After working for the Justice Department for 34 years, a transgender attorney who objected to Trump administration anti-LGBT policies has left her leadership position for work at a prominent LGBT legal group.
In an interview with the Washington Blade during her second week on the job at Lambda Legal’s D.C. office, Diana Flynn, who formerly served as chief of the appellate section of the Civil Rights Division at the Department of Justice, talked about her experience over the decades as a transgender attorney and the anti-LGBT policies of the Trump administration.
Flynn also discussed her decision to depart DOJ to continue the fight as litigation director at Lambda Legal.
“I want to see a situation where in society as a whole, it is no more acceptable or legal to discriminate based on LGBT status or HIV status than it is on the basis of any other pernicious classification, like race or sex or anything else,” Flynn said. “We’ve made a lot of progress on that, but we have to go a lot further and nail that down.”
Flynn, AGE, earned a law degree from Yale University after receiving her bachelor’s from the University of Rochester in political science. After serving in private practice in D.C. and New York City, Flynn was hired by the Justice Department in 1984 after applying for an opening in the appellate section of the Justice Department’s Civil Rights Division.
“So I started representing the United States, mainly in court of appeals cases and working with the solicitor general in the Supreme Court in cases of enforcement of civil rights law,” Flynn said.
The work, Flynn said, consisted of enforcement of a wide variety of civil rights laws, including Title VII of the Civil Rights Act, which bars discrimination in employment, Title IX of the Education Amendments of 1972, the Fair Housing Act and the Voting Rights Act. Additionally, Flynn was charged at the division with enforcement of criminal law, such as the Rodney King police brutality case of the 1990s, as well as human trafficking cases.
“One thing that has always been true — until recently — is that regardless of whether it was a Republican or Democratic administration, we always found cases to bring and I always felt like we’re moving the ball forward on civil rights abuse to some extent,” Flynn said.
But it wasn’t until the mid-2000s during the second term of the Bush administration when Flynn publicly transitioned, which she recalled as a “very challenging” time.
“I was very nervous about it,” Flynn said. “Most people are. Often, there are many of us that get to the point where you have little choice in it. It just becomes an imperative to just finally get it done, and it’s easier to transition even when there are obstacles than it is to remain in the misaligned sex.”
Flynn said she doesn’t think she experienced “any illegal discrimination” on the job as a result of her transition, but acknowledged “there were obviously challenges.”
“People were less familiar with trans people at the time,” Flynn said. “I would say there were some issues about bathroom usage and things like that, but on the whole, I was in a fairly powerful position being a section chief, and I was able to get through it with relative ease. I think it’s much more difficult for a trans person who is not in a position of such privilege.”
In the Obama years, things began to ramp up in the fight for LGBT rights. Flynn said a highlight of her career was working with U.S. Attorney General Eric Holder on a memo declaring the U.S. Justice Department would interpret the provision against sex discrimination in Title VII to bar anti-trans discrimination in the workforce.
“It was a very proud day when he changed the longtime litigating position of the United States to find discrimination based on gender identity or trans status was illegal under Title VII,” Flynn said. “That was a great satisfaction when we got there; it took a lot of work to get us there.”
Flynn also praised former U.S. Attorney General Loretta Lynch, who filed a lawsuit against North Carolina’s anti-trans House Bill 2 and for her “we see you” speech announcing the litigation. As part of the team spearheading the litigation, Flynn said Lynch “did wonderful work in this regard.”
“I can recall a couple years ago when she made a really dramatic speech that really rang out in the trans community about she was with us, and the authorization of the HB2 suit was proof of that,” Flynn said.
Although Flynn never met former President Obama personally, she said she attended events with him, such as the ceremony in which he signed an executive director barring federal contractors from engaging in anti-LGBT workplace discrimination. As part of that executive order, Obama also explicitly prohibited anti-trans discrimination in the federal workforce.
“It was one of the proudest days of my career,” Flynn said. “I don’t take any responsibility for that because there was a number of us working to persuade the federal government to do it, but I was thrilled he did it and was honored I was invited to the ceremony.”
But the Justice Department changed during the Trump administration with U.S. Attorney General Jeff Sessions at the helm. Now instead of enforcing civil rights law to protect LGBT people from discrimination, the U.S. government was taking the opposite position and sought to exclude them from protections.
