LGBTQ+ Judges Are Still Conspicuously Missing on the Federal Bench - Alliance for Justice

LGBTQ+ Judges Are Still Conspicuously Missing on the Federal Bench


Rebecca Buckwalter-Poza


LGBTQ+ Americans

Sign outside Supreme Court reads: "Equality for LGBTQ People, No More, No Less"
CREDIT: Shutterstock/Bob Korn

Over the course of two terms, President Obama appointed 11 openly LGBTQ+ judges. At the end of March this year, President Biden tied that record. Pending nominees could bring him over the line — a remarkable accomplishment over a single term in office. Their administrations have made history. Still, an enormous gap remains — and is growing. Biden has yet to nominate a transgender, nonbinary, intersex, or bisexual attorney or an attorney living with HIV to the federal bench.

The issue of LGBTQ+ and HIV-positive representation on the bench becomes more relevant by the day as anti-LGBTQ+ activists fight to pass local and state legislation banning everything from drag queen performances to books and health care. Judges are, in many ways, the last line of defense against these efforts to not just legalize anti-LGBTQ+ discrimination but codify protections for those who seek to discriminate.

Need convincing about what’s at stake? The Supreme Court this week announced that it will hear a Biden administration challenge to a ban on gender-affirming care for minors — including interventions as minor as puberty blockers — in Tennessee, one of 25 states that has passed such a law. This issue has been wending its way through the federal courts for years, with Trump-appointed judges following their benefactor’s position.

Where We’ve Been

During his term in office, President Trump appointed a stunning 234 federal judges. He did so with the help of not just Senator Mitch McConnell but dark-money groups like those led by extremist Leonard Leo. Such groups identify and cultivate attorneys with extreme positions on issues ranging from reproductive justice to campaign finance to LGBTQ+ rights, developing lists of potential nominees whose conservative credentials make the cut. They similarly create “Supreme Court shortlists,” as Trump did during his campaign — the first presidential candidate to do so.

Lambda Legal found that at least four in 10 of Trump’s judges already had anti-LGBTQ+ credentials. On the bench, these ideologues have been consistent — not in following the law (their job) but in wielding it as a weapon to block the recognition or affirmation of the rights of LGBTQ+ people. These lifetime appointees present a generational threat. It is their goal to shift or outright overturn the limited jurisprudence recognizing the dignity of LGBTQ+ people and ultimately create a First Amendment right to discriminate in the name of “religious liberty.” In the short-term, they are religiously striking down rules, regulations, and laws protecting LGBTQ+ people.

Alliance for Justice assembled a sampling of these judges with known anti-equality records before they were nominated, a preview of what has already turned out to be true and what we should expect if the number of anti-LGBTQ+ judges grows.

Consider vocal uber-conservative James Ho, who defended Texas’s anti-LGBTQ+ Defense of Marriage Act and even attempted to block the state’s recognition of a same-sex divorce before becoming a judge. Since confirmation, Ho has, among other things, declared he won’t hire clerks from what he perceives as liberal institutions and sided with the doctors seeking to end access to mifepristone, used for medical abortions — a position so extreme even this Supreme Court reversed Ho and the Fifth Circuit. His continuing anti-LGBTQ+ bias and appetite for attention is evident in stunts such as his unusual — read: bizarre — decision to write a concurrence three times as long as the majority opinion, which he also authored, in a case denying a transgender employee the right to raise a discrimination challenge in 2019.

The grand prize goes to the Ninth Circuit’s ironically named Lawrence VanDyke. This unfortunate jurist broke into tears when presented with the American Bar Association’s findings of his lack of qualifications and history of anti-LGBTQ+ animus during the confirmation process. Since joining the bench in 2019, however, he has proven every point of concern well-founded: He’s for guns, against gays, dislikes doing work, treats colleagues on the bench with contempt, and really, really hates transgender people. Look no further than his 2022 opinion reaching far further than the court needed to go — or should have gone — to find beauty pageants can exclude trans women under a First Amendment right to “communicate ‘the celebration of biological women.’”

Where We’re Going

The Biden administration’s commitment to advancing diversity on the bench is laudable. A majority — 63 percent — of Biden judicial appointees are people of color and 64 percent are women. Even with these major gains, the federal judiciary lags in representation — and not just on the LBGTQ+ front. Women of color remain drastically underrepresented as compared to the U.S. population, and 47 of 94 federal district courts have never had a woman of color on the bench. Even more glaring: The all-male districts in North Carolina, Oklahoma, and North Dakota that have never had any female jurists.

Diversity matters because representation and visibility matter. None other than the late Justice Sandra Day O’Connor, the first woman on the Supreme Court, remarked, “For both men and women, the first step in getting power is to become visible to others, and then to put on an impressive show.” Then, she said, “As women achieve power, the barriers will fall.” The same applies to openly LGBTQ+ people.

Among the most recent LGBTQ+ judicial nominees to make it through confirmation are Judges Nicole Berner and Melissa DuBose. Berner has made history as an LGBTQ+ person not only domestically — when she became the first LGBTQ+ judge on the Fourth Circuit and only the third LGBTQ+ woman to become a federal appellate judge — but abroad, standing up for the rights of same-sex parents as a parent and petitioner before Israel’s Supreme Court while studying there. Judge DuBose is not only the first LGBTQ+ judge to sit on the U.S. District Court for the District of Rhode Island but the first person of color of any gender to serve on it.

It is only right, as we close Pride, to remember Judge Deborah Batts as the first LGBTQ+ jurist. Judge Batts was the first African-American faculty member to teach at Fordham Law School and then became the first ever openly LGBTQ+ federal judge in the United States when she was sworn in as a federal district court judge in the Southern District of New York 30 years ago this month. Having waited for years to be nominated after Sen. Daniel Patrick Moynihan first suggested her as a candidate for the federal bench, Batts was the sole openly LGBTQ+ judge in the federal judiciary for nearly two decades. Batts, who passed away in February 2020, said after being celebrated by her colleagues in May 2019, “There was this lone wolf sitting up here in the Southern District of New York, and I can’t tell you — I can’t tell you how happy I was when I got company.”

Recommended for the same bench on the same day as now-Justice Sonia Sotomayor, who called her a sister, Batts was recognized by her colleagues for being what the late Justice Ruth Bader Ginsburg, herself a pioneer, called a “pathbreaker.” Judge Pamela K. Chen, another openly gay woman who sits on the Eastern District of New York, says Batts “literally broke down the closet door and allowed the rest of us to walk through it.”

The Race to the Finish

Today, just 21 of 815 active federal judges are lesbian or gay. Not one is known to be bisexual, transgender, nonbinary, or openly living with HIV. Meanwhile, conservatives operating in organized cells — some known as hate groups — command thousands of attorneys devoted to proactively developing anti-LGBTQ+ legal strategies. Their plan is to block the recognition of rights based in human dignity and instead shield Americans who wish to discriminate on the basis of sex, sexual orientation, and gender identity, among other categories.

The perspective that openly LGBTQ+ judges bring to the bench and offer their colleagues is critical as state and federal courts face myriad challenges to the limited protections LGBTQ+ people have at any level. So, too, is the hope their presence and visibility can bring members of the public who face discrimination: the promise of progress.

Rebecca Buckwalter-Poza is a senior fellow and Aron senior justice counsel at Alliance for Justice.