Advocating from the Intersections: How Lived Experiences of Intersectionality Can and Should Inform Disability Advocacy on Behalf of Members of the LGBTQ+ Community

This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings

GERON GADD: Welcome, everyone.  Good morning.  We're going to get started.  Good morning.  My name is Geron Gadd, and I am a senior attorney with the national health law program. 

SASHA BUCHERT: Hey, everybody, my name is Sasha Buchert and I use she/her pronouns and I am the Non-Binary and Transgender Rights Project director at Lambda Legal, and we're a national LGBTQ+ and people living with HIV focused legal organization that's the largest and oldest legal organization of its kind in the country.

GERON GADD: And Health and Lambda Legal, especially right now, the gender affirming care and the one thing I would draw your attention to and you can view it on our website, which is is health equity, a commitment to health equity and that is something that we embed in all of our work, and is, obviously, germane to the discussion that we're having this morning. I just want to take a few -- and I also forgot to announce my pronouns, I use she/her pronouns and I'm wearing a black suit and have long brown hair.

So I want to just take a moment and sort of give you an overview of what we're going to do this morning.  What we would like to do is identify nuances -- hang on. Identify nuances of disability advocacy for people who identify as members of the LGBTQ+ community or as Black, indigenous and People of Color.  We also want to note potential tensions in core legal concepts of disability law that force a prioritization of intersectional identities. And finally, we would like to try and begin to identify ways that we can be more mindful of intersectional identities and in ways that can strengthen our disability advocacy on behalf of people with disabilities who also identify as members of the LGBTQ+ community or people who are BIPOC.  

I identify as both a person with a disability and as a lesbian, and I am a litigator who focuses almost exclusively at this point on disability and systemic litigation under the ADA and the Rehabilitation Act. This is something that is personal for me, but is something that I'm hoping we will be able to discuss.  So in terms of road mapping our plan, those are the issues broadly that we want to talk about.  We're going to spend about 20 minutes framing the issues, and then we want to break into groups so that we can actually have a discussion about these issues and maybe come up with some ideas and perhaps lingering questions that we can continue to discuss as a community. We are hoping, and we're excited about the size of the group that we have here today, because we are really hoping to foster some real dialogue, and we're hoping that people will feel safe to be a little bit vulnerable during our session today.

It's okay if we raise questions that we can't fully answer.  It's the questions that I think are most important at this moment, and our overlapping communities are likely to grapple with them over time.  And so we're going to turn to the substantive pieces. We began talking about some of the challenges that originate from some of the tensions in disability law, and there's a trend in disability law towards focusing on both commonality and also on difference, which are a little bit complicated, and I've chosen two quotes from some cases that you probably all are familiar with at some level. The first is Helen L. v. DiDario, which is an older case that recognized that the purpose of the ADA is to ensure that people with disabilities receive services in a manner that is consistent with basic human dignity, rather than in a manner which shunts them aside, hides and ignores them, which is in its essence an affirmation that people with disabilities should be treated in ways that are consistent with their dignity, because what is common between people with disabilities and their nondisabled peers is significant.

But then you also have the trend in disability litigation and the statutes with ADA and the Rehab Act that focus on the difference, so disparate impact claims, or even in some ways reasonable accommodation claims. So we have the quote from the Henrietta D. case, which is a seminal second circuit case on behalf of the people living who are trying to access service.  The district court found that the existing system in this government program in New York City and its accommodative regime was unacceptably dysfunctional and fails to remedy the problems with the system. The defendant at that point essentially contested that due to their own bureaucracy, the system was so defective that even quote/unquote healthy applicants cannot negotiate it.  So there's no disparate impact on behalf of people with disabilities.

The case was ultimately resolved on a reasonable accommodation claim. So I just want to be clear about that, but I chose these just to underscore that even in our seminal legal decisions, this tension between commonality and difference animates a lot of what we think about disability specifically, but when we're trying to accommodate intersectional identities, the language tends to run out, and that's what we're here to talk about. So we're going to turn to some core concepts, which you all are probably also familiar with. The first one being integration.  And here, the focus of the ADA and the Rehabilitation Act's implementing regulation, you're probably all familiar with the integration mandate, which focuses on the integration of people with disabilities with their nondisabled peers, denominated to the greatest extent possible.

