David vs. Goliath and the ACLU

The Corporate Law Firms Behind Trans Rights Activism

Unyielding Bicyclist, as this lawyer is calling herself, has written several great pieces for BROADview. But this one knocked my socks off. Because a lot of us have been scratching our heads, trying to figure out how these supposedly marginalized groups are wielding so much power in American institutions, from education to medicine to law.

UB here has been poring over transcripts of the lawsuits filed against states that are restricting “sex change” procedures to adults—otherwise known as bans on youth gender-affirming care. And she’s come up with some really interesting takeaways.

Today she shares one of them: the big money behind the ban backlash.

—LD

david v goliath via AI generated weirdness

In 2021, four trans kids and their doctors, represented by idealistic civil rights lawyers, took on the state of Arkansas in a fight against its ban on youth gender medicine. Or so went the press coverage. Read the court filings and another story comes into view: 19 lawyers working with or for one of the most powerful corporate law firms in the world, Sullivan & Cromwell, were waging war against the state of Arkansas, which was represented in court by three or four civil servants.

The Arkansas lawyers were defending a popular law recently enacted through a democratic process; Sullivan & Cromwell was boosting the agenda of the American Civil Liberties Union, which fundraised nationally off “trans justice” and paid its CEO a salary over $600,000 while the lawsuit was pending. In June 2023, following an 8-day trial, the court ruled for the kids who wanted opposite-sex hormones—a win for Sullivan & Cromwell.

The Arkansas litigation is one of at least 22 cases in recent years in which major corporate law firms—the industry is known as “biglaw”—have co-counseled with advocacy groups like the ACLU and Lambda Legal on trans lawsuits, pro bono. Often they face off against state or local government agencies. At least fifteen of these actions concern trans-identified minors’ “medical care” or participation in girls’ sports. 

Biglaw can provide manpower, money, and clout to the causes they support. The attorneys staffing the trans cases self-identify as liberals or progressives, most likely, but they earn salaries over $200,000 because of their employers’ commercial practices —which routinely pit them against the interests of poor and middle-income people. In addition to Sullivan & Cromwell, the firms fighting to open girls’ sports to trans-identified boys or allow doctors to modify teens’ secondary sex traits include Debevoise & Plimpton, Baker Botts, Bryan Cave, Perkins Coie, Pillsbury Winthrop, Akin Gump, Arnold & Porter, King & Spalding, and Cooley. These litigation powerhouses represent banks, oil companies, pro sports teams, business executives accused of crimes, and more.

So who are the biglaw attorneys who join forces with trans rights activists below the radar? Why do their cosmopolitan employers pay them to rain hellfire down on local school boards? Where are the conservative biglaw attorneys in all this? 

I decided to investigate these questions because, as a lawyer myself, I can’t help but gawk at biglaw’s latest folly.

1. How Biglaw Works

“Biglaw” refers to law firms ranked in the top 100 or so by the career-intel company Vault. They’re national or global in reach. As defenders of the most powerful entities in the world, they’re not the kind of swashbucklers known for filing creative lawsuits or peacocking at trial. In his 2022 investigation into biglaw, Servants of the Damned, journalist David Enrich described the industry’s evolution:

“[T]he work of elite lawyers and law firms has less and less to do with courtroom representation. Instead, it is geared toward helping clients sidestep regulations, control the media, whitewash their reputations, dodge taxes, and hide their money[.]”

But biglaw does still know how to litigate—in a sense. Reviewing Servants, veteran litigator Brad Miller described his own experience battling biglaw on behalf of a union pension fund that had invested in scammy mortgage-backed securities:

“We filed the lawsuit [against Wells Fargo and others] on March 5, 2018. Almost five years later, the judge has yet to decide threshold legal questions, largely because [biglaw attorneys] have filed hundreds of pages of briefs on every imaginable argument, no matter how strained, to dismiss the lawsuit, which required that we file hundreds of pages of briefs to respond. Until the judge decides those issues, the lawsuit is in hiatus.”

2. Why Biglaw Firms Partner with Trans Rights Activists

Many biglaw attorneys are psyched to do pro bono because it seems more interesting and prestigious than the dreary corporate work that takes up most of their waking hours. Young-ish associates get to take on high-stakes roles in pro bono cases, like arguing in court, years before their firms would let them do so on behalf of paying clients. Their firms benefit from the training they receive.

