Fault Lines
19 August 2017
aclu block

Cross: Josh Block, ACLU Lawyer Fighting for LGBT Rights

March 15, 2017 (Fault Lines) — Ed. Note: David Meyer-Lindenberg crosses Joshua Block, senior staff attorney with the ACLU’s LGBT Project.josh block

Q. You went to Amherst College for undergrad, where you were a prizewinning English student and member of Phi Beta Kappa. Where’d you grow up? What attracted you to the peace and quiet of a full-time Mass college town? Why liberal arts? More importantly, why’d a bright, promising kid like yourself want to throw it all away on an English degree? Was law school already on your radar? Where were you headed?

A. Law school was inevitable. Both my parents are lawyers, and I grew up outside of D.C., so I had two strikes against me. I spent 1st through 12th grade at Jewish Day School with only 63 kids in my graduating class, so I figured that a liberal arts college would be a better fit for me than a larger university.

I wasn’t the type of English major who read Milton and Byron. I liked James Joyce, Nabokov, and philosophy of language. We didn’t have a separate comparative literature major, but that’s what I really was. If you want to learn how to be a textualist, studying literature isn’t a bad way to start.

Q. Sadly, despite your award-winning skillz, your actual grades were evidently so bad you had to go to Yale for law school. Going in, did you have a plan? Was there an area of law you wanted to specialize in? (Ever consider devoting yourself to crimlaw?) Which professors influenced you? Do you find that a premium legal education affords you premium advantages as a working lawyer? Did you ever ask yourself what possessed you to pick law as a career?

AI knew I wanted to do public interest impact litigation, but I had only a hazy idea of how to reach that goal. Getting a job at a place like the ACLU, NAACP Legal Defense Fund, or Public Citizen feels like winning the lottery, and it is hard to plan for something like that.

The most rewarding – and the most useful – class, by far, was Federal Courts with Judith Resnik. Some of my other favorites were First Amendment with Robert Post, Antidiscrimination Law with Reva Siegal, Con Law with Akhil Amar, and Torts with (Hon.) Guido Calabresi.

I wasn’t particularly excited by crim law, but I did have a great class on sentencing law with Kate Stith and Nancy Gertner, who was then still a federal judge in D. Mass. In retrospect, the year I took that course was the last gasp of the old mandatory sentencing guidelines regime. I took it in Spring, 2004, when it looked like Harris had wiped out whatever potential Apprendi had for reforming the guidelines. A month after the semester ended, the Court decided Blakely, which changed everything.

When I was in school we didn’t have Supreme Court litigation clinics yet, but Neal Katyal (who had taught at YLS a few years earlier) asked some students to help him litigate the Hamdan case. When I was part of the team, the case was on appeal at the D.C. Circuit. My biggest memory from watching oral argument was that Chief Justice Roberts (who was just Judge Roberts at the time) asked a lot of questions about the Charming Betsy doctrine. In general, I wish more important cases were named after ships, ideally with epithets.

Q. After you graduated in ’05, you clerked for Judge Robert D. Sack of the Second Circuit. Some folks who’ve clerked for federal appellate judges believe in the maxim that a good clerk should be seen and not heard, and refuse to discuss the experience even years later. Others tell of long “fireside chats” that molded their views on the law and their expectations of being a lawyer. Which kind are you? What was Judge Sack like? Did you share his outlook? Did you come to share it? When you stepped out of Judge Sack’s office for the last time, what kind of attorney were you?

A. Everyone talks about how great their clerkship was (at least everyone who talks about their clerkship publicly), but I can’t imagine a better experience than clerking for Judge Sack, especially for someone interested in freedom of speech and expression. This is probably not the right forum to say a lot more, but if you have time, I highly recommend reading the speech he gave when he received the Learned Hand Award or his commencement address at Columbia.

Q. Like many ambitious baby lawyers, you blazed a trail for Biglaw. In 2006, you went to work for Jenner & Block’s New York office, where you primarily handled commercial and constitutional appellate work. (It’s just a coincidence that you share your name with a name partner. Right?)

Jenner & Block is well-known for its commitment to pro bono work; did that play a role in your decision to go there? You received an award for your pro bono service in 2007, suggesting you went above and beyond even their considerable expectations. What kind of work did you do? Did it cut into your billable hours? Ever stand in the well and represent someone in a criminal trial?

A. I like to tell people that I’m related to Jenner, not Block.

Having the same name actually did cause problems for me when I first applied for a mortgage. The bank thought my income was from a family business, and I had to sign an affidavit attesting to the fact that I wasn’t related to anyone at the firm.

