Civil Liberties Update: Fall/Winter 2021

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Andraya Yearwood and Terry Miller are girls who love to run. But in 2020, they became the latest targets in a nationwide attempt to force schools to discriminate against transgender children.

In 2020, Andraya and Terry were finishing their last semesters of high school. In February, however, four cisgender girls, represented by an Arizona-based anti-trans group, filed a federal lawsuit against the Connecticut Interscholastic Athletic Conference (CIAC) and multiple school boards seeking to end Connecticut’s policy of including transgender girls and boys in school sports. The lawsuit also explicitly complained about Terry and Andraya’s participation in track.

That month, we and the national ACLU joined the lawsuit as Andraya and Terry’s lawyers, to represent them and the interests of all transgender student athletes in Connecticut.

Transgender girls are girls, and Connecticut laws and policies rightfully recognize that they should not face discrimination at school, whether in sports or in the classroom. The plaintiffs’ arguments in Soule v CIAC relies on sexist stereotypes and junk science that undermine all women and girls’ rights, including cisgender girls, and especially Black girls. Women, including women athletes, come in all shapes, sizes, and physiological makeups, and these characteristics alone do not determine whether someone will be successful at a sport. Nothing good can come from the government policing what makes someone a woman. In fact, history has shown that when that does happen, Black and brown girls and women are most often harmed for not conforming to white stereotypes of “femininity.” It is deeply telling, in other words, that Soule, which seeks to undermine Connecticut’s anti-discrimination policy, directly attacks two Black girls and is silent on transgender boys. The attack on trans youth also ignores the truth of science, the lived experience of gender identity, and the athletic records at hand. Although the plaintiffs claim that they could not beat Andraya and Terry in direct competition, they did, with multiple plaintiffs (as well as plenty of other presumably cisgender girls) beating Terry and Andraya in races. While the plaintiffs claim they were denied opportunities because they competed against two transgender girls, the fact is that all had success and two of them went on to run NCAA track in college.

In April 2021, the district court dismissed the lawsuit on factual and procedural grounds. The court rightfully determined that since Terry and Andraya, as well as several plaintiffs, had graduated from high school, the plaintiffs’ arguments about future races were speculative.

The court also decided that retroactively changing girls’ track and field records would not have addressed any alleged problem.  A few weeks later, the plaintiffs appealed the court’s decision to the Second Circuit Court of Appeals.

Last month, groups and individuals from women’s rights, gender justice, medical, athletic, LGBTQ, civil rights, and legal communities, plus 19 states and D.C., submitted friend of the court briefs to support Andraya, Terry, and all student athletes who are transgender. Included were healthcare organizations such as the American Medical Association and American Academy of Pediatrics, representing hundreds of thousands of doctors and medical professionals; women athletes and women’s athletic associations, including the WNBA Players’ Association; 35 women’s rights and gender justice organizations, including the Connecticut Women’s Education and Legal Fund (CWEALF), Planned Parenthood Southern New England, and NARAL Pro-Choice Connecticut; and many more. We and our national colleagues continue to fight in court for Terry, Andraya, and all transgender children in Connecticut. Our state’s policy is correct – according to federal laws like Title IX and according to human rights – to protect and respect trans youths’ abilities to be fully included in their school communities. Every child should have the chance to be themselves, and we are honored to stand with trans youth.

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Amber Vlangas is no stranger to putting her compassion and dedication to work for human rights, as she has been a supporter of our Smart Justice campaign for several years. In her role as donor relations officer, Amber will be applying her decades of fundraising experience to help people invest in the ACLU of Connecticut’s efforts to advance liberty, justice, and equity for all people in our state, especially those who have been most marginalized by the government. Amber is a strong believer in the power of human connection, restorative practices, and effective storytelling to create positive change. Her passion is motivated by a heart for service and the impact that the criminal legal system has had on her family and so many others. In her spare time, Amber co-hosts and produces a podcast, hosts a restorative peer support circle, creates art, and spends time with her family.

