Transgender Judges Remain Rare Despite Biden Diversity Push

Victoria Kolakowski became the nation’s first openly transgender elected judge in 2011, and is heartened when people seek her out as a mentor or say she inspired them to practice law.

“I want people to think that we can do this. This is why it’s hard for me to be silent,” said Kolakowski, who serves on the California Superior Court in Alameda County. “Because if I’m invisible, how can I be a role model, if nobody knows I exist, right?”

Chase Strangio will make history Wednesday as the first openly transgender lawyer to argue before the Supreme Court, but no similar trailblazer is likely to follow anytime soon on the federal bench.

None of the 12 LGBTQ judges successfully appointed by President Joe Biden were transgender and President-elect Donald Trump isn’t expected to name the first. That leaves a handful of openly transgender judges like Kolakowski serving on state courts as role models for those who might follow.

“I’m very different than other judges, but that’s okay, because I think there needs to be different types of judges,” Kolakowski said. “There’s a reason that we’re not creating machines to do this, that we’re not just plugging things into computers. There’s a humanity to all this, to our system of justice.”

‘The Progression’

Kolakowski, 63, who previously worked as a California Public Utilities Commission administrative law judge, said she has complicated feelings about changes in the way she’s been treated since her election.

She’s been invited to speak at law firms as a judge after they wouldn’t hire her decades ago, Kolakowski said. She’s met a paralegal who had a framed portrait of Kolakowski on her wall, next to a picture of Harvey Milk, the first openly gay man elected to public office in California.

Now, she’s set to receive the American Bar Association’s Stonewall Award, which honors work to remove barriers for the LGBTQ community.

“My colleagues are all thrilled that I’m getting the Stonewall award but I’m still ‘the trans judge,’ which is a natural part of the progression,” Kolakowski said. “There will come a time where it’s not going to be an issue to anybody.”

Reflective Bench

Seth Marnin, who became the first openly transgender man in the US to serve as a judge in 2023, said he hadn’t imagined being on the bench until recently because of a lack of representation.

Biden had just taken office and committed to prioritizing diversity in his judicial appointments when a former colleague called Marnin and told him to consider the bench, he said. Marnin, who now sits on the New York State Court of Claims, decided to apply for a state judgeship rather than run for election.

He wanted a panel to focus on his qualifications and increasing representation rather than convincing New York voters to elect the state’s first openly transgender judge, Marnin said.

“I love being a judge. It is an incredible privilege. The work is intellectually stimulating, right? It’s new and different issues every single day,” Marnin said.

California Superior Court Judge Andi Mudryk, who sits in Sacramento County, was encouraged to apply by another judge she met through the Unity Bar in Sacramento.

Now she sits on the executive committee for California’s judicial mentorship program, where she said she’s working to help make the courts more reflective of California’s diversity.

“I see more and more younger people identifying as trans and I think for them, seeing a judge who is like them gives them confidence that the court can provide justice,” Mudryk said.

Getting elected to state or local judgeships can still be tough for transgender attorneys.

Attorney Henry Sias found himself educating voters on transgender issues as he twice unsuccessfully ran for state judicial posts in Pennsylvania. He found that, especially early on, he wasn’t taken as seriously as candidates with similar profiles.

“I think I ran a couple of years too early,” Sias said.

Federal Presence

Biden’s success at diversifying the bench didn’t extend to naming the first openly transgender federal judge.

Part of the challenge is a pipeline problem, advocates said.

The number of lawyers identifying as LGBTQ increased from less than 1% to roughly 3% between 2002 and 2019, according to the National Association for Law Placement. But openly transgender lawyers represent only a portion of what has always been a small pool.

There remains a “fairly small” number of transgender people who have the kind of experience that can lead to a federal judicial appointment, Kolakowski said. That historically has included time at major law firms, US attorney’s offices, or other judicial posts.

Transgender judicial nominees would potentially have to endure a hostile welcome in Congress.

House Republicans moved to ban the first openly transgender person elected to Congress, Rep. Sarah McBride (D-Del.), from using women’s bathrooms in the Capitol, and Senate Republicans have scrutinized a judicial nominee who wrote an article about legal issues for intersex people as a sitting judge.

Brad Sears, who leads the Williams Institute at the University of California at Los Angeles, said that amid backlash against diversity initiatives and transgender rights, “our work right now is to focus on the state judiciaries, where progress is very much still possible,” or at the local level.

Appointing the first transgender life-tenured federal judge will require political will in the next president. Sears sees the chances of that happening in Trump’s second term as slim.

“We will have a transgender federal judge when we have a President who is committed to adding that diversity to the federal bench,” Sears said in an emailed statement. “That is highly unlikely to happen in the next four years.”

At the state level, Kolakowski said political attacks on transgender identity force her to juggle her role as a visible member of the community with her duty to remain publicly neutral.

“This is a problem that I have faced since my very first day,” Kolakowski said. “My existence is controversial.”