However, for people who identify as members of the LGBTQ+ community and/or as BIPOC, integration might have a different meaning, and I don't presume to speak -- again, I speak from my experience as a person living in the deep South who has a disability but also is a member of the LGBTQ+ community.  It does get complicated, but I wouldn't presume to say how for other people who have a different sort of situatedness experience that, but it is something that integration -- and we think of real practical things. For example, getting individuals out of, say, a locked psychiatric unit into, for example, supportive housing.  Where is that supportive housing?  What does it look like?  Who are your peers?  All of those factors that define your life are chosen for you.

Similarly, and I want to keep this moving, but the comparison required for disparate impact claims.  We talked about that a little bit earlier when we were looking at the issues that were raised in Henrietta D., but when we are talking about disparate impact and you're talking about a person with a disability who has other forms of intersectional identity, you are in some respects asking people to prioritize parts of their identities for different reasons. And it may be that in certain circumstances, this is unavoidable, but I think we don't even have a chance of making it a more authentic choice if we don't talk about it and don't have open dialogue with our clients while we are seeking relief for them.

SASHA BUCHERT: And this is Sasha and I'm going to cover the last two bullets here, and I'm not going to pretend that I'm an expert on reasonable accommodations, but I wanted to tease out a couple of points that might be helpful for the conversation we're going to have after we're done talking. One would be again, when requesting a reasonable accommodation, it feels like a person is forced to push forward their disability and that becomes the sum of their person, and their need for that reasonable accommodation, and that means that all the other intersecting aspects of that person are erased in that process.

And I'm not an expert about this, but it feels like people with intersectional identities, for example, a BIPOC woman who is disabled seeking a reasonable accommodation from an employer might have a very different set of circumstances than a cis straight white man seeking a reasonable accommodation, and the way in which the employer approaches this, if I'm going to have this generally applicable rule that I'm going to apply reasonable accommodations in the same way could have a very horrific impact on the life of the person with the intersectional identity. And then another point I wanted to make was that I think -- underlying is that it ignores the power structures that are in place in all of these systems, whether it's employment or the law or reasonable accommodations.

And then with regard to the conflation of trans identity and gender dysphoria.  A couple of quick points.  I do most of my work as LGBTQ+ and focused on people living with HIV.  I don't know to say this in this room, but it's important to say that LGBTQ+ people, especially LGBTQ+ people living with disabilities who are BIPOC are almost completely erased from representation and stories and in our culture, and that needs to change. So I feel like interrogating these questions is really important, but it's important to think about it from both the changes we can -- this is a blue sky opportunity for us to think about how we can change the systems, but also make it part of my work and our advocacy. And then with regard to the specific question about transgender identity and gender dysphoria, there has been a conversation about using disability law to protect trans folks across the country and there have been some really interesting state law challenges using state disability law that have been successful over the years, but as people probably know, the ADA has an exclusion for gender identity disorder, so it prohibits the ADA from being used for reasonable accommodations based on gender identity disorder.

But folks have been making the argument for a long time, though, that there's a diagnosis that is different than gender identity disorder, which is gender dysphoria, which recognizes, it moves away from the gender dysphoria disorder diagnosis to recognize that it's not a permanent diagnosis of someone, as if it were homosexuality in the DSM. And that is an argument that's been used in amicus briefs and just recently in the Fourth Circuit in a case called Williams v. Kincaid.  

SASHA BUCHERT: I'm not sure when we were disconnected. This is Sasha again, and I just wanted to clarify, go back a little bit in the points I was making and I'll just summarize by saying that the use of disability law has been part of advancing protections for trans folks for a couple of decades. There's some really great case law on the state level allowing folks to obtain reasonable accommodations to obtain care or to be housed appropriately, but the federal Americans with Disabilities Act has had a long-standing exclusion that prohibited trans folks from using the ADA for reasonable accommodations based on an exclusion for gender identity disorder. And there's been a lot of really great work done to challenge that, because there is a different diagnosis called gender dysphoria, which is distinct from gender identity disorder in that it's not a per se diagnosis. It captures an often temporary clinical phase of significant distress and there's been a recent positive decision in the federal courts in the fourth circuit clarifying that gender dysphoria is a distinctive diagnosis and can be used under the ADA. I'll stop there.

GERON GADD: Thank you.  We're actually going to go forward. Okay.  And Sasha is going to walk us through and remind us of the different areas where this intersection of identities is important.

