Last year, the Human Rights Campaign, the nation’s largest LGBTQ rights organization, warned that 2021 would usher in a new era of anti-transgender legislation in the United States.
The trend appears likely to continue. The HRC projected that 2022 could see more legislation curbing trans rights than ever before. Earlier this month, South Dakota enacted a law banning transgender girls and women from female sports teams.
At the same time, the United States is also experiencing an uptick in people coming out as trans and nonbinary, according to trans advocates. Those coming out as trans and nonbinary include lawyers and law students, many of whom are dedicating their careers to fighting back against such legislation.
Lyra Foster, a 36-year-old litigation attorney based in Atlanta, said she became one of the first openly transgender lawyers at a major U.S. law firm in 2020.
With a background in criminal justice reform and personal experiences with addiction and incarceration, Foster represents transgender people post-conviction on a pro bono basis.
Law was not always her plan, but after her own encounters with the criminal justice system, she realized the legal field offers greater avenues to help those with the most immediate need, she said.
“When you’re a lawyer, it just gives you so many more levers to pull within the system,” she said. “This is an incredible privilege that comes with a lot more power to directly help somebody or change things. And I just wouldn’t be able to live with myself if I wasn’t doing something — if I had those levers and wasn’t using them.”
Foster came out as trans in 2020, during her final semester at Mercer University School of Law in Macon, Ga. By the time she received her bar license, major civil liberties groups began approaching her with opportunities to litigate trans rights cases, she said.
She may be one of the most prominent trans lawyers working with trans clients, but Foster is far from alone. A new generation of trans, nonbinary and gender-nonconforming lawyers is emerging, advocates say.
According to the National Association for Law Placement, there were three times as many openly LGBTQ law school graduates in 2020 as there were in 2002. And while data is limited, the NALP reported that the number of openly trans law school graduates is growing, too.
The increasing share of Americans coming out as trans over the past two decades has led to battles for their legal rights — a fight that is deeply divided across partisan lines. According to a Pew Research Center survey conducted in July, a majority of Democrats and those who lean toward the Democratic Party (59 percent) say that the greater acceptance of transgender people is good for society, while a majority of Republicans and Republican leaners (54 percent) say it is bad for society.
Kristen Prata Browde, co-chair of the National Trans Bar Association (NTBA), said it is difficult to know exactly how many attorneys and law students are transgender and nonbinary. According to Browde, the group’s membership numbers more than 1,000.
“There are big law partners and associates, solo practitioners, public-interest attorneys, defenders, prosecutors and judges,” she said. “In short, everywhere you can find legal professionals, you can find people who are transgender.”
And they’re gaining more visibility. Foster runs a Twitter account with more than 26,000 followers. As she became known online for threads about trans rights (interspersed with quips about the Lord of the Rings, Star Wars and the Marvel Cinematic Universe), more organizations have contacted her about helping trans clients post-conviction, she said.
While Foster works with incarcerated people, much of the trans-related legislation in recent years has focused on another group: children.
Many bills introduced this year would limit trans students’ participation in school sports and ban their access to gender-affirming medical care, including puberty blockers and hormone replacement therapy (HRT).
Republican state legislators proposing the bills argue that trans minors are too young to make medical decisions that may have long-term or permanent effects.
“Children aren’t mature enough to make these decisions on surgeries and drugs,” said Alabama state Sen. Shay Shelnutt (R), who sponsored a 2021 bill that would make gender-affirming care for minors a felony. “The whole point is to protect kids.”
However, leading medical organizations — including the American Academy of Pediatrics, the American Psychiatric Association and the American Academy of Child and Adolescent Psychiatry — oppose bills that would prohibit minors from accessing gender-affirming care, citing research showing that it is considered safe and often medically necessary.
According to Browde, lawyers with the NTBA are on the front lines of these rapidly advancing battles over trans rights.
Advocates such as Browde are hopeful that although marginalized groups still face barriers to accessing legal education — it is expensive and time-consuming — the field is slowly diversifying.
Last year, Harvard Law School announced that two trans women of color were hired to its faculty. The law school now employs three openly trans professors of color and four openly trans professors in total.
Harvard is just one of many schools — including Columbia University, New York University, the University of Michigan and the University of Wisconsin at Madison — with student organizations that center queer and trans people of color. Many law schools maintain chapters of OutLaw, an LGBTQ student group.
And students of color made up more than half of the incoming 2021 classes at elite law schools, with the number of openly LGBTQ students reportedly rising as well.
As more legal professionals identify along the transgender spectrum, there may be more organization in support of trans legal rights. Data from the NALP shows that trans law graduates are twice as likely as the overall graduate population to take public-interest jobs.
But full-time law jobs in gender justice can be scarce, hard to secure and underpaid, Foster said, which is why her work with trans folks is pro bono.
Foster said that incarcerated trans adults see much less public legal support than children in the current political landscape. That means that trans communities experiencing incarceration have to largely advocate for their own needs — including access to gender-affirming care and housing with the correct gender, Foster said.
“The biggest piece of hope for me is the attitudes and the energy that incarcerated trans people have,” Foster said. “They’re taking on risks to themselves to fight for themselves, but in general what they’re fighting for is a policy change — so if it helps them, it’ll help others.”
For example, Foster said, one incarcerated trans woman she knows successfully represented herself in a case in which she sought access to HRT while behind bars. Not only did she secure her own gender-affirming care, but her handwritten work influenced legal scholarship on the issue, according to Foster.
To other trans law students gearing up to advocate for transgender rights, Foster advised that they recognize there is a clear need for the work they are passionate about. At the same time, there are not as many resources available for people pursuing gender justice, she said.
“Do not be afraid to offer to help, even if it seems like something that’s beyond you,” she said. “You may not feel like the right person for the job, but there’s a good chance that just by being the only one asking, you are the best person for the job.”