Lambda Legal's Right to Exist
In 1972, New York judges blocked the gay rights org from practicing law
Merry Christmas! Let’s celebrate by talking about gay lawyers.
Today Lambda Legal is one of America’s foremost trans rights advocacy orgs, but no one saw that coming when they launched fifty years ago. According to its website:
“Our story begins with a band of volunteer lawyers who believed they could break new ground for LGBTQ+ people through the American justice system.”
Oops, that’s misleading. Lambda’s founders wanted to fight for “homosexuals.” Let’s log off its website and find out what was really going on in 1972.
Gay and Trans Activism in 1972
If you made a donation to a pro-gay nonprofit in 1972, it wouldn’t be tax-deductible. The IRS wouldn’t classify an org as charitable unless it viewed homosexuality as a “sickness, disturbance, or diseased pathology.”
Nevertheless, gays organized some potent groups in mid-century America. The Mattachine Society (founded by gay men in 1950) and Daughters of Bilitis (lesbians, 1954) made their case for homosexual rights by showing how normal and agreeable gay people were. Check out Eva Kurilova’s essay on them at The Distance.
The Gay Liberation Front formed in the wake of the Stonewall uprising in 1969. Its members protested homophobic media coverage by marching in New York City and vandalizing newspaper offices in San Francisco. Lesbians formed the Lavender Menace in 1970 to fight for their place in the women’s lib movement.
“Gay” was the language of rebellion around the time of Stonewall. Those who called themselves homosexual “remained open to the idea that they had a medical problem that medical experts might help them with,” according to Bob Ostertag’s book Sex Science Self. When Lambda’s founders identified as “homosexual,” they were signaling respect for the establishment — almost always the right move for courtroom attorneys.
Trans groups were distinct. Street Transvestite Action Revolutionaries (STAR) described themselves as a “cell” of GLF, but the gay GLF members avoided them for being violent and dodgy. Some groups for “crossdressing” men existed; two would form Tri-Ess in 1976, which proclaimed its members were “heterosexual.” (Those links lead to more fascinating essays by Kurilova.) So they, too, would have spurned the LGBTQ label.
When transsexuals finally organized a more politically ambitious group in the 1990s, they named themselves “The Transexual Menace.” At least they didn’t call themselves Lavender Menace and refer to the original membership as “cis menaces.”
Legal Advocacy in 1972
From the late 19th century, social justice lawyering was largely the domain of women like Crystal Eastman who were locked out of private sector work by sexism, or private firms taking on cases pro bono. In the 1920s the field began to take its modern shape with the founding of the ACLU and the NAACP’s venture into affirmative litigation. These orgs achieved amazing successes (like school desegregation in Brown v. Board in 1954) but the work was still pretty niche.
Around 1970 the public interest scene exploded. For example, the National Organization for Women formed a legal advocacy arm in 1970. President Richard Nixon signed the Legal Services Corporation into law in 1974, which fortified a poverty law program launched during the 1960s.
This inspired gay lawyers. In the words of Ellen Ann Anderson:
“Because of their involvement with civil rights and other movements, many of the activists newly mobilized around gay-related issues were acutely aware that rights talk and the litigation it implied could be used to ameliorate the social conditions faced by lgb people [anachronism alert! -ed.]. The courts quickly became a locus of activism. Willingness to challenge sodomy-related arrests increased, as did willingness to contest the legality of gay-related firings and military discharges.”
So a gay corporate attorney named William Thom filed paperwork to form a nonprofit law firm in New York City.
In re Thom Lambda Legal Defense & Education Fund, Inc. (NYC, 1972)
New York state law at the time didn’t allow nonprofits to practice law unless they were “organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy.”
Lambda copy-pasted its application from the Puerto Rican Legal Defense and Education Fund (PRLDEF, today known as LatinoJustice), which had just been approved, substituting the word “homosexuals” for “Puerto Ricans”:
“The attorneys employed by the Corporation will render, provide and carry out the practice of law activities of the Corporation as set forth in this paragraph. These activities include providing without charge legal services in those situations which give rise to legal issues having a substantial effect on the legal rights of homosexuals; to promote the availability of legal services to homosexuals by encouraging and attracting homosexuals into the legal profession; to disseminate to homosexuals general information concerning their legal rights and obligations, and to render technical assistance to any legal services corporation or agency in regard to legal issues affecting homosexuals.”
