Issue:  Vol. 47 / No. 21 / 25 May 2017
 

Online Extra: Political Notes: Bisexuals left off CA judicial bench

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m.bajko@ebar.com

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While California's judiciary has marked a number of milestones regarding the appointment of out justices, bisexual judges have yet to publicly take a seat on the state bench.

For the fourth year in a row an annual report about the demographic makeup of the state courts, released March 4, listed zero bisexual judges among the 1,655 jurists serving as of December 31, 2014.

At the same time, the number of judges who self-identified as gay, lesbian, or transgender held steady at 41, representing 2.4 percent of the state judiciary last year.

State law requires the California Administrative Office of the Courts to annually report on the diversity of the judiciary, including on the sexual orientation and gender identity makeup of the state bench. Responding to the questionnaire is entirely voluntary, and the identities of the LGT judges are not disclosed.

Last year 582 judges opted not to answer if they identify as LGBT or heterosexual. Thus, it is possible there are closeted bisexuals serving on the state bench who are unwilling to disclose that information, even anonymously, on the report.

Asked about the lack of bisexual judges on the bench, Evan Westrup, a spokesman for Governor Jerry Brown, noted in an email to the Bay Area Reporter that the publicly released data "represents only a partial snapshot of judicial appointee demographics."

He stressed that "this information is self-reported on a voluntary basis and the statistics cited (which group together all LGBT appointments) reflect that."

Westrup added that Brown's administration continues "to aim for a broad, experienced and diverse pool of applicants for every vacancy filled and California certainly benefits from a bench that reflects its rich diversity."

The lack of out bisexuals on the state bench has not gone unnoticed by the state's LGBT legal associations. Groups based in San Francisco, Sacramento, San Diego, Los Angeles, and Orange County are jointly working on a report about the status of LGBT judges in California that should be completed this summer.

Jamie Dupree, a lesbian and co-chair of Bay Area Lawyers for Individual Freedom, a legal group for LGBT attorneys in the Bay Area, said she has spoken to a number of bisexual attorneys who are uncomfortable about being out about their sexual orientation at work, particularly if they are in an opposite-sex relationship and perceived to be heterosexual.

"It remains a challenge to be an out bisexual in general and within the legal field," said Dupree, an attorney with San Francisco law firm Futterman Dupree Dodd Croley Maier LLP.

 

State judicial data

Also noteworthy about the state judicial data is the fact that there continues to be no out judges serving on the California Supreme Court. Despite pressure for him to name an LGBT person to the state's highest court, Brown has not opted to do so the three times in recent years he has filled a supreme court vacancy.

All six of the sitting justices on the state's highest court who filled out the questionnaire last year – there had been a vacancy – checked off heterosexual.

It marks the first time since 2011, when the state's judges were first asked if they identify as LGBT, that all of the sitting supreme court justices answered the question. In years past one of the seven justices had always left that question blank, fueling rumors that one of the female justices is a closeted lesbian.

Of the state's 98 appellate court justices, one identifies as lesbian and one as gay, with both from the First District. Last year's report listed two gay judges on the appellate courts, one on the First District and one on the Fifth District.

Last summer Therese Stewart, a former San Francisco chief deputy city attorney, became the first out lesbian appointed to serve on the California Court of Appeal. She will be feted today (Monday, March 9) as Assemblyman David Chiu 's (D-San Francisco) "Woman of the Year" during the annual Women's History Month celebration in the state Legislature's lower chamber.

Fellow San Francisco resident James M. Humes last year became the first out judge to oversee a state appellate court when Brown elevated him to be the presiding justice of the First District Court of Appeal's Division One. The governor first appointed Humes, who had been a longtime aide to Brown, to a seat on the appellate court in 2012.

Among the 1,551 trial court judges, 21 identify as lesbian, 17 as gay, and one as transgender. Fourteen of the state's 58 trial courts have judges who identify as LGT, an increase of two from last year.

Los Angeles continues to have the most with nine, one less than what was reported last year, while San Francisco has the second highest with six judges, the same as in 2013. The trial courts in Alameda, Riverside, San Bernardino, and San Diego all have three.

There are two each on the trial courts in Contra Costa, San Mateo, and Santa Clara. The trial courts in El Dorado, Imperial, Marin, Mendocino, and Orange all have one.

While the LGT judges comprise a little more than 2 percent of the state's judiciary, those who identify as heterosexual account for 62.4 percent.

"BALIF wishes that the number of self-reported LGBT judges had increased this year, but remains optimistic that its efforts will help that number increase over time," stated Dupree. 

Even though the information is reported anonymously, LGBT legal advocates note that because the data is broken down by county, LGBT judges on rural or less urban courts may opt not to disclose their sexual orientation or gender identity because doing so could make it possible to figure out their identity if they are the only LGBT person on their bench.

"Although the world is rapidly changing, LGBTs still face significant discrimination," noted Dupree. "We suspect that there are a number of judges who do not self-report, particularly those who are closeted in smaller and more rural counties."

According to a report released by Brown's office on his judicial nominations, there were five LGBT judicial appointees last year, accounting for 6.6 percent of his picks in 2014 to fill judicial vacancies. Ten LGBT people applied last year to be nominated to a judgeship, according to the gubernatorial data, which did not break out how many were gay, lesbian, bisexual, or transgender.

Since 2011 there have been 49 LGBT judicial applicants and 10 appointees, according to the data supplied by Brown's office.

The governor's office rarely discloses the sexual orientation or gender identity of judicial nominees when they are announced, making it difficult to determine which are from the LGBT community.

Apart from Stewart and Humes, it is unclear who were the three other out judges Brown appointed to the court last year. His office declined to disclose their identities when asked to do so by the B.A.R. last week.

"Generally, the names of LGBT applicants/appointees remain confidential," explained Westrup, the governor's spokesman. "The exception is when the appointee is a 'first,' which would be noted in the press release issued by our office."

BALIF and the other LGBT legal groups plan to continue to press Brown to appoint more LGBT people to the state courts.

"We are building a pipeline of judicial candidates and are advocating with the governor's office for judicial appointments for members of our community," stated Dupree. "While we applaud the governor for his leadership in diversifying the bench, we believe that the LGBT community needs more representation. Ultimately, only the governor can change that number upward."

To download the full 2015 report on judicial demographics, as well as for past years, visit http://www.courts.ca.gov/13418.htm.

Keep abreast of the latest LGBT political news by following the Political Notebook on Twitter @ http://twitter.com/politicalnotes.

Got a tip on LGBT politics? Call Matthew S. Bajko at (415) 829-8836 or e-mail m.bajko@ebar.com.

 






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