In celebration of Pride Month, we wanted to take a moment to update our 2018 Issue Spot post tracing the BBA’s own long history of supporting LGTBQ+ rights…
To begin, we have to go back nearly 50 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.
One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, more than three decades ago.
Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.
We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was enacted and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.
However, that was not the final word, because opponents of the new law used the referendum process to put its repeal before the voters in 2018. In defense of the law, we joined the Freedom for All MA Coalition that led this effort, mobilized our members, and celebrated a historic victory when, by a vote of more than 2 to 1, Massachusetts became the first state to maintain transgender protections at the ballot box. The BBA later honored the “Yes on 3” campaign, at that year’s Beacon Awards for Diversity & Inclusion (more on which below), with the Empowerment Award, given annually to “a powerful advocate who works to create systemic change in the wider community, advancing civil rights, access to justice, and/or diversity and inclusion, and amplifying the voices of underrepresented groups”.
In addition to being on the forefront of offering anti-discrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.
This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:
- In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
- In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management, et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
- In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
- Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, with then-President Julia Huston stating: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”
While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a bill to ban the use of so-called “conversion” or “reparative” therapy by licensed professionals on minors, allegedly to “cure” them of homosexuality. It took four years for the legislation to be enacted, but that protection has been in place since 2019.
We have turned our attention since then to the issue of co-parent adoption, last year endorsing legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples. It is especially important to enact such legislation in Massachusetts because this happens to be the state with the highest use of assisted-reproduction technologies. The BBA will be working to support its enactment during the current legislative session.
Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.
Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.
The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.
While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. The past several years have been challenging for members of the LGBTQ community. One need look no further than the continued assaults on transgender rights elsewhere in the US. We spoke up when the previous administration in Washington sought to curtail LGBTQ protections, and we’ve been quick to praise the current administration as they move to undo these steps and make further progress.
And when the SJC Committee on Lawyer Well-Being recently released its Report Summarizing Affinity Bar Town Hall Meetings, we urged our members to read it in full, to take in its disturbing findings — and then to act on them, “to engage, ask if we can help, question the differential treatment, be an ally. We cannot remain silent. … We pledge to continue to work closely with our members and our affinity bar partners to ensure that the extraordinary challenges underrepresented and historically excluded lawyers face—so dramatically illustrated by the Report—are addressed, day in and day out, as a central part of the BBA’s mission, until they are eliminated.”
We hope you’ll join the BBA in celebrating Pride by recommitting to this fight.
Government Relations Director
Boston Bar Association