Political Notes: Transgender judges go missing in CA court demographic report

  • by Matthew S. Bajko, Assistant Editor
  • Friday March 1, 2024
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California transgender trial court Judges Victoria Kolakowski, left, of Alameda County, and Andi Mudryk, of Sacramento County, were left off the 2024 judicial demographic report from the Judicial Council of California, making it appear that the state has no out trans judges. Photos: Kolakowski, courtesy the subject; Mudryk, courtesy the Governor's office
California transgender trial court Judges Victoria Kolakowski, left, of Alameda County, and Andi Mudryk, of Sacramento County, were left off the 2024 judicial demographic report from the Judicial Council of California, making it appear that the state has no out trans judges. Photos: Kolakowski, courtesy the subject; Mudryk, courtesy the Governor's office

Back in 2022 Governor Gavin Newsom ballyhooed his picking a transgender applicant for the first time to fill a judicial vacancy. That April, Judge Andi Mudryk joined the Sacramento County Superior Court.

It doubled the number of trans jurists on state trial courts, as Judge Victoria Kolakowski had won election in 2010 to the Alameda County Superior Court. And in 2023 their presence on the bench was reflected in the annual report about the demographic makeup of the Golden State's judiciary.

It clearly stated there were two transgender trial court judges serving in 2022, one in Alameda and one in Sacramento. (The annual report reflected the self-reported sexual orientation and gender identity, or SOGI, data from judges through December 31, 2022.)

Yet, Mudryk and Kolakowski are no longer counted in the 2024 report released March 1. The column for judges who are transgender now says zero.

"I don't know what the problem is," said Kolakowski, who learned about her erasure from the data by the Bay Area Reporter.

Kolakowski, who is married to B.A.R. news editor Cynthia Laird, said she would investigate why she and Mudryk are missing from this year's report.

"I think that is an administrative error that needs to be updated," Kolakowski said.

Mudryk did not immediately return a request for comment Friday from the B.A.R.

The spokesperson for the Judicial Council of California, which produces the yearly reports, was out of the office Friday. California courts spokesperson Merrill Balassone told the B.A.R. she was unavailable for a phone interview.

In an emailed reply Balassone suggested the trans judges' omission from the data could stem from their changing their responses to the SOGI questions asked of judges.

A change was made to the reporting of the SOGI judicial information with this year's report. A new category was added for respondents who provide multiple responses to the SOGI questions.

Titled as "More than one SO/GI," the demographic category lists there being three such trial court judges.

"So a judicial officer may revise their responses over time as they see necessary. This may result in a judicial officer selecting a slightly different set of response alternatives from one year to the next," wrote Balassone. "An example includes situations in which a judicial officer decides to select multiple response alternatives (e.g., more than one race/ethnicity or multiple SO/GIs). In cases like these they will be included in the 'more than one' response category for that demographic question."

Balassone did not respond to the B.A.R.'s emailed questions about why the new multiple SOGI answer category was added to the report this year.

As for the trio of judges listed under it, they serve on the El Dorado, Orange, and Sacramento benches. (The report does not list judges by name; it only categorizes them by their SOGI responses in addition to their gender, race, disability, and military service.)

Mudryk could account for the person in Sacramento, as no other LGBTQ judges are listed for her court in the 2024 report. (It is a decrease from last year's report, which also counted a gay judge on her bench.)

Left unexplained is why Kolakowski is not accounted for in the 2024 report, since no Alameda judge is listed under the new category.

Asked if she had listed herself last year as both lesbian and transgender, Kolakowski told the B.A.R. that sitting judges aren't given the demographic survey to fill out each year. She had completed hers when she first joined her East Bay court and couldn't recall if she had checked both boxes.

"We don't get a form annually," noted Kolakowski.

The initial data judges provide is used to generate the annual reports going forward, confirmed Balassone. The jurists can update their information at any time, she noted.

"The Judicial Council contacts new judicial officers appointed or elected to the bench in a given calendar year. Experienced judicial officers who want to update their demographic information are free to participate as well, although we do not contact them directly to again request this information," wrote Balassone.

She added that the judges who preside over each court are annually notified about the impending survey and asked to inform the rest of the members of their bench so they can update their data if they so desire.

"They are encouraged to let their experienced judicial officers know that they are free to update their demographic information if they so choose — or for that matter to provide such data for the first time if they haven't done so before," wrote Balassone.

LGBTQ judges miscounted

The B.A.R. found that the 2024 report also miscounts the total number of LGBTQ judges who provided their SOGI information. According to the totals listed on Page 2 of the report, there were 90 out justices, with 45 being gay and six being bisexual among those serving on trial courts.

But based on the information listed later in the report for each of the state's 58 trial courts, there were 46 gay and seven bisexual judges on the county-based courts in 2023. Thus, the total number of LGBTQ jurists in California last year was 92, per the document.

Lesbians accounted for 30 of the LGBTQ trial court judges on the bench. No judges identified as nonbinary.

Beginning with the 2012 demographic report, California's courts have released SOGI data on judges. But the information is often inaccurate, as judges are not required to answer the SOGI questions and can leave them blank.

Thus, of the 1,731 respondents to the 2024 report, 301 justices did not provide their sexual orientation or gender identity. Of those, 289 were trial court judges, with the rest serving on appellate courts.

