Thursday, March 19, 2015

The Bi Bench Problem

Guest Blog: "The Bi Bench Problem" by Nancy Marcus LL.M., S.J.D.

As reported recently by the Bay Area Reporter, this year’s annual diversity report by the California Administrative Office of the Courts noted a dearth of bisexual judges on the California bench.  As the Bay Area Reporter observed, “[f]or the fourth year in a row an annual report about the demographic makeup of the state courts, released March 4, listed zero bisexual judges among the 1,655 jurists serving as of December 31, 2014.”  

This problem, however, is not limited to California.  Rather, the invisibility of out bisexual jurists is astonishingly universal across the country:  according to R.J. Thompson, the Fair Courts Project Educator at Lambda Legal, not a single out bisexual judge is sitting on a single federal or state court bench.   As of June 18, 2014, Lambda reported that “[a]s far as we know, there are zero openly HIV positive judges and zero openly bisexual judges nationwide,” and these numbers were again affirmed by the participants of the Aug. 23, 2014, “Pathways to the Judiciary” Panel at the National LGBT Bar Association Lavender Law Conference, in New York, NY.

At the same time, the number of judges who self-identified as gay, lesbian, or transgender comprise 2.4 percent of the California judiciary, for example, and on the federal bench, the Obama administration has appointed and had confirmed eleven out LGBT federal judges to the bench, a tremendous improvement over past administrations.  Although there are were only two out transgender judges on the bench as of June, 2014, there is an increasing number of gay judges across the country in recent years.

The complete absence of out bisexual judges is unparalleled.  And the problem is not just one of tokenism or numbers.  Rather, it is one critical factor that contributes toward the broader harm of bisexual erasure in LGBT-rights litigation and discourse.  With no bisexual judges on the bench, it is that much harder for bisexual litigants to explain to courts why their sexual orientation does not render them unstable, unfit parents (an unfortunately common misunderstanding by family courts, for example, about bisexuals) or to immigration boards why their marriage should not be viewed as a sham marriage just because they were married to a different gendered person in a previous relationship for example.    

Campaigners march in Leeds, UK to stop the deportation of Jamaican bisexual Orashia Edwards (Photo Credit: Leeds Socialist Party)
Bisexual erasure is a grave enough problem in LGBT-rights discourse and litigation, and it is only compounded when state and federal judges across the country lack even a single out bisexual member on the bench.  It is time for the LGBT community to work together to increase bisexual visibility, support, and representation both on and off the bench in our legal system.  Bisexuals may never truly have, in society, a jury of our peers, but a judge or two would be nice.

Nancy Marcus, LL.M., S.J.D. is the founding constitutional law professor at Indiana Tech Law School and a co-founder of BiLaw, the the first ever national organization of bisexual-identified lawyers, academics, law students, and their allies in the United States. To join BiLaw or for more information, visit them on Facebook