LeGaL REPORT ON SEXUAL ORIENTATION
FAIRNESS IN SECOND CIRCUIT COURTS
April 2, 1997
Prepared by a Subcommittee of the
Professional Services Committee of LeGaL,
The Lesbian and Gay Law Association of Greater New York, Inc.
Subcommittee: Toby Butterfield (chair)
Robert Bacigalupi
Janice Grubin
Mark Major
Robin Merrill
799 Broadway, Suite 340
New York, New York 10003
Tel.: (212) 353-9118
E-mail: le-gal@interport.net
Web: http://www.le-gal.org
INTRODUCTION
Responding to a request for input from the Second Circuit Task Force on Gender, Racial
and Ethnic Fairness in the Courts (the "Task Force"), the Lesbian and Gay Law
Association of Greater New York ("LeGaL") investigated whether there was sexual
orientation discrimination in Second Circuit courts. LeGaL conducted a telephone poll of
some of its members (the "Poll"), and subsequently sent a written survey to all
its approximately 500 members (the "Survey"). In responses to the Poll and the
Survey, practitioners reported both the existence of bias in general as well as specific
bias incidents. This report reviews how the Poll and the Survey were conducted, the
respective responses, relevant decisions of Second Circuit courts, and renders
conclusions.
I. LeGaL, ITS ROLE, AND ITS POLL AND SUBSEQUENT SURVEY
In December 1995, LeGaL received a request from the Gender Committee of the Task Force
for LeGaL's views on gender discrimination in Second Circuit courts. LeGaL's Professional
Services Committee conducted a preliminary investigation via the Poll. The goal of this
Poll was to ascertain whether there was bias in Second Circuit courts, and, if so, what
form it tended to take and how it related to other forms of bias.
A. The Nature of the Poll
After reviewing other recent investigations of similar issues by other bar
associations, in particular one by the Association of the Bar of the City of New York (the
"ABCNY Report") (a copy of which is Annex 1 hereto), LeGaL decided to conduct
the Poll among its members. From its database of approximately 500 LeGaL members, the
Professional Services Committee compiled a list of approximately 40 members admitted in
Second Circuit courts.1
This list was divided among various members of the Professional Services Committee, who
each called approximately 10 people. The committee members identified who they were and
why they were calling. If a member reported any incidents of sexual orientation
discrimination, the committee member asked follow-up questions. The results were reported
to the committee chair who compiled an interim report of the results for the Task Force.
(A copy of the interim report is Annex 2 hereto.)
B. The Results of the Poll
The Poll revealed bias and discriminatory conduct in Second Circuit courts. In one
account, a magistrate judge commented negatively on any resume he received featuring
lesbian or gay bar association or student activities, saying it should be "kept in
the closet." The judge apparently repeated this on many occasions when lesbian or gay
issues arose in the news. On another occasion, this same judge dismissed a prospective
juror who identified himself as having AIDS, but who appeared willing and able to serve
and had not asked to be dismissed.
In another account, one judge implied in crude terms that another judge had been
selected for appointment by reason of the minorities of which the other judge was a
member. In yet another account, a lawyer, representing a gay client in a case about the
client's domestic partner, related how a judge refused to assist in resolving a mundane
discovery dispute. When the case was transferred to another judge, the case settled
"within days." LeGaL also became aware of persistent complaints that, while some
Chapter 7 bankruptcy trustees were scrupulously fair, some others made standard creditors
meetings into interrogations of gay and lesbian debtors. Interestingly, at least one
respondent to the Poll indicated that this last type of bias was also directed at racial
and ethnic minorities, suggesting that when one instance of bias is found, other types of
prejudice are not far away.
II. THE RESULTS OF LeGaL'S SURVEY
On reviewing the results of the Poll and following a consultation with the Task Force,
LeGaL decided to investigate further by distributing the Survey to all its members. The
Professional Services Committee formed a subcommittee of five members, who prepared the
Survey and sent it to all LeGaL members in November 1996. (A copy of the Survey is Annex 3
hereto.) The response rate was approximately five percent.
