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Challenging the Profession

Tom M Fitzpatrick, FName, LName, and Elizabeth M. Bailey

Challenging the Profession
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I was elected as the first openly gay member of the ABA Board of Governors in 1998. At that point, I had been involved with the ABA and bar activities for more than 20 years. However, the realization that I was gay and the coming out experience had only occurred a couple of years before being elected to the board representing Washington, Oregon, Alaska, and Montana.

The first year was particularly awkward. The board had never had an openly gay member. Some members did not know how to react to a gay member who brought to meetings at different points a lover, an ex-wife, and children. Although the ABA House had previously adopted some policies against discrimination based on sexual orientation in the justice system, nothing was in place concerning LGBT persons in the legal profession. The initial reaction to raising gay issues was, “You mean you want us to do something about this?”

Concerned that it might get tasked dealing with gay issues, the Commission on Minorities in the Profession changed its name to “Racial and Ethnic Minorities.” It would take another decade until the ABA, under the leadership of my friend Bill Neukom from Seattle, created the SOGI Commission.

Although sometimes I had feelings of rejection and not fitting in, I was determined not to become discouraged and be an effective board member. Unlike many of my colleagues, I had served on the ABA staff. I previously held various ABA positions, so my knowledge of the Association was extensive and exceeded those who had come to the board by working their way up through state and local bar associations. I added to my expertise by faithfully fulfilling my liaison assignments to entities such as the Section of Taxation and the Lawyer Referral and Strategic Communications Committees. Because of that background, I could discuss a variety of issues with historical background and authority. I think this led to the growing perception that “He might be gay, but he knows what he’s talking about on this issue.”

I also knew that if the board members got to know me, it would serve as a basis to perhaps alter their perceptions of gay people. Thus, I faithfully went to board social functions and class dinners, getting to know my colleagues and their spouses. The highlight was hosting a class “retreat” for board members in my class and their spouses on Whidbey Island, north of Seattle, before the actual board meeting in Seattle. I had the hospitality suite in my room, and everyone was there at some point in time. We had all become good friends, even if we differed on various issues that came before the board.

A gay board member became all-important when there was a request to approve the filing of an amicus brief in Dale v. The Boy Scouts of America. Feelings were running high, and many board members did not want to touch the case, even though the House had a policy against discrimination that supported filing the brief. After probably the most intense debate on any issue during my time on the board, it voted to have the ABA file the amicus brief.

While the Court did not ultimately adopt the ABA’s position, the decision to file the brief marked a sea change in the ABA’s position regarding gay rights. No longer were policy positions on gay issues just something to be included in the policy book. After that, the House became even more receptive to passing other policy positions affecting LGBT people in society and the legal profession. The Washington office increased its lobbying efforts for legislation supported by ABA policy on LGBT issues. The need to address the discrimination in the profession against LGBT lawyers became something that got talked about, along with realizing that this was part of needed diversity efforts. With that came the realization that LGBT discrimination was something the profession as a whole needed to address, not just LGBT bar associations or the Individual Rights and Responsibilities Section.

Even though a lot of progress has been made, the movement for equality for LGBT persons and lawyers has still not been fulfilled. However, when the history of the gay rights movement is written, I believe the legal profession's cultural change on these issues will be cited as a significant factor that allowed the movement to succeed. I take pride in having contributed to that cultural change through my service on the board and in other capacities in the organized bar. It would not have been possible without the support and efforts of so many others. But it would also not have been possible without the nature of lawyers. Lawyers generally are open to learning new things and have to deal regularly with issues of fairness. Those cultural attributes made the cultural change in the legal profession possible.

This is an edited and abridged excerpt from Out and About: The LGBT Experience in the Legal Profession by Christine W. Young and John T. Hendricks, eds. Reprinted with permission. ©2015 by the American Bar Association. All rights reserved. Available for purchase at ShopABA.