As a firm believer in advocating for human rights, Jess Zaccagnino has driven her fellow students to the polls as an undergraduate, published research about authoritarianism as a law student, and pursued equity legislation at the state capitol here in Hartford. Jess recently joined the ACLU of Connecticut as our new policy counsel. In her role, Jess will promote justice, liberty, and equity through legislative policy research, analysis, drafting, and advocacy. She’ll be working with the rest of the ACLU-CT team to execute our legislative agendas, engage with administrative agencies and local government bodies, and to act in solidarity with our fellow advocacy organizations to advance shared goals.

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When states make voting harder, they undermine the voting power of people with disabilities; people with little job flexibility; people lacking transportation, identification, language access, or childcare – and they most often undermine Black and Latino voters.

That’s true in Connecticut, where our state’s shameful history on voting rights has harmed Black and Latinx voters here and throughout the country, and where that legacy means we have significant catching up to do. Our state was the first to enact a literacy test to prevent certain otherwise eligible voters from casting their ballots, a move later copied by southern states as part of racist Jim Crow laws. By the 1950s, when Connecticut Republicans attempted to use that literacy test to prevent Puerto Rican Windsor residents from registering to vote, ours was one of only 12 states with a literacy test still on the books.

For decades, we have fought to chip away at Connecticut’s restrictive voting laws. This year, our state made some important progress. After more than a decade of advocacy, we and the NAACP of Connecticut successfully convinced the legislature to end prison gerrymandering. As a result, people who are incarcerated in our state will now be counted as residents of their hometowns in the census (and hence legislative districting), instead of in the towns where they are imprisoned.

With our partners, we also pushed the legislature to pass a law allowing people who are on parole to vote, enabling people on parole to vote for the first time this November. In addition, a resolution to put the question of whether to allow absentee voting as an option for all voters passed both legislative chambers and now requires only a majority vote out of both chambers again in 2022 for the question of absentee voting to appear before voters in 2023. When voters head to the polls in November 2022, they’ll also face the critical ballot question of whether the state should adopt early voting. Connecticut is one of only six states without some form of early voting (the other five are Kentucky, Mississippi, Missouri, New Hampshire, and South Carolina). On the November 2022 ballot, voters will be asked: “Shall the Constitution of the State be amended to permit the General Assembly to provide for early voting?” A yes vote would support early voting – it means the state constitution would be amended to allow the legislature to permit early voting. If the constitution was amended, the legislature would still need to vote to establish early voting after that. A no vote would oppose early voting – it means the state constitution would keep its prohibition on early voting.

Early voting, like absentee voting, can cut down on wait times and is vital for equity. In many recent elections, long lines have affected the same cities and precincts repeatedly – always areas with   greater   concentrations of voters of color. Nationwide, Black voters are 74% more likely than white voters to wait more than 30 minutes to vote in person at their polling places on Election Day. Many of these barriers to voting can be solved by providing people with more options for voting, including early voting and no-excuse absentee voting. Recent polling shows that in places where it is available, communities of color are utilizing early voting more and more, leading to a surge in the number of Black people voting.

We’ve advocated for years for Connecticut’s voting rights laws to join the 21st century by eliminating barriers to the ballot box, including by adopting early voting, absentee voting, and restoring voting rights for currently and formerly incarcerated people. As we head into 2022, we’ll keep fighting.

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The 2021 legislative session was, in large part, about unfinished business from 2020, the session cut short by the beginning of the COVID-19 pandemic. Together with partners like Stop Solitary CT, the Connecticut Justice Alliance, the Connecticut Center to End Homelessness, SEIU 1199 New England, the NAACP, and more, we successfully pushed the legislature to pass bills ending prison gerrymandering, creating a Clean Slate for many, and getting the question of early voting onto the ballot for 2022.

The upcoming legislative session, which runs from February until May, will be a “short” session, meaning we will be advocating in a condensed timeframe during an election year, when fewer bills are passed.