SASHA BUCHERT: And I'll make this brief.  I just wanted to make a couple of points on each of these categories and we'll leave some space for discussion. I think with regard to data collection, I think thinking about approaching the work from a more intersectional lens, that it's important for us as advocates to push especially federal agencies and state agencies to gather intersectional data and to have intersectional systems in place. I do this work a lot and I don't think I've ever seen a really clean data report that shows the intersectional statistics involving whatever, healthcare, housing, etc., and I think it's really important because if we're approaching this with the understanding that the intersectional marginalized identities are the folks that are suffering the most extreme disparities, it's really important that we have that information, because that information informs how funding is allocated and how programming decisions are made.
I think it's important that we have that have an intersectional lens, whenever we're talking about data collection.

Similarly with healthcare, I think it's important that we push healthcare providers to treat people holistically and to not view a person that's seeking treatment for their disability or for their gender or for any number of things and to treat all aspects holistically of a person.
Similarly with employment, I feel like people are forced into when making reasonable accommodations, if they're a BIPOC person who is living with a disability and is LGBTQ+ and also seeking a religious accommodation, they could be extremely confused about how to approach -- how to achieve a safe workplace, so I think that's another aspect.

Housing, with regard to housing, one thing is to consider the way the Federal Housing Authority does testing and I don't know if they've ever done testing on intersectional identities involving these different aspects of people to get information about the disparities they experience and to also create law that will set precedent and also provide clarity for housing providers, that discrimination goes beyond single-issue discrimination, and understand their full obligations under the law. Similarly, with public accommodations, I think thinking about beyond accessibility to intersectionality and broadening the lens in how we think about access to public accommodations. And lastly just one thing we would add on here is prisons, and the way people navigate prisons.  It's important for folks to consider all the intersectional aspects of a person, and it's really difficult working within binary systems like that to meet those needs, but to just make sure prisons understand that people don't live single-axis lives. And I will stop there.  Thank you.

GERON GADD: Thank you Sasha.  This is Geron.  And we're going to actually turn to just listing, we can talk about them in further detail later. I wanted to bring up some concrete loci where this intersection, in fact, has been and is being litigated.  Do you want to start?
Thank you.

SASHA BUCHERT: Sure I don't know that this is necessarily -- I love the idea, we're starting to talk about it and I'm hoping this is something that's going to expand.  The intentional approach towards litigation and public policy work that is more intersectional where we don't just consider trans rights, we consider disability rights, we consider reproductive rights and we consider racial equity. So it feels like a really important moment for this, but the one thing I would lift up with the healthcare for people living with HIV is the work being done to decriminalize HIV which has a ripple effect beyond people living with HIV because we know it's folks who are BIPOC identified living with HIV who are the most impacted by the epidemic.

So gender-affirming care similarly, the impact falls the hardest on especially when talking about some of these bans, for example, in states where the impact is going to fall hardest on folks who have intersectional identities, youth who are poor, who are often BIPOC, who are not going to be able to afford to go to a Denver, Colorado, to obtain the care that they're going to need that's being excluded in their state, so that impact is going to fall hardest there. Religious refusals in healthcare.  We know that the numbers of hospitals that are religiously affiliated continues to grow exponentially, and that often falls hardest on LGBTQ+ people and hardest on people who live in rural areas where there are fewer options and LGBTQ+ people and continuing with the intersectionality specifically folks of color. And I will stop there.

GERON GADD: This is Geron.  Just quickly to add to that.  You all can see the bullets, but I do want to underscore, I know that this is something that the disability community has been thinking about for a year now since the Dobbs decision came down and I recognize some faces of people who have been in that conversation. Welcome. It's great to see you. But just I want to make sure that we don't -- that we don't forget the reproductive piece.  The point I actually want to make is not so much about Dobbs but just remembering that people with disabilities have a very hard time getting appropriate care for sexual and reproductive health to begin with, and then you overlay that with the fact that you might be a member of the LGBTQ+ community and the way that that, too, imposes another layer of difficulty in accessing culturally competent and adequate healthcare, particularly when you are, as Sasha mentions, in rural areas, but you can be in Birmingham and it can also be sometimes challenging.

