Pro Bono Innovators 2024 Honoree Lowenstein Sandler

In our 2024 edition of Pro Bono Innovators, Bloomberg Law honors Lowenstein Sandler for its work to obtain a December 2023 federal district court order blocking Florida from restricting health care for transgender people. The firm is also honored for conducting a labor law training which educated workers in Nigeria on workplace rights, and other matters.

Your firm’s key matters included a securing an order in a federal trial court that blocked Florida from restricting health care for transgender adolescents. You also led a training to help workers in Nigeria know and protect their labor rights. How did your firm strategize on how to approach these matters?

Advancing health care access for transgender people: In both matters, we were responsive to the needs of partners and clients. We had previously worked with our co-counsel, GLBTQ Legal Advocates & Defenders and National Center for Lesbian Rights, in a challenge to the military’s ban on transgender servicepeople. They knew our commitment and expertise in this area and asked us to join the team fighting the Florida ban.

Although we have no offices in Florida, we recognized the national implications of Florida’s law and wanted to assist our valued partners. Once we got involved in the case, we committed to advancing the interests of the adolescents, their families, and other people seeking health care at the heart of the case.

Our approach was client-centered and focused on explaining the harms our clients—a class of transgender children and adults seeking care related to gender transition and similarly situated individuals—suffered as a result of the restrictions on their health care. We also recognized that there were other cases being litigated around the country involving different state bans and that this was an issue that was in the early days of being litigated in appellate courts. Because of this, we were flexible with our theories of liability, and able to quickly adapt to new and binding appellate precedent.

Promoting workers’ rights in Nigeria: Lawyers from Lowenstein facilitated a one-day capacity-building workshop entitled “Strengthening Access to Justice for Nigerian Workers and the Role of Pro Bono Lawyers, CSOs (Civil Service Organizations) and the Media.” During the workshop, firm lawyers led a training on Nigerian labor laws and the mechanisms to report violations. The workshop was attended by pro bono lawyers, government officials, and the media.

For the Nigerian workers’ rights guide, we partnered with a local law firm, Fred-Young & Evans, which had both an interest in developing expertise in labor law and a commitment to helping workers understand their rights. While we took the lead on producing the resources created, we knew it would be important to have local counsel available to build a network of trained volunteers to assist workers whose rights had been violated. When conducting research, we brought together a team of firm lawyers, including one licensed to practice law in Nigeria, who were knowledgeable and passionate about human rights law.

Our volunteers had demonstrated careful research skills on previous projects, which we knew would be essential for drafting a comprehensive guide. Some Nigerian legal sources were not available online, and we relied on the firm’s excellent law librarians and local practitioners to track down hard-to-find cases and regulations.

We let our civil society organization (similar to a US nonprofit advocacy group) partners guide us in determining how to deliver our research to Nigerian pro bono attorneys and government agencies in a way that would maximize training and promote the opportunity to assist workers in need. When our CSO partners suggested that we conduct a hybrid in-person and webinar-based training on workers’ rights for pro bono lawyers and government actors and produce a plain language know-your-rights guide for the public, we enthusiastically agreed and delivered an inaugural training in April.

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?

Advancing health care access for transgender people: We had to change strategy just before trial. Our co-counsel had obtained a preliminary injunction against the ban on care for minors because of the likelihood they could demonstrate that the law violated parents’ substantive due process right to make medical decisions for their children and made improper classifications based on gender. But, just four months before trial, the Eleventh Circuit held that a similar law from Alabama was unlikely to violate due process or equal protection under those theories.

So, we pivoted our strategy and ultimately pursued and prevailed on the theory that had never succeeded in the context of laws impacting transgender people: We argued, and the district court found, that Florida’s law and rules violated the Constitution because they resulted from invidious discrimination—an effort by the State of Florida to harm transgender people because they are transgender.

One aspect of our legal approach asked the court to find animus on the part of Florida legislators based on the odious statements of certain elected officials and the accompanying silence from a majority of the legislative body. This is a very difficult theory to prove and had met with very limited success in equal protection cases generally.

We examined multiple medical experts about the well-established standards and guidelines for transition-related care, and we presented evidence to demonstrate that these restrictions were part of a campaign to target transgender people for unfair treatment. In addition, we moved for and obtained certification of the case as a class action to ensure the defendants could not try to evade any injunction the court entered.

This proved critical, as the defendants consistently argued that the preliminary injunction obtained earlier in the case only applied to the named plaintiffs. Successfully certifying a class ensured all similarly situated Floridians would benefit from the court’s ruling. During a multi-day trial, we elicited powerful testimony from plaintiffs describing the harms that this extreme ban inflicted on them and their families.

Promoting workers’ rights in Nigeria: We did not focus on Nigerian laws only; we examined the interlocking system of national, regional, and international human rights and labor laws that govern workers’ rights in Nigeria.

These laws provide significant protection, but we learned from our civil society organization partners, Children and Young People Living for Peace and International Society for Peace and Safety, that few workers are aware of the laws and therefore cannot demand respect for their rights. Likewise, few employers are aware of the laws and consequences for their violation.

To address this awareness gap, we synthesized the various laws in a guide that and clearly explained employer obligations regarding contracts, wages, nondiscrimination, unionization, sexual harassment, benefits and entitlements, and worker safety. The guide was targeted to laws impacting informal sector workers and laborers in industries such as security, construction, mining, and manufacturing—fields that our CSO partners indicated involved the greatest number of labor violations.

We highlighted the regional and international laws protecting these workers that have been domesticated by the Nigerian government into the national legal regime, such as the African Charter on Human and Peoples’ Rights (“ACHPR”). We also made sure that trade union members in some of these sectors were trained on their rights using the guide.

