Sexual Orientation, Gender Identity Rules Being Forced Onto Lawyers

By Rachel Alexander Published on June 27, 2018

Florists and bakers are being charged with illegal discrimination. State governments won’t let them decline to service same-sex marriage ceremonies. They were exercising their freedom of conscience. Some were also exercising their freedom of religion. Did it matter to the state? No.

Next to be hit with these charges? Lawyers.

State Bars Change The Rules

State bars are expanding nondiscrimination rules to include sexual orientation and gender identity. The American Bar Association proposed the rule changes.

The relevant part of the new rule changes the section titled “Maintaining The Integrity Of The Profession.” It defines “professional misconduct.” The rule forbids engaging in “harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” (The new language is italicized.)

The new language goes well beyond federal law. Federal law forbids the above except the parts in italics.

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Many of the state bars have already added sexual orientation. Only the Vermont State Bar has added gender identity. The new language also adds “marital status” and “socioeconomic status.”

The problem for lawyers? Slightly over half of the state bars are mandatory. In those states that adopt these changes, lawyers can be disciplined for violating the rule.

Prohibited Actions

Liberal groups welcomed the new restriction on lawyers’ freedom of conscience. The LGBT legal group Lambda Legal supported the rule change in Arizona. It declared that a prosecutor who refers to a transgender defendant using the “wrong” pronoun violates the rule.

The Louisiana attorney general disagrees. Jeff Landry issued an opinion that the language violates the First Amendment. It is vague and overly broad. He called the new rules viewpoint discrimination.

The new rule violates the Due Process clause, he believes. The words “harassment” and “discrimination” are too vague. The rules don’t define them. They are similar to the word “annoy.” The Supreme Court has found that word to be vague.

The ABA includes a comment that explains what the rules mean. The one for this rule says it applies to “bar association, business or social activities in connection with the practice of law.” Landry observed that this would affect a lawyer:

  • in a private conversation at a social activity sponsored by a law firm or bar association.
  • expressing his “opinions, thoughts, or impressions on legal matters taking place in the news at a social function.”
  • participating in a continuing legal education panel discussion or authoring a law review article.

The rule “restrains the speech and actions of lawyers in a wide variety of areas outside the courtroom.” It would ban members of the Christian Legal Society and other faith-based groups. A lawyer who exercises his religious freedom to march against same-sex marriage could violate the rule. The rule “may violate a lawyers right to freedom of speech, freedom of association and freedom of religion.”

It would even apply to debates on what bathrooms people should use.

Law professor Eugene Volokh says the rule change could affect lawyers who simply put on a debate on same-sex marriage. It could affect lawyers who debate limits on immigration from Muslim countries. It would apply to debates on what bathrooms people should use.

On to the Supreme Court?

Tennessee attorney general Herbert Slatery also opposes the change. He observes that the rule could apply to a casual chat at dinner with other lawyers. He also says a lawyer could violate the socioeconomic clause. A statement about the “one percent” would fit.

Why do these changes matter? First, they violate lawyers’ freedom of conscience and religion. Americans disagree on many of these subjects, especially sexual orientation and gender identity. Just because someone serves as a lawyer does not give the state the right to restrict their speech on such issues.

Second, the rules will eventually reduce the number of lawyers who agree with the traditional Western and Christian views. (And maybe they’re intended to.) People who hold those views will be deprived of sympathetic legal representation. These matters of personal rights are still being argued about in the courts. People need lawyers to take their cases.

The Supreme Court has a mixed record on how it’s decided cases involving florists and bakers. Those cases don’t give us a bellwether to how lawyers will fare if and when the Court takes up the ABA’s new, biased rules after the state bars adopt them.


Follow Rachel on Twitter at Rach_IC

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  • Andrew Cole

    Fantastic! This changes everything! Now we can all feel safe in our beds at night safe in the knowledge that lawyers are being forced into thinking ‘correctly’. Trannies will be celebrating on the streets tonight! Suicides will be a thing of the past! What a glorious day!

  • Chip Crawford

    Much celebration among those nearing or at retirement age. A rash of early retirements?

  • Solo et Sanguis

    Sounds like it’s time for an alternative to the ABA, or the APA for that matter. If people want to promote degeneracy, decadence, and decay of our society, they can do it in their own free time and private lives rather than impose it on the rest of us who don’t support their agenda.

    Just like the recent SCOTUS decision about public sector unions, a free man shouldn’t be forced to support views and candidates they disagree with for whatever reason merely to make a living and keep their jobs.

    • Irene Neuner

      According to economist Milton Friedman the AMA is one of the primary reasons that socialized medicine is unavoidable. Cocoa 1970’s

  • Sapient

    People need to understand the menacing consequences of voting for a Democrat—any Democrat.

  • benevolus

    As a practicing Christian lawyer, I think this article is misleading. Not that there isn’t a problem, but it may not be as bad as is thought. The speech part of the rule will not pass First Amendment muster, especially with the current and soon-to-be-future composition of the Supreme Court. It will only take a few test cases. Besides that, the ABA just proposes model rules. It is up to the state supreme courts of each state to adopt them, and this will not be adopted in most red states. Socioeconomic status does not amount to discrimination if the client cannot pay the lawyer’s fee. And there is another rule of professional conduct that gives a lawyer the right to decline any matter he or she finds morally repugnant. So, in my case, if a gay person took a slip and fall at a store, his sexual orientation would be no reason for me to discriminate. Anybody can get injured in the normal course of life, gay or straight, and I would take the case. I even represented a practicing Wiccan once on a matter unrelated to witchcraft. But if two gay people came to me and wanted to sue the county clerk for refusing to issue them a wedding license, that’s a case I could and would refuse to take. Likewise if they wanted to adopt children. The Rules of Professional Conduct are set up this way, in part, because the lawyer’s zeal in pursuing a case where he profoundly disagrees with the client’s goal can legitimately be called into question. We don’t want to put lawyers in a whipsawed position where they are exposed to bar discipline if they don’t take such cases, and to malpractice liability if they do take them and don’t win.

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