Metro Weekly

Report: Judicial elections and lack of diversity threaten LGBT rights

Report finds elected judges are more likely to rule against pro-LGBT claims than appointed judges

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Partisan judicial elections and a lack of diversity on the bench are more likely to result in anti-LGBT rulings, a new report has found.

The report, “Justice Out of Balance,” published by Lambda Legal, finds that judges who stand for election are less supportive of LGBT rights. Since 2003, high courts filled by partisan elections only supported a pro-LGBT claim in 53 percent of all cases, significantly less than courts filled by appointments, where judges supported pro-LGBT claims in 82 percent of all cases.

The study’s results also suggest that the ideology of justices on state high courts plays a major factor in whether a court rules on LGBT rights, and that ideology plays an even larger role when judges face competitive elections.

“Judicial elections are putting LGBT equality — and our country’s very democratic principles — in increasing danger,” Rachel B. Tiven, the CEO of Lambda Legal, said in a statement. “Queer people across the country are seeing their constitutional rights and liberties thrown out the window by judges beholden to special interest groups.”

“The problem with judicial elections is that judges should not be politicians,” Tiven continued. “By design, judges are supposed to decide individual cases based on the law and the facts in front of them. Each day, however, thousands of elected judges across America know that they could lose their jobs if they make unpopular decisions that anger a majority of voters or inspire special interest attacks. It’s a fundamentally flawed system that is ceding justice to politics.”

Another factor influencing whether a court rules favorably is diversity, or the lack thereof. Of 340 currently-serving state high court justices, only 10 identify as openly gay or lesbian, and all 10 were appointed to the bench.

There are only two transgender judges in the country, and none that identify as bisexual. In terms of racial and gender diversity, white males make up nearly twice their proportion of the national population when it comes state appellate court judges, and women make up no more than one-third of all state judges at the appellate or district levels.

Advocates for judicial reform argue that for court decisions to be seen as fair and legitimate, the courts must reflect the diversity of the people they serve.

The report also issues recommendations to address the issue of judicial bias, such as ending elections entirely and having judges appointed by a nonpartisan committee, strengthening judicial codes of conduct, including more stringent campaign regulations, promoting diversity on the bench, and increasing anti-bias and cultural competency legal trainings so that judges are more comfortable with ruling on cases that involve different groups, such as LGBT people.

“LGBT people and other minorities need to know that there isn’t a thumb on the scales, that they haven’t been shut out of the process,” Eric Lesh, Lambda Legal Fair Courts Project Director and the author of the report, said in a statement. “Reforming the selection and retention of judges is a critical step toward ensuring fair, impartial courts and equal access to justice for all people.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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