I went to Jenner because of Lawrence v. Texas. During my first semester in law school, one of the questions on Prof. Amar’s con law exam was whether Bowers v. Hardwick should be overruled. I remember taking that exam and then seeing Jenner’s cert petition in Lawrence a few weeks later. I wasn’t particularly active in LGBT-related work at the time, but overruling Bowers was a life-changing event for me and many other gay people. I interviewed that summer to work at Jenner for my 2L summer, and then stayed for another 5 years after graduation.

As an associate interested in doing appellate litigation, getting a chance to work with Paul Smith and Don Verrilli is as good as it gets. In terms of billable work, I did some white collar work, some internal investigations, and a lot of contract disputes and other typical commercial litigation. I knew that I wanted to move over to public interest law at some point, so I was constantly looking for pro bono opportunities. I read every Second Circuit decision, and if I saw something that seemed problematic, I’d reach out to a public interest organization, flag the case for them, and ask if they were interested in filing an amicus brief in support of rehearing. All in all, I think I was putting in 2,200 hours of billable work and another 1,000 hours of pro bono.

I think a lot of people have a fear of starting at a law firm and never being able to switch over to public interest. The only advice I can give, at least from my own experience, is to be proactive. If you just wait for the assigning partner to give you interesting assignments, you’ll be waiting a long time.

Q. One particularly notable case you were involved in at Jenner & Block was Hui v. Castaneda, which reached the Supreme Court in 2010. Francisco Castaneda, an illegal Salvadorean immigrant, developed penile cancer while in prison in 2006. Instead of referring him to a specialist, prison employees sent him to an ICE detention center, where he was refused care by Public Health Service officers as the disease spread and became unbearably painful.

One year too late, Castaneda was finally given a biopsy and diagnosed with terminal cancer. After he died, Castaneda’s estate sued the feds for medical negligence under the Federal Tort Claims Act, as well as two individual PHS employees for Eighth Amendment violations under Bivens. At issue was whether a provision of the Emergency Health Personnel Act blocked Bivens claims against PHS employees in their personal capacities. Jenner & Block represented one of the PHS officers, and when the case reached SCOTUS, you helped write the brief arguing that it did.

You won that case, but it put you squarely in opposition to the ACLU, who, unable to argue law, “argued the facts” and insisted Bivens remedies are essential for keeping federal employees from violating people’s rights. Now that you’ve gone over to the dark side, so to speak, have you come around to their point of view? Would you, like the ACLU amici in Hui, also take the position that the ends justify the means if the ends are compelling enough? Or must we adhere to the law even – perhaps especially – when it’s hard and there are sympathetic people involved?

A. I think it matters what role you are playing. As a matter of applying existing precedent, I don’t think Hui was a hard case. The Court unanimously ruled against a Bivens claim in an opinion by Justice Sotomayor. If I were a lower-court judge, that’s how I would have ruled too.

That doesn’t mean that I think that the Court’s Bivens precedents are rightly decided or that they should not be reconsidered in an appropriate case. The goal of amicus briefs is not always to apply precedent, but also to argue that precedent should be reconsidered or narrowed. Sometimes that takes decades.

Q. In 2010, you resigned from Jenner & Block to join the ACLU. How come? Many Biglaw associates burn out on the industry, or find the daily drudgery isn’t what they want out of life. What were your reasons? Were you prepared to take a pay cut to fight the good fight? Desperate for change? You never left NYC, so it can’t have been that you were tired of the friendly people and incredible weather.

You collaborated with the ACLU on amici briefs while you were at Jenner & Block. Did that experience prime you for the move? Was there any one person or event that made you decide to take the plunge?

A. I had been hoping all along to make the move over to public interest work. By the time 2010 rolled around, I had been monitoring the ACLU’s website for job postings for over a year. Because of the recession, there hadn’t been a new job posting for a long time. I didn’t plan in advance to do LGBT-related work, but when the job opened up I realized that I actually knew 90% of the issues simply by following legal developments on my own.

My decision to stay in NY after my clerkship was actually the most consequential decision for my career path. If I went to DC, there would have been a lot of options to do appellate work in the government or to work at other public interest legal organizations. There are fewer impact organizations based in NY, and the ACLU is the biggest.

Q. You signed on with the ACLU’s LGBT & AIDS Project, which works to promote the interests of gay and transgender people in a diverse array of circumstances, from employment to parenting and issues involving gender identity. Specifically, it takes on discrimination cases, arguing that bias against LGBT people must be overcome with laws.

