Despite recent success at the Supreme Court, numerous challenges to LGBT equality remain.
Among the final frontiers for full LGBT equality is equal representation in the state & federal judiciary. It is both ironic and sad that the very judicial institutions that we rely upon for our equality are themselves unequal and un-inclusive of LGBT Americans.
Based on publically available information published by Governor Brown and the Judicial Council of California, more than one-third of California judges who respond to an annual questionnaire still chose not to response to questions regarding LGBT status, illustrating that the social stigma of LGBT status continues to exist in California.
Governor Brown is a man of many firsts, appointing the first openly gay judges in the United States in 1979, and appointing the first openly gay and first openly lesbian justices to the California Court of Appeal in 2012 and 2013, respectively. And the Governor’s office has been outspoken in its commitment to appointing diverse judges.
In 2014, the Governor appointed five self-identified LGBT judges and justice. Unfortunately, these appointments merely kept the total number of LGBT California State judge and justices steady at 41 (out of 1655).
Thus only 2.4% of California judges are openly LGBT, a percentage that does not mirror the percentage of openly LGBT individuals in California.
The statewide statistics demonstrate further troubles: (1) 78% of counties in California (45 of 58 counties) have no LGBT judicial representation whatsoever; (2) seven California counties with over 20 judges do not have any LGBT judges; (3) there has never been an openly LGBT Justice of the California Supreme Court; and (4) there are no openly bisexual judges or justices in California.
Orange County’s first openly LGBT judge was appointed just last year, in 2014.
The problem of underrepresentation is not unique to California state courts.
Out of 874 authorized Article III judgeships in the country, there are only 11 openly LGBTs. In all of California, there is only one openly LGBT Article III judge. California has three openly LGBT federal magistrate judges. There are no openly LGBTs on the entire Ninth Circuit Court of Appeals. There is only one openly LGBT federal appellate judge in the entire country, who sits on the Federal Circuit and was nominated by President Obama and confirmed by the US Senate in 2013.
The LGBT community, and the community at large, must take an active role in ensuring equal LGBT representation in the courts. The stigma of LGBT status must be dispelled in order to expand the pool of LGBT judicial applicants and gather reliable statistics. The limited representation of openly LGBT judges on the bench affects both LGBTs’ and the public’s perception of LGBTs in society.
There must also be a greater appreciation for the role that support and mentorship from LGBT leaders, attorneys, and judges plays in increasing LGBT representation in the judiciary. Direct mentorship is not always the most far-reaching method to increase diversity, especially in the historically closeted LGBT population. However, mere exposure to successful, openly LGBT judges will help inspire the path to judgeship.
Finally, a California LGBT judges association should be created to foster a more diverse judicial pipeline. Such an association could serve to illustrate a cohesive LGBT presence and inspire those in the LGBT community to seek appointment.
Casey R. Johnson is a partner at the Orange County law firm of Aitken, Aitken & Cohn as as well as a past president of the Orange County Trial lawyers Association.