Looking at our history, our community is no stranger to disparate and ill treatment under the law. The LGBTQ+ civil rights movement has fought against police and state violence, employment discrimination, and anti-LGBTQ+ laws barring us from marriage, adoption, and equal access to health care. There was even a time when the U.S. Supreme Court upheld archaic laws that criminalized us for simply existing. While much more progress has been made since Lawrence v. Texas, the current political climate proves that some in power, including legislators and governors, want to create regressive laws reminiscent of the past when it comes to our equality and visibility. This is why it’s vital that those serving on our courts —especially the Supreme Court — understand the ways in which bias and discrimination have and continue to undermine our justice system.
As the SCOTUS bench is currently stacked with conservative judges who have a grim track record of ruling against LGBTQ+ equality, President Joe Biden’s recent Supreme Court nomination of U.S. D.C. Circuit Court of Appeals Judge Ketanji Brown Jackson gives us hope. If confirmed, she will be the first Black woman and public defender to sit on the nation’s highest court, joining Justice Sonia Sotomayor as a former district court judge who presided over criminal trials. And she brings to the court her experience as vice-chair of the U.S. Sentencing Commission, an experience that only Justice Stephen Breyer, who she clerked for and would replace, shares. It is significant that she is innately familiar with the federal sentencing guidelines and policy and worked to reduce disparities in federal sentencing practices because these decisions go to the heart of our criminal legal system.
The same system that has had a harmful impact on our community.
According to Lambda Legal’s community survey Protected & Served?, LGBTQ+ people and people living with HIV have disproportionate interaction with the criminal legal system. We know LGBTQ+ people, particularly those who are Black and brown, are disproportionately vulnerable to policing due to systemic discrimination, and face bias from law enforcement agencies and in the courtroom. And that the rate of incarceration of lesbian, gay, and bisexual people is approximately three times higher than the general U.S. incarceration rate, where they are vulnerable to sexual violence and denied adequate medical care. Most states have HIV criminalization laws, and every state has laws that criminalize sex work. And just last week, Lambda Legal sued to block the Texas Department of Family and Protective Services from investigating parents who work with medical professionals to provide their adolescent children with medically necessary gender-affirming care. Other states, like Alabama, have proposed criminal penalties for providing gender-affirming care to youth.
In the courts, we found that discriminatory attitudes against LGBTQ+ people negatively affect their experiences in the civil and criminal courts. They often face bias from jurors, litigants, court employees, and other parties. A fundamental basis of our criminal legal system is that jurors must be fair and free of prejudice in their deliberations and in their decisions, a right guaranteed under the Sixth Amendment to our Constitution. Lambda Legal’s Fair Courts Project released a guide on jury selection to help judges and attorneys to address potential jurors with anti-LGBTQ+ bias. Too often, jurors with biases against lesbian, gay, bisexual, and transgender people serve simply because a judge does not allow clarifying questions during jury selection or believes that the juror can be impartial if they agree to set biases aside. Lambda Legal has also worked to ensure that LGBTQ+ people are protected from discrimination in jury selection. It is critical that judges, especially justices sitting on the Supreme Court, understand each opportunity for anti-LGBTQ+ bias to rear its ugly head and all the sinister forms in which it could take.
For our community, Judge Jackson would be a welcome change and a much-needed perspective. She would be a justice with extensive experience with the criminal legal system that does not include being a prosecutor, something that has been severely lacking on the bench and woefully underrepresented in federal courts. Most importantly, if confirmed, she will have to decide cases concerning the criminal legal system and the rights of LGBTQ+ people. She will join a court with a supermajority of conservative justices who in their rulings have shown to be hostile to LGBTQ+ people and to criminal defendants. However, with Justice Jackson participating in deliberations, she can add a credible voice to identifying prejudice and violations of rights, thereby enhancing the court’s decision-making and making it a more credible government body.
As we enter the rigorous confirmation process, it’s important to stress that our institutions, including the Supreme Court, are stronger when they reflect the great diversity of the United States. We are optimistic that if confirmed, Judge Jackson will bring her full self into deliberations and that the inclusion of her perspective and experiences will not only increase public trust in the Supreme Court but help usher in a future — both legally and culturally — where the LGBTQ+ community and people living with HIV can live authentically and out loud without fear of being criminalized.
Richard Saenz is senior attorney and criminal justice and police misconduct Sstrategist at Lambda Legal.