concurrence to the post-SCOTUS order vacating the injunction in favor of Grimm, Fourth Circuit Judge Andre M. Davis placed Grimm among those who had challenged the country's "long and ignominious history of discriminating against our most vulnerable and powerless." Individuals like Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell. Judge Davis continued, referencing Grimm by his initials:
These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary's response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, "the arc of the moral universe is long, but it bends toward justice." G.G.'s journey is delayed but not finished.
What’s Ahead for Transgender Rights Advocates
Indeed, while Grimm’s lawsuit might not have won a Supreme Court victory, the law has been moving towards greater protections for transgender individuals for some time. “By 2007,” Weiss notes, “the EEOC had actually issued a letter saying that in some circumstances they would consider discrimination against a transgender person to be sex discrimination. That was during the Bush administration.”
In the context of students’ rights, Weiss points optimistically to Whitaker v. Kenosha Unified School District, a Title IX discrimination suit out of Wisconsin. Ash Whitaker, like Grimm, had sued for the right to use the boy’s bathroom at his high school. Like Grimm, he won an injunction allowing him to do just that. On May 30th, the Seventh Circuit, upheld that injunction, finding Whitaker likely to succeed on both his Title IX and Equal Protection Clause claims. That ruling “shows the tide has turned,” Weiss says.
And, of course, advancing transgender rights doesn’t just take place through litigation. In addition to their impact litigation, Transgender Legal also works through education, policy advocacy, and direct services. That includes connecting transgender individuals access to counsel when changing their names. “If your name does not match your documentation,” Weiss explains, “then it becomes very difficult to participate in life, in areas of education and employment, healthcare access, and many others.”
These efforts all play into Transgender Legal’s goal of making sure everyone can participate in the American Dream. “If you can’t get a decent education, can’t get a good job, can’t get your healthcare taken care of, you’re really not someone who can succeed in our society,” Weiss says.
Moving forward, Weiss hopes to continue educating transgender people about the legal remedies available, “to show them that they have rights and that they can stand up for themselves.” She also wants to convince more lawyers about the viability of these cases—that they can take such cases and can win, often recovering attorney's fees and costs in the process.
“It’s my hope that we will educate a lot of lawyers over the next ten years about how to evaluate, take on and land these cases,” Weiss says, “and that at some point our work will not be necessary.”