Firms choose pro bono projects by following a process of elimination. First, they must avoid conflicts of interest between clients. If a firm is defending Wells Fargo against charges of consumer fraud, it can’t also represent a pro bono client whose house Wells Fargo is trying to foreclose on. Also, firms don’t want to take on a pro bono client whose victory will set a bad legal precedent for their paying clients. For biglaw, that can mean they hesitate to represent anyone who was mistreated by a bank, hospital, property owner, employer—biglaw attorneys really loved gay marriage litigation, is what I’m saying. Gay couples’ only conflict was with God.

Biglaw’s next consideration: they want young people to think they’re cool.

“These firms widely advertise their pro bono work and wave around the promise of doing good while paying off student loans to recruit fresh associates,” according to The [F]law, a publication run by Harvard Law School students. It quotes someone who worked in biglaw as a summer associate during law school: “the amount [the firm] shoved pro bono down our throat as a recruitment tool was wild.”

What’s nonthreatening to banks, hospitals, property owners, and employers, yet alluring to ivy league law students? Youth mastectomies, masquerading as the next civil rights frontier.

3. Why Trans Rights Activists Partner with Biglaw

Public interest lawyers co-counsel with biglaw attorneys because biglaw can bring a lot to the table.

First, biglaw provides free labor and often picks up litigation expenses when it co-counsels with nonprofits. This can mean more arguments get briefed, more expert witnesses are recruited, and attorneys are relieved of frustrating clerical work. Given biglaw’s practice of barraging opponents with binders (the kind that contain information, not the kind that flatten breasts), as noted by Miller, its involvement on a case can present an outsize menace to ramshackle state agencies. More broadly, when nonprofits cultivate relationships with law firms by co-counseling, those firms are likely to donate cash to them.

Second, biglaw is prestigious and judges tend to be snobs.

Many lawyers will openly admit they decide whether to trust or blow off other lawyers based on their reputation. In elite lawyer circles, reputations aren’t built on accomplishments so much as on affiliations—where you’ve worked and gone to school. 

Judges and their clerks value reputation as much as any other lawyers. In a 2004 study, 88% of supreme court clerks acknowledged “lending additional consideration” to amicus briefs filed by a “reputed attorney.” In the same study, one clerk attested to judging briefs by the press that printed them, because top firms all favored the same few presses; another said that “if a high quality firm had filed the brief, I would read it.” (Interestingly, the study found bipartisan reverence for the ACLU. When the ACLU today asserts that “the term ‘biological sex’ is imprecise,” it is staking credibility that practically no other advocacy group enjoys.)

As I peddle my own arguments in less exalted courthouses almost 20 years later, I feel the same dynamic at play. You can expect to have a softer ride if the judge holds your employer in higher regard than your opposing counsel’s. (That’s why the lefty org Demand Justice lobbies Biden to appoint fewer judges with biglaw backgrounds.)

Between the resources and clout, teams that include biglaw attorneys are well-positioned to get witnesses qualified as “experts” despite dubious credentials, for example, and to get the other side’s evidence tossed out on technicalities.

4. What Biglaw Argues in Court

When biglaw argues in court that trans-identified kids should have access to opposite-sex hormones, or that girls’ sports teams should include trans-identified boys, the crux of the argument is that the kids’ gender identity is “immutable” or “durable,” and “innate” or “rooted in biology.” These phrases serve two purposes. First, they help establish that trans people deserve special protection from unequal treatment by echoing standards that courts have used to grant that status to other groups, like Black people. (I’m simplifying a complex area of law.) Second, these phrases support the argument that gender identity is a more stable, clearly-defined concept than sex and therefore it should replace sex in laws that take sex into account.

Useful as they may be to winning in court, the phrases that biglaw employs to define gender identity are inaccurate—somewhat obviously so.

Gender identity isn’t immutable. First, studies have shown that most gender-dysphoric kids outgrow their distress. Second, many people who believe in gender identity describe it as potentially fluid. For example, Planned Parenthood, a major provider of opposite-sex hormones, names “gender fluid” as a gender identity. In the Arkansas trial won by Sullivan & Cromwell, its expert witness, a psychiatrist, admitted on the stand that “some people evolve in their gender identity.” In July 2023 biglaw firm Arnold & Porter represented minors suing Texas to challenge its youth gender medicine ban. Its expert witness, a pediatric endocrinologist, stated in an affidavit that “a person’s understanding of their gender identity may evolve over time[.]” How can the doctor tell it’s just the understanding that changes over time, and not the gender identity itself?

