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Carrillo, April
2023.
Transgender People and Criminal Justice.
p.
159.
Article contents
Beyond Diversity and Inclusion: Understanding and Addressing Ableism, Heterosexism, and Transmisia in the Legal Profession: Comment on Blanck, Hyseni, and Altunkol Wise’s National Study of the Legal Profession
Published online by Cambridge University Press: 12 July 2021
Extract
Far too many—if not most—of us in the legal profession who belong to both the disability and LGBTQ+ communities have known informally, through our own experiences and those of others like us, that workplace bias and discrimination on the basis of disability, sexuality, and gender identity is still widespread. The new study by Blanck et al. on diversity and inclusion in the U.S. legal profession provides empirical proof of this phenomenon, which might otherwise be dismissed as being based on anecdotal evidence.1 Its findings lend credibility to our position that the legal profession must make systemic changes to address workplace ableism, heterosexism, and transmisia.2 They also suggest possibilities as to where and how it might start to do so through providing information on who employers discriminate against most often and in what forms.3
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- Commentaries
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- © 2021 The Author(s)
Footnotes
†
Committee for Public Counsel Services, Mental Health Litigation Division. (The contents of this article are published in the author’s personal capacity.)
††
Georgetown University, Disability Studies Program, lydia.brown@georgetown.edu. With thanks to Sara M. Acevedo Espinal, Jennifer Scuro, and Jess L. Cowing for support.
References
1 Peter Blanck, Fitore Hyseni & Fatma Artunkol Wise, 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, 9 (2021) [hereinafter Blanck, et al., Discrimination and Bias]. Blanck et al. also published two earlier reports on this research. Peter Blanck, Ynesse Abdul-Malak, Meera Adya, Fitore Hyseni, Mary Killeen & Fatma 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 (2020) [hereinafter Blanck, et al., First Phase]; Peter Blanck, Fitore Hyseni & Fatma Wise, Diversity and Inclusion in the American Legal Profession: Workplace Accommodations for Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+, 30 J. Occupational Rehabilitation 537 (2020) [hereinafter Blanck, et al., Workplace Accommodations].
2 We choose to use the term “transmisia” to refer to systemic and structural oppression targeting transgender people, instead of the more commonly used term “transphobia.” As disabled, queer, and trans advocates, we prefer not to imply that either structural oppression nor interpersonal prejudice and discrimination are a manifestation of or equated with psychosocial disability (as a phobia is an anxiety disability). The suffix “misia” derives from the Greek term for hate or hatred, which more accurately reflects the nature of oppression, including internalized oppression. See also Beasley Library, What does “misia” mean?, Simmons U. Libr. (Dec. 15, 2020), https://simmons.libguides.com/anti-oppression [https://perma.cc/L6UA-65HV] (follow “What does “misia” mean tab under “Some Basics”).
3 Blanck, et al., Discrimination and Bias, supra note 1, at 54 (2021).
4 We use the terminology of “LGBTQ+” and “queer and trans” throughout this article to reflect different ways that people within these communities describe themselves, though we also recognize that these terms still cannot and do not capture all of the identities or experiences of people whose sexualities, asexualities, and genders diverge from expectations of heterosexuality and binary cisgender identities – especially outside the U.S. and broader Western/Global North context. See also, b. binaohan, Decolonizing Trans/Gender 101, at 32-33 (Biyuti Publ’g 2014); khari jackson & Malcolm Shanks, Decolonizing Gender: A Curriculum 6 (2017), https://www.decolonizinggender.com/the-zine [https://perma.cc/38PH-AJVA]; Josie Raphaelito, Diné (Navajo Nation), Keioshiah Peter, Diné (Navajo Nation); Marcus Red Shirt, Oglala Lakota; Ryan Young, Lac du Flambeau Ojibwe, Indigenizing Love: A Toolkit for Native Youth to Build Inclusion 6 (2019), https://www.healthynativeyouth.org/wp-content/uploads/2019/09/IndigenizingLoveToolkitYouth.pdf [https://perma.cc/VR9C-Z2EP]; Joseph Andoni Massad, Re-Orienting Desire: The Gay International and the Arab World, 14(2) Pub. Culture 361 (2002).
