LGBTQ Rights Law
This Guide is designed to give you a brief overview of LGBTQ Rights Law. It provides practical information regarding the types of employers and practice settings in which you can pursue a career; the personality traits employers seek; the relevant background you can gain during law school; and resources to further research this rewarding field.
This guide includes content courtesy of the Bernard Koteen Office of Public Interest Advising at the Harvard Law School, written by Peter Hill, 2007 OPIA Summer Fellow. (Updated by Emily D. Kite, Office of Career & Professional Development, University of Wisconsin Law School in January 2016.)
What is LGBTQ Rights Law?
What is LGBTQ Rights Law? In essence, it is the point where the law intersects with the issues lesbian, gay, bisexual, transgender, and queer people face, which could be for a range of reasons including employment, housing, or other discrimination; marriage equality; HIV, transgender, or other healthcare issues; family law; and criminal law. While some organizations work in just one of these content areas, many organizations perform work in some or all of the content areas.
Anti-Discrimination (Employment, Housing, Etc.)
Just 23 states have state-wide employment and housing non-discrimination laws covering sexual orientation or sexual orientation and gender identity and 22 states have state-wide public accommodation non-discrimination laws protecting these groups. (See http://www.hrc.org/state_maps.) The United States does not have a federal employment or housing non-discrimination act and LGBTQ has not been designated a suspect classification by the U.S. Supreme Court. A significant focus of LGBTQ advocacy organizations is increasing the protections against LGBTQ discrimination at the federal, state and local levels through litigation, lobbying, and political organizing.
Criminal Law can impact the LGBTQ community in numerous ways. While all but five states have laws addressing hate crimes, the list of protected classes varies, with 15 states failing to mention sexual orientation and gender identity in their hate-crimes laws. (See http://www.hrc.org/state_maps) Hate crimes against members of the LGBTQ community continue to be common, so LGBTQ rights attorneys work to prosecute hate crime perpetrators while policy advocates work to pass hate crime laws in all states. On the criminal defense side, LGBTQ individuals who are arrested or otherwise interact with law enforcement may experience discrimination in legal processes or in the prison system. Further, transgender and HIV-positive individuals may have trouble gaining access to medical treatment. Thus, LGBTQ rights attorneys work to litigate and legislate policy changes to protect LGBTQ defendants and inmates.
Since the U.S. Supreme Court ruling in Obergefell v. Hodges, 135 S.Ct. 2071 (2015), same-sex marriages must be recognized and granted in all 50 states. However, some state governments continue to resist and many family law issues remain that uniquely affect LGBTQ relationships. These include assisted reproductive technology, adoption, interstate and international parentage issues, divorce and other dissolution of relationships, child custody, and estate planning. Issues also may arise concerning benefits such as retirement and healthcare as employers try to catch up with the state of the law. Further, lingering issues remain for LGBTQ relationships, such as domestic partnerships, civil unions, or other formal relationships, which were entered into before same-sex marriage was legal – for example Veterans’ Benefits for the partners of veterans who served in the era of Don’t Ask, Don’t Tell. Some of these issues are addressed on a large scale through impact litigation and policy work, but many are addressed through direct family law services to LGBTQ clients.
Many HIV/AIDS organizations and LGBTQ rights organizations work closely together because of the disparate impact HIV/AIDS has on the LGBTQ community. Further, because HIV/AIDS was historically mischaracterized as a “gay” disease, HIV/AIDS advocacy may involve working on litigation and policy matters falling into the larger category of LGBTQ discrimination. In criminal law, people with HIV/AIDS may face the unique charge of “criminal transmission of HIV.” HIV/AIDS advocacy can involve issues such as discrimination and access to health care and other services. Sometimes lawyers will work at organizations providing more comprehensive services to people afflicted with HIV/AIDS, including medical treatment, social services, and prevention services.
Immigration & Asylum
Dozens of countries have laws against homosexuality. (See https://www.hrw.org/news/2015/05/15/outlawed-legal-discrimination-against-gays-and-lesbians.) The United States allows people to apply for asylum based on fear of persecution due to their membership in the LGBTQ community. These requests are often denied because of difficulty navigating the logistical hoops and discrimination in the courts. Further, LGBTQ families can face unique hurdles in their immigration cases. Attorneys and policy advocates work with the U.S. Departments of Justice and Homeland Security, the State Department, and state and local governmental and advocacy organizations to ensure that those who need protection are granted asylum and to ease other immigration issues faced by the LGBTQ community.
