James D. Esseks is Director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project. James oversees litigation, legislative lobbying, policy advocacy, organizing, and public education around the country that aims to ensure equal treatment of LGBT people and people living with HIV.
We talked to him before he visited St. Louis to address the 2018 Midwest LGBTQ Rights Conference as a panelist and keynote speaker.
What is the ACLU doing to protect the rights of LGBTQ people on the national level?
First off, I’d like to give a little history, because the ACLU has advocated for LGBTQ rights for decades.
The organization was founded in 1920, and we took our earliest LGBTQ case in 1936. In the 1930s, there weren’t LGBT-focused organizations doing this type of work – but the ACLU was doing what it does, which is fight for the rights of everyone. That’s embedded in our organization’s history and DNA, and something we’re very proud of.
The 1936 case was a First Amendment claim about a play by Lillian Hellman called “The Children's Hour” which was censored in Boston because of its “lesbian content.” We sued. We lost that case because the First Amendment did not yet mean what is has come to mean today in our country and in our courts.
More recently, the ACLU represented Edie Windsor in the 2013 ruling of U.S. v. Windsor which struck down the so-called "Defense of Marriage Act" as unconstitutional. Windsor laid the groundwork for Obergefell v. Hodges, the sweeping and historic decision in 2015 that affords gay and lesbian couples the same legal right to marry as different-sex couples. We represented Jim Obergefell in that case.
That history has guided us to today, where the ACLU has prioritized the following issues across the nation:
- We’re working to secure basic civil rights for LGBTQ people, protecting against discrimination in employment, housing, public accommodations, and schools.
- Preventing LGBTQ equality from being undermined by religious exemptions that would license discrimination in the name of religion.
- Fighting for the rights and basic dignity of transgender and gender nonconforming people.
Speaking of these issues of basic civil rights and liberties for LGBTQ folks, the ACLU and ACLU of Missouri just filed two friend-of-court briefs in two different Missouri Supreme Court cases that could affect the rights of LGBTQ Missourians. Can you tell us more about it?
Both federal and many state civil rights laws protect against discrimination based on sex in the context of employment, housing, or businesses open to the public. The federal Equal Employment Opportunity Commission has made clear that the ban on federal sex discrimination in the workplace covers discrimination based on sexual orientation and gender identity. And increasingly, courts across the country are agreeing. Think about it – you can’t describe what it means to be a lesbian without mentioning her sex and the sex of her partner; that means anti-lesbian discrimination is a kind of sex discrimination. It’s the same for discrimination against transgender people – what else could it be other than sex discrimination when you can’t describe what it means to be transgender without talking about the person’s sex?
Indeed, just this past Monday, the U.S. Court of Appeals for the Second Circuit just decided that the federal law against sex discrimination covers lesbian, gay, and bisexual people. Now, the question is whether the Missouri State Supreme Court is going to agree with this emerging consensus among the courts.
How does the Project work with ACLU of Missouri to protect the rights of LGBTQ people in Missouri?
The ACLU organizations in the states, like the ACLU of Missouri, are experts in the local landscape. They know the state-level press, legislators, courts, and advocates. The National office has folks who are subject matter experts on a range of civil rights and civil liberties issues. The magic of the organization is that together, we have a range and depth of local and subject matter expertise that I think is unrivaled by any other organization. It makes the ACLU incredibly effective because that partnership is woven into the fabric of everything we do.
You’ve been working on these issues of freedom and equality for a long time. How do you decide what issues need to be worked on? How do you develop your strategies?
We look to see what challenges the community is facing and then at which of those problems the ACLU has the capacity to help change.
Having identified specific problems we want to work on and solve, we put together strategic plans. We ask things like, “What’s the current state of law?” “Is this best fixed through legislation, litigation, or a ballot initiative?” “Do we need an education campaign before we do any of the work?” “Are we going to start at the state level or federal level?”
That’s the kind of thought process we follow. We do lots of consultation with people in the ACLU family and with affected stakeholders as we assess how to best go about our work and consider the risk and impact of our decisions.
What is one of your most memorable working experiences with the ACLU?
United States v. Windsor.
It was an amazing experience for me, in part, because of Edie Windsor, who was a dynamo lesbian in her 80s who embodied love and commitment to her spouse and partner of 44 years.
It also was amazing because the ruling we got in the case took down a terribly discriminatory law, and that decision paved the way for the Obergerfell case. When Windsor was decided, we could look back and see the work that led us to the win – but we were also able to look forward and see an impending victory. It was that moment where I first felt with real confidence that we were going to win the marriage fight.
Missouri was one of the states that won marriage rights for all before the U.S. Supreme Court ruled in Obergefell v. Hodges – how did Missouri (and states with similar rulings) coordinate with National to advance the US Supreme Court case?
In June 2013, the United States Supreme Court decides Windsor. It strikes down the "Defense of Marriage Act,” which tells people all over the nation and tells judges the Supreme Court is open to the ultimate marriage question.
People then started proposing to each other, and started suing in more conservative parts of the country, in states where it had earlier seemed like a stretch to win a marriage case. More and more cases – not just ACLU cases – were filed for same-sex marriage in state and federal courts across the county. Cases were won in unexpected places – like in Utah, Oklahoma, Kentucky and here in Missouri.
The ACLU national office worked with ACLU affiliates across the nation. We had requests from all corners of the country and talked with affiliates to decide which courts we should go to and what stories to highlight. We shared briefs, complaints and strategy ideas from case to case and affiliate to affiliate.
All of that added up to creating a landscape of support for the freedom to marry in the lower courts. So much so that when the Supreme Court was finally considering the issue in the spring of 2015, it saw a country where court after court agreed that the Constitution protected the right of same-sex couples to marry.
I know it had an effect on the Supreme Court. There’s an appendix to Justice Kennedy’s opinion in Obergefell that listed all of the decisions in the federal courts, trials courts, appeals courts and state high courts. That list is part of the decision because all of those cases contributed to the decision in Obergefell. It’s amazing.
ReRecently, the ACLU of Missouri launched its Transgender Education and Advocacy Prprogram. From the Project’s perspective, what does the future look like for litigation nand advocacy efforts for trans rights?
I think the country is at the beginning of a journey of discovering who trans people are and learning about the challenges that trans people face.
Programs like the ACLU of Missouri’s Transgender Education and Advocacy Program are at the leading edge of this kind of education.
We won the freedom to marry because we had done the work of educating the country – over the course of decades – about same-sex couples who wanted to get married. We need to do the same kind of work for transgender people. TEAP is about educating people on the ground and partnering with individuals and organizations to make sure the country hears the stories of transgender folks and understands who they are. That is key to making change.