5 Blanck, et al., Discrimination and Bias, supra note 1, at 16.
6 Id. at 17.
7 Id.
8 Id. at 16.
9 General recommendation No. 33 on women’s access to justice, Comm. on the Elimination of Discrimination Against Women., at 3-4, U.N. Doc. CEDAW/C/GC/33 (Aug. 3, 2015), https://digitallibrary.un.org/record/807253?ln=en [https://perma.cc/SZ3N-GQ2P] (“These obstacles occur in a structural context of discrimination and inequality … . Grounds for intersecting or compounded discrimination may include ethnicity/race, indigenous or minority status, colour, socio-economic status and/or caste, language, religion or belief, political opinion, natural origin, marital and/or maternal status, age, urban/rural location, health status, disability, property ownership, and being lesbian, bisexual, transgender women or intersex persons. These intersecting factors make it more difficult for women from those groups to gain access to justice.”).
10 Blanck, et al., Discrimination and Bias, supra note 1, at 9.
11 Nat’l Ass’n for L. Placement, 2019 Report on Diversity in U.S. Law Firms 30 (2019), https://www.nalp.org/uploads/2019_DiversityReport.pdf [https://perma.cc/D7F2-XMAG].
12 See, e.g., Rebekah Moras, Feminism, Rape Culture, and Intellectual Disability: Incorporating Sexual Self-Advocacy and Sexual Consent Capacity, in Emerging perspectives on disability studies: 189, 191 (Matthew Wappett & Katrina Ardnt eds., Palgrave MacMillan, 2013) (“The disability hierarchy places people with physical disabilities (especially disabled white men and veterans) at the top, while people with intellectual disabilities, psychiatric disabilities, and other mental or ‘hidden’ disabilities are at the bottom. This hierarchy is exemplified in comments such as ‘I’m Deaf, not stupid;’ ‘I’m a woman, not an idiot;’ ‘I have cerebral palsy, I’m not retarded;’ ‘I’m Black, not a moron;’ ‘I use a wheelchair, I’m not an imbecile.’ … This kind of distancing does little to challenge ableist rhetoric that implies people must be independent, strong, competent, and measurably intelligent, before being valued and supported.” (internal citations omitted)); see also Kim Sauder, Fighting My Internalization of the Hierarchy of Disability, crippledscholar (Aug. 23, 2015), https://crippledscholar.com/2015/08/23/fighting-my-internalization-of-the-hierarchy-of-disability/ [https://perma.cc/P7NN-9RLQ] (“[The hierarchy of disability] is a social construct that makes certain kinds of disabilities more acceptable than others… . [I]t is all tied into associating disability with negativity but within the framework of the hierarchy, some people make out worse than others. People with intellectual disabilities or who are perceived to have intellectual disabilities are inevitably found near, the bottom.”).
13 See, e.g., s.e. smith, An Unquiet Mind: Are We Ever Disabled ‘Enough’ When You Don’t See Our Disabilities?, Catapult (July 17, 2019), https://catapult.co/stories/are-we-ever-disabled-enough-when-you-dont-see-our-disabilities-s-e-smith [https://perma.cc/CD4N-JDSF].
14 See generally Vargas, Christine, Select Recent Court Decisions: Disability Law: Substantial Limitations Under the Americans with Disabilities Act – Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 28 Am. J.L. & Med. 124, 126 (2002)CrossRefGoogle Scholar.
15 State Bar of Cal. Comm. on Legal Prof’ls with Disabilities, Challenges to Employment and the Practice of Law Continue to Face Attorneys with Disabilities: Results of a 2003 Online Poll of California Attorneys with Disabilities Conducted by the State Bar of California Committee on Legal Professionals with Disabilities 9 (Dec. 4, 2004), http://www.calbar.ca.gov/portals/0/documents/caf/2004_Attorneys-with-Disabilities-Report.pdf [https://perma.cc/K84S-DAXL] (finding 24% of California attorneys with disabilities had encountered refusals or resistance to receiving reasonable accommodations by their employers); see also Jason Goitia, Improving Disability Diversity and Inclusion in the Legal Profession, L. Practice Today (July 12, 2018), https://www.lawpracticetoday.org/article/improving-disability-diversity-inclusion-legal-profession/ [https://perma.cc/384A-2DNG].