Gender identity also isn’t innate (except insofar as “cis allies” earnestly declare gender identities based on their sex). Manhattan Institute’s Leor Sapir reviewed the science, including sources cited in court by the ACLU, and found that “researchers have not been able to trace cross-gender identification exclusively, or even primarily, to biological causes.” Activists sometimes cite studies of brain scans, but the differences found between “trans” and non-trans brains are actually due to the differences between homosexual and heterosexual brains—once sexual orientation is controlled for, the differences disappear. Activists seem to know that gender identity isn’t rooted in biology. Even though a medical test for gender identity would help dysphoric people choose treatments, activists do not call for research to develop such a test.

Considering how lawyers often approach arguments, I don’t think it matters to biglaw attorneys whether their trans arguments are based on a true or false premise. 

When building support for a legal argument, lawyers search for past cases where judges made a similar point. These cases are “authorities.” The best authorities are those coming from a court that is powerful in your jurisdiction: an appellate court has more authority than a trial court, for example; an appellate court where your case is being heard beats one on the opposite coast. When I find a decision from a powerful court that makes the same point I want to make, I feel thrilled. Sometimes I then read the court’s full opinion and find it’s illogical or biased. And I don’t care! I just quote the part that sounds good and crop out the crazy. Judges have little tolerance for lawyers who question the wisdom of more authoritative courts, so I don’t have to worry that my opposing counsel will go there. I imagine this intellectual habit is how biglaw attorneys can rely on testimony from highly credentialed doctors whose analysis is slippery, or cite WPATH even though WPATH supports castration for boys who have “eunuch gender identity.” It’s all about authority, not reason.

5. Where Are the Biglaw Conservatives?

I wasn’t kidding when I said biglaw attorneys loved gay marriage. By 2014, multitudes of them had filed briefs on the side of gay couples, while literally none defended the doomed anti-gay marriage laws. The New York Times reported in 2015 that biglaw was shunning “traditional marriage” because firms that defended it “may lose clients and find themselves at a disadvantage in hiring new lawyers.” Against that economic backdrop, resistance to the gay juggernaut became not merely unpopular but taboo. A California lawyer told Reuters that “I personally know many good lawyers in large firms who ... are terrified of speaking out even within their own firms.” A conservative Stanford law professor told the NYT that among elite lawyers, “the level of sheer desire to crush dissent is pretty unprecedented.”

Look. I know that gay marriage and puberty blockers are two different issues. You know that gay marriage and puberty blockers are two different issues. Biglaw attorneys do not know that gay marriage and puberty blockers are two different issues. These people didn’t get their jobs by questioning authority. They haven’t had a full night’s sleep since they were nine. They want to impress Penn law students at recruiting dinners so they don’t get stuck mentoring a BU kid. And they are going to be the last people on the planet to realize the Gender Unicorn isn’t real.

So the gender-critical side has been litigating without the aid of elite law firms—and routinely losing. But there are rays of hope. To defend its ban on youth gender medical interventions this year, Tennessee retained the elite (not biglaw) firm Consovoy McCarthy and won a big early-stage appeal. But Consovoy isn’t serving pro bono; reportedly it’s charging $400 per hour for legal services (likely a reduced rate). And I couldn’t find any mention of the gig on Consovoy’s website, despite the recent win. By contrast, its opposing counsel, the biglaw firm Akin Gump, has issued at least two press releases about its pro bono service on the case (here and here). Both tout recognition the firm received from industry trade publications. 

6. A Plea to Biglaw

In my research for this piece I came across the case of Rhonda Fleming, a woman incarcerated in Florida. Forced to live in an “open dorm” (like an open-plan office but with toilets) alongside trans-identified male prisoners with penises and testicles, she sued the federal Bureau of Prisons. Her lawsuit challenges a BoP policy on trans inmates that scarcely considers women’s safety: “the agency shall consider on a case-by-case basis whether a placement would ensure the [trans-identified male] inmate's health and safety, and whether the placement would present management or security problems.” 

Fleming alleges the BoP guards force her to refer to male inmates as women, prison “Psychology Services” accuse her of being “homophobic or irrational about the presence of males,” and BoP funds medical “transitioning” while denying treatment to female inmates for “mold illness, infections, or replacement of a breast due to cancer.” A federal court has dismissed several of her claims, but she’s still fighting others. She does not have a lawyer. 

Biglaw attorneys: this is real civil rights litigation. Take Rhonda Fleming’s case pro bono.