The filmmaking team behind 2016’s critically acclaimed, BAFTA nominated Weiner, proved that they were adept at capturing rivetingly unselfconscious, humanising, and often very funny, footage of the former Congressman turned New York mayoral hopeful Anthony Weiner. Next for The Fight, directors Eli B. Despres, Josh Kriegman and Elyse Steinberg, joined by executive producer Kerry Washington, took their cameras inside the American Civil Liberties Union (ACLU) and into the heart of the one hundred year-old organisation’s fight to protect our constitutional rights in the Trump era. As the words of the 45th President’s inaugural swearing in, committing to defending the Constitution, play over the credits, the documentary opens to scenes of mass protests at airports in January 2017 in response to his Muslim travel ban. Meanwhile in a Brooklyn courthouse, the ACLU’s deputy director of national Immigrants’ Rights Project, Lee Gelernt, is fighting the legality of the order. As Trump tweets out his ban on transgender people serving in the military, we are introduced to trans rights expert, Chase Strangio, the deputy director for Transgender Justice with the ACLU’s LGBT & HIV Project and his colleague in the same Project, senior staff attorney, Joshua Block. When a young immigrant woman in the custody of the Office of Refugee Resettlement is prevented from obtaining an abortion we meet Brigitte Amiri, deputy director at the ACLU’s Reproductive Freedom Project.
Ahead of the film’s release The Queer Review’s editor James Kleinmann spoke exclusively with the ACLU lawyers at the centre of The Fight for abortion, immigrant and LGBTQ rights, Brigitte Amiri, Lee Gelernt, Chase Strangio and Joshua Block about cameras being allowed into the ACLU for the first time ever to follow them while they work, how the pandemic has affected their cases, the vital importance of public engagement and the current issues they are most concerned by.
James Kleinmann, The Queer Review: What was your initial reaction to the idea of letting the cameras in to observe you at work?
Brigitte Amiri: “Lee was the guinea pig. We learned from him whether to do it or not.”
Lee Gelernt: “Elyse Steinberg and the film directors had been outside the Brooklyn courthouse that night where the film opens and then approached me about it. I said that I thought I’d be open to it, but it was an intuitional decision by the ACLU and I think, like any legal organisation, there was some hesitancy, nervousness. But then they decided that they would start slowly and it ended up being great, I think because the filmmakers were sensitive to the fact that they couldn’t be rolling when we were talking to a client about something that was privileged. And I think we’d probably all agree that by the end they were just so willing to work around us that it ended up being fine. I reported back to everyone else that I thought the filmmakers were going to be sensitive to all that and I think everyone else decided. For us, it was a balancing act because it can be intrusive to have cameras there, but on the other hand I felt like we all needed to get our clients’ stories out there and the issues out there, and this was one way to do it, so it sort of came with the territory. For civil rights litigation, you know there’s the in court part, but you really need public pushing back on certain policies and given how much is going on in the world it’s hard to break through, and that this was going to be one unusual way for us to do it.”
Joshua Block: “Elyse was really skilful, she’d say ‘Lee’s letting us do it’ and then so maybe you’d let the cameras come to your apartment, or you’d film a video for them, and then they’d go back to Lee and be like ‘oh, Josh and Chase let me do this’, to get more access, but they were just wonderful to work with and the camera people also, everyone was with us during some of the most intense times, they were fantastic.”
It didn’t feel like you were conscious of the cameras being there because I guess you were so involved in your work and you got used to them being around.”
Brigitte Amiri: “Yes, I think we got used to them and as Josh was saying it almost became like you were just talking to a friend. I spent more time with the cinematographer Sean than I did with my husband for long stretches of time. So then it just became like you have this friend in the room with you during all these intense moments, who you’re explaining what’s happening to, and building that level of trust and rapport with which was crucial.”
Chase Strangio: “I was very hesitant at first. I’ve been at the ACLU for about seven and half years, and a lot of my time has included some aspect of talking about myself as a lawyer, sort of like ‘what does it means to be trans?’ And using my identity and my body as sort of a teaching vehicle in and of itself. I think there are moments when I feel a sense of exhaustion with it, and when the filming started I had just come off of doing a film about Chelsea Manning, when she was my client for many years. So I was hesitant to be in front of a camera, and especially be in front of a cis person holding a camera. I’m very sceptical, but it felt very important and my colleagues were doing it, so it felt like a safer way to be a narrative device in and of yourself. So I definitely wrestled with it, and Josh and I were sort of in it together, so that helped because we could have our own dynamic, and we have a long history of working together, so that also made me more inclined to do it. And I love Weiner, so I was like they’re good filmmakers, and so I agreed in the end and I’m glad that I did. It was overall a good experience working with the crew.”