Transgender people face many of the same battles for equality in employment, housing, and other areas faced by the larger LGBTQ community; however, the transgender population has even fewer laws protecting them, even in states that have non-discrimination laws covering sexual orientation. Further, the transgender population is particularly susceptible to hate crimes and discrimination by the criminal justice system. Thus, attorneys and policy advocates work to include gender identity in non-discrimination laws and hate crimes statutes, and litigate cases based on sex stereotyping principals. Transgender advocates also focus on rules and regulations regarding correct sex designation on passports, drivers’ license, and other identity documents, segregated facilities such as bathrooms, gyms, and prisons, and on gaining non-discriminatory healthcare access and coverage, including transgender-specific operations.
LGBTQ youth may face discrimination and abuse at school or at home. Attorneys and advocates fight for the rights of youth to form gay/straight alliances in their schools and for the right to be free of harassment or bullying while attending school and advocate for the right to receive accurate information in schools and to have equal representation of LGBTQ people in school curricula. Out of home care settings are another significant issue for at-risk LGBTQ youth, and lawyers fight for provisions and protections for LGBTQ youth in foster homes, group homes, and juvenile detention facilities.
Where can I practice LGBTQ Rights Law?
When representing LGBTQ rights, you may practice in a variety of settings across the country. This section describes and provides general background information on five practice settings.
Public Interest Litigation Organizations
Public interest litigation organizations use litigation on local, regional, and national levels to protect LGBTQ rights. They generally focus on impact legal work, meaning they pick cases that will break new ground or otherwise affect a community wider than the parties to a particular suit. An emphasis on precedent-setting cases means lawyers are likely to work on a smaller number of matters and have less client contact than a direct services lawyer. Nationally, organizations like Lambda Legal and the ACLU do substantial litigation work, and a number of other organizations do work on a regional or state-wide level. Because relatively few organizations are dedicated in whole or part to the advancement of LGBTQ rights, competition for such jobs is considerable. Lawyers who get a chance to work with these organizations express great job satisfaction, as they can make big strides in accomplishing the goals of the LGBTQ rights movement and they are on the forefront of any new issues that arise.
Legislative & Public Advocacy Organizations
While attorneys doing litigation work challenge unjust and discriminatory laws in court, other lawyers work on the legislative front, advocating for the passage of inclusive laws that protect the rights of all and working to defeat discriminatory and divisive laws that take away freedoms and protections. Only a few legislative advocacy organizations focus solely on LGBTQ rights, but many progressive organizations include LGBTQ issues among the agenda items for which they lobby. Human Rights Campaign (HRC) and the National LGBTQ Task Force are good examples of national organizations that do both legislative advocacy and public outreach and education work. Advocacy and lobbying can occur at local, state and national levels. Not all jobs are specifically law-related and the more prestigious the organization, the more difficult it is to obtain a job there. The work can also be frustrating. Legislators may be unresponsive or even hostile and an excellent law can be voted down. With the frustration, however, also come great rewards when a coalition is formed and new protections are signed into law.
Direct Services Organizations
Direct services organizations focus on representing individual clients, though sometimes their work may evolve into impact litigation. Legal aid or legal services are public interest practices that are often funded by government monies. These organizations handle many different civil legal issues and most often represent clients at no cost. Typical representation includes cases of discrimination based on sexual orientation and writing contracts, wills and trusts for LGBTQ people. Legal services lawyers have significant client contact and gain litigation experience. They can reap great job satisfaction from representing clients who could otherwise not afford legal representation. The drawbacks often include low salaries and heavy caseloads. Only certain legal services offices will have a significant number of LGBTQ cases, so an applicant must evaluate closely the frequency of such cases in a particular office. Also within the category of direct services organizations are more specialized organizations, such as those that provide services to people with HIV/AIDS. While the issues are closely tied with LGBTQ issues, HIV/AIDS work is a specialized field and the cases may lack diversity. For attorneys interested in concentrating on advocacy for people suffering from HIV/AIDS, the work can bring great personal rewards in connecting with individual clients and helping to improve their lives.
Although government protections for LGBTQ rights are incomplete, 23 states and many cities and counties currently include sexual orientation as a protected category under their civil rights statutes. Many of these states and cities employ attorneys to help enforce those laws. Such an enforcement position can be a rewarding choice for someone who wants to work on LGBTQ issues, although not exclusively. Government work may also appeal to those who are uncomfortable with the often confrontational and controversial nature of suing the government or private parties and lobbying sometimes unreceptive legislators. If elective office is the way you choose to pursue your career in LGBTQ rights, some organizations offer financial assistance and support, including some specific to members of the LGBTQ community.
