Our Constitutional Rights Are Under Attack

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September 17, 2019
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I was born in India, a nascent democracy that gained independence from the United Kingdom in just 1947. The literacy rate for women in 1981 – the year I was born – was 30% (the government pats itself on the back for the gains it has since made; in 2019 it is 65%) and the country was home to the largest number of people worldwide living in extreme poverty until 2018. The odds of me wielding much power were low.

I also belong to a minority community (Punjabi-Sikh) that includes people who sought independence for our home state from India in the 1980s. In response, thousands of members of my community “disappeared” and were murdered by local and state police, supported by the Indian government. Mass violence by civilians against those of my identity – which the police and government allowed to continue unabated for days – resulted in the deaths of thousands more in Delhi, where I lived at the time. Much ink has been spilled about the crimes of local and state authorities and the complicity of Indian authorities during this time.

But eventually, for me at least, the U.S. Constitution provided a path to hold powerful governmental actors accountable for their misdeeds.

In 2013, I arrived at the U.S. Department of Justice’s Civil Rights Division during the Obama administration. As a trial attorney in the Special Litigation Section, I had the authority to investigate local and state law enforcement agencies that systemically discriminated against people on the basis of race, color, sex, or national origin, or otherwise violated their Constitutional rights.

Suddenly, I – a young, brown, immigrant, woman – held the power to interpret and make real for the communities on whose behalf I worked the Fourteenth Amendment’s guarantee that no state shall “deny to any person…the equal protection of the law,” and the Fourth Amendment’s guarantee that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” as well as all other Constitutional protections.

I could investigate, gather evidence, and make arguments that actions by powerful local and state officials – Mayors, Chiefs of Police, etc – were systematically depriving people of their Constitutional rights. If I could persuade a court that I was correct, it could order them to stop and even institute remedies for the harms that government officials had committed against often marginalized communities – Latinx people in Arizona who were profiled by sheriff deputies; Black people in Baltimore who were disproportionately stopped, arrested, and subjected to excessive force; and trans women of color and sex workers in Baltimore subjected to transphobia and sexual abuse.

If we wield the power of the Constitution on behalf of people who have historically been denied their rights and equal treatment by governmental actors, it has the potential to be an incredible equalizer, one small step at a time. A person needn’t have been born into privilege to wield this power. Anyone can challenge government actions if they believe their constitutional rights have been violated, and what preserves our democracy is that we do so.

The federal government I worked for demonstrated far more of a commitment to protecting the constitutional rights of the most vulnerable members of our communities than the current’s practices of, for instance, separating children seeking safety in the U.S. from their parents and detaining them in cages, where some have died.

But it has always been up to the people to step forward and demand that our rights, and the rights of others like us, be recognized: Survivors like Passion Star, an incarcerated transgender woman who the state refused to protect from sexual assault, and John Dorn, who was disproportionately punished while incarcerated because he is living with HIV. Pioneers like Aimee Stephens, who was fired because her employer didn’t accept her identity, and Gavin Grimm, who was barred from using his school’s bathroom. Michael Ely, who was deprived of survivors benefits after the death of his partner because the state unconstitutionally barred them from marrying. Gerald Bostock and Kimberly Hively, who were fired because of who they loved.

After 2016, as the federal government quickly began to erode protections for LGBTQ people, immigrants, women, people of color, and those living in poverty (among others), it became clear that any progress made through the courts in the coming years would be led by plaintiffs from outside of the federal government, and often in challenging the actions taken by the federal government.

Lambda Legal has been a critical bulwark fighting against the Trump administration’s attempts to roll back recent progress that has been made for our communities, even as we continue to fight for the full recognition of civil rights for LGBTQ people and people living with HIV. As a member of Lambda’s fierce and dedicated band of lawyers, it is my privilege to fight for access to health care, freedom from harassment and discrimination in the workplace, accurate identity documents, freedom of expression, non-discriminatory access to education for young people, and due process and equal protection in the criminal legal system.

And importantly, as we move towards 2020, a large and diverse group of organizations have developed a comprehensive reform platform for our criminal legal system, which currently traps already marginalized members of our community into cycles of poverty and criminalization.

Vision for Justice 2020 and Beyond: A New Paradigm for Public Safety, of which Lambda Legal is a part along with 116 other civil rights organizations, recognizes and proposes remedies for the patterns of racial and economic oppression in this country that also disproportionately affect LGBTQ people and are replicated and reinforced throughout our criminal legal system. To combat systemic inequities, the platform prioritizes upfront investments in noncarceral programs and social services, including additional resources for education, housing, employment, health care, social-emotional supports, and other public benefits.

These reforms are just a starting point, but they span every stage of the criminal-legal process, proposing to:

  • decriminalize poverty
  • create a new paradigm for public safety
  • create a new framework for pretrial justice
  • ensure an effective right to counsel
  • ensure accountability and transparency in prosecution
  • end jails and prisons as we know them
  • deprivatize justice
  • dramatically reform sentencing policy
  • support the children of incarcerated parents
  • ease legal challenges to address racial inequity and abolish slavery in prisons
  • rebalance spending priorities by investing in communities
  • reimagine reentry, probation, and parole
  • build a school-to-opportunity pipeline
  • end the war on drugs

The fight for equality has never been easy. Lived equality will require dramatic changes in many of our systems, and especially our criminal legal system, such as those outlined in Vision for 2020.

And while we work towards larger structural change, the Constitution will continue to be a powerful tool for us all to wield on behalf of those who are denied the rights that are unequivocally critical to our survival.