As the annual reports only include the data collected through the immediate past year, they also fail to count those judges seated after January 1 of the year they are issued. Therefore, lesbian Alameda County Superior Court Judge Bentrish Satarzadeh, appointed by Newsom in January, is not counted in this year's report.

The 2024 report on the makeup of the Golden State's judiciary does reflect there now being two out justices on the California Supreme Court — Kelli Evans, a queer woman, and Martin Jenkins, a gay man. As there is no queer category in the report, Evans is listed as a lesbian.

But the 2024 report undercounts the number of LGBTQ Court of Appeal justices in 2023. A similar issue occurred with last year's report, as it listed just two serving in 2022 even though at the time there were actually five known out appellate court jurists across the state.

This year four are listed as serving in 2023. The number of out appellate judges did decrease last year following the August retirement of lesbian associate justice Marsha G. Slough from the 4th District.

But two gay men became appellate court justices, with Gonzalo Martinez joining the 2nd District Court of Appeal's Division Seven and David Rubin joining the 4th District Court of Appeal's Division One. Thus there are six known out Court of Appeal members in the state.

The 2024 report would appear to count Rubin but not include Martinez. Associate Justice Luis A. Lavin, a gay man, also serves on the 2nd District Court of Appeal, though the report only lists there being one gay member of it.

The data for the 2024 report is a bit misleading in another manner. It says of the four appellate justices counted that one is a lesbian and three are gay.

Missing from the data its Laurie M. Earl, a lesbian who is the presiding justice of the 3rd District Court of Appeal. According to the report, her appellate court has no LGBTQ judges on it.

Therese Stewart, the presiding justice of the 1st District Court of Appeal's Division Two, likely accounts for the report's listed lesbian. Among the gay men counted is Justice Jim Humes, the presiding justice for the 1st District Court of Appeal, which covers the Bay Area region.

Balassone noted to the B.A.R. there are various "issues in play" causing the discrepancies in the report's SOGI data, "including yearly turnover of judicial officers in a calendar year, with new judges and justices taking on newly vacant positions that they were appointed or elected to. Not only will new judicial officers bring different demographic profiles to their new positions; it may take a little time for them to decide to participate in the demographic survey, which will of course change response patterns in the data."

As such, there are at least 95 LGBTQ judges serving on the California bench as of March 1 based on data compiled by the B.A.R.

One trial court added to list with out judges

As the B.A.R. noted last year, an overwhelming majority of the state's county trial courts had no known LGBTQ judges serving on them. Just 17 out of the 58 reported having at least one LGBTQ jurist serving on it as of December 31, 2022.

The list of trial courts having any LGBTQ members only grew by one last year. New is Sonoma County, which is now listed as having two lesbian judges.

Of the 18 trial courts that had out judges, 11 reported having two or fewer LGBTQ members on its bench.

The Los Angeles County Superior Court continues to have the most out jurists of any county court, with 30 LGBTQ judges serving on it as of December 31 based on the latest data. It marks on increase of two since last year's report.

Had Kolakowski been listed, the Alameda County bench would once again have had the second-highest number at 10. (With the recent addition of Satarzadeh to it, it retains the distinction of having the most LGBTQ judges of any county in Northern California, according to the 2023 survey data.)

Joining San Diego County in having the third most LGBTQ trial court jurists, at nine as of the end of last year, was San Francisco County. (Last year's report had only counted there being six out jurists on the San Francisco trial court.)

The Orange County Superior Court moved up in the rankings, going from three out jurists last year to now having six. The courts in Santa Clara and San Bernardino counties each continue to have four out judges per the latest report.

It also continues to list two in San Mateo County, meaning the six combined LGBTQ judges in the South Bay remains an apparent undercount. The website Queer Silicon Valley continues to state there are at least nine out members on the bench in the two counties.

Contra Costa County continues to have two LGBTQ judges, based on the 2023 data. In the rest of the nine-county Bay Area region, the superior courts in Marin, Napa, and Solano counties continue to have no LGBTQ judges on their benches per the judicial demographic data.

San Joaquin saw out representation on its trial court double last year, with there now being two bisexual judges, according to the latest report. The local benches in El Dorado, Fresno, Imperial, Kings, Riverside, and Santa Cruz counties continue to each have one out judge, per the latest data.

The Commission on Judicial Nominees Evaluation 2023 Statewide Demographics Report, also released March 1, revealed it had reviewed 185 candidates' qualifications for judicial office last year. Two were bisexual, eight were lesbian, and seven were gay.

None identified as transgender, though one applicant did not answer the SOGI questions. The commission found just one of the LGB applicants unqualified, with the rest scored as either exceptionally well qualified or well qualified to be judges.

According to additional data released Friday by Newsom's office, he has appointed 445 judges between 2019 and last year to the state's courts as governor. There were 157 appointees in 2023, from a pool of 1,656 applicants.

Last year, 14 LGBTQ people applied, and Newsom appointed 15 LGBTQ people to judicial appointments. The governor, who will be termed out of office on January 4, 2027, had appointed 39 LGBTQ judges as of 2023; they accounted for 5.2% of the judiciary last year.

Keep abreast of the latest LGBTQ political news by following the Political Notebook on Threads @ https://www.threads.net/@matthewbajko

Got a tip on LGBTQ politics? Call Matthew S. Bajko at (415) 829-8836 or e-mail [email protected]

UPDATED 3/1/2024 to correct the number of out appellate court justices serving in 2023.

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