Let me tell you about someone I met a couple of years ago. Her name was Judge Deborah A. Batts. In 1994, the Honorable Judge Batts became the first openly gay person to be appointed as an Article III federal judge in the United States. She held this position for over 25 years in the Southern District of New York. As part of the library team in my previous position, we commemorated her 25 years of service with a candid interview during the 2019 Pride month with her fellow openly gay judges also at the U.S. Courts for the Second Circuit: Judge Alison J. Nathan, Judge J. Paul Oetken and Judge Pamela K. Chen. If you watch this interview as many times as I have, you can’t escape the gravitas of Judge Batts words when she describes herself as a “trifecta” and says “it’s important to pass it on…”
As an openly gay African-American woman being appointed to the U.S. federal bench in the 1990s, pass it on in such a public way was not an easy thing to do. At the time, Judge Batts was already a well accomplished legal scholar and tenure professor at Fordham University School of Law. As she joked herself, she already had a job for life. Therefore, why did she need to get into the travails of going through a public and potentially political show to be confirmed to the U.S. federal bench? Why indeed? The beginning of an answer can be found in a column in the Washington Post which Judge Stephen Reinhardt in the U.S. Ninth Circuit in Los Angeles, CA penned in 1993, called The Court and the Closet. Judge Reinhardt did not mince words when expressing his views on the matter.
“I believe that we must remove the barrier that has precluded fair and equal treatment for gays and lesbians in the area of government service that most directly affects citizens’ fundamental rights. As one who has previously written of the need for Jewish justices on the Supreme Court and who advocated the appointment of more African Americans and other minorities to the federal bench, I believe that homosexuals are as entitled as any other persons to serve as judges of the federal courts.”
One Step at a Time
In the 1990s, while Judge Deborah Batts was being confirmed as a federal judge for the Southern District of New York, both Canada and Australia were going through similar historical judicial appointments. In Canada, Harvey Brownstone at the Ontario Court of Justice became the first openly LGBTQ+ judge in the country. Similarly, in Australia, Justice Michael Kirby became the country’s first openly LGBTQ+ judge when confirmed to the High Court of Australia in 1996. These high profile and at times controversial judicial appointments also came at the cusp of the newly created International Association of LGBT Judges. Created in 1993 by state judges in the United States, this association has become a major player and important space for mostly US and Canadian judges to share experiences, support LGBT+ judges and become visible both as individuals and as a group.
Since then, there has been an increasing number of openly LGBTQ+ judges appointed to different courts throughout the world. Britain, Canada, Ireland, Spain, New Zealand, Israel are a few examples. In the United States, there are openly LGBTQ+ judges serving at both the state and federal levels. Given my personal connections to Puerto Rico, New York and Arizona, I can attest to the impact that openly LGBTQ+ judges have achieved in these three places. In 2014, Judge Maite Orozno Rodríguez became Puerto Rico’s first openly gay chief judge in the territory’s Supreme Court. Judge Paul Feinman became the first openly gay judge at the Court of Appeals in New York, when confirmed in 2017. And in 2018, Judge Tracy Nadzieja became Arizona’s first transgender judge.
Despite the progress, much still needs to be done. In commemoration of the 2020 Pride Month, the U.S. federal judiciary organized a virtual talk with five openly LGBTQ+ federal judges: District Judge Darrin P. Gayles, of Southern District of Florida; District Judge Judith E. Levy, Eastern District of Michigan; District Judge Robert L. Pitman, Western District of Texas; Magistrate Judge Donna M. Ryu, Northern District of California; and District Judge Staci M. Yandle, Southern District of Illinois. The judges spoke about their personal coming out stories both with their families and at work; their nomination and confirmation process as well as navigating current dynamics of representation, diversity and inclusion.
Representation in the Courts Matter
Judges are in the unique position of being both a product as well as an influencer of the societies in which they live. A judge’s personal life and identity are sometimes relegated to the realm of private files for only biographers to write about, perhaps a few years after they have passed. If we have learned anything from having minorities in our courts is that diversity and representation matter, particularly while judges are on the bench. Their voices and life experiences enrich our judicial systems tremendously. Their identities help build bridges between the courts and the public, and relationships between the rule of law and the communities. Most directly, LGBTQ+ judges impact the ways in which LGBTQ+ people see themselves in the judicial system. Through their visibility, LGBTQ+ youth can project themselves to the highest echelons in our society. They can believe it is also possible for them to achieve those positions.
As a society at large, openly LGBTQ+ judges have an incredible impact on discussions around representation, diversity and inclusion both within the judiciary as an institution and the relationship between the rule of law and the public. By the mere fact that openly LGBTQ+ judges serve in our courts, they are already signaliging a message. People’s identities and individuals from historically-discriminated-against groups matter when they see themselves inside the fabric of our judicial system. Their openness and transparency are key ingredients when talking about the profile of fair and impartial judges. By letting them out of the closet, we have ensured the continuation of the promise of justice: equal under the law.