16 Some sex workers are also lawyers. See Nadia Guo, So Tell Me, Why Can't A Sex Worker Be A Lawyer? Huffington Post (Apr. 23, 2019, 11:03 AM), https://www.huffingtonpost.ca/nadia-guo/sex-worker-lawyer_a_23714016/ [https://perma.cc/BHB7-H3W5]; Katie Tastrom, Disabled People Are Better At Sex, Pulp Mag. (May 5, 2020), https://medium.com/pulpmag/disabled-people-are-better-at-sex-4b18e04e4e2c [https://perma.cc/XS8Y-CBA4]; Laura Terrell, Des Moines attorney unveils her life as a prostitute, KCCI Des Moines (Sept. 5, 2019), https://www.kcci.com/article/a-des-moines-attorney-unveils-her-life-as-prostitute/28918995 [https://perma.cc/EQ85-5G6Z]. Many sex workers are disabled. See Cyrée Jarelle Johnson, For Disabled Sex Workers, Congress’ Anti-Trafficking Legislation Is Life Threatening, Rewire News Group (July 12, 2018, 10:50 AM), https://rewirenewsgroup.com/article/2018/07/12/disabled-sex-workers-congress-anti-trafficking-legislation-life-threatening/ [https://perma.cc/TXS7-22JB]; Katie Tastrom, Sex Work is a Disability Issue. So Why Doesn’t the Disability Community Recognize That?, Rooted in Rts. (Jan. 4, 2019), https://rootedinrights.org/sex-work-is-a-disability-issue-so-why-doesnt-the-disability-community-recognize-that/ [https://perma.cc/35R5-CRSD]. Some lawyers have also been homeless. See Sean Giggy, From homeless to law school: This Dallas man is writing his own story, WTHR (Sept. 1, 2020), http://web.archive.org/web/20210503182835/https://www.wthr.com/article/features/homeless-law-school-dedman-smu-dallas-kevin-lee-wants-to-be-a-judge-and-fight-for-kids-just-like-him/287-3569494b-32c6-43bf-b965-b9b4aa3244bb; Terrence McCoy, The homeless man who went to Harvard Law with John Roberts, Wash. Post (July 13, 2015), https://www.washingtonpost.com/local/social-issues/the-homeless-man-who-graduated-from-harvard-law-school-with-chief-justice-john-roberts/2015/07/13/63257b5c-20ca-11e5-bf41-c23f5d3face1_story.html [https://perma.cc/E2A6-LUK9]; Gina Furia Rubel, From Homeless to Lawyer: One Woman’s Amazing Journey, Huffington Post (Dec. 6, 2017), https://www.huffpost.com/entry/from-homeless-to-lawyer-o_b_560343#:~:text=Nikki%20Johnson-Huston%2C%20Esq.,winning%20young%20attorney%20in%20Philadelphia [https://perma.cc/ER4N-SSXC]. Other people who have been incarcerated have become lawyers. See Jenny B. Davis, Once in prison for life, this New Jersey lawyer’s story has inspired an ABC TV series, ABA J. (June 1, 2020, 1:25 AM), https://www.abajournal.com/magazine/article/he-was-once-in-prison-for-life-but-now-this-new-jersey-lawyers-story-has-inspired-an-abc-tv-series [https://perma.cc/7NXW-E5TD]; Eoin Higgins, Tarra Simmons becomes first person formerly convicted of a felony elected to Washington State Legislature, Appeal (Nov. 4, 2020), https://theappeal.org/tarra-simmons-washington-state-legislature/ [https://perma.cc/HVF9-UY4G]; Ari Melber, Jarrett Adams’ unlikely path from prison to lawyer, MSNBC (Oct. 11, 2015, 9:34 AM), https://www.msnbc.com/msnbc/jarrett-adams-unlikely-path-prison-lawyer-msna700351 [https://perma.cc/LD84-FEXT].
