Sixty years ago today, the Supreme Court issued its landmark decision in Gideon v. Wainwright. The court held that states must abide by the Sixth Amendment and that those whose liberty is threatened by criminal prosecution have the assistance of an attorney: “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. … This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

In the decades since, the Supreme Court has expanded the right to counsel in important ways, declaring that the right extends to children in juvenile delinquency proceedings, to probationers in probation revocation proceedings, and to people charged with misdemeanors. The court has established that the right includes an obligation for lawyers to correctly advise their clients about certain immigration consequences of criminal convictions, and that the right includes effective assistance of counsel during plea bargaining.

Today we celebrate these Supreme Court decisions and the public defenders who dedicate themselves to fulfilling Gideon’s promise. Public defenders are guardians of our constitutional rights, and therefore guardians of the freedoms that our rights protect. When public defenders zealously defend their clients, they are holding us all to our stated beliefs that these rights are for everyone — not just the innocent, not just the wealthy or the socially favored.

As we ring in 60 years of Gideon, it’s important to remember what paved the way. Twenty-five years before the landmark decision, the court held that the Sixth Amendment requires counsel to be provided to someone unable to hire their own lawyer in federal criminal cases. And 50 years before Gideon, our country’s first public defender agency — conceived of by California’s first female lawyer — opened its doors in Los Angeles, California.

Credit: AP Photo

By the time Gideon was decided, many states already had laws or procedures in place to ensure that indigent people at risk of losing their liberty were represented by counsel. But some states lagged behind. Florida, the state in which Gideon arose, argued in the Supreme Court that it “should not be required to equalize social and economic conditions among its citizens,” by providing counsel for all indigent people. Alabama and North Carolina filed an amicus brief agreeing with Florida and asking the court to leave them alone. They argued that forcing states to abide by the Sixth Amendment would be “socialism,” and that those “gratuitous services” should only be provided if “the people of individual states” believe they “are warranted morally or are feasible financially.” Fortunately, they lost, and Clarence Earl Gideon won.

The right to counsel is fundamental: It means a criminal defense lawyer is there to uphold everyone’s constitutional rights — even those accused of violent crimes. And public defenders know that our constitutional rights are only as strong as our willingness to uphold them in the face of the worst accusations. Our rights include the presumption of innocence, which means it is the government’s job to try to prove our guilt beyond a reasonable doubt. Public defenders dedicate themselves to the wisdom handed down by Nelson Mandela, Mahatma Gandhi, and Fyodor Dostoyevsky, who all taught a version of the same lesson: “A society should be judged not by how it treats its outstanding citizens, but by how it treats its criminals.”

Public defenders will stand beside you, insist on your humanity, and demand that you are entitled to the protections of our constitution no matter what. They fight at every turn — seeking pretrial release, challenging the introduction of the government’s evidence, holding the government to its burden of proof at trial, negotiating favorable plea deals, and advocating for humane sentences.

The Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such,” but the Supreme Court has decided that those limits are “to be applied sparingly.” As a result, our collective choices about what is criminalized changes considerably over time, reflecting shifts in social mores and politics. At different times in this country’s history, we have criminalized people who escaped enslavement, sexual contact between people of the same gender, filming the police, interracial marriage, adultery, and contraception. Marijuana possession and distribution remains criminalized in the federal code and in many state codes, while in other states marijuana distribution is a legal and booming business. And we are now returning to an era of increasing criminalization for having or helping someone have an abortion, as well as bills that criminalize gender affirming care. Public defenders ensure that our constitutional rights endure, in contrast to the ever-changing and often unjust landscape of what we call “criminal.”

In addition to upholding our rights and protecting the most disfavored among us from arbitrary and lawless treatment, public defenders play a crucial role in exposing government abuses of power. As they challenge the government’s evidence, public defenders discovered government programs that invade our privacy, including overbroad use of surveillance cameras attached to utility poles, flawed facial recognition technology, and the mining of discarded or shed DNA. It was appointed counsel representing detainees at Guantanamo Bay who exposed one of the darkest chapters of recent time — government-sponsored torture, physical abuse, and arbitrary detention.