Is there anything odd about an organization that promotes itself as America’s foremost defender of individual rights taking a stance that limits people’s freedom of association and religion, as in cases where religiously motivated employers wish not to employ transgender people? In EEOC v. Harris Funeral Homes, for example, the ACLU sided with Title VII over the First Amendment. Is there some “mission creep” going on here? Can we still count on the ACLU to defend people’s rights when it finds the people themselves distasteful, as its Jewish leadership once did for the Nazis of Skokie?

A. I can’t really speak for the ACLU, but I’ll do the best that I can in my personal capacity.

I think it is useful to clarify whether we are having a discussion about the appropriateness of antidiscrimination laws in general or about the appropriateness of laws protecting LGBT people in particular.

Here is what I think the first discussion looks like.

There are many issues on which the ACLU and many libertarians agree, including with respect to governmental discrimination against gay people. We also agree about fighting government suppression of private speech. The ACLU (including attorneys who are lesbian, gay, bisexual, or transgender) defends the First Amendment rights of everyone, including the Westboro Baptist Church and their “God Hates Fags” signs.

But I think that the ACLU and libertarians often disagree about the role of civil rights laws as an essential part of protecting individual liberty. And – maybe for similar reasons – I think we often disagree about what role freedom of association or religious freedom should play when someone enters the broader commercial marketplace. That is a fundamental disagreement that isn’t about LGBT people in particular.

The ACLU supported the Civil Rights Act of 1964, and we have been consistent in arguing that freedom of association and religious freedom do not entitle people to discriminate against others in the commercial marketplace. That’s the position we have taken with respect to race discrimination, sex discrimination, and discrimination against LGBT people. Many libertarians have consistently taken the position that antidiscrimination laws related to employment and public accommodations do violate freedom of association and religious freedom. That’s just a basic disagreement about what the First Amendment means in the commercial marketplace.

But not everyone has a consistent libertarian objection. Some people accept and agree with discrimination laws regarding race and sex discrimination, but they argue that discrimination against LGBT people is qualitatively different. That’s not a generally applicable argument based on libertarianism, and it’s not a generally applicable argument based on freedom of religion. It’s a normative argument that discrimination against LGBT people is legitimate in a way that discrimination based on race or sex is not. I am happy to have that discussion too, but I think it is a very different discussion from a principled libertarian objection.

Q. You were part of the team that successfully litigated United States v. Windsor (2013) and Obergefell v. Hodges (2015). As a result, you helped overturn the federal government’s denial of recognition of same-sex marriage and, ultimately, helped get SSM declared a constitutional right. Few activists can claim to have had as much of an impact as you, let alone at such a young age.

What did you do, specifically? How do you plan to follow up such a big success? Is the pressure to live up to people’s high expectations crushing you? And does it concern you that Justice Kennedy chose to spike his otherwise fine Obergefell opinion with references to “dignity,” a rather vague and meaningless justification for government action? Can’t one defend the right to SSM under equal-protection analysis without relying on a fantasy principle of constitutional law?

A. Obergefell was the culmination of decades of work by hundreds of attorneys. I helped write briefs and during the final stages of that effort, but if it hadn’t been me, it would have been someone else who would have done just as good a job. I was helping to operate the machine, but I didn’t build it.

We argued Obergefell based on both equal protection and substantive due process, and the Court ruled for us on both grounds. But even the substantive due process holding was an equal protection holding in disguise. The key language from Obergefell and Lawrence was that straight people have various substantive due process rights, and same-sex couples “may seek autonomy for these purposes, just as heterosexual persons do.” The decision did not add to or subtract from the types of liberty protected by substantive due process. It just said that whatever protections substantive due process gives to straight couples it has to give to same-sex couples too.

The debate over substantive due process began long before same-sex couples started marrying, so I hope I don’t have to defend the entire doctrine here. I personally think that whether it is called substantive due process, privileges and immunities, liberty, autonomy, or dignity, there have to be certain core attributes of personhood that the government cannot control in a free society. That doesn’t mean I have a good answer for determining what they are.

Q. These days, you’re back in the spotlight as a lead attorney for Gavin Grimm in G.G. v. Gloucester County School Board, where you’ve taken the position that Title IX lets DoE’s Office for Civil Rights force schools to let transgender students use the bathroom of their choice. The lower courts agreed with you, but last summer, SCOTUS stayed the Fourth Circuit’s decision.