It fell to a panel of five appeals judges from the state’s First Department to review Lambda’s application. The panel turned Lambda down. PRLDEF had allegedly shown that “indigence is rife amongst the intended clientele,” but Lambda had not:
“The stated purposes are on their face neither benevolent nor charitable ... It is not shown that the private sector of the profession is not available to serve this clientele, nor that, as to indigents, the existing legal assistance corporations are not available. A supplemental affidavit does indicate a lack of desire on the part of some attorneys who work pro bono publico to take the cases of homosexuals, but this appears to be no more than a matter of taste, and it is not established that lawyers are completely lacking.”
A passage near the end suggests a general crankiness toward public interest law:
“It is well known that there has not been a lack of public and private moneys available to support corporations of this nature, and this free flowing of finance has undoubtedly led to the proliferation of those similar corporations which now exist. … we should not put our imprimatur upon any corporation which seeks approval to practice law for no more reason than that it claims to represent a minority.”
Application of Thom (1973)
Lambda appealed to the state’s highest court, the Court of Appeals. The judges on that bench split three ways: four judges signed a cryptic majority opinion, two issued a liberal-minded concurrence, and one dissented.
The majority simply held:
“The determination of [the First Department] was unsupportable in finding that the Lambda Corporation was neither benevolent nor charitable in ostensible purpose and that there was no demonstrated need for the corporation.”
The concurrence argued that it would be discrimination to deny Lambda’s application after approving the identical application from PRLDEF:
“It is of no consequence—it bears no rational connection to the valid regulation of the practice of law—that there exists in ‘the private sector’ attorneys who are willing to handle the class of cases with which the applicant proposes to deal. Accordingly, it would violate equal protection of the law to distinguish between similarly situated minorities on such an irrational basis.”
One phrase in the concurrence is out of place: “we reverse.” Only a controlling opinion (that is, one signed by a majority or plurality of judges) should speak for the bench that way. Perhaps the concurrence originally had more judges signed on, making it controlling, but then at the last minute some got cold feet and joined the nothingburger that ultimately carried the day.
One judge dissented, saying the First Department had good enough reason for rejecting Lambda.
The upshot: Lambda’s case was back in the First Department.
Application of Thom (1st Dept. 1973)
The First Department rambled for a bit about its powers and then grasped at a straw:
“Having been instructed that the determination in which we exercised [our] discretion was ‘unsupportable,’ we now grant the application, but we now exercise discretion to strike from the order presented a paragraph not concerned with the practice of law [...]. We do not deem it appropriate to lend our approval to paragraph (g):
“‘to promote legal education among homosexuals by recruiting and encouraging potential law students who are homosexuals and by providing assistance to such students after admission to law school’.”
Off and Running
At the time, gay clubs all across the country were fighting for their right to exist. Lambda’s first legal action, in 1974, was filing an amicus brief on behalf of the Gay Students Organization at the University of New Hampshire. The federal First Circuit Court of Appeals ruled in favor of the gay kids on First Amendment grounds – the public university was infringing on their right of free association.
These days Lambda is at the vanguard of “Transgender and Nonbinary Rights” (that’s the term it uses on its website), representing doctors and children against states trying to limit pediatric gender medicine and girls who want to use boys’ bathrooms at their public schools.
Lambda is now bankrolled by Comcast NBC Universal, Toyota, some financial firms, a booze conglomerate, and over thirty major commercial law firms. (I’ve explained why those biglaw firms love trans litigation.) Its opponents in trans rights litigation are often democratically-elected, taxpayer-supported state or local governments.
Those 1972 First Department judges may have been a bit homophobic, but they were onto something about the “free flowing of finance” into legal advocacy orgs that “claim to represent a minority.”
This post was lightly edited on Sept. 28, 2024.