Our History and Our Present

Legal Eagles: Pauli Murray’s Impact on LGBTQ+ Law

We owe an enormous debt of gratitude to the late Rev. Dr. Pauli Murray, who, in 21st century terms, was a gender non-conforming attorney, activist, scholar, writer, professor and priest. There is a direct line from Murray’s groundbreaking scholarship and leadership on race and sex discrimination to the Supreme Court’s recent decision in Bostock v. Clayton County. Bostock says employers can no longer discriminate against LGBTQ+ people for being who we are. We are protected under the law at work the same as protections based on race, color, religion, sex or national origin. As the Supreme Court stated: “An employer who fires an individual merely for being gay or transgender defies the law.”

From Bostock, we can also thank Murray for last month’s Fourth Circuit Court of Appeals decision in Grimm v. Gloucester County School Board which relied, in part, on Bostock, to say that students can use the school bathroom that matches their gender identity and have their name and gender marker correctly stated on school documents. [Editor’s Note: Shout-out to Dr. Lisa Griffin, Ph.D., who used to live in Charlotte and who is mentioned in the Grimm decision]

Murray (1910-1985) grew up in Durham, N.C., in a family of ancestors who were both people who had been enslaved and people who were slaveholders, and people who were Irish, Native American and free Blacks. She faced discrimination based on her race and sex throughout her life. She was denied admission to the University of North Carolina for being Black and denied entrance to Columbia University and Harvard University for being a woman. She was forced to sit in the back of the bus because she was Black and struggled to find work because she was seen as a woman. She saw the connection between discrimination based race and sex in a way that no one else had. She worked to desegegrate lunch counters and busses long before the dates we were taught (if we were actually taught that history).

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Murray used her unique understanding and her innovative mind and developed new legal arguments on race and sex. She argued against racial “equality” that was “separate but equal” and advocated for equality that was true equality. Her view was ultimately adopted in Brown v. Board of Education, the U.S. Supreme Court decision that determined “separate but equal” was not, in fact, equal, and led to the desegregation of schools. Sadly, she was never publicly given the credit she was due for this (probably because she was seen as a woman).

At the same time, Murray understood that prohibiting discrimination based on race ultimately left women behind. Laws that banned discrimination based on race but left discrimination based on sex untouched meant that women would still be discriminated against unless they could somehow show it was based on their race and not their sex — an almost impossible task.

And so, she advocated for true equality for women. She took on the white male establishment and Black male establishment. When the Civil Rights Act of 1964 (Title VII) was being debated in Congress, she was tasked with getting votes to pass it with “sex” included as one of the classes of discrimination that would be prohibited. Some thought that by including “sex,” the bill would never pass. Pauli Murray was persuasive and because of that, “sex’ is included in Title VII and “sex” is what the Supreme Court in Bostock just used to include sexual orientation and gender identity in employment protections.

As a testament for how amazing and accomplished Murray was (and a primer for how white women can center Black women), Ruth Bader Ginsburg, who recently died and was a Supreme Court Justice, gave Pauli Murray credit in Reed v. Reed for the groundwork Murray had laid in defining “sex” in sex discrimination cases.

[NOTE: It is difficult to write about Murray in 21st century terms because she did not use those terms for herself, including he/they, transgender, or gender non-conforming. This piece is written using she/her pronouns because that is the language that was available to her during her life.]

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On a personal level, though Murray had relationships with women, she did not identify as lesbian or homosexual. She termed herself as having an “inverted sex instinct” and saw herself as a man in a relationship with a woman. She preferred men’s clothing and activities and referred to herself as a man trapped in a woman’s body. In her letters to her aunt, she called herself a boy-girl. She sought hormone treatment (and was denied it) and surgery to see if she had male sex organs that were somehow internal instead of external.

Murray was always ahead of her time. We are slowing catching up. We have a lot for which to thank her.

Murray’s life story is fascinating and has been hidden for far too long. Learn more about her at the Pauli Murray Project, visit her homeplace in Durham and read her writings (“Proud Shoes: The Story of an American Family,” “Dark Testament and Other Poems,” “Song in a Weary Throat: An American Pilgrimage”), and one of the several books about her such as “Jane Crow: The Life of Pauli Murray.”

The Present

On Aug. 26, the Fourth Circuit Court of Appeals, which includes North Carolina, said that students who are transgender must be allowed to use the restroom that matches their gender identity, and that school records must correctly identify them by name and gender identity. The case is Grimm v. Gloucester County School Board. This is a wonderful step forward. As an attorney who does name changes and gender marker changes, I can tell you that this will make a huge difference for students to no longer be identified by their dead name and incorrect gender. For students going to college or needing school transcripts for a job, the information being correct is a game-changer. Thank you, Pauli Murray, for the years of work and hardship and sacrifice that got us here today.

Connie J. Vetter is an attorney in private practice in Charlotte, N.C.

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