Jarrod Schaeffer (’12) Helps Defend Transgender Rights in West Virginia

Schaeffer and his colleagues threatened to sue the Department of Motor Vehicles on behalf of three women who alleged mistreatment.

unnamedLast year, Jarrod Schaeffer (’12) joined a team that took on the pro bono case of three women who alleged mistreatment by the West Virginia DMV when each of them tried to get a driver’s license that reflected their gender identity. A litigation associate at the New York law firm of Debevoise and Plimpton LLP, Schaeffer and his fellow Debevoise attorneys worked with the Transgender Legal Defense and Education Fund (TLDEF) and West Virginia-based Kay Casto and Chaney PLLC.

The treatment of the women was “deeply disrespectful” and “deplorable,” Schaeffer says. “No one loves going to the DMV, but I mean, these are horror stories.”

Trudy Kitzmiller, Kristen Skinner, and Valerie Woody all visited different offices of the West Virginia Division of Motor Vehicles in 2014. All three are transgender women. All three said they had bad experiences. DMV employees refused to photograph the women as they presented themselves. Woody and Skinner were forced to remove their makeup before being allowed to take a photo. Kitzmiller left the office without a photo rather than remove her makeup, jewelry, and wig. Skinner was also asked to remove her wig and her false eyelashes. She was wearing neither.

Kitzmiller and Skinner both said that DMV employees called them “it.”

Schaeffer, when he first joined the case, was a new lawyer at Debevoise, a firm recognized for its strong commitment to pro bono work.

“It’s something that’s really deeply ingrained in Debevoise’s culture,” Schaeffer says. “Everyone’s encouraged to do it from day one…you’re really just told to go out in the world and do good, because we think it’s part of being a lawyer.”

Around the time he started at Debevoise, Schaeffer told the firm’s pro bono counsel that he was interested in working on projects related to LGBT rights. She called a few days later with news of the West Virginia case.

“We talked with the clients to figure out what was going on, and we put together a demand letter,” Schaeffer says.

For Schaeffer and the other attorneys, one of the challenges involved in this case was that there have not yet been a lot of previous cases to which they could point.

“This is a relatively new area of law,” Schaeffer says. “It was hard to find some controlling precedent that really gave substance to the claims…we really needed to delve into the principles and figure out what we could use to analogize.” TLDEF, he says, was very helpful on that front, having worked on similar situations in other states.

To defend their actions, the DMV cited a policy prohibiting applicants from being photographed “when it is obvious that they are misrepresenting their gender.”

“The whole point of a driver’s license—it’s to identify you in the way that you normally appear, and in a way that helps police officers or whoever is asking for your identification,” Schaeffer points out. “There was really no reason for their policy.”

The two sides went back and forth for a while. But the state’s attitude shifted noticeably after Debevoise served a Notice of Intent to Commence Civil Action, threatening to sue the Commissioner of the West Virginia DMV and the managers of the three branches involved in the case.

“The actions by the DMV and its officials implicate important issues relating to freedom of expression, equal protection, and due process under both the United States Constitution and the West Virginia Constitution,” the Notice asserted. “Further, sex discrimination is unlawful under the [West Virginia Human Rights Act].”

The Notice also took care to transmit a sense of the discrimination that the three women said they experienced.

“It’s simply not appropriate to call someone ‘it’ when they’re in a public facility and just trying to do what everyone else wants to do,” Schaeffer says. “It’s not permissible to make someone change their appearance, just because you don’t respect or appreciate it, through the exercise of state power.”

The two sides came to an agreement after the Notice was served, and the women got their appropriate driver’s license photos. The DMV also changed its policy on photographs, preventing employees from asking applicants to “remove or modify makeup, clothing, hair style or hairpiece(s), or accessories unless any of these items obscure the required biometric features of the applicant’s face and neck areas.” In addition, the department created a Gender Designation Form to make easier the process of asserting one’s gender identity.

For Schaeffer, this was the sort of case that made a significant impact on his clients’ lives.

“A driver’s license is very important,” Schaeffer says. “And I thought it was crucial that these individuals not be denied that very fundamental thing simply because someone in the DMV that day happened not to respect their right to express their gender identity.”

Before he joined Debevoise and Plimpton, Schaeffer served in two clerkships in federal district court, for Judge Barbara S. Jones of the US District Court for the Southern District of New York, and Judge Roslynn R. Mauskopf of the US District Court for the Eastern District of New York.

At Debevoise, Schaeffer’s paid work revolves around white collar and complex commercial litigation. He is working right now on a pro bono case appealing a felony conviction in state court. He has also assisted with civil rights cases, represented defendants in federal district court, helped file amicus briefs in the United States Supreme Court, and represented individuals in unemployment insurance disputes.

Schaeffer is a 2012 graduate of BU Law. The day he graduated, he had the honor of delivering the JD student address. In his speech, he urged his fellow graduates to be bold in their post-law school lives:

“We should never shrink from challenges that will inevitably arise in the coming years,” he says. “And as we leave law school and begin to write our own stories, we should remember that we must not, under any circumstances, be passive. We simply have too many strong statements to make.”

With the case of these three women in West Virginia, Schaeffer and his colleagues had a chance to make a strong statement on behalf of their clients.

“I do think especially that this is a very important issue, I think that all lawyers should really consider working on these cases, and I think that they’re extremely rewarding,” Schaeffer says. “At this point in the country and in the state of the law as it is this is a place where lawyers can really help people.”

Reported by Trevor Persaud (STH’18).