Fred Sultan, co-founder of the Austin LGBT Bar Association, and a Senior Attorney in the Litigation department of Gardere in Austin, Texas. September 12, 2017. (Photo: Mark Graham)
Even in 2017, when same-sex marriage has been legal nationwide for two years, some LGBT lawyers still don’t feel comfortable enough to be “out” at work.
That’s something that the Austin LGBT Bar Association hopes to change. Over the past five years, the group—along with other local minority bar associations—has asked the biggest firms in Austin to report how many LGBT lawyers work there. The association has made a difference by talking openly about the issue and helping to train law firms to collect LGBT lawyer data.
Texas Lawyer spoke with Fred Sultan, a co-founder of the Austin LGBT Bar Association, about how collecting this data can help make LGBT lawyers more comfortable at work, adding to a firm’s diversity and ability to represent diverse clients. Here are Sultan’s answers, edited for brevity and clarity.
Texas Lawyer: Why do you think that it’s important to collect data on numbers of LGBT lawyers?
Fred Sultan, senior attorney with Gardere Wynne Sewell in Austin: When it comes to solving problems and providing the best advice, and understanding the needs of our clients, it helps to have multiple views, multiple life experiences. Collecting LGBT lawyer data is important in achieving that diversity on a number of fronts: First, the State Bar of Texas doesn’t collect LGBT demographic data. We can’t tell how many attorneys are openly LGBT in Texas, or how Texas firms’ hiring practices compare to the overall attorney population. With respect to a law firm’s collection of LGBT data, it’s a big step in demonstrating to attorneys and clients that the law firm is open and welcoming to diversity in general and specifically to LGBTQ attorneys.
TL: When you first started collecting this data in 2013, some firms commented that LGBT status was a confidential part of a lawyer’s private life. Why should law firms think differently?
FS: First, the survey seeks firms to identify attorneys who are openly LGBT, so no attorney is forced to reveal his or her sexual orientation or gender identity. But when a firm refuses to give “out” LGBTQ attorneys the ability to declare themselves, it perhaps inadvertently sends a “don’t ask, don’t tell” message to those attorneys: “We value you as a billing unit, but stay in the closet at work; don’t bring your partner or spouse to firm events.” It’s not the best way to retain happy, healthy LGBT attorneys.
TL: Over the years, the number of Austin firms that reported that they have LGBT lawyers has increased from five to 11, which is good, yet that number is still low. The overall number of LGBT lawyers also is very low. What is going on?
FS: There are a few possible reasons the number could be low: because many firms still are not collecting the numbers altogether, or LGBTQ attorneys at those firms don’t feel comfortable being openly LGBT at work. It’s also possible there are no LGBTQ attorneys at those firms.
TL:What are the reasons why LGBT lawyers might not wish to disclose their status to their law firms?
FS: Attorneys may not feel like their firms are welcoming to LGBTQ attorneys, so they therefore may not wish to disclose their status. There is no nondiscrimination employment protection for LGBTQ attorneys at the statewide or nationwide level, so they may not feel protected in an environment not welcoming to them. I have been an “out” LGBT attorney for a long enough time, with a wonderful, supportive law firm. My prior law firm was also very supportive and that made me feel comfortable and made my colleagues comfortable. But in the past, I have known attorneys who have not worked in that type of environment and have not been comfortable.
TL:What types of negative consequences—or the fear of them—might prevent a lawyer from telling his or her firm?
FS: Less client interaction would be one thing; less interaction with colleagues at work, perhaps if you feel you’re going to be the odd person out, if you are not included in certain activities; perhaps less first-chair type of work. As I mentioned, there is no employment discrimination protection, so perhaps your termination or some other adverse employment action.
TL: It’s disappointing to know LGBT lawyers in 2017 might experience this, especially in the legal profession. What is going to have to happen to change things so that LGBT lawyers feel comfortable being “out” at work?
FS: I do think we have made great strides over a course of a short period of time. I think more and more firms are collecting LGBTQ data and are welcoming to LGBTQ attorneys. If you look at big law firms, more and more have support networks for LGBTQ attorneys. I do think we are making great progress, but there’s more work to be done. I think the single biggest reason that LGBTQ acceptance has come as far as it has so quickly is because there are LGBTQ individuals who are out and open to their friends, to their colleagues, to their family members. It’s when we are humanized to those people—humanized to the world—that we gain acceptance.
TL: What’s the best method for a law firm to collect data on its lawyers’ LGBT status?
FS: There’s no one-size-fits-all model. A confidential collection method, such as allowing attorneys to update demographic information altogether—including LGBTQ status—through, for example, a firm’s intranet is a good method. I think it’s also important to emphasize any collection of data, including LGBTQ data, is for demographic purposes and it will not be disclosed on an individualized level. Of course, I think it’s important for firms that collect LGBTQ data to have robust nondiscrimination policies that prohibit discrimination on the basis of sexual orientation and gender identity.
TL: The State Bar of Texas collects demographics about Texas lawyers but doesn’t ask about their LGBT status. For what reasons do you think this should change?
FS: When you asked me, ‘Why are the numbers of LGBT attorneys so low?’ I can’t point you to any standard metric or any broken-down demographic of the statewide number to say, ‘Law firms are not hiring LGBT attorneys compared to the number of LGBT attorneys in Central Texas.’ So Austin, Houston and Dallas are a compiling their own version of diversity demographic data from law firms; they are collecting LGBT data from firms, but the state bar isn’t, so we don’t know how the population of attorneys as a whole looks.
TL:What efforts has your association made to convince the state bar to begin to collect LGBT data? What’s been the outcome so far?
FS: This would be a joint effort between the Austin LGBT bar association, the state LGBT law section some other local LGBT associations, have all emphasized the need for the state bar to collect this data and we have been working to get that message to members of the state bar board of directors and to explain and emphasize the importance of collecting the data and why it’s important and how to collect the data.
TL: Why won’t they do it?
FS: Change is hard. Right now I believe the state bar collects demographic data at a very early stage—before, I believe, attorneys are actually licensed—at some point when you are filing out your information to apply for the practice of law. This would be some new process for the state bar to allow attorneys to update the demographic information. It would be something new, and something new always takes time to explore.
TL: Couldn’t they just start asking about LGBT status from new law graduates?
FS: Another concern there is: Someone may not be openly LGBTQ at the time they are graduating law school or entering the practice of law and then 10 years later they decide they are comfortable being out. A bar such as California, where you can at any point in time update your demographic profile, whether it’s LGBTQ, race, ethnicity—whatever the case may be—you can do that at any time. We are already required to update and keep the state bar apprised of your address.
TL: If it ever does become more widespread for lawyers to report their status, firms to collect the information and the state bar to gather the data—How could things improve for LGBT lawyers?
FS: LGBT attorneys who are out and who feel comfortable being out and being valued as themselves will be happier and more fulfilled at work and I think be able to have better working relationships.