Feature

Civil Rights Pioneer Chai Feldblum Reflects on Her Fight for Equality

June 19, 2019

The Dan Bradley Award is the LGBT Bar Association’s highest honor. Each year, it is bestowed upon a member of the lesbian, gay, bisexual, and transgender (LGBT) legal community whose work has fought for equality under the law. Partner Chai Feldblum, who has spent her career fighting against all forms of discrimination, is the 2019 recipient of the award.

Here Chai talks about her lifelong pursuit of equality and freedom.

Was there a moment that stands out in your journey as an LGBT leader?

I came out in 1979, when I was 20 years old, which was pretty early on in the gay rights movement. But the idea of not living true to myself has never been an option. My commitment to social justice stems from my upbringing as an Orthodox Jew and as the daughter of a Holocaust survivor, and my LGBT political work grows directly from that. After college, I spent three years doing political work, including two years on Capitol Hill, before heading to Harvard Law School.

When I started clerking for US Supreme Court Justice Harry A. Blackmun in 1987, it was right after the Hardwick decision that upheld the constitutionality of a Georgia law criminalizing homosexual sodomy. Even though Justice Blackmun was in the dissent on the case, I could tell that he wasn’t comfortable with “homosexuals,” as he called them. So in the whole year I clerked for him, I never told him I was a lesbian. A few years later, when I was to be featured in an article about what a handful of Supreme Court clerks were accomplishing in their careers, I made an appointment to see him and tell him that I was a lesbian—mainly so he wouldn’t read about it in the article and be surprised. When I told him, he looked at me and said, “You know, Chai, we love you anyway.” My eyes must have widened at that, because he looked at me again and modified his statement on the spot to say, “Chai, we love you.” I think I was the first person in his inner circle to come out to him, and you could see his outlook beginning to change with that single statement.

Tell me about your work for equality in the LGBT community.

Soon after I came out, the height of the AIDS epidemic hit in the 1980s. Watching friends die so young is something no one should have to experience. For me, it drove me to want to work for civil rights protection for people with AIDS and HIV; for gay men, lesbians, and bisexuals; and later for transgender people. When I clerked for Justice Blackmun, the Supreme Court decided the case of School Board of Nassau County v. Arline, which ensured coverage for a person with tuberculosis under a disability antidiscrimination law. That case also helped secure coverage for people with AIDS and HIV, and it introduced me to disability law.

Since then, I’ve spent more than 30 years working for the protection of LGBT individuals, as well as other groups. It has always been about the long game for me. From 1988 to 1990, I was a legislative counsel with the American Civil Liberties Union (ACLU) AIDS Project and served as the lead lawyer drafting the Americans with Disabilities Act (ADA), which protects people with disabilities including AIDS and HIV. From 1992 through 2002, I was one of the primary drafters of the Employment Non-Discrimination Act (ENDA), a bill that would prohibit employment discrimination against LGBT people. In recent years, that bill—now called the Equality Act—has been expanded to provide protection beyond employment. In 1993, I was the legal director of the Campaign for Military Service, a group that sought to lift the ban on military service for gay service members. While we were not successful at time, the ban ultimately was lifted by Congress several years ago.

Chai Feldblum and Nan Hunter, circa 1988

In 1988, Chai Feldblum started working for the ACLU AIDS Project, which was created by her now spouse Nan Hunter and was the first gay legal project within a mainstream legal organization.

How did you end up working with the EEOC?

It completely fell in my lap. My path until 2009 had been to work with organizations to help Congress pass laws. The Equal Employment Opportunity Commission (EEOC) would implement the employment provisions of those laws, but I had very little to do with the agency because I wasn’t a litigator. However, I did notice when the EEOC, in 1991, issued regulations under the ADA that were not helpful with regard to the ADA’s definition of disability, sending the courts down a wrong path. In 2008, I represented the disability community in negotiations with the business community to get Congress to amend the ADA to restore the original definition of disability.

In the fall of 2009, I received a call from someone in the Obama administration asking if I was interested in being an EEOC commissioner. I decided this would be a good way to make sure that the EEOC’s regulations to implement the recently passed ADA Amendments Act would accurately reflect Congress’s intent. I agreed to be nominated and to go through the Senate confirmation (which is not fun, I can tell you.) But I’m so glad I said yes. I’ve always believed that most employers want to comply with the law, and I worked hard at the EEOC to help employers do that.

I also discovered that I do role assumption well. While I spent most of my legal career as an advocate for employees, when I became a commissioner, my framework shifted entirely to enforcing the laws that Congress had enacted, based on what the text said. It’s ironic that some people thought that the EEOC was expanding the law when the agency ruled that LGBT people are covered under Title VII of the Civil Rights Act of 1964 because discrimination based on sexual orientation and gender identity is sex discrimination. To me, that was the logical meaning of the text as Congress had written, even if Congress in 1964 hadn’t thought of that outcome. So I was gratified that I was able to help bring about that legal interpretation while I was at the EEOC.

How does your work at the EEOC apply to your work at Morgan Lewis?

This is really the next step in my work to help protect individuals in the workplace and to help employers have the types of workplaces they want—ones where harassment doesn’t occur. While I was at the EEOC, nearly a third of the charges we received included claims of harassment. And those are just the incidents that were brought to the EEOC, which are significantly fewer than those that actually occur. But to change the culture that allows harassment to happen in the first place requires more than just enforcing laws. It takes the buy-in of companies and organizations to create safe, respectful, and inclusive workplaces that prevent harassment on all bases, including sexual orientation and gender identity. My work with the workplace culture consulting and training practice at Morgan Lewis allows me to provide customized services directly to employers to help them create practices and policies that work for their unique needs and structures, and bring about better workplaces for everyone.

Did you have a mentor in this space?

I started working with the ACLU AIDS Project in 1988 and that’s when I really connected with the gay rights legal community. Nan Hunter, who is now my spouse, was the person who created the AIDS Project and the Lesbian & Gay Rights Project at the ACLU in the late 1980s. This was the first gay legal project within a mainstream legal organization and it was a big deal. Both Nan and Mort Halperin, who ran the ACLU Washington, DC, office, were important mentors for me. Nan was actually the first Dan Bradley Award winner for her pioneering work in the LGBT and AIDS/HIV communities. So, we’re the first couple to both receive this award.

If you could give one piece of advice to LGBT youth, what would it be?

Be proud of who you are. Understand that being LGBT is just one aspect of the complex person you are, but it’s a core part that you should never have to hide. Put yourself in situations where you are acknowledged and respected, and get out of any toxic environment in which you may find yourself. Unfortunately for some LGBT youth, that is just not possible. To those youth I say, hold on, it will get better.

If you could give one piece of advice to lawyers who want to have a career like yours, what would that be?

Find your passion and what you like doing and then find a place where you are respected and acknowledged. You have to come to work each morning believing that you are using your talent and skills appropriately. Find mentors and make it clear that you want constructive feedback from them. I feel like Morgan Lewis has made a real effort to create a space where people can feel respected.

Chai Feldblum and her spouse Nan Hunter outside of the US Supreme Court the day Obergefell v. Hodges was decided, circa 2015

Chai Feldblum and her spouse Nan Hunter are pictured outside of the US Supreme Court the day Obergefell v. Hodges was decided, ruling that the fundamental right to marry is guaranteed to same-sex couples.