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It’s Gotten Better to Be LGBTQ in Big Law, but Struggles Remain

July 29, 2020, 9:41 AM

Anne Tompkins thought her sexual orientation would cut her off from certain job opportunities when she started her legal career in the early 1990s.

“People would say, ‘Too bad you’re gay because you would make a great U.S. attorney, but that would never happen,’” Tompkins told Bloomberg Law.

In 2010, she became the second openly gay U.S. Attorney when President Barack Obama appointed her to serve in Charlotte, North Carolina. “It seems quaint now,” said Tompkins, who has since become a partner at Cadwalader. “We’ve come so far so fast.”

The Supreme Court ruled in a landmark June decision that federal law bans workplace discrimination based on sexual orientation and gender identity. The decision, coupled with the court’s marriage equality ruling in 2015, represents a monumental shift.

In more than a dozen conversations with Bloomberg Law, LGBTQ attorneys from Big Law and across the legal profession spoke about the tremendous progress that has been made towards inclusion in the last several decades. They also spoke about the many barriers that still remain.

Transgender and nonbinary attorneys in the legal industry face especially high risk of experiencing bias at work and fear that coming out could damage their careers. And LGBTQ attorneys of color say they experience additional marginalization and discrimination at work because of their race.

Coming Out

Chip Cannon was one of only a handful of members in his school’s new gay law school association in the early 1990s. When he applied for jobs, he didn’t dare mention his involvement with the group on his resume.

“There was probably no faster way to not get an interview,” said Cannon, now head of the energy regulatory practice at Akin Gump Strauss Hauer & Feld.

He began to notice a cultural change in Big Law in the early aughts. “All of a sudden I started noticing that people were putting OutLaw and other LGBTQ organizations on their resume,” he said.

Alex Touma, partner at White & Case, graduated law school in California in 2009, in the two-year period during which the state’s Proposition 8, which banned same-sex marriage, was in effect.

“Despite the fact that I was graduating from a law school in the Bay Area and working in a very liberal community, there was still apprehension about whether we should come out in the workplace,” he said. “Some of us were at firms where there were people who were openly supporting Prop 8.”

Some lawyers say they still feel reluctant to be out in job interviews or in the office, though they say the climate has improved.

Only 1% of U.S. lawyers identified as LGBT in 2004. Fifteen years later, that number tripled, according to the National Association of Law Placement. And among the newest generation in Big Law, the numbers are higher. In NALP’s 2019 survey of U.S. law firms, only 2% of partners identified as LGBT, whereas 4% of associates and nearly 7% of summer associates did.

‘A Lot of Barriers’

Many Big Law firms now tout their inclusiveness through creating affinity groups, filing amicus briefs in favor of gay rights causes, and holding annual Pride celebrations. But extra hurdles still remain in the workplace for some LGBTQ lawyers.

“Big Law is much more inclusive than probably most other industries for gays and lesbians, but I think that for our transgender and nonbinary communities, there are still a lot of barriers.” said Cannon. “In some ways we as a society are just starting to educate ourselves on the other groups within the LGBTQ community.”

Claire Bow, former executive director of the Texas State Office of Risk Management, began practicing law in 1983 but did not feel comfortable coming out as transgender until shortly before her retirement in 2014. “I just never saw a pathway for me to be out,” said Bow. “I never felt safe enough that I could have come out in any of those workplaces.”

Now a transgender rights activist, she said she knows others who have decided they don’t want to come out or don’t feel safe doing so.

Detailed statistics regarding transgender lawyers are scarce. In 2018, NALP reported 35 transgender graduates at 28 law schools. According to the organization, those graduates were twice as likely to work in public service, which includes jobs in government, public interest, and judicial clerkships, than in firms.

Kristen Prata Browde, co-chair of National Trans Bar Association and president of the LGBT Bar Association of Greater New York, said most of the other trans attorneys she knows work in advocacy or public service law. Browde said she knows of only two trans lawyers in Big Law above the associate level.

Part of the challenge, according to Browde, is that coming out as transgender can be a highly visible act, particularly for a mid-career attorney. “Somebody who says, I’m gay or I’m lesbian, if they choose to say it, they’re going to look the same and nobody outside their immediate circle is going to have any idea,” she said. “If you come out as trans, you oftentimes will look different from the day you walked in the door.”

Lawyers of color who are also LGBTQ said they faced additional challenges and biases.

“Some of the most outspoken people and the most visible people [in the legal LGBTQ community] tend to be the White guys, and I don’t necessarily find that there’s a lot of empathy for the Black experience or being a person of color and being gay,” said Bobbie Wilson, a litigation partner at Perkins Coie.

In 2019, only about 9.5% of U.S. law firm partners and 17% of all attorneys were people of color, according to NALP. Only about 2% of partners and less than 5% of associates were Black.

“You walk in the room and no one makes negative assumptions when you’re the White guy in the suit,” Wilson said. “But I walk into depositions sometimes and people think I’m the court reporter, sometimes the defendant.”

Wilson said racism has been a much bigger problem for her in the law than homophobia. “It’s almost as if they can’t see past the brown to learn about the gay,” she said.

A New Generation

All of the LGBTQ lawyers who spoke to Bloomberg Law said the legal industry still has progress to make, but many were encouraged by the newest generation of lawyers entering the profession.

“They seem to be much more comfortable being their authentic selves in the office,” said Wilson.

“I have struggled with challenging older LGBTQ attorneys at the firm,” said Kyle Kessler, an associate at Orrick. “There’s a lot of pushback because they think we’re going to rock the boat too much.”

Young attorneys, she said, “come from the perspective of no, if [the firm is] supportive they should be completely supportive.”

Kessler, like many other associates who spoke to Bloomberg Law, identifies as queer, a term she considers to be more inclusive than gay or lesbian.

Toni Lambert, an associate at Orrick, identifies as a Black queer woman and said her appearance is nonbinary. She said she’s encountered “a lot of assumptions” about who she is.

“I think that people are less likely to engage when they’re uncomfortable, and oftentimes they’re uncomfortable not because they’re actively homophobic but because they’re uneducated in the issues,” Lambert said.

The downside, Lambert said, is that education on issues of race and gender tends to fall on the shoulders of LGBTQ associates of color, who “do a lot of heavy lifting.”

“When you add that to billable hours,” she said, “It’s a lot.”

To contact the reporter on this story: Stephanie Russell-Kraft in New York at srussellkraft@gmail.com.

To contact the editor on this story: Rebekah Mintzer in New York at rmintzer@bloomberglaw.com; Chris Opfer in New York at copfer@bloomberglaw.com

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