LGBT Judges

Phyllis Frye: Grandmother of the Transgender Rights Movement

By Joe Forward
July 17, 2019 (Inside Track) – Phyllis Frye fully transitioned from a man to a woman in 1976, living in Houston, when it was still illegal to cross-dress in public. Her community excluded and shunned her. But in 2010, she became the first (out) transgender judge in the country.

Phyllis FryeAttorney Frye, who practices law at her own, six-attorney firm in Houston, is a featured speaker on day one of the State Bar of Wisconsin’s upcoming Health, Labor, and Employment Law Institute, August 15-16, at the Wilderness Resort in Wisconsin Dells.

In this article, Attorney Frye discusses her transition experience, including her fight against exclusionary laws, and building a law practice. Known as the “grandmother” of the transgender civil rights movement, Frye sheds light on the decades-long struggle.

Phyllis Frye became the first (out) transgender judge in the country in 2010. She is a featured speaker at the State Bar of Wisconsin’s upcoming Health, Labor, and Employment Law Institute, August 15-16, in Wisconsin Dells.

Transitioning

Long before Caitlyn Jenner publicly came out as a transgender woman, in 2015, Phyllis Frye was fighting for transgender rights on her own behalf and on behalf of the lesbian, gay, bisexual, transgender, queer (LGBTQ) community, starting in the 1970s.

But the story starts two decades earlier. In the 1950s, growing up as Phillip Frye in San Antonio, the young boy knew something was different. By age nine, he was secretly cross-dressing. By 14, he was an Eagle Scout. And in 1966, Frye was an A+ student, a ranking ROTC commander, and a bright young man who wanted to be a woman.

But Phillip Frye could not tell anyone. In a front page 2015 New York Times article, Frye notes that her parents “would have pitched me out if I told the truth.”

Frye continued public life as a man, obtained two engineering degrees at Texas A&M University, married his first wife, had a son, and became a lieutenant in the U.S. Army. But the marriage, and his military career, fell apart when Frye’s truth became known.

In 1972, the Army required Frye to undergo “aversion therapy.” Ultimately she was discharged, honorably, because she told the truth about identifying as a woman. A divorce followed, and Frye spiraled into a period of deep depression.

But she got through it, and made a decision. In 1976, Phillip Frye became Phyllis Frye, publicly. Phyllis said she felt normal for the first time in 28 years, but the reality of being a transgender woman in Houston, in that era, became clear.

“I got blackballed by the engineering community,” she said. “I was taking a lot of crap from my neighbors and a lot of other people.”

“My house was egged, they graffitied the driveway with spray paint, slashed our tires,” Frye said. “We would get obscene phone calls, usually around Christmas and Easter.”
By then, Frye was with her current wife, Trish, who came to accept her as a transgender woman. But the couple fell on extremely hard times, financially.

“For 10 years in Houston, we did not run our air conditioner to save money. I got the sewing machine out and started making our clothes,” said Frye, the recipient of her church’s “White Christmas” one year, a supply of canned goods for the neediest family.

Frye could not get steady work. She decided to get a joint MBA/J.D. degree on the GI Bill. “I went to law school by accident,” she said. “I wanted the MBA but the University of Houston had the joint degree. I thought my neighbors might leave me alone if I was a lawyer, and they did. That’s the only reason I became a lawyer.”

Up Against the Law

Frye has long opposed so-called bathroom bills and restroom laws that deny access to gender-based restrooms by individuals who do not identify with their gender at birth. That fight began while she was in law school, at the University of Houston.

“I tried using the men’s bathroom once. Oh my god,” Frye said, “and the men didn’t want me in there either. When I started law school, they took half the one-hole bathrooms and marked them ‘restroom,’ and I was supposed to use those.”

But those restrooms were located far from her classrooms and the law library. After people started getting used to her, Frye started using the women’s restrooms. “I got called in by the dean of students and we went through the whole thing,” Frye recalled.

The dean said five women complained. “I said, I’ll tell you what. I counted all the bathrooms. There are eight. I’ll take these three and they can have the other five. And so that’s what happened,” Frye said. “The other women didn’t care. I wasn’t hanging around in there.”

That was not the last time Frye dealt with a gender-based ordinance. Frye was also up against an ordinance that prohibited people from cross-dressing in public. “My wife was a teacher. She would come home each night wondering if I would be in jail,” Frye said.

Since coming out in 1976, Frye had lobbied the city council to repeal the cross-dressing ordinance. But by the time Frye was a 3L, it was still on the books. A law professor, Jim Hensley, placed 3Ls in internships with civil law firms and the district attorney’s office.

Frye knew she needed courtroom experience and said a law firm “would have just put me in the law library.” So Hensley placed her with the district attorney’s office. But the district attorney said he would have Frye arrested if she showed up for work.

One week before she started the internship, the city council repealed the ordinance. Frye had been volunteering for a city council member, Ernest McGowan, an ally in Frye’s fight to repeal it. Through political maneuvering, another council member friend, Johnny Goyen, presiding as mayor pro tem, helped repeal the ordinance.

So, it was repealed when Frye showed up for the internship at the district attorney’s office. “About a year later, I heard that Hensley told the DA that if he did not accept me, the DAs office would get no more 3Ls from the University of Houston, period,” Frye said.

