Where Are the Gay Judges?

Implicit bias against LGBTQ people in the courts is a real problem because most judges are straight.Bias against LGBTQ people in the courts is a real problem, in part because most judges are straight. (Image: Jared Rodriguez / Truthout)

It’s no secret that justice in the United States is not as blind to power and identity as we’d like it to be. Our justice system is also very straight.

Out of the 340 judges who sit on state supreme courts, only 10 identify as gay or lesbian. Only two judges in the entire legal system identify as transgender, and none openly identifies as bisexual or HIV positive, as far as LGBTQ advocates know.

It’s not just LGBTQ representation that’s lacking in the legal system. The proportion of white men on state appellate courts, which have traditionally been all but absent of female judges, is nearly double that of their proportion within the nation’s population, according to a 2010 survey. People of color made up 40 percent of the states’ population at that time but only held 21 percent of seats on state judiciaries.

This lack of diversity is a sign of deeply entrenched racism, sexism and homophobia. It’s also had real impacts on the quest for equal rights and LGBTQ people in the criminal legal system, especially in the 38 states where high court judges are subject to elections and can be swayed by religious ideology and political pressure, according to a new report by Lambda Legal, which has represented LGBTQ people in civil rights cases nationwide.

“The United States is more diverse than ever, yet our nation’s courts are painfully homogenous,” said Eric Lesh, director of Lambda Legal’s Fair Courts Project and the author of the report. “This lack of diversity results in a biased system — both in perception and reality.”

The 2015 US Supreme Court ruling that legalized gay marriage was a cultural and legal landmark but not the end of the fight for equal rights. The Supreme Court only hears about 80 or so cases a year, while state courts handle 95 percent of cases that have a direct impact on people’s lives, including nearly all family and criminal matters.

In fact, marriage freedom began at the state level — it was top courts in more liberal states like California and Massachusetts that issued the first legal rulings upholding the right to marry based on the language in state constitutions. Now that the popular issue of marriage has been decided, mainstream LGBTQ groups are finally focused on a long list of other issues that the queer grassroots has been grappling with for years.

LGBTQ people and people living with HIV still face ongoing employment discrimination, unfair state parenting laws, unequal health care access and abuses by law enforcement officials and the criminal legal system. This is especially true for transgender people and LGBTQ folks who face multiple intersecting forms of discrimination due to race, immigration status or income.

To measure how state courts can be swayed by partisan politics and the often anti-LGBTQ ideologies of majority-white and majority-straight voting blocs, Lambda Legal collected data on all cases brought before state supreme courts between 2003 and 2015. While many of these cases involved marriage rights and child custody, some also concerned transgender rights, such as bathroom access, as well as efforts to stop bullying, employment discrimination and the criminalization of defendants based on their HIV status.

States appoint their high courts in a few different ways. Many states hold either partisan or nonpartisan elections to elect judges or retain them after they are appointed, while 12 states appoint judges for life. In all, 38 states put high court judges on the ballot at some point, and Lamda Legal found that judges in those states were more likely to make anti-LGBTQ rulings than those who serve life terms.

States that hold partisan elections only made pro-LGBTQ rulings in 53 percent of cases, while judges that are given lifetime appointments or are reappointed made rulings favorable to LGBTQ rights 83 percent of the time. Judges elected in nonpartisan contests were more supportive than their partisan counterparts, making pro-LGBTQ rulings about 70 percent of the time.

Judges elected or retained by voters can come under political pressure to oppose LGBTQ rights and appear tough on crime, especially in conservative states, according to the report. Judicial elections also create more independent and ideological courts that are more likely to be swayed to discriminate against LGBTQ people based on their political and social views rather than the facts of the case.

In states like Texas, Arkansas and Louisiana, for example, candidates for state supreme court have boasted about their socially conservative credentials during their campaigns. A 2012 campaign ad for Jeff Hughes, a high court judge in Louisiana, urged voters to support him because he is “pro-life, pro-gun and pro-traditional marriage.”

The flood of outside money into politics has also made state judicial elections more polarized. The amount of money spent on state high court elections has doubled in the past decade, with the amount of independent spending increasing in the years since the US Supreme Court’s Citizens United decision in 2010.

This increase in spending means an increase in attack ads against judicial candidates, especially from political opponents or right-wing groups seeking to paint judges as “activist judges” for making rulings in favor of LGBTQ people or “soft on crime” for siding with criminal defendants.

Recent studies have linked an increase in political ads in states with judicial elections to an increase in rulings against criminal defendants and longer prison sentences, according to the report. Political spending may also make it more difficult for incumbent judges of color to keep their seats.

“Judicial elections are putting LGBT equality — and our country’s very democratic principles — in increasing danger,” said Lambda Legal CEO Rachel B. Tiven. “Queer people across the country are seeing their constitutional rights and liberties thrown out the window by judges beholden to special interest groups.”

Lamda Legal concludes that “judges are not politicians” and therefore, should be appointed by governors or legislatures based on their merit, instead of elected. States should also provide high court judges with diversity training and strive to appoint diverse courts to reflect the people they serve.

It should be pointed out, however, that most of the 12 states that appoint judges for life and had the highest rates of pro-LGBTQ rulings are also located in the Northeast and tend to be more socially liberal than states like Texas and Louisiana that tend to elect conservative judges in statewide races.

It’s also unclear how much change these proposed reforms, which would take years to institute, would bring to a criminal legal system that routinely disenfranchises queer and transgender people and allows the police to kill unarmed people of color with apparent impunity. In 2012, a Lambda Legal survey found that only 27 percent of transgender people and 33 percent of LGBTQ people of color said that they “trust the courts.”

Still, a more diverse judiciary could provide better odds for LGBTQ people fighting homophobic employers or simply trying to change their gender identity on a driver’s license. After all, how can a justice system that’s overwhelmingly straight and white remain impartial in a nation that is increasingly anything but?