17 See Leigh Goodmark, Transgender People, Intimate Partner Abuse, and the Legal System, Harv. C.R.-C.L. L. Rev. 51, 84 (2013); Justine E. Egner, An Intersectional Examination of Disability and LGBTQ+ Identities in Virtual Spaces (Apr. 2018), (unpublished Ph.D. dissertation, University of South Florida) (on file with University of South Florida Scholar Commons).
18 See Lisa M. Bergersen & Claire E. Hartley, Knock It Off! Harassment & Bullying in the Workplace, 93 Wis. Law. 22, 23-25 (2020).
19 See Evelyn Nakano Glenn, Settler Colonialism as Structure: A Framework for Comparative Studies of U.S. Race and Gender Formation, 1 Soc. Race & Ethnicity 54, 54, 62-67, 70 (2014), https://www.asanet.org/sites/default/files/attach/journals/jan15srefeature.pdf [https://perma.cc/LS4M-FQ3N]; Jess L. Cowing, Occupied Land is an Access Issue: Interventions in Feminist Disability Studies and Narratives of Indigenous Activism, 17 J. Feminist Scholarship 9 (2020), https://digitalcommons.uri.edu/cgi/viewcontent.cgi?article=1163&context=jfs [https://perma.cc/46MJ-JRXH]; Talila A. Lewis, Stolen Bodies, Criminalized Minds & Diagnosed Dissent: The Racist, Classist, Ableist Trappings Of The Prison Industrial Complex, Feb. 19, 2019, https://www.youtube.com/watch?v=zpY4v10jqXY [https://perma.cc/63C2-TMSJ] (Longmore Lecture in Disability Studies given at San Francisco State Univ.).
20 See Elaine Craig, Trans-Phobia and the Relational Production of Gender, 18 Hastings Women’s L.J. 137, 140 (2007); Paul Harpur, From Universal Exclusion to Universal Equality: Regulating Ableism in a Digital Age, 40 N. Ky. L. Rev. 529, 529, 533-535 (2013); Stephanie M. Wildman, Privilege in the Workplace: The Missing Element in Antidiscrimination Law, 4 Tex. J. Women & Law. 171, 175-177 (1995) (“Heterosexual white women are often unconscious of our sexual orientation and race privileges and the ways in which we perpetuate heterosexism and racism even while we are fighting sexism.”).
21 See e.g. Gabriel Arkles, Marriage and Mass Incarceration, 37 N.Y.U. Rev. L. & Soc. Change 13, (2013) (finding a high number of transgender people have been incarcerated and finding “same-sex” marriage “does not encompass realities of trans people whose gender identity does not fit within a binary or is considered invalid by government agencies or courts.”); Peter Blanck, Helen A. Schartz & Kevin M. Schartz, Labor Force Participation and Income of Individuals with Disabilities in Sheltered and Competitive Employment: Cross-Sectional and Longitudinal Analyses of Seven States during the 1980s and 1990s, 44 WM. & Mary L. Rev. 1029, 1035, 1093 (2003); Arthur S. Leonard, Lesbian and Gay Families and the Law: A Progress Report, 21 Fordham Urb. L. J. 927, 946 (1994).
22 See generally Am. Bar Ass’n, ABA Standards and Rules of Procedure for Approval of Law Schools 2020-2021 (ABA Publ’g 2020) (listing requirements of students at accredited law schools); Nat’l Conference Bar Exam’rs & Am. Bar Ass’n., Comprehensive Guide to Bar Admission Requirements (Judith A. Gundersen & Claire J. Guback eds. 2020) (listing requirements of bar admission).
