Pro Bono Innovators 2023 Honoree Greenberg Traurig

In our 2023 issue of Pro Bono Innovators, Bloomberg Law honors Greenberg Traurig for its work with the Mexican Ministry of Foreign Affairs to secure political asylum and safe passage for the players of the National Afghan Women’s Flag Football team, following the Taliban’s takeover of Kabul, Afghanistan. The firm also partnered with lawyers from the Transformative Justice Law Project of Illinois and others on litigation to eliminate discrimination in the application of the Illinois Name Change Statute.

Your firm’s pro bono work included working with the Mexican government to obtain political asylum and safe passage for the National Afghan Women’s Flag Football team. You also took on litigation to help eliminate discrimination in the application of the Illinois Name Change Statute. How did your firm strategize on how to approach this matter?

At the start of 2022, the National Afghan Women’s Flag Football team was invited to play in an International Woman’s Flag Football Association’s tournament in Mexico City. The team reached out to ALDEA People’s Justice Center, a non-profit based in Reading, PA, asking for assistance with their visas to visit Mexico.

ALDEA, who for many years has been an important ally to Greenberg Traurig in pro bono immigration matters, referred the team’s case to the firm. The attorneys in our Mexico City office analyzed the case and identified that the team members, their coaches, and their families could be candidates for political asylum.

The attorney leading the case published an op-ed on the matter in one of the most important literary magazines in Latin America, after which the office of the chancellor contacted her. We knew this case meant that our legal representation would have to include high level negotiations with the Mexican government and complex coordination with different international organizations.

For the Illinois Name Change matter, the Greenberg Traurig team partnered with the Transformative Justice Law Project of Illinois (TJLP) and a firm-sponsored Equal Justice Works fellow, Lark Mulligan, to recruit plaintiffs and develop novel constitutional theories to challenge the Illinois Name Change Statute.

Mulligan had written on the subject as a law student, and we worked with her to refine and sharpen her theories, while also developing arguments and legal grounds to navigate anticipated obstacles based on jurisdictional and standing objections. As discussed below, these research-intensive investigations yielded novel First and 14th Amendment constitutional challenges, as well as creative new theories of jurisdiction and standing against state law judges and the Cook County State’s attorney.

Concurrent with the litigation efforts, Greenberg Traurig and TJLP worked with legislative partners and a pro bono communications firm, West End Strategy Team, to leverage the litigation to bring attention to the plight of transgender individuals denied legal name changes, and prompt legislative action to correct the discrimination against transgender persons under the law.

What were the most innovative aspects of two of your client matters in your view? And who took the lead on driving innovation with the work?

Greenberg Traurig’s effort to bring the National Afghanistan Women’s Flag Football team safely into Mexico marks the pure definition of innovation – this was the first time in Mexican legal history that political asylum was granted through a request by an individual’s attorneys rather than an initiative directly by the government.

In Mexico, political asylum is different from the more common territorial asylum, which is granted to individuals who arrive in Mexico seeking international protection. Political asylum in Mexico is granted to people outside Mexico facing persecution; it is administered by the Ministry of Foreign Affairs rather than the Ministry of the Interior.

This kind of international protection is rarely granted and historically only to high-profile figures. The lead attorney in the matter decided to approach the Ministry of Foreign Relations despite the odds because the legal argument was solid and the political environment in Mexico surrounding refugees was opportune.

Our attorneys not only had to prepare a solid legal argument, but they also had to navigate a very complex international political landscape. The firm negotiated with governments in Mexico and the Middle East while at the same time reaching out to international bodies and airlines to process documentation and secure safe passage for our clients.

In the Illinois Name Change matter, innovation was two-fold. The litigation, led by shareholder Gregory E. Ostfeld in Chicago, advanced several untested and innovative constitutional theories, including a First Amendment theory of compelled speech arguing that transgender individuals were being compelled by the statute to use a legal name that did not conform to their identities, and a Fifth and 14th Amendment due process theory arguing that the statute deprived plaintiffs of their liberty interest in their names and identities.

Innovation also came through the firm’s coordination with the Transformative Justice Law Project of Illinois in how the litigation folded in with the larger legislative effort to effectuate change in the law. The success of this strategy came on the legislative side, with the General Assembly enacting changes to the name change statute on the eve of oral argument in a Seventh Circuit appeal.

The case also involved complicated questions of standing and subject matter jurisdiction. The Greenberg Traurig team developed and argued the novel position that the state judge and state’s attorney defendants played an integral role in the denial of plaintiffs’ constitutional rights, and that the state judges were not acting in a judicial role but in a purely administrative capacity.

Tell us more about the impact of the matters on the local, national, and/or global level.

Securing political asylum for the women’s flag football team is one of the largest political asylum cases in Mexico since the Spanish Civil War. In less than a month from our clients’ arrival, we also secured permanent residence — the equivalent of US green cards — for all of them. This means our clients can work, study, and have a full new life in Mexico.

Our work in this matter changed the landscape of asylum in Mexico: We got the federal government to exercise its power to extend political asylum to common people. Other organizations are now exploring the path we opened and are currently representing more people seeking political asylum in Mexico from outside the country.

In Illinois, although the district court dismissed the case for lack of jurisdiction, Greenberg Traurig and plaintiffs pursued a vigorous and novel appellate strategy arguing that the state cannot prevent the federal courts from having jurisdiction by fashioning an unconstitutional statute that vests the power to administer the statute in state court judges acting in a purely ministerial and non-judicial capacity. Greenberg Traurig and plaintiffs coordinated an effective amicus strategy including recruiting the Constitutional Accountability Center, the ACLU, and a group of national and state level LGBTQ+ organizations to submit amicus briefs.

Following passage of Public Act 102-1133, an amendment to the bill that secured the plaintiffs’ constitutional rights, the case was mooted less than two weeks before plaintiffs were set to argue their appeal in front of the Seventh Circuit. The effort marked a complete victory for the rights of transgender individuals in Illinois who were being denied the right to change their names.

Why do you think your team ultimately achieved successful results in these matters?

While the two matters we have focused on here are extremely different, they are bonded by a common theme in their success – innovation through collaboration.

In Mexico, to take on this novel effort the Greenberg Traurig team not only had to coordinate all of our work between multiple international governments and our clients, but the multifaceted work required a strong internal coordination that could only be accomplished with the support of the unique structure of our firm’s pro bono program that gives leeway to our local teams to handle matters in the way they know is best.

In Illinois, the nearly four-year effort involved five Greenberg Traurig attorneys, three attorneys at TJLP, and numerous legislative and amicus partners—all directed towards the goal of eliminating invidious discrimination in the application of the Illinois Name Change Statute to transgender individuals with felony convictions. The ultimate result, achieved by legislation, is a fairer and more just law that affords plaintiffs and others like them a fair opportunity to change their names to match their identities.

Both of these matters required a willingness to think outside the box, and the dedication and conviction to do what has not been done before. That could only have been accomplished in a supportive and collaborative environment fostered in part by the structure of our global pro bono program.

What did you do to celebrate when these matters were resolved?

When our clients finally arrived in Mexico City, we sent an email to our entire office to let them know the great news, and we briefly cheered and congratulated everyone who worked so hard for this fantastic result. The celebration was short-lived, however, as there was still so much work to do. The team and their families continue to need support as they integrated into their new life in Mexico as well as provide counsel on matters relating to work authorization and permanent residency applications.

Plaintiffs celebrated the General Assembly’s vindication of their right to a legal name matching their identities by preparing to avail themselves of their legal rights under the amended statute. Greenberg Traurig and TJLP expressed gratitude to plaintiffs, their legislative coalition partners, the General Assembly, and everyone who worked together to end statutory discrimination against transgender name-change applicants. Achieving true equality under the law for transgender individuals remains a long and difficult road, and we celebrate this important step with a renewed commitment to demand full equality for all persons under the law without regard to gender-related identity.

Responses provided by José Raz Guzmán, Greenberg Traurig partner and co-chair of the Mexico City office, Elba Gutiérrez, manager of the firm’s Global Pro Bono program (Afghan Women’s flag football matter), partner Gregory E. Ostfeld, vice chair of the firm’s Pharmaceutical Medical Device & Health Care Litigation Practice, and Brian D. Straw, litigation associate (Illinois Name Change Statute matter).