As Lee was saying there has been a lot going on over the past three and a half years, there’s that kind of exhaustion thing where I had almost forgotten some of the terrible things that the film reminds us have happened. One of the things that struck me, as well as all the vital work that you’re doing, is the protest footage. Obviously there have been a lot of protests recently, but it was a reminder that even back in January 2017 there were the protests against the Muslim travel ban. How heartening is it to see so many people take to the streets, but also does it directly impact the work you’re all doing?
Chase Strangio: “I love that the film opens with the airport footage and how many people showed up at the Brooklyn courthouse because I think it is such an incredible reminder that ultimately judges are human beings; our cases are fought through narrative in and out of the courtroom, and so there is no winning in court without mass mobilisation in the streets. We had this incredible victory in the LGBTQ space at the Supreme Court on June 15th, and there’s no way we would have won that case without the history of queer people mobilising, and the day before our decision on the 14th, 15,000 people showed up for Black trans lives in Brooklyn. And to me that was the victory, and those two things together obviously give you all these different tools, but I think the protests, people building with each other, the incredible uprisings that we’re seeing in this moment are absolutely instrumental for winning in court.”
You mentioned that Supreme Court Bostock decision on June 15th, could you and Joshua talk about the significance of it and also the relationship that it has to religious exemptions and to the trans military ban?
Joshua Block: “I think the Bostock decision is a huge victory for LGBT folks in so many concrete ways. That there are all these federal statutes prohibiting sex discrimination and we have been saying for twenty years that those statutes include LGBT folks and even back, as Justice Gorsuch said in his opinion, even right back after those laws were passed people went to court saying that they should be interpreted to include LGBT folks. I do think the decision isn’t a panacea, it provides some protections but at the same time there’s a real risk that the Supreme Court provides protections on one hand and then with the other hand undermines them by carving out huge religious exemptions to them which is something that Brigitte also faces in her work, where you sort of interpret every interaction with someone who’s LGBT down to calling them by their right name or acknowledging that they are married, as a violation of your free exercise of religion. If you do that, there ends up not being a lot of stuff that remains protected, so I think that is absolutely a critical thing that we need to be ready for in the years ahead.”
Chase Strangio: “Having the win in Bostock is essential for so many things. At the same time not only are religious exemptions going to be used to chip away at it, and we already saw that later in the term, we know that that’s coming next term as well, but going back to the protest point we have so many attacks still to fight at the state level and at the federal level, and so to me the work of leveraging that victory is work of just continuing to build public support and connect with people and make sure that Black trans people aren’t being murdered en masse so that we have more members of our community out there surviving able to fight, able to take advantage of legal protections, because a non-discrimination law doesn’t do you any good if you can’t even survive to get to a job interview. So we just have a lot to keep fighting for and know that it wasn’t the silver bullet victory. I think people keep looking for that in the LGBTQ space, ‘Oh, we got marriage, it’s over’, or ‘oh, we got this, it’s over’. No, it’s not close to over, it‘s a long movement with a long history with a lot of work left to do.”
It says on the ACLU website that the ACLU has filed over 232 lawsuits challenging the Trump administration.
Chase Strangio: “Lee has like 230 of them himself!”
Is there a positive side to all that litigation? If you get the result you want to get does it potentially secure some rights that otherwise weren’t as secure before Trump came into office?
Lee Gelernt: “I think what Chase and Josh have been saying is critical, that you can never really achieve lasting structural, systemic change without movements outside the courts, but I also think it’s equally true that you can do a lot in court. You can achieve victories in court that help real people, and even if they’re ultimately not completely permanent, they slow down things and so I think they have to work in tandem, but it’s hard to say are we winning or losing vs. the Trump administration and civil rights, but I do think that things would be significantly worse in all the areas we work on, and other areas in the ACLU, without all this litigation and pushing back.”
Chase Strangio: “And we’re opportunists, if there’s a horrible thing happening then we are going to fight back. Also, for me at least in the trans space, people don’t know how to talk about trans people, so if they’re attacking us and that’s my vehicle to get people talking, then I will because it’s not that I want it to be the way, I’d rather it not be, but it’s all defence. We have the power to reframe the narrative, if they’re attacking us, we get to reclaim that too. Bridgette, I don’t know, I feel like in the abortion space it’s constantly seen as defence where you can conceptualise how you move things forward even in the context of attack, not to put words into your mouth.”