While this guide focuses on public service, attorneys in private practice can also pursue significant LGBT work. Some go into small or solo private practices that handle LGBT rights cases, for example in an area like family law. Client contact is an important part of this practice and the cases can, at times, evolve into impact cases. Financial realities, however, can be a worry for small firm or solo practitioners. To remain solvent, lawyers must often look for cases where the client can afford to pay, and may have to turn down cases in which they cannot. An attorney also may pursue LGBT advocacy even working at a larger law firm, or one that does to specialize in LGBT rights. Interested attorneys can handle pro bono LGBT cases, either individually or as a cooperating attorney with a public interest legal organization.
Which personality traits make you well-suited for this?
LGBT Rights Law involves working with issues that are sometimes controversial and emotionally charged. Attorneys working in advocacy for LGBT clients must have a thick skin and work well under pressure. They must have empathy for their clients, particularly in direct services, as clients may be facing issues of profound impact, such as the loss of employment or critical family law issues. The importance of different personality traits may vary depending on the setting within which you practice. For example, work in impact litigation can require patience, as the cases can last many years. On the other hand, in direct services, it is important to be comfortable juggling multiple clients and able to explain legal issues to clients clearly and in language laypeople can understand. Working in legislative advocacy and the government may require coalition building and working cooperatively – sometimes with people who disagree with you and your cause.
What can I be doing in law school to help my career in LGBT Rights Law?
Examine your background and make a list of your experiences with either LGBT issues specifically or more generally with the issues discussed above. Experiences that can be helpful in pursuing an LGBT rights career include: volunteering during the summer or school year for organizations that do LGBT or related work; taking courses related to these issues or the setting in which you want to practice, such as administrative law, constitutional law, employment law, family law, federal courts, or legislation; attending conferences or presentations you can discuss as triggering an interest in this area of law; writing and reading articles focused on LGBT issues; and joining your school’s LGBT or other civil rights organizations. You should show you are committed to LGBT issues and are comfortable interacting with clients of diverse backgrounds. Your goal should be to construct a road map leading logically to the exact point in time when you are applying to an organization so the prospective employer can say, “I know why this student wants to work for us.” From a skills perspective, if you want to do litigation or direct services advocacy, focus on developing your writing and advocacy skills through activities like journals, moot court, mock trial, and pro bono work.
If you are interested in practicing LGBT Rights Law, you may want to join The LGBT Bar (lgbtbar.org) and a local LGBT bar association. The following additional links will be useful as you continue to explore this field, but you should also explore local advocacy organizations:
Legislative, Public Advocacy & Impact Litigation Organizations
- American Civil Liberties Union (ACLU): www.aclu.org/issues/lgbt-rights
- Gay and Lesbian Victory Fundwww.victoryfund.org
- Gay, Lesbian & Straight Education Network (GLSEN): www.glsen.org
- GLAAD: www.glaad.org
- Human Rights Campaign: www.hrc.org
- Immigration Equality: www.immigrationequality.org
- Lambda Legal: www.lambdalegal.org
- The Leadership Conference on Civil and Human Rights: www.civilrights.org
- National Center for Lesbian Rights: www.nclrights.org
- National LGBTQ Task Force: www.thetaskforce.org
- National Center for Transgender Equality: www.transequality.org
- OutServe-Servicemembers Legal Defense Network (SLDN): www.outserve-sldn.org
- Parents and Friends of Lesbians and Gays (PFLAG): www.pflag.org
- Sexuality Information and Education Council of the U.S. (SIECUS): www.siecus.org
- Transgender Law and Policy Institute: www.transgenderlaw.org
- Amnesty International: www.amnestyusa.org/our-work/issues/lgbt-rights
- Center for Constitutional Rights: www.ccrjustice.org/home/what-we-do/issues/lgbtqi-persecution
- Human Rights Watch: www.hrw.org
- International Lesbian and Gay Association: www.ilga.org
- OutRight Action International: www.outrightinternational.org
Additionally, numerous state and local organizations provide impact litigation, policy advocacy, and direct services on behalf of the LGBT community. Check out PSJD.org’s Employer Directory for additional organizations.