May Letter from the Board

Dear NTBA Members and Other Newsletter Recipients,

For too many months to count now, I have watched Bisan Owda start her journalistic Instagram video updates with the phrase “I’m still alive.” Because she was making a new post, that felt like an inherent part of the message. But it was a necessary, grounding statement nevertheless. Her survival is part of her resistance. And the world watching her needed to know that she made it to one more post.

While the situation in this country is nowhere near as horrifying as the genocide unfolding in Bisan Owda’s home, the global fascism tying us is all too apparent under the current presidency. Never doubt, however, that it was also present in the Biden administration. Many more people living in the U.S. are now part of the target of the fascist terror than during the previous four years. But the United States has left irrefutable stains on many other parts of society beyond what we have experienced as our civil liberties have been chipped away.

I write these words as a litigator who upholds civil rights and civil liberties of trans people who are incarcerated. As my friend Dee Farmer has reminded me, the situation has been bleak, for decades. Now there is actually a lot more positive precedent than when she was on the inside. We cannot lose hope, if we are forced to engage in the project of litigation altogether. The system is working the way it’s supposed to.

So what are we to do if one effect of the system is the erasure of our rights as trans people? Not just the erasure of our rights, but the erasure of our legal existence and recognition altogether?

These were the thoughts and questions in the room at Trans Pride in DC this weekend. I was fortunate to hear two policy attorneys, NTBA member Arli Christian of the ACLU, and Ali Curd of Lambda Legal, share their knowledge about legal and non-legal efforts to resist a fascist presidential administration to a room full of extremely sharp, well-informed trans people—some lawyers but most non-lawyers. Some questions from the informed—and therefore rightfully concerned—audience seemed to stump these extremely apt lawyers.

And that’s because the questions stump all of us. The Supreme Court is faced with big questions right now, such as whether universal injunctions are permitted, or what to do when a President refuses to abide by Court orders. We are in a world of big questions. The merits of these issues are rarely the point; the current presidential administration is bringing a wrecking ball to the structural and procedural underpinnings of the rule of law. Constitutional law professors—yes, those who taught us in law school—are banding together, across the political spectrum, to call this out. We are in times that most lawyers alive do not know how to contend with. We are facing, in truth, a moment of constitutional crisis.

I had answers for the question from the Harvard Law School graduate in the audience who asked what options we have if we lose equal protection under Skrmetti because I work in that arena of alternatives. First Amendment claims (viewpoint discrimination, freedom of association, and more), disability law claims based on reasonable accommodations for gender dysphoria, doing everything we can do with state constitutional law alternatives.

But the tougher question came from a non-lawyer: How do we deal with the fact that so many people are making every effort to change the law to literally erase us? The answer from the presenters: we wait for a harm to come about before we sue over that definitional erasure. True. That is what the courts allow.

But that can’t be enough.

Legal tools aren’t enough.