Brigitte Amiri: “Yeah, I think that that’s true. As folks are talking I’m thinking, you know win or lose, it creates the conversation and you need all of these tools in the toolbox in order to secure rights and maintain them and enforce them. So even if we lose, the devastating loses can be a catalyst for change. And most of the time what we do in court is just hold the line, and it’s incredibly important, for example in my work when we do that sometimes we can get injunctions against bad laws that mean lots of people can get access to abortion in the meantime, even if we eventually lose it’s incredibly important for that period of time. And if we do lose, we’re raising the alarm bells and saying that your rights are at risk and people need to mobilise and people need to vote and we need to create a country where people can access abortion care without shame and stigma and obstacles. So it’s all important to the conversation, all these pieces are interrelated. Though I like to win, it’s important that we win!”
Joshua Block: “I think the court work has been incredibly defensive, I don’t think we’ve actually succeeded in pushing the law in a positive direction because we get these very narrow wins on narrow ground, holding off the assault. But one thing that has changed is that I think the administration’s actions have been so extreme that it’s actually provided moral clarification for a lot of people around some of the issues. I think when the Obama administration was doing things to protect trans people, of course there’s a passage of time, but I think you heard some more voices being like, ‘is this government overreach, I don’t know?’ And then you really see with enormous clarity what this administration is doing in attacking community after community after community, and I think it clarifies what’s really going on. With the trans ban too, the number of people across the ideological spectrum that spoke out against kicking trans people out of the military is much bigger than the number of people that raised their voices to have them included in the first instance. So I think that there is some consolidation of support for a lot of these issues that we didn’t have before. I’d rather them not be under attack in the first place, but if we’re looking for silver linings that’s one I can come up with.”
Chase Strangio: “I think the most I’ve ever seen people say positive things about trans people was after The New York Times published the headline along the lines of ‘Trump Administration to Erase Transgender from existence’ which was about an internal memo circulating within the Trump administration. That level of assault, to Josh’s point, triggered such an unbelievable amount of support that we could never have mobilised before, which is not ideal as a context, but it is true that it does give people a chance to reflect on how people’s experience of harm is really escalating.”
The trans military ban was announced on twitter, which the film illustrates, do you all follow Trump’s tweets or do you just wait to hear about the significant ones?
Joshua Block: “I follow a bot that sort of cuts and pastes his tweets and puts them on a fake White House press release. I follow that so I don’t have to see the tweets themselves. But I was reading Trump’s tweets live when that came out, because if folks remember there were two tweets, and the first one says after ‘After close consultation with my generals I’ve decided…’ and people were like, ‘are we going to war with North Korea? What’s going to happen?’ And I remember I was reading that when I was getting out of the subway, and then I was on the escalator waiting for the second tweet to come out. Having it be about trans people, it really did feel like just being sucker punched out of nowhere; like what is this? Where did this come from? And while I was on the escalator I tweeted out ‘if you or anyone you know are in the military and is trans please have them contact me’, and the movie shows Chase and I book reviewing potential clients and almost all those clients responded to that tweet, we just got a huge outpouring of response.”
Brigitte Amiri: “Definitely do not follow President Trump. I believe in some self-care.”
Chase Strangio: “Nor do I.”
Lee Gelernt: “I do not either. I feel like if it pertains to my work someone is going to tell me pretty quickly.”
How has the current health crisis affected your work in the areas that you’re involved with; obviously there are some direct things like in the area of immigration there’s the international student visas issue.
Lee Gelernt: “It’s been a huge factor in a lot of our work. There are things that are getting a lot of publicity, like the student visa issue, but there are things that are going on under the radar screen that are enormous. I think what a lot of people don’t realise is that the administration is using Covid as pretext to shut down all asylum including for children. I think most people know that the administration has being trying to end asylum at the Southern boarder now for four years and to take away protections for children, but I don’t think a lot of people realise that they have now bypassed the entire asylum system and have said because of Covid we won’t screen anybody for asylum including children, so we’re challenging that now. If we don’t prevail on that then all of the other things that have been done to the asylum system will be largely meaningless because there won’t be any asylum. And so that’s an enormous part of our work now as well as trying to get people out of immigration detention because it’s essentially a death sentence in those adult immigration facilities. So it’s a huge part of our work now, adding an addition layer of complexity.”
Brigitte Amiri: “And same with abortion rights. Right out of the gate, nine states tried to use Covid as an excuse to ban abortion and obviously it’s the same states that have passed numerous restrictions on access to abortion including some bans on abortion, and this was really a guise, a pretext that they were using to shut abortion clinics down which is what they always wanted to do. So we had to file multiple emergency lawsuits in the first couple of weeks on top of our already on-going docket, and we won most of the cases and some of the cases we lost. We were really battling against the clock and then in some of the cases where we lost the state started to reopen and only because of that were clinics allowed to see abortion patients.”
How about for Chase and Joshua in terms of LGBTQ rights?