And so the thing that I want to underscore with that and also accessing mental healthcare, I am involved in a number of cases on behalf of kids right now seeking access to mental healthcare, and I worry about the population that is going to cross-identify, because the last thing that I wanted to say, which I'm sure that you all know, but it's why I'm deeply grateful to see all of your faces in this room today, and hope that we'll all continue the discussion, is that these different identities correspond to different access to power, which you all know. When we talk about intersectionality, a lot of times what we're really talking about is compound discrimination, and so to the extent that our disability advocacy can, as we're trying to lift up one piece of our identity, making sure that we are not doing so explicitly at the expense of another, again, I'm not sure that there are clear answers, we're going to talk about some ideas that we all have, but realizing that compound discrimination, it makes some of these things more zero-sum, is something to think about.

When, for example, we're litigating access to mental health services and thinking about the incidents of criminal justice interaction for people who also have mental health issues, and are BIPOC.  I think many people are familiar with what that looks like. The question is how as disability advocates can we do a better job of representing our clients in a holistic way? And so we come before you humbly to raise that issue and hope that we can join with others who have been talking about this issue to chart a way forward. So really quickly, I just talked about the areas to really be mindful of the intersection, there are just a couple of things I want to say really quickly when thinking about issues of compound discrimination, and most of these, I mention them because they flow from our professional responsibilities as lawyer.

You all probably remember that you cannot represent a client who doesn't have capacity, but there are also a lot of ways to negotiate around lack of, for example, legal capacity.  I raise this issue in part because when your client, for example, say has intellectual or developmental disability, the importance of person-centered planning so that you're planning not just for their certain care needs, but that they are also able to express themselves sexually, and thinking about, for example, racial paternalism in the same situation, when you're engaged in person-centered planning. It's important to think about how capacity works, but also the limits of capacity, like many states, for example, have professional responsibility rules that require you to effectuate the client's will to the extent possible, not the family there that might have more power and wants to address the issues in that intersection in a particular harmful way.

Privacy again, we have professional responsibility to maintain our clients' confidences to the extent that we can, consistent with the litigation.  When you are representing someone who is experiencing multiple forms of discrimination at the same time, taking your direction from your client and making sure that you understand how they're exposed and what exposure in certain areas means for them and their lived experience is certainly more important in many ways than the secrets that you hold for a corporate client.  Again, just want to remember to look at the ethical rules because we don't have time to discuss them all today. Remember that a lot of the ethical rules empower you to empower your client, particularly when your client is a person with a disability who has a number of people in their lives in support and sometimes, not so supportive rules.

Forum, for example, your client may be far more interested in arbitral setting than in litigation that is going to end up in the media because the cost of disclosure of whether it's gender identity, sexual orientation, the price is too high in order to get this other accommodation.  We should acknowledge that for people of color, a choice as to that kind of disclosure isn't an option. So just recognizing that everything is sort of compound -- not sort of, it is compound, and we have a duty to recognize it. We're going to turn to practical tips, and then we're going to turn to a discussion of what are ways that we can recognize these issues better, and how can we address them?  So the important piece, final piece, over to you.

SASHA BUCHERT: Maybe I'll start with the zealous advocacy versus meaningful relief and just -- I'm really talking to myself here.  We do a lot of impact litigation, and sometimes, it's easy to forget to center the client, the person that you're working with, and I think that at every turn, it's essential that we remember our ethical obligations. You're representing plaintiffs and put them first in the decision-making and keeping them informed every step of the way and let them be the decider. And then framing of claims. I think this is again kind of going back to what I was saying earlier, a really great opportunity for us to think more creatively about intersectional claims.  

I'm patting us on the back, but we're working with a challenge to some rulemaking that happened that erased protections for LGBTQ+ people and people living with disabilities, the 1557 Affordable Care Act, we're challenging a rule that stripped data collection for LGBTQ+ people, but also Native American communities, and I feel like there needs to be so much more of that. Whenever we frame a claim, we should have a checklist by our desk that goes through and asks whether we can expand the law.  Are we thinking broader intersectionality about our work? And disclosure, maybe I'll turn this over to you.

GERON GADD: What we want to underscore here is the ethical piece that we have talked about before, which is when you are suffering from compound discrimination, disclosure is the way that you negotiate the power of other people over you.  So in legally fighting wrongs, inevitably, there is some disclosure, but I think the really important piece here is just to remember that you work for your client, which sounds a little bit trite, but I have found in representing a range of people that your clients have wisdom -- at least for me, my clients have had a wisdom that at times, I have lacked.

