The LGBTQ community at Harvard Law School has been a tremendous resource for me as a gay law student. One of the most gratifying things about serving on the Executive Board of Lambda (one of HLS’s LGBTQ interest student organizations) has been getting to work closely with fellow students and school administrators on issues of campus policy. It has been a particularly exciting time to focus on these issues as movements like Reclaim HLS work to bring attention to the experiences of marginalized populations on our campus and in other legal contexts. As I prepare to graduate, I want to pause and reflect on some of the ways in which the administration has responded positively to the tireless advocacy efforts of my queer, trans, and allied classmates, as well as some of the particularly LGBTQ-related areas for improvement on which I hope campus leaders will continue to focus going forward.
The decentralized nature and sheer size of the HLS administration can sometimes make it difficult for well-meaning officials to understand the problems affecting LGBTQ students, let alone solve them. I’m collecting these seemingly unconnected pieces into a single manifesto with the hope that this will help students and administrators identify opportunities for comprehensive, collaborative initiatives and continue to make our school environment more hospitable and productive.
Starting with the class of 2018, applicants to Harvard Law School have been able to provide significantly more information about their gender identities than was allowed by the old M and F answer choices. The application includes more gender options, allows prospective students to check more than one, and even includes a short write-in section. Making the gender question more flexible serves an important signaling function, letting transgender and gender-non-conforming applicants know that HLS administrators have at least some familiarity with the idea of gender diversity.
Since the school began collecting data about gender identity so recently, it’s hard to say with any certainty, but I get the sense that trans people are underrepresented at HLS. To the extent I’m right, I suspect it has a lot to do with the applicant pool. Trans people face discrimination and life-altering hardships at wildly disproportionate rates well before they ever encounter an institution like HLS. These hardships undoubtedly keep the average trans person from amassing as many of the credentials that make applying to places like this feasible, and diminish their faith in the law as a tool of social transformation. But these disadvantages are exactly why we need to go out of our way to give new trans professionals the keys to success, and to equip a new generation of trans advocates with the tools to change law and society for the better.
To that end, I call on HLS, and on the Admissions Office in particular, to invest in innovative recruiting tools that would encourage trans and gender-non-conforming students to pursue careers in the law, while helping them overcome the disadvantages that currently steer a disproportionate number off of the elite law school track.
I know what you’re thinking: identifying significant numbers of trans youth and making a meaningful difference in their educational prospects would take a good bit of money. What you may not know is that Harvard currently gets hundreds of millions of dollars a year by discriminating against trans people! In 2005, HLS decided to comply with a federal funding requirement known as the Solomon Amendment and allow representatives of the U.S. Armed Forces to recruit on campus, even though they openly violated a University policy against discrimination on the basis of sexual orientation and gender identity. To this day, the Law School’s non-discrimination policy officially includes one “exception” for transgender people, who remain categorically excluded from military service. Harvard takes in over $600 million in federal funding annually, meaning that its anomalous and degrading decision not to protect trans people from discrimination for the past decade has allowed it to receive literally billions and billions of government dollars. I feel quite comfortable asking HLS to set some of that money aside for trans people’s benefit.
In some ways the legal profession is at an important turning point, in that prestigious institutions are actively competing for gay and lesbian lawyers. Elite law firms have caught onto the fact that presenting themselves as gay-friendly and working through our affinity groups can help them attract students from elite schools. At the same time, this remains a tradition-bound business in many ways. Old fashioned, highly gender-specific professional dress norms can be difficult for queer students to navigate comfortably, for instance, and Lambda members report getting strange looks and inappropriate comments in interviews when they should be able to focus on their abilities and experiences like everyone else. The Office of Career Services is making efforts to improve its guidance on this issue, including by adding a footnote to its page on professional attire that encourages gender-non-conforming students to come in for extra advice, and by conducting internal trainings on gender and sexual diversity. But, understandably, career advisors’ instinct tends to be to treat nonconformity as a career liability (or at best something that should be taken into account in determining whether a potential employer is a good “fit”), instead of identifying opportunities to use our school’s unique market position and educate all employers about how to avoid unnecessary discrimination and make their recruits more comfortable.
In this climate, having access to a robust network of people who have already ventured out into the industry, can share their experiences, and are looking for ways to support each other would seem indispensable. Yet our GLBT Alumni Network organization faces unique constraints when it comes to facilitating student access to our graduates’ collective wisdom.
The Admissions Office has declined to include a sexual orientation question on the HLS application, preferring instead to note in applicants’ files when they go out of their way to mention either their sexual orientation or an interest in LGBT issues. Since some people experience their orientations as entirely incidental to their legal interests, and will not think to mention them without prompting, this somewhat diminishes HLS’s opportunities to build robust records regarding our population. But even if the school starts soliciting affirmative declarations regarding sexual orientation at the moment of application immediately, we will still be at a disadvantage. LGBTQ students don’t always come out, even to themselves, until after leaving law school. Even among those who have long been out to their friends and loved ones, many of our older graduates came through HLS at a time when social disfavor toward LGBTQ identities was so strong that it would never occur to them to disclose their affinity to a traditional institution like HLS. And of course an entire generation of our elders has been substantially reduced in number by the scourge of HIV/AIDS. All these factors are outside the control of the GLBT Alumni Network and HLS’s Alumni Office, but they do point to a need for distinctive responses.
I call on HLS, especially the Alumni Office, to engage in a two-year campaign of sustained outreach to identify as many LGBTQ graduates of Harvard Law School as are willing to be identified and to cultivate a greater sense of intergenerational community. This would include relaxing their general policy against allowing student groups to put on programming at reunions or advertise our own events through official Alumni Office materials. The campaign should culminate in another Harvard-sponsored LGBTQ reunion in 2018, the 40th anniversary of the founding of Lambda’s predecessor club.
While the Alumni Office and OCS have been working on a mentorship program that will connect current students and graduates of various affinities who share similar interests, my proposed initiative should not just be for people who are willing to develop relationships with individual current students. Having access to a robust community of fellow senior practitioners, people who share at least some common concerns and can look out for each other, stands to benefit even the most experienced and busy LGBTQ lawyers.
When the JD class of 2016 arrived at HLS, every single toilet on campus was designated for either men or women. This was a problem. Today, thanks to sustained attention from the Dean of Students Office, the Facilities Office, and concerned students, our shared spaces are in much better shape. In most major classroom buildings and dorms, both single-gender and all-gender restrooms are a short trip away.
This is not to say the landscape of gendered spaces at HLS is perfect, though. In a few academic buildings, the only restrooms are single-gender multi-user facilities that might require some substantial physical alterations for greater ease of mind, rather than just new signs on the doors, if they are to become gender-neutral. In addition, Hemenway Gymnasium has only a men’s locker room and a women’s locker room. It probably will not be possible to address either of these issues without both investing considerable design work and lobbying the governments of Cambridge and Massachusetts to alter the gender-specific toilet quotas in their plumbing codes.
I call on HLS, in conjunction with Harvard’s Office of the General Counsel, to work with the relevant authorities to clear away any legal obstacles that stand between us and a truly welcoming campus. Students can be involved in this work–this is a law school, after all, and students would benefit from learning about ways in which municipal laws can dramatically affect the lived realities of vulnerable populations–but ultimately the University has a moral responsibility to pursue this work of its own accord. To spare everyone another years-long cleanup effort, HLS must also establish a policy that appropriately welcoming facilities will be designed into any new buildings or major renovations.
Gender in the Classroom
As currently used in socratic classrooms, familiar honorifics like “Ms.” and “Mr.” have some serious shortcomings. For some people (including some intersex and genderqueer people), these binary markers are simply inaccurate; using neologistic terms like “Mx.” or avoiding honorifics entirely might be more appropriate for them. Other students are open to binary gender terms, but frequently get called by the wrong title in ways that can be distracting or even distressing. These students include transgender men and women who get mistaken for women and men, respectively, as well as gender-non-conforming but non-transgender people (such as butch or dapper women) who get mistaken for a different sex. The existence of these people makes it clearly inappropriate for law professors to look out into the classroom, make a snap judgment about how someone identifies, and call on that person by saying “What do you think, Mr. . . . ?” Yet this is what happens all too often.
I personally tend to think that diminishing the prevalence of gender in professional settings is desirable and that all professors should switch to calling students by their first names, but different professors and students feel differently. As some colleagues and I plan to argue in a separate oped, there are a number of other ways to try and fix this dynamic, but all of them require professors to have ready access to clear information about how individual students actually identify, and to consult that information consistently instead of guessing. The HLS Registrar’s Office and Dean of Students Office have worked hard to collect the necessary information from hundreds of current students. But, thanks in part to constraints on available information systems, these offices lack the ability to then distribute this information to professors in a useful format.
I call on HLS and on Harvard University Information Technology to invest in repairs to their outmoded systems of gender data storage, in order to make University databases capable of reflecting how students actually identify (with fields for gender marker of record, pronouns, honorifics, and the like). Students have a role to play as well: we can make our classrooms and study groups more hospitable by familiarizing ourselves with gender diversity basics and by normalizing the practice of indicating preferred pronouns when we introduce ourselves. I am excited that Dean of Students Marcia Sells has committed to overhauling first-year orientation, and I believe that information on these topics must be part of the new programming.
LGBTQ issues come up in passing in some foundational courses at HLS, which is appropriate. Everyone who goes through law school should have a chance to think about how law shapes experiences of gender and sexuality. Professors whose classes I’ve taken, including Dean of the Law School Martha Minow, have largely done a nice job addressing these issues in sensitive and nuanced ways when they come up.
Unfortunately, opportunities to pursue sustained classroom exploration of LGBTQ legal issues in their own right are sorely lacking. Our permanent faculty includes influential thinkers whose work has touched on LGBTQ people in the past (including Glenn Cohen’s attention to intersex youth, Janet Halley’s elaborations on queer theory, and Bill Rubenstein’s founding of the Williams Institute), but none who currently devote consistent attention to LGBTQ rights work as such. We have no LGBTQ law clinic and only a smattering of periodic course offerings, mostly taught as one-off classes by short-term visiting instructors. We hear from time to time that LGBTQ concerns shouldn’t be presented as standalone offerings, out of a fear that other professors will cease to emphasize the role of these issues in other areas of law. Frankly, I find this unlikely. We don’t forbid teaching of Trusts & Estates just because we want to make sure it gets some attention in 1L Property; there’s no reason LGBTQ issues couldn’t be the subject of both focused academic inquiry and incidental attention in other areas.
I call on HLS, especially the faculty, to attract and hire professors with practical experience in LGBTQ legal topics, professors who are ready to help students sharpen themselves into experts and advance everyone’s understanding of the legal status of sexual and gender minorities. Current faculty must consistently involve students in this selection process, in order to maintain the appropriate level of attention to their academic needs as future practitioners and scholars.
I recognize the urgent need for our faculty to address other understudied important topics as well, and I know that finding professors takes time and money. So, while these efforts continue, it’s critically important that student programming, which ends up providing the bulk of our education on these issues, remains robust. The University must maintain or increase funding to groups like Lambda, HLS Queer and Trans People of Color, and the Harvard Journal of Law & Gender. But in the long run even these groups can not serve everyone; the faculty has an obligation to facilitate the development of this crucially important area of law.
I am heartened by what students and administrators have achieved together recently, and I am so excited to see what they can accomplish next. Plenty of other important efforts are already underway, including student campaigns to extend additional LIPP funding to couples who require expensive assisted reproduction or adoption to expand their families, honor the victims of the 1920 Secret Court with a permanent commemorative marker on campus, and ensure that critical reflection on the gendered aspects of “professionalism” in oral argument is part of the first-year Legal Research and Writing curriculum, to name just a few. It will take humane vision, sustained energy, and an awareness of how the efforts of our school’s different administrative units support each other to see all these projects through to completion, but I am optimistic that our shared community can rise to the occasion.