Chase Strangio: “I think what we’re going to see is the ways in which healthcare discrimination is going to continue to have an impact on the trans community. I mean there’s definitely lots of ways in which there are so many concerns for trans survival in this context because so many are homeless, underemployed, employed in gig economies and have lost there work altogether. Although that hasn’t been the subject of our litigation, I think what struck me just as a trans human being, was how many people I knew who were getting sick and dying at the beginning of Covid, and in part due to so much discrimination in healthcare that people were avoiding getting care. And similar to abortion, so many people had gender affirming care procedures cancelled as a result, and so even as hospitals are opening back up to non-emergency procedures, I think a lot of trans people are not getting their surgical care rescheduled and so I think it’s going to be a question of how much is this going to be used to shut down care that hospitals don’t want to provide, that insurers don’t want to cover. I think some of those things are going to play out in the coming months, and just thinking too about what it looks like since so many of our community members are incarcerated. We know that criminalisation targets trans people and in detention, as Lee mentioned, it’s just absolutely dire and so a lot of attorneys at the ACLU have been doing extra work on the context of getting people out of prison and jail and immigration detention because of the data that’s coming out, the rates of transmission are 500% higher and the rates of death are something like 330% higher in detention. This is a crisis, so it’s something that we have to contend with.”
I guess it fits in with the ACLU being nonpartisan, something that comes into The Fight is protecting free speech for everyone, whether or not you agree with what the voices are saying. I imagine that it’s something that’s quite difficult at times, and the film touches on that with Charlottesville doesn’t it? Does anyone want to talk about that, the importance of the protection of free speech?
Brigitte Amiri: “It’s hard, it’s a constant conversation as you can tell from the movie, there’s a lot of internal dialogue about whether we should be taking some of these cases. So a lot of conversation continues within the organisation with our state affiliates. I think it’s a difficult conversation that folks are having.”
Chase Strangio: “If you work in the law, you’re going to be working at tension points, you know it’s not just in the context of speech, although that’s a very obvious example, but I think being a lawyer means contending with the consequences of your litigation choices and other choices that you make. I’ve learned a ton about how to use the First Amendment for affirmative claims on behalf of trans litigants, and because I’m at an organisation with so many First Amendment experts, I also as an employee have been given the benefit of being able to speak publicly when I disagree. Like when we represented Milo Yiannopoulos I issued my own statement in my own name disagreeing with the decision and that was fully accepted by the organisation. So I think there is a lot of latitude that we’re given to speak our own truth about what it feels like to be part of an organisation that makes decisions that we sometimes disagree with and that’s going to be true of any organisation, but it’s nice to be able to say it publicly or privately.”
Watching The Fight, I thought if I had seen this at an age where I was deciding what I was going to do at university it might’ve made me decide to do Law rather than English. Was there something that made you all want to work in the areas that you’re working in now?
Lee Gelernt: “I don’t think it was any particular moment. I think it was upbringing and I knew that I wanted to do some type of public interest, social justice work and I think my personality fit better with litigation than doing some other type of public interest work outside of the law.”
Brigitte Amiri: “Really early on I became interested in access to abortion because without being able to make this critical decision about your body, whether to become a parent, without that ability to have control over your own bodily autonomy, then other decisions in your life are so limited. And it seemed kind of at the crux for me of equality and being able to make your own choices.”
Joshua Block: “This is a job that I always wanted but never thought I’d actually be able to have. I interned with the ACLU as an undergrad. You grow up and you have a model of law being a good vehicle to change the world, and it still is, it’s not the only vehicle, but it’s a big one and if you’re not at the table you’re what’s for dinner, if you’re not protecting people the laws are going to protect them itself. So I feel blessed to be able to do what I like and what I’m interested in and have it be something that is able to make a difference in people’s lives.”
Chase Strangio: “I couldn’t have imagined doing anything else in terms of working for and with my community. It was very much central to my sense of being in many ways. As soon as I understood myself as trans and came out I felt like there were just so many ways that I was seeing people being misunderstood and harmed in such violent ways that finding paths to survival seemed to be essential. As someone with a lot of access to reify the structures of power as Josh would say, with my own sense of this work, I wanted to think of ways to be in it and disruptive to it, but also sort of use it to try to hold the line, because I see that there is real power in holding the line when that encroachment is causing real harm. When you hold that back you can give people more space to grow and thrive and prosper when they otherwise weren’t able to. So it’s been a real blessing to do it for the last many years that I’ve been able to. And this last four years, or four hundred or whatever it’s been, has definitely been a test, but I’m really honoured to be doing the work alongside these folks.”
By James Kleinmann
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Watch our full Zoom interview with The Fight’s Brigitte Amiri, Lee Gelernt, Chase Strangio and Joshua Block here: