Lambda Legal today released a new report documenting progress by the Biden administration on diversifying the federal bench. While acknowledging notable strides in diversifying the federal judiciary, the report highlights concerning trends regarding the representation of LGBTQ+ people and people living with HIV, in particular the continued absence of nominees living with HIV or identifying as transgender, nonbinary, intersex, or bisexual.
President Biden’s initial years saw historic nominations that have created a more inclusive judiciary. However, Lambda Legal’s scrutiny indicates missed opportunities in addressing the growing gap in LGBTQ+ representation. Notably, the nomination of only two openly lesbian judges in the administration’s third year marks a regression from previous years. Furthermore, the absence of any transgender or nonbinary judicial nominations is glaring, considering the pressing litigation impacting transgender and nonbinary rights.
“As Lambda Legal has pointed out in our two previous reports on the Biden Administration’s progress in increasing representation of LGBTQ+ people and people living with HIV on the federal courts, the administration and home state senators must prioritize nominating queer people of color, transgender, nonbinary, bisexual, and intersex people, and people living with HIV,” said Ethan Rice, senior attorney for the Fair Courts Project at Lambda Legal. “The unique perspective of judges who understand what’s at stake is indispensable in filling critical gaps in our jurisprudence and restoring the legitimacy of critical institutions that have a profound impact on countless lives.”
Twenty-six states, including most states in the South and Midwest still do not have an openly LGBTQ+ federal judge. As of April 1, 2024, there were still 51 federal judicial vacancies without nominees, and 26 nominees awaiting Senate confirmation. Lambda Legal, echoing the sentiments of numerous organizations, urges swift action to fill these vacancies with fair-minded judges dedicated to civil rights. Achieving this would not only surpass the total number of confirmed judges during the Trump administration but also work toward a judiciary reflective of America’s diversity.
In light of the current judicial landscape, Lambda Legal implores President Biden to intensify efforts before the end of his term in nominating candidates who would further diversify the bench, including the first transgender, nonbinary, and bisexual judges, and the first judge openly living with HIV. This decisive action is vital to bridge the representation gap and fortify the judiciary’s commitment to safeguarding constitutional rights.
“In this critical time when transgender and nonbinary people are being dehumanized in the courts while their rights are being debated, the absence of a single trans or nonbinary federal judge sends a strong message,” said Ethan Rice, senior attorney for the Fair Courts Project at Lambda Legal. “It says that transgender and nonbinary people aren’t qualified to serve as judges or are too controversial just because of who they are. And it indicates to trans and nonbinary people with cases in federal court that they are less likely to receive a fair hearing than cisgender people.”
Federal courts serve as the ultimate arbiters of civil rights for marginalized communities, including LGBTQ+ people and everyone living with HIV. Currently, federal courts across the country are considering a host of critical issues, including challenges to bans on gender-affirming care and transgender youth participation in sports, combatting employment discrimination against people with HIV, and protecting access to health care. Moreover, legal battles contest state laws restricting LGBTQ+ expression, such as bans on drag performances and the removal of LGBTQ+ themed books from schools and libraries. Lambda Legal underscores the urgency of fair representation on the bench amidst escalating challenges to LGBTQ+ rights nationwide.
Among the 51 judicial vacancies awaiting nominees on April 1, 2024, at federal district and circuit courts, 21 vacancies existed in jurisdictions that do not have an LGBTQ+ federal judge. These openings span various courts, including the First and Eleventh Circuit Courts of Appeals, as well as district courts across several states. Some vacancies have persisted for more than two years.
The LGBTQ+ community’s trust in the judiciary hangs in the balance, with alarming instances of bias and discrimination documented in court proceedings. Lambda Legal’s call for judicial diversity resonates with the imperative to instill confidence in the legal system and uphold the principles of justice for all.
Lambda Legal commends President Biden’s strides in nominating candidates to diversify the federal bench but emphasizes the pressing need to accelerate efforts to ensure equitable representation. With the clock ticking on vacant seats, now is the time for decisive action to uphold the integrity of the federal judiciary and advance the cause of equality for LGBTQ+ individuals nationwide.
A copy of the full report released by Lambda Legal today can be downloaded by clicking here.
Link to Lambda Legal’s 2023 Report
Link to Lambda Legal’s 2022 Report