Courtesy of Diana Flynn
One of the government’s top civil rights lawyers since the Reagan administration told BuzzFeed News on Wednesday she will leave to become the litigation director for Lambda Legal, a high-profile exit that will put her at the vanguard of LGBT rights and likely place her in conflict with former colleagues at the Justice Department.
The departure of Diana Flynn, who has been chief of the Justice Department’s Civil Rights Division Appellate Section since the ’80s, is the most recent example of legal veterans abandoning their posts since Jeff Sessions became attorney general.
“I never really expected to leave,” Flynn, a transgender woman, said Wednesday in an interview about her role as head of the influential office that seeks to sway circuit courts by asserting the government’s agenda.
She reflected on a three-decade tenure under four Republican presidents and two Democratic presidents, saying, “There have been some good times in the Civil Rights Division, regardless of the party.”
“But it appears to me — at this crucial time for LGBT rights — to make the arguments I want to make and take positions I want to take, I would be much better situated at Lambda Legal than I am at Justice,” she said.
Some turnover among lawyers is typical at the Justice Department, particularly among political appointees, but it’s less common for a high-ranking career servant who had long planned to stay on the job until retirement, especially for one to depart for a role where she could be at odds with the attorney general.
Sessions, who leads the department, has used the Trump administration’s weight to argue anti-LGBT discrimination is legal under federal law in workplaces and by businesses open to the public. He has rolled back policies that Flynn helped establish for transgender workers during the Obama administration.
Flynn declined to comment specifically on activity under the current administration — or whether the department has become politicized under Sessions — but she warned of a general push to curtail civil rights.
“I see a danger to some of the principles that have been established in the civil rights arena generally,” she said. “I see attempts to roll back specifically LGBT rights in the courts and society, and I want to be in the position where I can aggressively resist that and make the arguments that I think will be most effective.”
“I see attempts to roll back specifically LGBT rights in the courts and society, and I want to be in the position where I can aggressively resist that.”
Lambda Legal, founded in 1973, is the country’s largest LGBT litigation organization and a frequent adversary to the Trump administration. The group has sued to block Trump from banning transgender people from the military, presenting one of the cases in which Flynn and Sessions could face off.
“If I find myself on the opposite side of the courtroom from someone I had worked with, it would be something different,” said Flynn, who began as a career lawyer for the Justice Department in 1984 after graduating from Yale Law School. “It would be strange, but it’s something we could deal with.”
The Justice Department has reversed course on several LGBT issues under Sessions’ watch. In a memo to his lawyers last fall, Sessions said Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, does not protect transgender workers — thereby reversing a position that the Justice Department adopted, in part to Flynn’s work.
Sessions also took the unusual step of arguing at the Supreme Court that a baker in Colorado could turn away a same-sex couple who wanted a wedding cake, even though the Justice Department wasn’t a party to the case and the state’s law forbids businesses from anti-gay discrimination.
Sharon McGowan, the strategy director of Lambda Legal and a former principal deputy chief of the Appellate Section at DOJ’s Civil Rights Division, said the attrition of civil rights lawyers at DOJ is unusual under Sessions.
“You are seeing a brain drain out of the DOJ that is not normal, and it is a reflection of how aberrant this attorney general has been, with not only reversal of positions but targeting of communities,” McGowan said. “From the first day Sessions came to the DOJ, he has been dismantling decades of work that Diana Flynn had been doing.”
Sessions also argued at the 2nd Circuit Court of Appeals that Title VII did not protect a gay worker — again, even though the Justice Department wasn’t named in the lawsuit and the department doesn’t normally handle private workplace matters.
Despite Sessions’ advocacy, some courts have ruled in the last year that Title VII does protect gay and transgender workers, and likewise, that Title IX of the Education Amendments of 1972 protect transgender students.
Vanita Gupta, the former head of DOJ’s civil rights division under Obama, added that Flynn played a key role in turning the department into an advocate for LGBT civil rights.
“With this administration devolving further into chaos,” Gupta said, “it comes as no surprise that the administration continues to lose incredibly talented attorneys like Diana.”
Flynn will start her new job in May.