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Bias-Free Course Teaches Judges About Diverse Court Population

By Todd Brower, the Williams Institute, Los Angeles

9/19/2008

You are in your courtroom on the bench. You ask your clerk to call the next case, People v. John Smith. As you survey the courtroom, you notice the defense counsel sitting next to what should be the defendant, Mr. Smith. However, at the table the defendant is a blond woman, dressed in a white blouse, blue skirt and heels. The counsel approaches the bench:  the defense wants the defendant referred to as Jeanne Smith and with female pronouns; the prosecution says that the appropriate gender is male. What do you do?

You have a domestic relations calendar and before you is a petition for dissolution. The parties are a same sex couple who are residents of your state, but were married in California where same-sex marriage is legal. As non-residents of California they may not divorce there; but your state prohibits recognizing any marriage except that of one man and one woman. Do you have jurisdiction to hear the dissolution petition or would that entail recognizing their marriage in violation of your state’s law?

Think about your state’s standard form voir dire questions. Most jurors are asked whether they are single, married or divorced. Assume a lesbian member of the venire panel who has been with her partner for 10 years and who is raising a child together: how should she answer that question?  Do those three choices capture the relationship situation of your children or your friends’ children? Regardless of a juror’s sexuality, do those questions give the court and attorneys today the information they were originally designed to provide? Do they allow you to get the information you need? 

Courts across the country are increasingly considering sexual orientation and sexuality-related legal topics – such as workplace discrimination, same-sex marriage, and parental rights – but very few state and federal judges have expertise on these issues. Most judges did not have the opportunity to take a sexual orientation law course when they were in law school and, to date, there have been only a handful of judicial trainings focused on sexual orientation law.

Many sexual orientation law issues present relatively new and complex constitutional questions or require knowledge of the most recent empirical research and data. Judges have had to rely on their own efforts to learn about this rapidly developing field and the often innovative arguments that have been used in LGBT rights cases. Without knowledge of current legal theories and relevant data, judges may lack the legal knowledge to make decisions regarding LGBT rights. For example, many judges may not be familiar with arguments that non-biological parents should have their rights recognized if they act as "functional parents" for their children, or cases holding that public schools have a general duty under negligence theory to protect LGBT students from harassment and violence.

These are just some of the issues that courts must recognize and deal with for today’s diverse court user population. The NJC’s substantive trainings on sexual orientation law and other diversity topics provide judges with the legal theories and relevant data needed to make decisions regarding these issues.

These and other timely topics will be covered and examined in the upcoming offering of Building a Bias-Free Environment in Your Courtroom October 22-23, 2008. Please call (800) 25-JUDGE for more information or to enroll.