But that didn’t end Frye’s troubles. Although her office was on the 10th floor, she was told she had to use the single-stall restroom on the second floor.

“I had to go down the elevator, go through security, and walk by a whole row of secretaries if I had to go. Well, I did that once,” said Frye, who started using the public women’s restrooms at the criminal courts building next door. “I was called in and told that if I did it again, I would be let go because of the restroom ordinance,” Frye said.

Frye was shattered. She visited one of the judges who befriended her (and later swore her in as judge), Joseph Guarino. “I was in his office crying. He came in and wanted to know what happened,” Frye said.

“I told him. He got pissed! Oh, he was mad. He called in the clerks, and the court reporter, and the bailiff and everybody on his courtroom staff. And he looked at all of them and pointed to the door to his office, and he says ‘if my door is closed and she even looks at it, you unlock that door. She can use Judge Guarino’s restroom!”

Living the Law

Frye didn’t go back to her space in the DA’s office. “I would be in the court where I was assigned for docket call. When it was over, I would just go to other criminal courts and introduce myself to the judges,” Frye said. “Because that’s the thing, you have to meet people. They have to meet you and find out that you are okay.”

After graduating from law school in 1981, things did not get easier. Aside from an occasional divorce or a will, Frye could not get any legal work for about five years.

“All the gay and lesbian lawyers in town, and there were a few – they weren’t out-out – they weren’t going to hire me,” Frye remembers. “So, I sold Amway cleaning products to the gay bars to make money. And the whole time, my wife was scared to death because she thought she was going to lose her teaching job because of me.”

In 1986, a military serviceman hired Frye to represent him in a DWI case. “He wanted to keep it out of the newspaper. I said I could do that. Then it dawned on me,” said Frye.

Frye knew a lot of judges from her DA internship. Active in the local LGBTQ political caucus, she also helped screen Democratic candidates for judgeships. “I started asking the judges to appoint me to represent indigent defendants. Before you knew it, I was in business. I wasn’t making much money, but it was better than nothing,” Frye said.

Frye and her wife saved what they earned. It took four years, but they paid off all debts, including their mortgage. They no longer had to live in fear of losing their home. “Suddenly we were debt free, and that just changed everything,” she said.

Frye built a criminal defense practice, and she was strategic about it. “I figured there were going to be conservatives on the jury panel. With conservatives, in Texas, that means you have to go over and above to convince them for an acquittal,” Frye said.

“I wanted to smoke them out and get them off the venire panel without using a preemptory strike,” Frye recalls. She would ask the jury pool if they knew her, from radio or television. “Then I would say something like, ‘I don’t want to get into a philosophical or morality argument. I’m certainly not going to get into a religious argument. But I know some of you may not be comfortable with me in here defending this person.’”

She would ask whether any of them thought they would have a bias against her client because the client’s lawyer was openly transgender and a member of the queer community. “You go about halfway down, and somebody has to say it for Jesus,” Frye said. “And I say that’s fine, and I put a little check mark by their name.”

By the end, Frye would have automatic strikes for cause against all of them, since they said they could not make decisions based solely on the evidence. “I had strikes on every conservative on the panel. I lost some trials, but I won a lot of them,” Frye said.

Frye did a lot of criminal defense work. Now, as a partner at Frye & Benavidez PLLC, she practices exclusively in the area of LGTBIQ rights, helping transgender clients with name and gender changes on legal documents. Other lawyers in the firm, an “out LGBTIQ-and-straight-allies” law firm, practice in a variety of other areas.

Speaking Up

In 2010, Houston Mayor Annise Parker appointed Frye as the first, out, transgender judge in the nation. It is a part-time position as associate municipal judge for the city of Houston. Over the decades, Frye has worked tirelessly to assert transgender rights.

In the 1990s, she convened conferences on transgender law, including the first International Conference on Transgender Law and Employment Policy.

That conference resulted in an International Bill of Gender Rights (easily Googled), which proclaimed that everyone has a right to define their own gender identity. Frye stayed active politically, engaging in lobbying activity at the local, state, and federal level to promote equality.

As mentioned, one of her targets is restroom laws that do not recognize gender identity. She argues that every state and municipality maintain criminal codes that protect people from the types of assaults or deviant behavior at issue in the restroom debate.

Although Frye is partially passing the baton of her political activism, she is still a prolific speaker and writer on transgender rights, and her message rings loud and clear.

“If every LGBTQ person came out of the closet, it would do a lot of good but we are still in the minority,” Frye said. “So, we depend on allies.” Frye says in this day and age, social courage is an important aspect of the movement to protect transgender rights.

“Say you’re at an office party, or at family Christmas or Thanksgiving, at the watercooler, and you hear someone say something derogatory. You may think it doesn’t affect you, you’re not Black or Muslim, not gay or transgender. You may say to yourself, I’ll let it go. You can’t do that,” Frye exclaimed. “You can’t do that anymore.

“You have to stand up and say, ‘no, you can’t say that. That has to stop.’ You have to gather up the social courage within your soul and make that declaration. You have to carry water for all the groups if you want them to carry your water. You have to speak up, now.”