Professor Mark Wojcik: You Can’t Be a Good Lawyer if You Hide Who You Are

As published by American Bar Association – July 31, 2015

When introducing the program, “From Surviving to Thriving: LGBT in the Workplace,” moderator Courtenay Dunn, a lawyer with Phelan, Hallinan, Diamond & Jones in Philadelphia, alluded to the recent success in legalizing same-sex marriage, but said she had just been on a panel with a woman from Canada who said, “Well, guess what? We approved gay marriage 10 years ago and we’re nowhere near done.”

The ongoing struggle for LGBT rights, particularly in the workplace, were the focus of the program, which was held on Thursday at the American Bar Association Annual Meeting in Chicago and sponsored by the Young Lawyers Division.

Mark Wojcik, a professor of law at John Marshall Law School in Chicago, noted that coming out used to be a dangerous thing to do, but now coming out is important professionally as well as personally. “You can’t be a good lawyer if you’re hiding who you are,” he said. “You can’t participate in civil life if you’re hiding who you are,” adding that there is nothing more liberating than being out.

Although “we can now be married in 50 states, we can still be fired in 31 states,” Wojcik said, and asked for the audience’s help in the courtroom and in legislatures to change that. However, the EEOC recently ruled that sexual orientation discrimination is sex discrimination, which could bring job protection of LGBT nationwide.

People won’t stand for discrimination anymore, Wojcik said, and they file cases and do the work involved to change that.

He offered advice for those wanting to build a gay law practice:

·       Give “know your rights” seminars at your local public library in whatever area of the law you practice. He said libraries are always happy to host these sorts of events for free. Even if just a few people show up, they likely have a problem in that area and may become clients.

·       Write articles for newsletters, websites, etc. to get your name out there on issues that you care about.

·       Get involved in bar associations; they welcome LGBT members and value diversity.

Takeia R. Johnson, a law clerk at the U.S. District Court, Northern District of Illinois, admitted that coming out can be scary because it requires an intentional disclosure. “That’s why I’m here,” she said, and why she blogs and often speaks publicly. “Visibility matters; visibility makes coming out a little bit easier,” she said.

“As a young, black, lesbian woman who is gender nonconforming,” Johnson said, “I bring all those identities to the table every day.” Given that, “How do I advocate?” she said. When we can freely bring all of our identities to the table, we’re all better off, she said.

D’Arcy Kemnitz, president of the National LGBT Bar Association, agreed with the others that there is much to do after the success of same-sex marriage. She said that the LGBT community always wins by telling its stories, as they did when working to overturn the military’s “don’t ask, don’t tell” policy.

Among the issues her group is working on are:

·       Getting the Jury Access Act, which would prohibit attorneys from seeking to strike potential federal jurors based on their sexual orientation or gender identity, passed.

·       Working to ban the “gay and trans panic defense,” in which a victim’s sexual orientation or gender identity is to blame for the defendant’s excessively violent reaction. This defense is still being used in some states almost 20 years after it was used in the Matthew Shepard case in Wyoming in 1998.

·       Working to remove the sodomy laws that still exist in 17 jurisdictions. This is the kind of mop-up work that lawyers do, she said, after larger laws are passed.

An audience member from the Air Force JAG Corps said that as the Department of Defense works to become more a diverse and welcoming workplace to LGBT, she wondered how to go about changing the conversation in these matters. Kemnitz said this is a problem often raised by the private bar in their efforts to do the same. Kemnitz said the best practices include celebrating diversity, and pointed out that the DOD held a gay pride event in June.

In addition, Kemnitz said, “We call on our straight allies to learn to get comfortable talking about it” she said. Sexual orientation is “an identity, not an activity,” she said, and you need to check your assumptions and learn to talk about it.

That point led Dunn to note that the ABA Commission on Sexual Orientation and Gender Identity would be launching its How to be an Ally program toolkit at the National LGBT Bar’s Allies for Justice Award Reception on Saturday at 3 p.m.

Wojcik noted a few events of importance this week, including the introduction of the Equality Act in Congress, which seeks to expand existing civil rights protections against racial and gender-based discrimination in the workplace and other public spheres to include safeguards against sexual orientation and gender identity.

He also pointed to the announcement that the Boy Scouts will allow openly gay scout leaders, while including a religious exemption “which could be a good thing or could be a bad thing,” he said.

He concluded by saying “gay rights are human rights.”

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