Here are some of the bills we’ll be fighting for in 2022:

NO EXCUSE ABSENTEE VOTING: A resolution to put the question of absentee voting before voters passed the legislature in 2021 and will need to do the same in the 2023 session of the legislature in order to make it onto the ballot in 2024.

PROSECUTORIAL ACCOUNTABILITY: As more data comes out, it has only confirmed what many have known for years – people face dramatically worse, harsher prosecutions in our state depending on zip code, which in a place as segregated as Connecticut can largely mean depending on race. We will keep advocating for prosecutors to be held to commonsense standards to stop this inequity.

STOPPING DISCRIMINATION: For years, Smart Justice has put its heart and soul into working to end discrimination against people on the basis of their record of arrest or conviction. While Clean Slate represents a big step forward, it only prevents discrimination on the basis of an erased record and is not comprehensive. We are still working to make sure that all people living with a record have a fair chance at housing, employment, education, and other services that they and their families need to survive.

POLICING: With police unions, other police lobbying groups, and some legislators still trying to roll back even the small changes of the 2020 police accountability law, we know that we have to protect the tiny progress our state has made while continuing to push for reallocating money out of policing and into valuable programs and services that help our communities succeed. We are also ready to keep advocating for legislation to reduce the roll, responsibilities, and size of policing in our state.

SOLIDARITY ON DOC OVERSIGHT, PROTECTING YOUTH: When Governor Lamont vetoed the PROTECT Act, which would have established independent oversight of the Department of Correction (DOC), it was a slap in the face to thousands of people who are incarcerated and their families. As the troubled DOC continues to police itself on things like a Legionnaires outbreak, COVID-19, solitary confinement of people with disabilities, and other decisions that affect the health and wellbeing of thousands of people each day, we will stay in solidarity with our partners who are advocating for outside oversight. Meanwhile, as youth in Connecticut and across the nation face a mental healthcare access crisis, we are proud to be in solidarity with our partners in the Community First Coalition, which aims to replace school resource officers (police in schools) with counselors – because children need care, not cops.

We know it will be an uphill effort, but we are ready to keep pushing for justice, equity, and freedom.

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ON OUR DOCKET 

Our legal team of three – paralegal Grace Sinnott, staff attorney Elana Bildner, and legal director Dan Barrett – has been hard at work. In cases on disability rights, the first amendment right to protest and record the police, women’s rights, LGBTQ rights, housing rights, and the rights of people who are incarcerated, we’re seeking justice, equity, and a better future for our state.

January 2020: Watley v. Katz in this case, which we have been litigating since 2016 on behalf of Connecticut parents Joey Watley and Karin Hasemann, we ask the federal courts to recognize that if the Department of Children and Families violates a parent's rights under the Americans with Disabilities Act, those parents have a right to sue in federal court. This month, we appeal a lower court’s decision to dismiss the case.

February 2020: Picard v. Torneo After nearly four years of litigation, we reach a settlement that forces the state to pay approximately $1,800 per minute for each minute that state police illegally detained our client, a protester who was recording them with a camera.

February 2020: Soule v. CIAC After an Arizona-based anti-trans group files a lawsuit challenging Connecticut’s policy of including transgender students in school sports, we intervene to represent the interests of Andraya Yearwood and Terry Miller, two transgender athletes.

March 2020: United Pub. Serv. Employees v. Town of Hamden In a victory for government transparency, the New Haven Superior Court sides with us in our argument for the court to unseal the transcript of Hamden police employee Devin Eaton’s internal affairs interview about the night he shot Stephanie Washington and shot at Paul Witherspoon.

April 2020: CCDLA v. Lamont On behalf of the Connecticut Criminal Defense Lawyers Association (CCDLA) and six people incarcerated by the state, we sue Governor Lamont and the then-head of the Department of Correction (DOC) in state court seeking emergency action to prevent the spread of COVID-19 by reducing the number of people incarcerated in Connecticut and forcing the state to follow basic infection-control measures that the rest of the world adopted in the face of the pandemic.