Public defenders also expose racist practices in law enforcement. They raised the alarm on rampant Fourth Amendment violations in the New York City Police Department’s stop and frisk program, which targeted people of color, especially Black New Yorkers, and the LA County Sheriff’s racial profiling on the I-5 freeway. In Seattle, Washington, public defenders challenged a system of racially biased prosecutions for drug crimes, which ultimately led to the creation of a groundbreaking diversion program.

We are living in an era of mass incarceration and overcriminalization that has robbed generations of their liberty, torn families and communities apart, and entrenched economic and racial inequality. Public defenders witness and attempt to combat this systemic oppression every day. Despite the essential roles public defenders play, they are consistently undervalued. In too many places, lawmakers don’t adequately fund public defenders, and as a result, peoples’ access to quality public defense lags behind our “noble ideal.” If we are ever to realize this ideal, we must better understand the crucial role public defenders play in protecting all of our rights.

Sixty years ago, Gideon ushered in a new era, establishing a fundamental legal protection for people accused of crimes. The decision resulted in meaningful change, but there is more work to do because the principle announced in Gideon is not yet a reality across much of the country. At a moment when our fundamental rights are being increasingly eroded, we must fulfill the promise of Gideon. Thriving public defense systems strengthen our constitutional order, an interest that we all share.

March is Women’s History Month, which means I’m often asked to name the most pressing issue facing women in America. Answers spring to mind, sometimes faster than I can form the words. The fall of Roe and the Black maternal mortality crisis. The persistence of the gender wage gap and on-the-job sexual harassment, more than five years after #MeToo. Barriers to safe, affordable housing. Policing of Black and Brown mothers, leading to needless family separation. The lack of universal paid family leave coupled with the skyrocketing cost of childcare. The list goes on.

None of these ills, however, is the subject of so-called “Women’s Bill of Rights” laws being introduced in a growing list of states including Kansas, Arizona, South Carolina, Oklahoma, and Montana. Instead, this legislation would create a legal definition of womanhood based on the capacity to produce ova, or human eggs. This definition of “woman,” which is gerrymandered to exclude trans women and girls, would then apply throughout state law — and could make it impossible for trans people to live openly at work, at school, or anywhere in the states they call home.

That should set off alarm bells for all of us, not just those engaged directly in the struggle for LGBTQ rights. The “Women’s Bill of Rights” is only a sliver of the cruel campaign to deny basic rights to trans people currently underway across the country. And despite its misleading label, it shares a through-line with a long and ugly history of gender-based subjugation in the name of “biology.” For centuries, laws and policies premised on women’s biological capacities and “delicate” nature were used to shut women out of educational, economic, and civic opportunities. On these grounds, the U.S. Supreme Court upheld laws barring women from becoming attorneys — or bartenders. Similar “biological” arguments were used to exclude Black women from “the fairer sex” in order to justify extraction of Black women’s labor under the institution of slavery and beyond.

As feminists, we reject efforts to appropriate the rhetoric of “women’s rights” to inflict life-threatening harm on trans people, men or women. Attacking trans people does nothing to address the real problems women face. To the contrary, limiting freedom for trans people worsens conditions for all women by re-entrenching the very gender stereotypes that have underpinned centuries of women’s oppression and that the ACLU Women’s Rights Project has worked for more than half a century to dismantle. After all, the very notion that a person should identify with the sex they were assigned at birth for their entire life is a stereotype, as the more than 1.5 million trans people living in the United States attest to every day.

Formed in 1972, the Women’s Rights Project’s earliest cases focused on establishing rigorous judicial review of laws that classified people on gender lines, often based on long-held stereotypes about men’s and women’s capacities and without regard to individual abilities, needs, and wants. That work, led by Ruth Bader Ginsburg for the ACLU, included challenging a probate rule that preferred men to women based on the stereotype that any man is more capable of settling an estate than every woman; a housing allowance offered to servicemen, but not servicewomen, based on the stereotype that men should be primary breadwinners; and an income tax deduction available to women, but not men, based on the stereotype that only women should be caregivers.

The plaintiffs in these cases included men as well as women. What they had in common was that each defied gender stereotypes, out of desire or necessity. And all fought to live fully and authentically, without laws and policies that constrained them based on gender or their ability to bear children. To live openly as transgender is to seek that same freedom.

Not only is there no conflict between demanding rights for women and for all transgender people, advances in trans rights hold a specific promise for women’s liberation. By tearing down laws and policies based on gender stereotypes, we can create the opportunity for each of us to determine our own life story. That’s why the Women’s Rights Project strives to represent people of all genders, transgender, nonbinary, and cisgender, who face barriers based on their sex.