The responses came from lawyers practicing in a variety of settings, about half in
practices with fewer than 10 lawyers. The size of respondents' firms varied between solo
practitioners (30% of respondents) and firms of 20 lawyers or more (20%). See Figure 1,
part of Annex 4 hereto.2 Experience varied from junior lawyer in practice 5 years or less
(approx. 17% of respondents) to over 20 years in practice (approx. 8%). See Figure 2. The
vast majority of respondents practiced civil law, rather than criminal. See Figure 3 (74%
had exclusively civil practices). Respondents' clients are largely individuals, see Figure
4, who were a mixture of gay/lesbian/bisexual and straight.3 See Figure 5. (22% of
respondents did not indicate how many of their clients were gay/lesbian/bisexual).
Forty-four percent of respondents appeared in Second Circuit courts
"frequently." Another 30% appeared "sometimes." See Figure 6.
Respondents were largely white. See Figure 7. Of respondents, 65% stated they were gay and
26% stated they were lesbian. See Figure 8. Very few, however, believed their sexual
orientation was apparent to others in court or to a judge. See Figure 9.
Although some respondents reported that they had not experienced any discrimination due
to the fact that they were lesbian or gay, a significant proportion of respondents stated
that they believed either they or their clients or both were prejudiced by sexual
orientation bias. See Figures 10, 11. In addition, many respondents reported actual bias
incidents in Second Circuit courts. Respondents reported observing offensive behavior in a
variety of settings, including courtroom or chambers (28%), hallways (33%), depositions
(14%) and the clerk's offices (7%). See Figure 12.
A. Perception of Sexual Orientation Bias in Second Circuit Courts
In general, 44% of respondents stated that it is a disadvantage in the Second Circuit
courts to be perceived as a gay man and 35% of respondents stated that it is a
disadvantage to be perceived as a lesbian.4 See Figure 11. In some instances, the
respondents included written comments that were intended to illustrate their concerns.
Some respondents commented that: (1) it is a "disadvantage to be anything other than
a straight man;" (2) gay and lesbian lawyers receive "poor treatment;" (3)
gay and lesbian lawyers "are less likely to be taken seriously;" and (4) there
is "[e]ntrenched sexism and homophobia" in Second Circuit courts. In addition,
sexual orientation discrimination was often closely linked to gender bias. Respondents
stated that: (1) "[w]omen and gay men are less likely to be taken seriously by some
judges or court personnel . . . .;" and (2) "I've witnessed/experienced
dismissive treatment of women lawyers by judges and adversaries (and heard many other 'war
stories' to this effect)."
In addition to these perceptions of bias, at least 56% of respondents reported
witnessing bias incidents, including: (1) "gay-bashing" remarks; (2) "gay
jokes;" (3) express references to "homos;" (4) witnessing "mocking,
mincing gestures;" (5) remarks like "you'd feel differently about a client if
you had a wife and family;" (6) "'gay male' mimicry of the limp wrist
genre;" and (7) comments attributed to a federal magistrate judge that Judge Batts
"looked like a man" and that she was a "three-fer" (an apparent
reference to her race, gender and sexual orientation). The Survey indicated these
derogatory remarks and offensive behavior came largely from other attorneys (57%), but
also from federal judges, magistrates or special masters (13%) or other court employees
(9%). See Figure 13.
These results are similar to results obtained of the ABCNY Report (Annex 1 hereto).5
The ABCNY Report uncovered numerous incidents of bias based on sexual orientation with
about 43% of the respondents reporting that they had witnessed some form of
discrimination. This finding is particularly significant because, in contrast to LeGaL's
Survey, approximately 78% of the respondents identified themselves as heterosexual.
B. Negative Consequences
Of course, no survey could identify all the negative consequences of discrimination
based on sexual orientation in the Second Circuit courts, let alone a survey conducted
with limited resources. Nevertheless, the Survey, like the ABCNY Report, suggests at least
three negative results. First, respondents reported that their clients were prejudiced if
perceived to be gay or lesbian. This prejudice against clients ranged from a concern over
"jury bias" to a belief that judges "automatically assume[d] a gay man is
guilty of any sexual act with which he is charged -- the presumption of innocence
reversed."
