President Joe Biden has fallen short in appointing attorneys from the LGBTQIA+ community. A new report from the civil rights organization Lambda Legal finds that while 7.1% of the U.S. population identifies as LGBTQIA+, only 2.2% of federal judges openly do. The gap in representation has increased over the last year, despite the confirmation of judges like Jamar Walker, Virginia’s first openly gay judge last fall, and Beth Robinson, the first open lesbian to serve on a federal circuit court.
“We are asking the Biden administration, again, to prioritize the nominations of LGBTQ+ judges and judges living with HIV, particularly LGBTQ+ judges of color who are currently less than one percent of all Article III judges; judges living with HIV; and transgender, nonbinary, and bisexual judges,” the Lambda Legal report stated.
As of May 2, there are 44 current vacancies and 22 future vacancies, most in the Northeast, South, and Midwestern regions, without pending nominees at district and circuit courts, openings that provide an opportunity to improve LGBTQIA+ representation. About half of these vacancies are within courts and states that do not have any LGBTQIA+ representation on the bench. Currently, there are no openly transgender, bisexual, nonbinary, or intersex judges on federal courts.
“The lack of representation on the federal bench means the perspectives of LGBTQ+ people and people living with HIV just don’t exist when cases are being considered, even cases that are implicating our rights,” said Ethan Rice, a senior attorney for the Fair Courts Project at Lambda Legal.
Federal courts have significant decision-making power on a range of issues that are important to the LGBTQIA+ community, including employment protections, health care, and criminal justice. Having a more diverse judiciary, Lambda Legal argues, would allow voices from the queer community to have a representational say in legal issues that affect it, creating more structural impartiality. As federal courts make decisions that impact marginalized communities, diverse representation is also key to rebuilding judiciary legitimacy among the public.
“The number of laws and regulations that are anti-trans and anti-LGBT that are being passed has exponentially exploded, and those cases are going primarily to federal courts,” Rice said. “When we don’t have anyone on those benches that are LGBTQ+, we have serious concerns about whether there is someone who can speak to the perspective of LGBTQ people on the bench.”
At the end of the Trump administration, almost 40% of the president’s confirmed appeals court judges had demonstrated some history of hostility toward LGBTQIA+ people, from opposing gay marriage to allowing businesses to deny services to gay or transgender people. Because their appointments are fairly new, these judges will likely remain on the bench hearing cases for a long time.
The rights for transgender girls to play on sports teams aligned with their gender, for transgender youth and adults to access gender-affirming care, for trans youth to remain with their families, and for trans people to use the bathrooms corresponding to their gender identities are particularly being affronted by new laws enacted by conservative state legislatures. Challenges to these laws are being heard and decided in federal courts.
Last October, the U.S. District Court for the Northern District of Texas ruled that workplace discrimination protections did not require dress code, bathroom, and pronoun accommodations. The same court also struck down protections for transgender people to receive gender-affirming health care. But the federal judiciary has also helped to uphold LGBTQIA+ rights, albeit inconsistently. In April, the Supreme Court refused to strike down a federal appeals court order allowing a transgender girl to continue competing on her school’s girls track team in West Virginia while a lawsuit against the state’s law barring transgender athletes from women’s teams continues.
“Ultimately the federal courts may end up being the last protector of LGBTQ rights where you have states that are passing laws that significantly infringe upon our community,” said Janice Grubin, a partner at Barclay Damon who serves as co-chair of the Judiciary Committee for the LGBT Bar Association of Greater New York.
The gap in representation also has a detrimental effect on the experiences of LGBTQIA+ individuals in court. According to a 2022 survey from Lambda Legal and Black and Pink National, 22% of respondents who were sexual or gender minorities, women, or living with HIV who had been in court said that they had heard someone in the court vicinity making negative comments about their sexual orientation, gender identity, or HIV status.
“Obviously, when people do hear negative comments in the court system, their trust that the folks in the court system are unbiased or would even listen to their side of the story decreases,” Rice said.
While 70% of sitting federal judges are men and 78% are white, Biden has sought to remedy these disparities. Approximately three-fourths of his appointments have gone to women and two-thirds to people of color, including a record number of Black women. A key component of Biden’s campaign platform was LGBTQIA+ equality, with Biden’s campaign website promising he would use his executive authority “to nominate and appoint federal officials and judges who represent the diversity of the American people, including LGBTQ people.” Biden has nominated 10 openly gay and lesbian people to federal courts in his first two years in office, but it has not been enough to stop the widening representation gap.
The patchwork of laws regarding non-discrimination makes geographic representation of LGBTQIA+ judges particularly important. Thirty-one states do not have a single openly LGBTQIA+ district or circuit court judge, mostly in southern and midwestern states that are seeing the most attacks on the LGBTQIA+ community. Lambda Legal’s report recommends that Biden focus especially on appointing LGBTQ+ judges in the American South, where a significant proportion of the new anti-gay and anti-trans laws are being introduced.
“The stakes in those states are that our community is not treated equally with other communities, and our rights and our liberties shrink, and then the population gets used to that,” Grubin said. “And then here we are back again.”
Part of the problem is that the pipeline for entering the federal judiciary is not particularly diverse. Only about 3% of attorneys are openly LGBTQIA+, although this number increases to about 7% among younger employees. Fewer senior LGBTQIA+ lawyers translates into fewer people interested in and qualified for positions in the federal judiciary.
Programs like the LGBTQ+ Bar Association’s Nuts & Bolts Academy for Judicial Candidates seek to provide information sharing and mentoring for LGBTQIA+ legal professionals interested in entering the judiciary. Grubin is part of efforts in New York to identify potential judicial candidates from the LGBTQIA+ community and advocate for their appointment. She said she is deeply committed to diversity on the bench and in her community.
“I’m not so young anymore, and it scares me what I see around me,” Grubin said. “The only way I can deal with that is by trying to get involved in projects that work toward enhancing the diversity of the federal bench and the state bench.”