Holding Justice Accountable:

In Lambda Legal’s recent survey, Protected and Served? (2023), LGBTQ+ survey respondents and respondents living with HIV who had been in court within the previous 5 years commonly reported negative experiences in court.

• Over half of the transgender, gender nonconforming, and nonbinary participants with court experience reported that a court employee misgendered them.
• Other negative experiences reported include participants who had their sexual orientation, gender identity, or HIV status inappropriately revealed in the courthouse; and those who heard judges, attorneys or court employees make negative comments about LGBTQ+ people and/or people living with HIV.
• Transgender participants of color were significantly more likely than white transgender participants to have their transgender status revealed in court (38% v. 21%).
• A quarter of participants living with HIV who had an experience in the court system had their HIV status (private health information) revealed inappropriately in court.

A gay nonbinary participant reported, “[t]he court openly disclosed that I was a homosexual causing extremely painful issues between my family and myself. My family is conservative and having the court inform my family that I was gay before I ever had the chance has caused horrible heartache and a complete disruption in my relationship with my parents. It was far worse than the actual case itself.”

These types of negative experiences are not only harmful to the individual, but they also create a lack of trust in the court system. Of everyone surveyed, only 8.5% reported having complete trust in the court system, while 32.2% reported having no trust at all. A lack of trust in the courts not only damages the court system itself but also creates new or additional barriers to accessing justice for LGBTQ+ people. How can anyone believe that they will be given a fair chance when they’ve overheard negative comments about who they are or experienced their attorney treat them differently once they find out their LGBTQ+ status? Enforceable ethics rules may provide a path to ensuring that if a judge displays bias against an LGBTQ+ person in the courtroom or if an attorney acts in a discriminatory or harassing way they can be held accountable.

Both the judicial code of conduct map and attorney rules of professional conduct map are color coded to show whether each of the states and D.C. provide explicit protections from discrimination based on sex and/or gender, sexual orientation, gender identity, or gender expression within their judicial codes and/or attorney rules. Where a state is shown as striped, the explicit protections associated with the color are found in the comments to that state’s rule, rather than within the rule itself. Comments to the ethics rules do not add obligations to a rule but provide specific guidance about how to ensure full compliance with it. So, where sex and/or gender, sexual orientation, gender identity or gender expression are listed in the comments to a rule, judges or attorneys are being advised that to comply with the rule they may not discriminate on these bases.

• Most states allow anyone with information about a violation of an ethics rule to file an official complaint against a judge or attorney.
• It will help a complaint to include any evidence you may have of the violation (these could be papers from the court, transcripts, etc.).
• Most states have separate commissions to receive attorney complaints and judicial complaints (due to having separate ethics rules to be enforced). Be sure to send your complaint to the correct one.
• Links to the appropriate state website where you will find out more information about how to file a complaint against a judge or attorney can be found included with the state’s information.
• Many states accept complaints online, but there are a few that still only accept hard copies of complaints sent via regular mail.
• Even if your state does not have explicit protections that you feel cover your situation, you are likely still covered by the anti-discrimination or harassment rule or another ethics rule. For example, most states have a rule that requires judges to act in ways that promote public confidence in the judiciary. Contact an attorney if you need assistance filing a complaint.

Note: You cannot file a complaint against a judge simply because you do not like the outcome of your case. A state judicial or attorney conduct commission has no power to change a judge’s decision. The only way to seek review of a judge’s decision in your case is to file an appeal. You should contact an attorney if you need assistance with an appeal. Appeals have strict timing requirements that require you to move quickly.

The protections provided by judicial codes of conduct and attorney rules of professional conduct are different than those provided by civil rights laws. If a judge or an attorney violates these ethics rules, an official complaint can be filed against them with the state commissions that handle ethical violations and discipline of judges and attorneys. These state commissions (sometimes called other similar names) accept and review official complaints. If the complaint cannot be dismissed on its face (when the allegations in the complaint are not a violation of the ethics rules), they will request a response from the attorney or judge. Additionally, most of the state commissions work to find a mutually acceptable resolution with the judge or attorney if they believe the judge or attorney has violated the ethics rules. If no resolution can be made, they may hold hearings. Generally, the state’s supreme court has the final word on judicial and attorney ethical violations and discipline. This discipline can range from a private or public reprimand to suspension to removal from the bench or disbarment, depending on the seriousness of the violation, the number of times violations occurred, and other considerations. A person who files a complaint is usually not involved in the matter after the filing but may need to provide testimony at some point in the case. Besides the potential for discipline of the attorney or judge, there are no other remedies available using this complaint process.