Second, respondents reported that as a result of the biased attitudes of federal judges
or juries or both, they had accepted less favorable settlements or plea bargains for their
gay and lesbian clients.
Finally, the responses reflect a widespread feeling of alienation among gay and lesbian
attorneys who practice in the Second Circuit. This appearance of bias not only impedes the
judicial mission of justice for all but also severely compromises public confidence in the
courts' impartiality.
C. Need for Action
The results of the Poll and the Survey accord with those of similar studies.6 A survey
by Louis Harris & Associates prepared for the Task Force Gender Committee included
questions about sexual orientation, and may provide further evidence of sexual orientation
bias. Nevertheless, LeGaL concluded that the responses to the Poll and the Survey alone
are sufficiently disturbing to warrant action. They should cause all members of the
federal bar to be concerned about the impact of sexual orientation bias. Certainly, these
results amount to substantial evidence of sexual orientation bias that merit action by the
Task Force.
III. RELEVANT DECISIONS BY THE SECOND CIRCUIT
Given how frequently it has denounced invidious discrimination, the Second Court should
now take corrective steps against sexual orientation bias. Although federal legislation
offers no protection against such discrimination, other federal Circuit Courts as well as
many states, cities, corporations and foundations have all adopted express policies
barring sexual orientation bias. Numerous decisions in this Circuit have implicitly
recognized the need for such a policy.
A. Courts Have Condemned Sexual Orientation Discrimination
Lesbians and gay men "have historically been the object of pernicious and
sustained hostility;" discrimination based on sexual orientation is "likely ...
to reflect deep-seated prejudice." Rowland v. Mad River Local School District, 470
U.S. 1009, 1014 (1985) (Brennan, J., dissenting)(quoting Plyler v. Doe, 457 U.S. 202,
216).
Courts in the Second Circuit have often taken note of the existence of sexual
orientation discrimination. Although reversing the grant of an injunction against the
government's policy of prohibiting gay men and lesbians from serving in the armed forces,
the Second Circuit recently criticized the hypocrisy of a position that only open
homosexuals (who are targeted by the policy), and not closeted ones (who are tolerated),
pose a threat to the military mission. Able v. United States, 847 F. Supp. 1038, 1041
(E.D.N.Y. 1994) ("The fact that the officials implementing the policy are directed
not to ask service members "to reveal their sexual orientation" shows the Act is
really concerned not so much with "conduct" but with the attitudes of others
when they learn of statements of homosexual orientation. The message to those with such an
orientation appears to be not to avoid private homosexual acts but to stay in the closet
and to hide their orientation"). Trial court testimony of military officers
demonstrated that the animosity of heterosexual service members is based on irrational
prejudice.
In Evans v. Romer, __ U.S. __, 116 S. Ct. 1620 (1996), the Supreme Court struck down
Colorado's Amendment Two as a violation of the Equal Protection Clause. The Court ruled
that preventing lesbians and gay men from petitioning government for protection from
discrimination was not rationally related to a legitimate governmental purpose. The Court
recognized the fundamental right, and implicitly the need, for lesbians and gay men to
seek legal protection from discrimination.
Courts in the Second Circuit have frequently recognized the existence of discrimination
against gay men and lesbians. See, e.g., United States v. Lara, 905 F.2d 599 (2d Cir.
1990) (noting likelihood of victimization of defendant because of his homosexuality);
United States v. Gonzalez, 945 F.2d 525 (2d Cir. 1991) ("Harassment of individuals on
the basis of sexual orientation is not directed only at persons who are gay or bisexual;
rather, homophobic attacks are often based on the perpetrator's mistaken perception that a
heterosexual individual is in fact gay ... thus, even if [the defendant] is not gay or
bisexual, his physical appearance, insofar as it departs from traditional notions of an
acceptable masculine demeanor, may make him ... susceptible to homophobic
attacks")(Weinstein, J. sitting by designation); Doe v. United States Life Ins. Co.,
123 F.R.D. 437 (S.D.N.Y. 1988) (permitting heterosexual male at risk of being identified
as homosexual if his name were used to proceed under pseudonym). See also Rovira v. Am.