And where I have been fearless enough to listen with my whole mind, -- you can help them navigate the nuances of the disclosure that's necessary to address the accommodations that they need but need not leave them fully exposed in ways that it's difficult to protect them.
The other thing to remember is that many of the statutes under which we litigate have antiretaliation provisions right?  Being there for your client, realizing that you might have just gotten a great settlement, but now your client has to live with the implementation, making sure that you remain accessible, obviously, you've got to deal with your engagement letters, etc., but making sure that you recognize that when that compound discrimination lingers, that your client's experience continues.  And so that's why issues of disclosure are particularly significant, and I just wanted to underscore them here, because it's huge.

So are we ready -- we've got 20 minutes to address two questions.  I'll read them out loud so that we can ensure captioning. The first one is what other ways does disability advocacy on behalf of people who identify as LGBTQ+ or BIPOC force a prioritization of identities?  What are we asking our clients to do when they come to us and we say that only certain things matter for purposes of their disabilities claim?
Second, what other things should disability advocates do better when advocating for clients with intersectional identities? And as Sasha, when we were preparing for this panel, said something that I found to be really wise, which is we'll have these discussions.  It may be that what we have are further questions.  So we might identify ideas.  We might also have questions that we need to answer and wrestle with in order to get to better answers about what we do to be the best version of ourselves as advocates so to speak.

We don't want to force anyone to do anything, but we would love to be able to use the collective wisdom in the room to come up with some tips and even questions. After that, we're going to send the last ten minutes and kind of have one person report back, even if it was just questions or things to think about, and we will collect those and if you're interested, I'm going to take notes when we do that, I'm happy to send them to everyone. But we're hoping for this to be a platform for continued conversation.  So I think we could divide up into two groups.  If I may, we need to do at least one of them up here so that we can have the captioning, so I'm thinking if -- I think there are ten of us.
If three of you come here, the remainder can go in the back or something.  I'm not doing the math right right now.  Maybe the other group could meet towards the back of the room so that we can still do this, and then we'll come back and we also have a little bit of time for questions, as well. I'm getting leave this up so you can see, it's just top and bottom questions, but we'll give you our contact information as well so if there's other resources or questions, we're happy to entertain them.  We may not have answers, but we can get you to people that might.  Thank you.

GERON GADD: We've going to do this fairly quickly, but we're going to report back.  Each group is going to have about three minutes to share ideas or questions that we need to continue to ask, and I'm going to take notes and so if you guys want them, I'll try to do my best to memorialize it all. Come up here and please identify yourself.  Thank you.

AUDIENCE MEMBER: Hi, everyone, I'm Megan and I'm a disability rights attorney and a student at the University of Pennsylvania, and our group talked about some pretty similar themes.  We didn't come up with any answers, but at least in terms of what we talked about, and the examples and issues we came up with. One theme was stigmatization and destigmatization and how issues of stigma or multiple identities can sort of crawl into a case or remedies. For example, Geron had talked about a client who had severe mental illness and it was hard to find a place to house them in the community, but then if you're in the community, and it's with people who don't look like you or who are hostile because of your other identities, that sort of creates a question of how do you respond to that as an attorney?

Another example is in special education where a student's diagnosis may be given because in part of biases about their race or other aspects of their identity, such as oppositional defiance disorder as opposed to a learning disability and that brings in all these other layers of what kinds of services are available to them, sort of all these other questions, but the race element is still very much embedded in that.
And then we also talked about in courts and just as lawyers holding power and judges and confronting judges who are really hostile to the disability, to other aspects of the client's identity and how to sort of address that, because that is a reality.  And talking about we need to humanize the client's story to connect with the judge as one kind of advocacy way to address that. thank you.

GERON GADD: So that brings us to an end.  Sasha was wonderful to have and just really want to say thank you, all, so much for coming and being a part of this conversation. Our contact information is here.  If you have any questions, please feel free to e-mail either of us.  We can get you in touch with other folks, and I will try to put together some notes, if you want them.  I know you guys were probably doing a lot, but I want to make sure that we continue the conversation to the extent that people are interested.
I hope you have a wonderful conference.  Have a great day.