Until recently, you justified your argument by relying on a letter of “guidance” from Obama’s DoE, which interpreted Title IX’s prohibition of discrimination “on the basis of sex” to include gender identity. But Trump’s DoE revoked that “guidance” in February, prompting SCOTUS to send the case back to the Fourth Circuit for further proceedings. So you’ve been forced to try a different tack.

You saw all this coming, of course, and since January, you’ve been arguing that DoE interpretations are unnecessary: the plain language of Title IX protects gender identity from discrimination. But aren’t you on rather thin ice there? Are we to believe that the Congress[1] of 1972 understood “sex” to mean anything but “male” and “female” as expressed in chromosomes and naughty bits? And if legislative intent is more your speed, Congress has repeatedly been asked to amend Title IX to explicitly protect gender identity. It’s never happened. Is Title IX really the right tool to get G.G. into the boys’ bathroom?

A. I’m always a little puzzled by those statutory arguments because I think they go against everything we have been taught about textualism over the past 30 years. Justice Kagan recently said that we are all textualists now, thanks to Justice Scalia.  And some of Justice Scalia’s best decisions were when he swatted down attempts by lower courts to narrow the scope of Title VII (and, by extension, Title IX) based on suppositions about legislative intent, motivations, or understandings.

The example quoted most frequently is his decision on behalf of a unanimous Court in Oncale, holding that Title VII prohibits sexual harassment between two male employees on an oil rig: “As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

So let’s look at the statutory text. It protects every “person” from discrimination “on the basis of sex.” It doesn’t say “male” or “female.” It doesn’t say “biology.” And if you look at the public meaning of sex in 1964 and 1972, you find out that Title VII and Title IX were written at a time when the word “gender” wasn’t used at all to describe people. Going all the way back to the 1600s, sex was used to refer both to physical characteristics and social and cultural ones. (Sometimes LGBT people were even described archly as a “third sex.”)

Discriminating against someone because they are transgender is literally discrimination on the basis of sex. A transgender person is someone whose gender identity is different than their sex assigned at birth. The relationship between those two characteristics is what makes them transgender. It is impossible to even describe someone as transgender without making a statement about their sex (and that’s true regardless of whether you think sex means “gender identity” or “sex assigned at birth” or a combination of the two.)

What happened in the late 1970s when transgender people first began suing for sex discrimination is lower court judges ignored the statute’s plain text and said that the statute should not be read to include transgender people because Congress wasn’t thinking about transgender people when in passed Title VII. So what? “If Congress has made a choice of language which fairly brings a given situation within a statute, it is unimportant that the particular application may not have been contemplated by the legislators.” Barr v. United States, 324 U.S. 83, 90 (1945). Or, in the words of Justice Scalia, “It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.” Lewis v. City of Chicago, Ill., 560 U.S. 205, 215 (2010).

We also hear that Congress has not passed bills that would have explicitly protected transgender people. But Congress does not express its intent by failing to pass bills. According to Scalia, this type of “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth 40 LLC, 562 U.S. 223, 242 (2011). When Congress wants to exclude LGBT people from statutes, it knows how to do so explicitly.

Some people assume they know where Congress would have wanted transgender people to use the restroom. I don’t know how they can be so sure. I doubt that the original intent was that transgender men would use the women’s restroom or that transgender women would use the men’s restroom. If Gavin Grimm travelled back in time and asked a congressman in 1972 for directions to the restroom, they probably would have directed him to the men’s restroom.

If you’re interested, here is a link to our SCOTUS merits brief, which responds to a lot of these statutory arguments on pages 38-40.

Q. We’d like to close by asking you about the future in the context of your past. Back in 2012, you returned to Yale for a semester to teach a LGBT Rights Litigation Seminar. What did that involve? (Yes, we’d like you to provide a Yale education to our readers for free, so the more specificity the better.)

Did you find that your principles of support for the LGBT movement aligned with those of these kidz ten years your junior? Were there some “untutored ideas” you had to fix?

More importantly, now that your legal victories have helped win some of the biggest battles in the war for gay rights, what’s left for the kidz to do? What are you going to be doing at the LGBT Project? What’s next for Josh Block?

A. Answering the first 9 questions was hard work, and this 10th one may be more than I can handle. I think a lot of work over the next 4 years is going to be playing defense: fighting to hold on to protections we currently have. It is hard to plan when things are so volatile right now. If you ask me again in 6 months, maybe I’ll have a better answer by then.

[1] Interviewer’s note: I should have written “public,“ but instead wrote “Congress“ twice. Mea culpa!

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