A transgender individual heads to their local DMV for a standard appointment – a registration renewal or driver’s license issuance. Just like the person at the window beside them, they present their birth certificate. According to current West Virginia law, their birth certificate contains either the incorrect gender marker or the corrected gender marker with an indication that it’s been amended, thus outing the individual in the public space. With no way to obtain a birth certificate that affirms their gender identity without flagging the change, a daily errand turns potentially dangerous.
“It’s a matter of privacy and dignity for our clients,” said Clay Hackney, JD ‘22, a student in the Harvard LGBTQ+ Advocacy Clinic. This example reflects the stories of two current plaintiffs being represented by the clinic, in collaboration with the ACLU of West Virginia and the ACLU LGBT and HIV Project.
In the case, Hersom v. Crouch, the clinic and the ACLU argue that birth certificate gender markers should be able to be changed without any indication on the certificate that a change has been made. They allege that the birth certificate amendment policies are unconstitutionally transphobic, since they have the potential to disclose the fact that the certificate-holder is transgender. “The plaintiffs deserve to have the birth certificates that everyone else has, that reflect their correct gender marker,” said Jackie Weinell, JD ‘23, a clinical student working on the case this semester. Hackney added: “Cisgender people often don’t recognize the benefit of having documents which accurately reflect your gender. Not having those can not only present procedural hurdles to obtaining passports or driver’s licenses, but it can also subject people to being outed, sometimes in public spaces, which can open the person up to harassment of various forms.”
Since last fall, clinical students have worked in close collaboration with attorneys from the ACLU to contribute to the case, from initial stages through discovery, where the litigation currently stands. “It’s really great to get feedback from people that are such experts in this field and have such thorough experience and understanding,” said Weinell. “We meet with the ACLU teams every week, and we get to hear and participate in discussions about strategy. That gives you a lot more confidence and is also a learning experience, to have people who are so undoubtedly experts in the field teaching you and giving you feedback on how to do the cases that you want to be doing with your career.”
The Harvard LGBTQ+ Advocacy Clinic, based in the WilmerHale Legal Services Center, gives students the opportunity to contribute to local and national projects covering a wide spectrum of cutting-edge issues in LGBTQ+ advocacy. Students in the clinic work with Clinic Director and Lecturer on Law Alex Chen and Clinical Instructor Anya Marino, two of the first transgender attorneys to teach at HLS. “There aren’t that many trans lawyers,” said clinical student Molly O’Keefe, JD ‘22. “We’re so lucky not only to work with two of the best trans lawyers, but two of the best lawyers for LGBTQ+ litigation. Working with them and seeing their commitment has been really inspiring.”
Students work on an impact litigation case and a policy project throughout their semester in the clinic. During a year when many harmful policies are being passed on the state level against the LGBTQ+ community, especially LGBTQ+ youth, the policy component of the clinic has been just as significant for students as the litigation. “A takeaway I’ve had from the clinical seminar has been that impact litigation shouldn’t be the solution,” said O’Keefe. “It often doesn’t create the systematic change that you need. Long-term policy changes can be more impactful. Since litigation is so time-intensive and so expensive, we shouldn’t be putting all our eggs in that basket – it should be one tool in the toolkit.”
“It’s a great honor to be able to participate in a lot of different facets within the movement,” said Lauren Andrews, JD ‘23. “In addition to gaining on-the-ground lawyering skills that I know I’ll use in my career as a litigator, I’ve also been privy to a lot of important and interesting discussions between our clinical instructors and the rest of the students at our weekly staff meetings about what causes we want to prioritize and what the best method of challenging specific harms is, be it policy or impact litigation.”
Advancements brought by both policy changes and impact litigation in the LGBTQ+ rights space have been an inspiration to many members of the LGBTQ+ community, inspiring the careers of several of these clinical students. “I took the clinic because when I was growing up as a young, queer person in Utah, I was really inspired by the work that people were doing in the impact litigation space, specifically with respect to queer rights,” said Andrews. “That was one of the things that gave me hope during a difficult time and one of the reasons I decided to go to law school.”
“As a queer person from North Carolina, I wanted to get plugged into the LGBTQ+ movement and learn from experts. I was really excited by the substantive and meaningful work that the clinic provided,” said Hackney, who returned to the clinic for a second semester this spring. “I came back because I was learning an incredible amount through that practical work. And getting to work with other queer people through the pandemic gave me a real sense of community as well.”
Chen and Marino work closely with the students in the clinic, not only guiding them through the legal work, but providing mentorship and seasoned advice as well. O’Keefe has worked on drafts for several motions in the Hersom case, in close collaboration with Alex Chen. “Professor Chen went over every motion in detail with me, telling me, ‘This is good, this is not good, this is what you should be doing,’ which was very helpful.” She adds that as she approaches graduation, Chen and Marino have provided a model for how she’ll compose herself entering her career. “It’s helpful to see how they communicate with each other and with us and with outside counsel, giving us an example of how that’s done. A lot of it is relationship-based, so seeing how you’re supposed to communicate with other attorneys and your co-counsel has been really helpful… as I head into my career, I think I’ve been spoiled with this clinic.”
“Professor Chen has really worked with me not only to figure out my strengths and weaknesses, but where my personality is best suited to make meaningful change,” added Hackney. “In law school, we’re taught that the predominant way to do that is through litigation. It’s been refreshing to work in a space that emphasizes that but doesn’t recognize it as the only avenue where a person with a law school degree can make a lasting impact. We think through ways to effect change that are sustainable and that recognize the kinds of vicarious trauma you experience doing this work.”
Andrews concurred that the element of care is critical to doing this type of work, which can be intimately personal. “One of the things we focused on in the beginning of the semester was writing effective briefs and doing effective research, but now as we’ve hit the ground running on our projects, we’ve started to focus on the effect that vicarious trauma can have and the importance of self-care. As a member of the community, it can be really hard to see other queer people suffering. As much as we do, it can be difficult to see the harms of the policies. [Chen and Marino] have been intentional about structuring the clinic not only as a learning opportunity for specific legal skills, but also of the academic background of the broader movement and how we can determine our own place within it.”
The result is a clinical experience that leaves a lasting mark on students and the plaintiffs they represent alike. “It’s insane the amount I’ve learned from this clinic – about constitutional law, about the queer rights movement, about myself, about my career aspirations,” said Hackney. “It’s been very meaningful to me in my law school career.”
In October 2022, the ACLU settled this lawsuit after West Virginia officials revealed new process for amending names and gender markers on birth certificates. Read more here.