17 Aug 2021

Allen & Overy team files justice brief supporting trans rights in Alabama

UK's firm's US arm teams up with National Women’s Law Center in bid to secure change to state's 'discriminatory' policy over transgender community's access to driving licences

Skyline of Birmingham, Alabama from above Interstate 65

Skyline of Birmingham, Alabama from above Interstate 65 Sean Pavone; Shutterstock

Allen & Overy (A&O) has teamed up with the National Women’s Law Center (NWLC) to file a justice brief in support of the transgender community fighting for access to driving licences with accurate gender markers in Alabama. 

The brief — filed by the London-based firm’s US litigation team, the NWLC, and 32 additional organisations to the US Court of Appeals for the Eleventh Circuit — argues that Alabama’s policy puts transgender people at heightened risk of discrimination and violance and violates protections against sex discrimination under the Constitution. 

It was filed in support of three transgender women, Darcy Corbitt, Destiny Clark, and an unnamed third person, who sued the state in 2018 alleging harassment and discrimination after being denied accurate licences. 

In Corbitt v Taylor, the three plaintiffs — represented by the American Civil Liberties Union (ACLU) and the Transgender Legal Defense & Education Fund (TLDEF) — argued the state’s policy, which requires gender affirming surgery to obtain accurate licences, discriminates based on sex and is ‘unjustifiable by any legitimate governmental interest’. 

Forcing transgender people to use a driver’s licence that does not match their gender identity or forcing them to go without identity documents is inconsistent with medical protocols, the lawsuit argued, and left many people unable to secure jobs, drive, attend school and doctor’s appointments, or vote.

According to the judgment, Alabama argued that a surgery requirement served ‘important government interests’ in maintaining ‘consistency between the sex designation’ on state birth certificates and driver’s licences. 

In January, the US District Court for Middle Alabama found that the policy order violated the Equal Protection Clause of the 14th amendment because it discriminates based on sex, and the state then appealed the decision to the Eleventh Circuit Court of Appeals. 

The new  amicus brief explains the lower court’s view of the policy was ‘correct and consistent’ with ‘decades of Supreme Court Precedent’, and that the court ‘properly found that the state’s justifications for the policy were insufficient to meet that standard’. 

‘Requiring all transgender people to have a particular kind of gender-affirming surgery before they can update their liecnese is harmful and inconsistent with best practice care,’ the NWLC wrote in a blog post

‘While gender-affirming medical care may be important for many transgender people, requiring such proof as a condition of accessing a license that they can safely use is unjustified and wrong.’ 

The A&O team that contributed to the brief was headed up by partner Andrew Rhys Davies, alongside Changhee Han and Jack Butz in New York, and John Roberti, Claire Rajan, and Melinda Bothe in Washington DC. 

The firm “vehemently opposes transphobia” on both legislative and individual levels, Davies said, which is why it elected to take this step to protect the rights of the transgenger community from targeted discrimination. 

He added: “While this decisive action we’ve taken alongside the NWLC cannot eliminate the discrimination this community faces daily, we are pleased to play a role in supporting the 32 organizations dedicated to advocacy and driving meaningful change for the transgender community.”