April 2020: McPherson v. Lamont In a federal class action lawsuit, we sue Governor Lamont and the then-head of the DOC seeking emergency action to prevent the spread of COVID-19 by reducing the number of people incarcerated in Connecticut and forcing the state to follow basic infection-control measures that the rest of the world had adopted in the face of the pandemic.

April 2020: CCDLA v. Lamont  The state court dismisses the first of our lawsuits seeking emergency action to protect people who are incarcerated from COVID-19.

June 2020: McPherson v. Lamont A federal court agreement falls short of our ultimate goal of reducing the number of people incarcerated in order to prevent the spread of COVID-19, but requires the DOC to follow procedures to reduce the risk of COVID-19 for all people who are incarcerated by DOC.

July 2020: Connecticut State Conf. of NAACP Chapters v. Merrill On behalf of the Connecticut chapters of the NAACP, League of Women Voters of Connecticut, and an elderly voter, we file a federal lawsuit seeking to make absentee voting available to every eligible voter during the COVID-19 pandemic. That month, after legislative advocacy from the ACLU-CT and others, the state adopts absentee voting for all eligible voters for the November 3, 2020 election.

September 2020: Friend v. Gasparino In a blow to people’s rights to protest the police, a federal court rules against our client, who was illegally detained and arrested by Stamford police while he was protesting near a police checkpoint.

October 2020: Open Communities Alliance v. Carson With other civil rights organizations, we sue the Trump Administration over its new HUD rule that would roll back critical protections for fair housing by creating unnecessary barriers to relief for victims of housing discrimination.

December 2020: Radwan v. UCONN Board of Trustees With the ACLU Women’s Rights Project and national women’s rights organizations, we file a friend of the court brief siding with Noriana Radwan, a former UConn women's soccer player whom UConn kicked off the team, revoked her scholarship, and ended her ability to attend UConn because she raised her middle finger in celebration.

January 2021: Friend v. Gasparino We appeal the lower court’s decision and argue that people have a first amendment right to protest the police.

February 2021: Disability Rights CT v. Department of Correction With our partners, we file a federal lawsuit against the DOC for its continuing physical and psychological abuse, including solitary confinement, of people with mental illness incarcerated in DOC prisons and jails.

March 2021: Chase v. Penney With the ACLU’s Women’s Rights Project and national women’s rights organizations, we file a friend of the court brief in the Second Circuit arguing that when police respond to sexual assault survivors with gender bias, they should not be able to avoid accountability by hiding behind qualified immunity.

March 2021: Watley v. Katz In a blow to the rights of parents with disabilities, the Second Circuit court of appeals affirms the lower court’s dismissal of our case.

April 2021: Commission on Human Rights and Opportunities v. Edge Fitness In a friend of the court brief, we ask the Connecticut Supreme Court not to create an exception to state anti-discrimination laws that forbid sex discrimination. Instead of undermining our state’s anti-discrimination laws by creating a new carve-out for some groups of people working out at gyms, we argue, the Court should require gyms to stop patrons from harassing women.

April 2021: Clark v. Dep’t of Correction In 2019, Veronica-May Clark sued the Connecticut DOC for repeatedly denying her requests for the medical and mental healthcare necessary to assist her transition. In April 2021, we become her lawyers in that federal lawsuit to argue that transgender people who are incarcerated must be able to get the gender-affirming care they need.

April 2021: Soule v. CIAC In a victory for inclusivity, Connecticut’s federal district court dismisses a lawsuit challenging Connecticut’s policy of including transgender student athlete participation in sports. The plaintiffs, however, immediately appeal the court’s decision.

August 2021: Massamino v. Benoit We sue Waterbury police employees Matthew Benoit and Frank Laone in federal court for illegally detaining and arresting Keith Massamino for filming the exterior of the Waterbury Police Department building from the sidewalk in front of it.

December 2021: Olson v. US Coast Guard Academy With our partners we filed a federal lawsuit challenging the U.S. Coast Guard Academy’s ban on parenthood under the Fifth Amendment to the United States Constitution and the Administrative Procedure Act. Forcing cadets to choose between parenthood and their degrees is morally wrong and unconstitutional.