We provided practical guidance to empower pro bono attorneys to invoke the ACHPR and use national, regional, and international enforcement mechanisms to seek redress for labor rights violations. We identified concrete steps that the government, workers, employers, and civil society organizations can take to create an environment conducive to the realization of workers’ rights in Nigeria.

Recognizing that the advancement of labor rights requires workers and employers to understand the law, we developed a plain language pamphlet that clearly explains key rights and enforcement mechanisms to these groups. We helped our clients overcome financial barriers by bulk printing hard copies of the guide and pamphlets for widespread distribution.

We understand that real change requires long-term engagement; we therefore participated in a labor rights training for pro bono lawyers, CSOs, and government officials, and the media, and we are committed to participating in similar trainings in the future.

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

Advancing health care access for transgender people: The decision directly impacts every transgender person in Florida seeking health care, but its reach is far broader. We presented evidence about the animus that led to the passage of the Florida law, which included hateful and palpably untrue statements in the legislative record and the absence of statements from supporters of the bill disavowing the bigotry and the falsehoods.

We also demonstrated that Florida officials followed an abnormal rulemaking procedure, imposing requirements—like a set of one-sided and misleading informed consent forms—without medical justification that were intended to prevent or impede patients from receiving gender-affirming care. That untested litigation strategy, necessitated by the Eleventh Circuit’s decision issued just months before our trial, will serve as a model for advocates across the country who seek to protect access to life-saving health care for transgender children and adults.

Florida was one of the first states to pass legislation to harm transgender people by limiting access to health care, but it was not the last. Our case has been extensively cited in briefing before the United States Supreme Court in a case this term that challenges a similar Tennessee law. Because people often openly display animus against transgender people, lawyers in other states may be able to emulate our litigation approach, expanding the impact of the case.

Promoting workers’ rights in Nigeria: One immediate impact of our work is that two Nigeran CSO leaders became local experts in labor rights. These leaders are sharing their knowledge with other CSO leaders, pro bono attorneys, government officials, and the media by convening trainings and human rights rallies and contributing to a human rights awakening in Nigeria.

We are grateful to our referral partner, TrustLaw, for connecting us with our CSO clients, who in turn took the initiative to connect with Nigerian law firms—most notably Fred-Young & Evans—to arrange counsel for pro bono consultation requests generated as a result of our legal education efforts.

As part of this mass human rights-sensitization effort, we printed, and our clients are distributing, 1,000 copies of the legal guide and 10,000 copies of the know-your-rights pamphlet throughout the country. In addition, we tapped into our networks to connect our clients with national and international access-to-justice resources that they can tap into to amplify their efforts.

For example, we facilitated a connection with Nigeria’s national pro bono clearinghouse and the Cyrus R. Vance Center for International Justice of the Association of the Bar of the City of New York, which provides support for pro bono initiatives in African countries. We continue to participate in a pro bono chat group through which we engage with Nigerian CSOs and pro bono attorneys in real time to exchange labor rights-related resources, insights, and referrals.

We are pleased that through these connections, workers have connected with local pro bono counsel who, among other things, have helped file sexual harassment complaints, negotiate fair wages, and negotiate severance pay. As more workers, employers, pro bono attorneys and other stakeholders get trained on Nigeria’s labor laws, we are hopeful that conditions of work and wages will continue to improve.

More generally, we believe that educating the public about human rights laws is central to operationalizing these laws. Human rights, including labor rights, are meaningless if people do not know about and invoke them. Our firm has a growing Africa Practice that is committed to using its attorneys’ skills and connections to advance human rights across the continent. We are proud to contribute to strengthening the culture of human rights in Nigeria, Africa, and the world.

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

Advancing health care access for transgender people: We were ultimately successful because we were adaptable. We were open to changing our approach to the arguments and merits and we were innovative in our response to certain changes in the law over the life of the case, in particular, the need to pivot to an invidious discrimination theory.

Since this area of the law is a current controversial issue with numerous cases being litigated in different courts at all different stages of litigation, it was pivotal to our success to adapt our thinking and strategy throughout the litigation. It was also imperative to take a holistic approach and address the merits of the case with an eye toward a long-term, successful resolution that would withstand appellate scrutiny. Our internal and external team included people with a variety of opinions and expertise which allowed us to come together as a unit and pursue the ultimate goal of eliminating the ban.

Promoting workers’ rights in Nigeria: One factor contributing to the success of the representation was that we assembled the right team, which included one volunteer licensed to practice law in Nigeria and another volunteer who had a strong background in international human rights laws. Given that this was the firm’s first significant human rights representation in Africa, we consulted with colleagues from other firms with long-established Africa pro bono programs to discuss our approach to the guide and related trainings. In the process, we developed valuable partnerships with other pro bono actors who seek to promote human rights and expand access to justice in African countries.

The team did not walk into the representation as employment law experts. We were humble and took the time to really listen to and learn from our clients about the real-world concerns driving their request for legal assistance. We were moved by anecdotes of workers who were demoted by their employers from salaried employees to informal workers in an attempt to reduce their pay and deny other protections and benefits, as well as the de facto “get pregnant, get fired” policy that exists in many workplaces.

We met our clients by phone and Zoom several times during the representation to discuss and refine the research and work product so that it would be most useful for their intended audiences. Our efforts were buoyed by the constant support of TrustLaw, which provided regular check-ins to ensure the project stayed on track and pro bono graphic design services that resulted in a beautiful, visually appealing guide.

Responses provided by Lowenstein Sandler Thomas Redburn, partner and chair, Securities Litigation, and Maya Ginsburg, counsel, Securities Litigation for the Florida matter.

Responses provided by Lowenstein Sandler Christina Holder, public interest counsel, pro bono for the Nigerian workers’ rights matter.