23 See Am. Bar Ass’n, supra note 22; Nat’l Conference Bar Exam’rs & Am. Bar Ass’n, supra note 22. See also Anthony Abraham Jack, I Was a Low-Income College Student. Classes Weren’t theHard Part. N.Y. Times Mag. (Sep. 10, 2019), https://www.nytimes.com/interactive/2019/09/10/magazine/college-inequality.html [https://perma.cc/2E8V-ZWUN] (discussing difficulties that low-income students and students of color in higher education).
24 See e.g., Eric Chung et al., Yale L. Sch. & Nat’l Asian Pacific Am. Bar Ass’n, A Portrait of Asian Americans in the Law 39 (2017), https://static1.squarespace.com/static/59556778e58c62c7db3fbe84/t/596cf0638419c2e5a0dc5766/1500311662008/170716_PortraitProject_SinglePages.pdf [https://perma.cc/7SHW-D96U] (“Asian Americans do not obtain judicial clerkships in numbers comparable to their enrollment at highly ranked schools, and they are significantly underrepresented in the partner and leadership ranks of law firms. These selection processes—clerkships and law firm promotion—involve not only objective measures of ability, but also access to mentorship and subjective criteria such as likability, gravitas, leadership potential, and other opaque or amorphous factors….”); Elizabeth B. Cooper, The Appearance of Professionalism, 71 Fla. L. Rev. 1, 3-6 (2019) (discussing how women, people of color, and LGBTQ people face many barriers in the legal profession, including dominant expectations of appearance in the legal workplace and implicit biases); Austin Howard, Networking Away the American Dream: How Reinterpreting Title VII Can Reduce Employer Reliance on Exclusive Networks in Hiring and Broaden Access to Professional Opportunity, 41 Cardozo L. Rev. 721, 722 (“[E]mployment opportunities that applicants have access to are often directly tied to the socioeconomic make-up of the networks they are born into.”); Jacqueline M. O’Bryant & Katharine Traylor Schaffzin, First-Generation Students in Law School: A Proven Success Model, 70 Ark. L. Rev. 913, 931-35, 947 (2018) (discussing barriers faced by first generation students, who are more likely to be low-income and students of color, before and throughout law school); E. Ann Puckett, How Potential Employers Approach Diversity: A Survey of Law Students in Georgia, 69 U. Pitt L. Rev. 509, 519 (2008) (discussing law students’ fear of disadvantages accompanied with disability disclosure in interviews and lower likelihood of job offers among students with disabilities).
25 See e.g., Lydia X. Z. Brown, Laboring for Disability Justice & Liberation: Resources, Autistic Hoya, https://autistichoya.net/resources/ [https://perma.cc/Z5B3-5B2V]; The Abolition & Disability Justice Collective, https://abolitionanddisabilityjustice.com/ [https://perma.cc/J6GN-PA8L]; HEARD, The Revolution Must Be Accessible: Tips & Advice for Organizers: A guide for building access-centered online movement education (2020), https://www.canva.com/design/DAEN6OvXkyE/ztzfCgfIk4Kv0557rP554A/view?
[https://perma.cc/8P8P-HC8Z]; Sins Invalid, Curriculum, https://www.sinsinvalid.org/curriculum [https://perma.cc/8XNJ-E88Q]; Health Justice Commons, Training and Course Overviews, https://www.healthjusticecommons.org/training-and-course-overviews-1 [https://perma.cc/4K4Y-XBAQ]; Fireweed Collective, https://fireweedcollective.org/ [https://perma.cc/F6TS-FHAG] (includes publications, webinar offerings, and crisis toolkit); Dustin P. Gibson, Offerings, https://www.dustinpgibson.com/offerings [https://perma.cc/43PT-AQMY]; Lee, “How to be an Ally to Disabled & Neurodiverse Folks in Activist & Academic Communities:,” Access Culture, Jul. 6, 2012, https://accessculture.wordpress.com/2012/07/06/how-to-be-an-ally-to-disabled-neurodiverse-folks-in-activist-academic-communities/ [https://perma.cc/392T-CR9C]; Critical Design Lab, https://www.mapping-access.com/ [https://perma.cc/3586-F2QK]; Movement for Access, Safety & Survivors: The MASS Collaboration, Supervisory Guides: Creating a Trauma-Informed and Disability Inclusive Workplace (2016), https://barcc.org/information/resources/providers [https://perma.cc/KG5P-4KRF].
