Jill Gaulding was a freshly transplanted Iowa law professor 10 years ago when she googled who in the Twin Cities might share her interest in tackling bias and litigating gender inequality.
The search connected her with an attorney and law professor named Lisa Stratton, and together they created a St. Paul nonprofit law firm that has emerged as the force behind some of the most influential federal civil rights lawsuits Minnesota has seen in recent years.
Working out of a cramped office a few blocks from the State Capitol, Gender Justice helped win a judgment against a Saudi prince who refused to use female limousine drivers in Rochester; lobbied successfully to strengthen Minnesota’s nursing mothers’ law, and helped bring the first federal case to test a nondiscrimination clause in the Affordable Care Act (ACA).
Today the lawyers at Gender Justice find themselves contemplating a very different legal landscape, one in which the ACA might be repealed and the U.S. Supreme Court could gain a new, more conservative justice.
As a result, they say, Gender Justice may have to rely more on Minnesota’s state civil rights laws, or simply press on with what the attorneys call “impact litigation” — cases that may not always win in court but can affect public opinion.
“Every time people see a trans person as a real person who deserves to be treated with dignity if they go seek health care, or if they are a kindergartner in public school, I think that makes it harder to have [a] retrenchment in federal rights,” Gaulding said in a recent interview.
The case of Jakob Rumble illustrates the crossroads they face. The transgender man from West St. Paul claims he was mistreated by an emergency room doctor in Edina, and with help from Gender Justice brought a claim under an ACA provision that bars discrimination on the basis of gender.
In a 63-page ruling believed to be the first federal court analysis of the provision, U.S. District Judge Susan Richard Nelson wrote in March 2015 that Rumble’s attorneys had built a plausible case.
But last week, the judge put part of the lawsuit on hold, citing a nationwide injunction issued by a Texas judge halting enforcement of the provision, and a separate case awaiting Supreme Court review next month on whether a federal prohibition against discrimination “on the basis of sex” covers gender identity.
However, Nelson refused to stay Rumble’s claims under the Minnesota Human Rights Act, which offers broad protections against discrimination based on sexual orientation.
The case is pending, with a hearing in St. Paul scheduled later this month.
Unconscious bias?
Gaulding, who studied cognitive science at the Massachusetts Institute of Technology before beginning her legal career, still draws on her science background to frame some of Gender Justice’s work in “thinking about where bias really comes from … on a scientific level: how our brains store up notions of bias and how they act them out and what we can do about that.”
Stratton came from the University of Minnesota Law School, where she directed the Workers’ Rights Clinic, and has continued to specialize in labor rights, winning cases for undocumented workers and women in male-dominated fields.
The “implicit bias” strategy they have pursued is an approach at the center of landmark cases that have reached the nation’s highest court — with varying degrees of success.
Effective testimony from experts on implicit, or unconscious, bias can educate both judge and jury on how human thinking can color behavior and perceptions of inequality, said Eugene Borgida, a U psychology and law professor.
“We’re not trying to tell the jury how … to decide,” Borgida said, “[instead] it is to say humans think about others in these ways.”
But, Borgida noted, the late U.S. Supreme Court Justice Antonin Scalia chilled such efforts in 2011, when he rejected testimony from a prominent sociology professor for failing to draw a direct line between the corporate culture at Wal-Mart Stores Inc. and its employment decisions related to a potential class of more than 1.5 million plaintiffs.
Last fall, Gender Justice sued on behalf of Kimberly Brinkman, one of just two female journeymen among the more than 400 members of the Sprinkler Fitters Local 417 union. Brinkman has struggled to find work throughout her 18-year career.
Brinkman, who proudly counts big building projects like the Xcel Energy Center and Minneapolis’ Guthrie Theater on her résumé, twice lost her home and had to rely on retirement savings to make ends meet before she decided to sue the union and a contractor, alleging sex discrimination and retaliation.
“I didn’t embrace the situation,” she said. “The situation embraced me. I’m willing to do this for my sister behind me so she doesn’t have to go through what I endured.”
Defense attorneys have asked that Brinkman’s suit be dismissed because it was filed outside of a limitations period. The union’s lawyer also argued that her suit didn’t state a “plausible claim” that her union breached its duty by not filing a grievance on her behalf or that it could be held liable for employers’ or co-workers’ conduct on the job. The complaint, the attorney wrote in a court filing, “offers only threadbare legal conclusions.”
‘These are not safe cases’
Gender Justice isn’t the only nonprofit taking up cases involving gender and sexuality. Larger nonprofit groups like Lambda Legal and the American Civil Liberties Union have pursued major cases. On the other end of the ideological spectrum, the conservative Alliance Defending Freedom supports religious freedom suits such as the case brought by a St. Cloud couple challenging the constitutionality of a state law that says they can’t deny wedding videography services to same-sex couples.
But Gender Justice attorneys say its nonprofit status helps it take cases of single defendants that are not guaranteed to produce lucrative judgments, and it looks for cases that address all forms of gender equality.
“I think we are trying to take cases that would not have been taken but for us,” Stratton said. “These are not safe cases, we are not taking on well-trod definitions of the law. We’re trying to push law to recognize reality, social science, science.”
Since the election of Donald Trump, Gender Justice has noticed a slight uptick in donations, though not as much as more established groups such as the ACLU and Planned Parenthood, said executive director Megan Peterson, who previously helped lead the National Network for Abortion Funds.
Instead, Peterson said, she saw a series of repeat donations from typical benefactors and a noticeable increase in new donations: Peterson said 65 percent of donations to Gender Justice in 2016 and all of last month’s gifts have come from new donors.
“I think that shows some of the anxiety that people have, in feeling that donations are a way to channel some potential positive change into the world,” Peterson said. “ ’We need you now more than ever’ is not just a fundraising slogan at this moment.”
The group’s work has also drawn attention from private attorneys such as Katherine Barrett Wiik, of Robins Kaplan in Minneapolis, who volunteered to help represent Rumble in his suit.
“Most clients don’t bring a lawsuit if they’re not ready to create change,” Barrett Wiik said. “It’s a very public decision motivated by the idea that ‘I want people to understand that I’m here, and other people like me are here.’ ”
