Issue:  Vol. 48 / No. 12 / 22 March 2018

Report sheds light on state judiciary's LGBT makeup


Bar Association of San Francisco President Kelly Dermody
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A new report is shedding light on the state judiciary's LGBT makeup and has brought into stark relief how few out judges there are in California.

Of the 1,678 judges serving on the state's courts, which includes the Supreme Court, Court of Appeal, and trial courts, only 1 percent self-identify as gay and 1.1 percent as lesbian. There is one transgender judge and no known bisexual jurists.

"I am pleased to see more transparency in the reporting of representation figures for openly LGBT judges," said Kelly M. Dermody, an out lesbian and partner at Lieff Cabraser Heimann and Bernstein LLP.

But Dermody, who is president of the Bar Association of San Francisco, added, "Unfortunately, these figures also highlight the significant work that remains to be done to achieve full diversity and inclusion on the bench."

The data comes from a report released last week by the Administrative Office of the Courts. It is the first time demographic data on the gender identity and sexual orientation of California state judges and justices was included among the annual information on the ethnicity, race, and gender composition of the courts.

 The council began collecting the data on race and gender six years ago. It began asking judges if they identify as LGBT this year due to the passage of SB 182, the Judicial Applicant and Appointment Demographics Inclusion Act. Authored by state Senator Ellen Corbett (D-San Leandro), it was signed into law by Governor Jerry Brown in 2011.

The bill instructed the Administrative Office of the Courts to gather voluntary data on the gender identity and sexual orientation of judges. It is up to the individual justices to provide the information.

Thus, the numbers included in the report are not an accurate reflection of the LGBT makeup of the bench in California. While close to 58 percent of the jurists said they were heterosexual, 40 percent of judges and justices did not answer the question about their sexual orientation or gender identity.

"I am not surprised that the judges refused to answer. And secondly, my educated guess is that the majority of the judges who didn't answer are white men," said Chris Burdick, an out lesbian who is the Santa Clara County Bar Association's executive director and general counsel.

In 2000 Burdick served on a judicial council standing committee tasked with looking at access and fairness issues in the state courts. At the time the committee recommended surveying judges if they were LGBT.

"We got feedback at the time that the judges weren't going to answer it," she recalled.

Burdick suspects that among the 40 percent who did not answer the question in the new survey are judges who are gay and lesbian and are still closeted.

"I find it really odd a significant number of judges refused to answer those questions. They are public officials and I think the public has a right to know what the demographics of the bench is to determine if the bench fairly represents our communities," she said. "I am disappointed that so many judges would not respond because I think they have an obligation to, frankly."

According to the data that was gathered, among trial court judges there are 19 lesbians, 17 gay men and one transgender person. The trial courts account for the bulk of the state's jurists, and 638 did not provide any information regarding their sexual orientation and gender identity.

None of the 101 Court of Appeal judges identified as LGBT. Sixty-eight said they were straight, while 33 did not answer.

Somewhat tellingly, as there have long been rumors that a lesbian serves on the California Supreme Court, one of the seven justices refused to answer the question. The remaining six, who are not identified in the report, said they are heterosexual.

One surprise among the findings is where the 37 trial court judges from the LGBT community serve. In Alameda County, there are two gay men, one lesbian, and one transgender judge. Yet only Victoria Kolakowski, the court system's lone transgender member, and Judge Hugh Walker are open about being LGBT.

A lesbian and a gay man serve in Contra Costa County, while Marin and San Mateo counties each have one lesbian judge. There is also a gay judge in San Mateo.

San Francisco has four lesbian and two gay male judges. Santa Clara had two lesbian judges.

The Bay Area, with 15 LGBT judges, accounted for the bulk of the total than any other area of the state.

Los Angeles County has the most judges of any trial court system. The tally found four lesbians and six gay male judges there.

The rest came from areas of the state considered conservative bastions. There is one gay man in Imperial County, while Riverside has two lesbian judges and one gay male jurist.

San Diego has two gay judges. The remaining are in San Bernardino, which has three lesbian judges and one gay judge.

"It is really amazing the numbers for the Inland Empire, given it is predominately Republican," said David Tsai, co-chair of the LGBT legal group Bay Area Lawyers for Individual Freedom, whose family is from Riverside.

But Tsai noted that both Riverside and San Bernardino are very large counties, "so it is not surprising there would be gay attorneys who would live there and that would result in gay judges."

Considering all the other counties with zero LGBT judges, the ones that do have LGBT judges "jump out" when looking at the report, said Tsai.

"There are various reasons why people don't want to answer it. There are still many people who are fairly conservative about revealing what they consider private parts of their lives because judges are so public," added Tsai. "It could mean nothing more than that."

Like other out lawyers the Bay Area Reporter spoke with, Tsai said the numbers of judges who did self identify "are very low ... given what our population looks like in the state of California."

Advocates for seeing more LGBT people appointed to the bench hope the report's findings are a motivator for Governor Jerry Brown, who has the power to appoint people to court vacancies, to select more LGBT judges.

"Those numbers should be higher; this report sort of opens eyes," said Tsai.

 During his first term in office in 1979 Brown appointed the first openly gay judge to the state bench. Since being sworn in to a third term in 2011, it is unclear if Brown has appointed any LGBT people to the bench.

In a report Brown's office released last week, it did not state how many of the 768 judicial appointment applicants in 2011 were LGBT. Nor did it disclose how many LGBT judicial appointments he made.

His report next year should include data on the number of LGBT judicial applicants, as a requirement in Corbett's SB 182 that the governor begin collecting that data kicked in at the start of 2012.

So far Brown's office has yet to disclose that one of his judicial appointees is LGBT in the announcements sent out by his press office.

Last Thursday Brown did re-appoint San Francisco resident Michael Hersek as California's state public defender. But the announcement did not disclose he is openly gay.

Burdick said it would be helpful to have more detailed information on how many of the LGBT judges are appointments to vacancies or won their seats on the court by being elected.

While it was known that some of former Governor Arnold Schwarzenegger judicial appointments were LGBT, the full picture was unclear because his press office did not include that information in press releases on the appointments.

"I think that Governor Schwarzenegger took into consideration sexual orientation in a positive way when he did his appointments," said Burdick. "So I think that probably there were more lesbian and gay attorneys appointed to the bench during his term. You don't know because it is not identified in the bio that comes out by the governor's office."

The full report can be found at .

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