26 See sources discussed supra note 12.
27 See e.g., Raquel S. Craney et al., Bisexual Women’s Discriminatory Experiences and Psychological Distress: Exploring the Roles and Coping and LGBTQ Community Connectedness, 5 Psych. Sexual Orientation & Gender Diversity 324, 326 (2018) (discussing discrimination and exclusion of bisexual people from both gay and lesbian and heterosexual communities and lack of connectedness to LGBTQ community); Susan B. Marine & Z. Nicolazzo, Names That Matter: Exploring the Tensions of Campus LGBTQ Centers and Trans* Inclusion, 7 J. Diversity Higher Educ. 265, 266 (2014) (“[M]any have argued the movement for LGBTQ rights in the United States has been exclusively focused on the concerns of gay and (to a lesser extent) lesbian people”); George Johnson, “White gay privilege exists all year, but it is particularly hurtful during Pride,” NBC, Jun. 30, 2019, https://www.nbcnews.com/think/opinion/white-gay-privilege-exists-all-year-it-particularly-hurtful-during-ncna1024961 [https://perma.cc/3Q8M-UWDY]; Meredith Talusan, “45 Years After Stonewall, the LGBT Movement Has a Transphobia Problem,” Am. Prospect, Jun. 26, 2014, https://prospect.org/power/45-years-stonewall-lgbt-movement-transphobia-problem/ [https://perma.cc/62M7-W45W].
28 See Erik Bleich et al., Leveraging Identities: The Strategic Manipulation of Social Hierarchies for Political Gain, 48 Theory & Soc’y, 511, 516-18 (2021) (discussing how strategic leveraging is used in politics to form social distance among groups by offering political gains and elevation to some at the cost of separation from and stigmatization of another group); Lydia X. Z. Brown, Letters to the Revolution (2017) http://www.letterstotherevolution.com/lydia-x-z-brown [https://perma.cc/7ZRV-6WNK] (“One pattern I recognize is the constant practice of disavowal. We learn that we may only lay claim to our own humanity by doing so at the expense of someone else. […] Always trying to gain power at the expense of someone else, to move the fences separating worthy/unworthy, desirable/undesirable, normal/defective a few inches over – still keeping someone else outside – instead of tearing down the walls.”).
29 See Tema Okun, White Supremacy Culture, Dismantling Racism: A Workbook for Social Change Groups (2001) https://www.dismantlingracism.org/uploads/4/3/5/7/43579015/okun_-_white_sup_culture.pdf [https://perma.cc/PCK9-J6NX]; Lilia M. Cortina, Unseen Injustice: Incivility as Modern Discrimination in Organizations, 33 Acad. Mgmt. Rev. 55, 58-64 (2008) (discussing factors that fuel discrimination, particularly among those who hold power).
30 See Blanck, et al., Workplace Accommodations, supra note 1, at 540; Natalie Dugan, #TimesUp on Individual Litigation Reform: Combatting Sexual Harassment through Employee-Driven Action and Private Regulation, 53 Colum. J.L. & Soc Probs. 247, 248 (2020); Minna J. Kotkin, Invisible Settlements, Invisible Discrimination, 84 N.C. L. Rev. 927, 929-931 (2006).
31 Many marginalized people fear to speak openly about discrimination due to concerns about workplace retaliation, which accounted for forty-two percent of discrimination complaints in 2013. Romella Janene El Kharzazi et al., Retaliation—Making it Personal, U.S. Equal Emp. Opp. Comm., https://www.eeoc.gov/retaliation-making-it-personal [https://perma.cc/3Q7Y-Y3EV].
32 See e.g., Your Rights: Non-Disclosure Agreements (NDAs); Workplace Fairness, https://www.workplacefairness.org/nondisclosure-agreements [https://perma.cc/J83N-9WLA].
33 See generally Blanck, et al., First Phase, supra note 1.
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