Flynn said the policy change was made “without any kind of consultation with me or, as far as I know, any of the people that took the lead in developing that theory” under the Obama administration.
“That was reversed and there were a number of other decisions made by the Trump administration that made it very clear to me that I was no longer in a position to be able to move the ball forward, particularly on LGBT rights, as long as I was part of the Justice Department at this time,” Flynn said.
Sessions revoked Obama-era guidance instructing schools to allow transgender kids to use the restroom of their choice and issued a memo indicating the Justice Department would no longer interpret Title VII to protect transgender workers. As a result of an executive order signed by President Trump, Sessions also issued “religious freedom” guidance widely seen to enable anti-LGBT discrimination under federal law.
But the straw that broke the camel’s back, Flynn said, was the friend-of-the-court brief the Justice Department filed before the U.S. Second Circuit Court of Appeals in the case of Zarda v. Altitude Express. The Justice Department’s Civil Rights Division — in contrast to the view of another U.S. agency, the U.S. Equal Employment Opportunity Commission — argued Title VII affords no protections against sexual orientation discrimination, therefore under federal law, employers should be able to fire workers simply for being gay.
Flynn recused herself on that case because she’s an officer with the American Bar Association’s Sexual Orientation & Gender Identity Commission, which had also filed a friend-of-the-court brief in the case. Although the Trump administration brief came from within her division, she only found out about it after news reports.
“I was hopeful that it wouldn’t be a disaster, but when I saw the brief, I saw that it was,” Flynn said. “It was something I vehemently disagreed with, and it was yet another indication that the Department of Justice wasn’t going to be moving the ball at all on LGBT rights. Now, it was moving backwards, and I didn’t want to stand by and watch it either, particularly at this important time.”
At this point, Flynn said she would have left the Justice Department even if she hadn’t found new work, but started looking and found an opportunity at Lamdba Legal, which she said was “very fortuitous” because it was consistent with her earlier civil rights work.
“I’m delighted,” Flynn said. “This is a great organization. I know some of the lawyers here. I knew them even before I came and they’re some of the best lawyers I know, and I was just ecstatic to have this opportunity, and very happy when national selected me.”
Under the threat of rollback under the Trump administration, Flynn said her priority at Lambda Legal is consolidation of LGBT rights gains. Three important areas, she said, are using laws against sex discrimination to apply to cases of anti-LGBT discrimination, defending the U.S. Supreme Court’s ruling in favor of same-sex marriage nationwide and litigation of behalf of people with HIV/AIDS.
“I’d also like to see that equal marriage no longer be subject of attempts to curtail it or push it into what Justice [Ruth Bader] Ginsburg called a ‘skim milk’ marriage without the full rights afforded to so-called traditional unions,” Flynn said.
The newest addition to Lambda Legal comes after workers under new leadership of executive director Rachel Tiven at the organization unionized with the Washington-Baltimore News Guild. Amid high turnover at the organization, workers have cited concerns over changes to benefits and management practices disregarding employee opinion.
From her standpoint two weeks on the job at Lambda, Flynn said the work environment has been “extremely positive” with attorneys working to advance and maintain LGBT rights.
“It’s a very dedicated staff,” Flynn said. “It’s a very fast-paced environment and I’m learning. I have to get used to a new employer, and an employer that’s very effective and has its own ways of doing things.”
Flynn isn’t the first attorney to move from the U.S. Justice Department to Lambda Legal. Sharon McGowan, who serves as Lambda’s director of strategy and legal director, came to the organization after serving as deputy principal chief of the appellate section of the Civil Rights Division in the Department of Justice.
Through the course of her upcoming work at Lambda Legal, Flynn has an ambitious goal: To ensure federal civil rights across the board clearly protect LGBT people and people with HIV from discrimination.
“I don’t know if we’ll ever be done,” Flynn said. “I was in the Civil Rights Division and we still had a lot of race cases even though it was fairly well accepted that you weren’t supposed to discriminate based on race…but I’ll be certainly happier once we have clarity that at least to the same degree as with other classifications, it’s inappropriate to discriminate against members of the LGBT community.”