Today’s avalanche of attacks on trans people, with over 400 anti-LGBTQ bills introduced in state legislatures in 2023 so far, makes plain that the gender discrimination of the past is all too present today. Defending trans people is not only a moral duty for the feminist movement; it is central to it.

Legal intervention as an avenue for social change has been central to social, economic, and political progress for women, but is difficult to access for the people who most need it. Until recently, the mainstream women’s rights movement in the United States was dominated by white and wealthy women — such as Elizabeth Cady Stanton, Susan B. Anthony, and Betty Friedan — fighting for the rights of others who look like them. As a result, the movement has too often excluded and erased the experiences of non-white and working-class women, limiting the movement’s progress in advancing equality for Black women, Indigenous women, and other women of color in this country.

As the women’s movement shifts to an intersectional approach — a term coined by Kimberlé Crenshaw to describe that identities such as race and gender cannot be isolated in understanding the oppression of people who hold multiple marginalized identities — elevating the voices and experiences of women who have been historically excluded is critical. Lawyers must ally with community organizers, who work on the ground with those most impacted, to make the women’s movement more accessible and inclusive — an approach the ACLU Women’s Rights Project strives to model.

Though I provide legal support to attorneys now, I co-founded a tenants’ union in Ithaca, New York in 2019, and I know firsthand that there is heavy skepticism between lawyers and organizers. Lawyers can be out of touch with the communities they are supposed to be helping, yet often deem themselves experts in tackling a problem over people who are closest to the issue. Organizers, on the other hand, sometimes utilize bold strategies that test the limits of the law, which some lawyers are uncomfortable with. Bridging this gap and finding more ways to work together will fill needs on both ends and lead to more progress.

In 2018, the ACLU and several state affiliates, along with private counsel, partnered with Fight for 15 (FF15) organizers to confront rampant sexual harassment at McDonald’s restaurants nationwide. Senior Staff Attorney Gillian Thomas and FF15 organizer Allynn Umel explained to me that people in politically and economically vulnerable positions (such as undocumented people, teenagers, and low-wage workers) frequently avoid complaining about workplace abuse, let alone taking legal action, out of fear of retaliation. Because lawyers can be removed from their clients’ everyday realities, collaborating with organizers helps the attorneys stay informed and build the trust that is essential for time-consuming and emotionally draining cases. Recognizing the risks and pressures of challenging their employer, FF15 organizers met with workers to speak about the importance of legal intervention and make sure they knew they were not alone.

“Particularly for the most marginalized and vulnerable, it is pretty critical to have organizers familiar with what workers are putting on the line every single day as part of a larger fight entails as the workers engage in the legal process, as an organizer’s main job is to help push people past their fear and into a place of power,” explained Umel.

There is a marked difference between attorneys interested in supporting further organizing and attorneys looking to limit organizing to protect organizational or institutional concerns, Umel noted. The central question, she said, is “Are we on the same team? Do the attorneys here fully appreciate and value the role of organizing and overall campaign and making sure the workers and community members have some greater degree of ownership of what happened beyond just trying to enforce the law?” In speaking to her experience working with the ACLU, Umel emphasized that the respect for the organizers, coupled with an understanding of the support that survivors of harassment needed to come forward, was critical for the campaign and fight.

In 2020, during the height of the pandemic, the ACLU Women’s Rights Project and ACLU of Missouri worked with KC Tenants to file a federal lawsuit challenging the Jackson County Circuit Court for permitting eviction cases despite the nationwide eviction moratorium. On navigating the relationships and tensions between organizers and lawyers, Senior Staff Attorney Sandra Park explained that KC Tenants was the client, and ultimately, they determined if and how the litigation advanced their goals.

“In the early days of the pandemic, it was crucial for us to be in communication with folks on the ground, organizing, to determine what the greatest needs were and whether litigation could be used to help stop mass evictions,” said Park, reflecting that she does not see it as her role to determine organizers’ goals and strategies.

These are examples of integrated advocacy at its most effective. In both instances, the lawyers and organizers were able to respect each other’s expertise and collaborate to advocate their causes. These frameworks provide a roadmap that must be replicated in order for the women’s movement to be as inclusive and impactful as possible.