Tel. & Tel., 817 F. Supp. 1062, 1071 n.8 (S.D.N.Y. 1993)("Despite several
obstacles, there have been encouraging legal developments in New York City regarding the
rights of domestic partners.").
While some courts have ordered redress for overt and violent state action, Anderson
& Grubb v. Branen, 17 F.3d 552 (2d Cir. 1994) (affirming jury award to gay men beaten
by Drug Enforcement Agency agents), courts have ruled as a matter of fact that homosexuals
are still held in derision by society. Murphy v. Pizarrio, 1995 WL 565990 (S.D.N.Y. 1995)
(mere imputation of homosexuality is defamatory per se under New York law).
B. Despite this Condemnation, the Second Circuit Has Not Acted, Citing Lack of
Federal Legislation
No federal legislation prohibits sexual orientation discrimination. In 1990, Congress
acted to remove the words "sexual deviation" from the Immigration and
Nationality Act, preventing an active prohibition on lesbians and gay men entering the
country. Although Congress implicitly recognized the impropriety of such discrimination,
federal legislation prohibiting it does not exist. Some cases suggest courts apply a more
stringent standard when naturalizing gay men or lesbians. In re Labada, 326 F. Supp. 924
(S.D.N.Y. 1971) (Mansfield, J.) (gay man could be entitled to naturalization if shown he
has led a quiet, peaceful, law-abiding life); Kovacs v. United States, 476 F.2d 843 (2d
Cir. 1973) (lawful resident alien involved in homosexual activities denied
naturalization). Gay and lesbian couples are not recognized under United States
immigration law.7
Without such legislation, Second Circuit courts have frequently ruled that no
protections exist for gay men and lesbians, notwithstanding arguments of Constitutional
protection. See, e.g., Rovira v. Am. Tel. & Tel., 817 F. Supp. 1062 (S.D.N.Y. 1993)
(Patterson, J.) (spousal death benefits properly denied to gay life partner of deceased
employee); Able, supra; Gay Men's Health Crisis v. Sullivan, 733 F. Supp. 619 (S.D.N.Y.
1990) (challenge to restriction on annual funding for AIDS education found moot). As a
result, Second Circuit courts have failed to redress this recognized discrimination
against gay men and lesbians.
In the absence of legislation, interpreting existing laws is left to the Courts. See
Pasch v. Katz Media Corp., 10 IER Cases 1574, 1995 WL 469710 (S.D.N.Y. Aug. 8, 1995) (N.Y.
law protects employee from discharge on basis of off-duty lawful social activities).
Existing laws are sometimes interpreted so as to state claims against lesbians and gay
men. See Coraggio v. Time, Inc. Magazine Company, 67 FEP Cas. (BNA) 1880, 66 Empl. Prac.
Dec. ¶ 43,578 (S.D.N.Y., Apr. 26, 1995) (claim of discriminatory discharge of
heterosexual employee stated Title VII claim against "presumably lesbian"
supervisors); Sardinia v. Dellwood Foods, 69 Fair Emp. Prac. Cas. (BNA) 705, 67 EPD Cases
Para. 43, 784 (S.D.N.Y. 1995), permission granted for interlocutory appeal, 1995 WL 710205
(S.D.N.Y. 1995) (sexual harassment constitutes discrimination under Title VII although
perpetrator and victim are of same gender). With statutory changes beyond its power, the
Second Circuit could adopt a prohibition on sexual orientation discrimination.
C. Other Entities Have Prohibited Sexual Orientation Discrimination
Six states or jurisdictions8 have outlawed sexual orientation discrimination in
general, including two states in this Circuit. Other states have similar statutes.
Municipalities in the Circuit have sexual orientation anti-discrimination ordinances.9
Other cities,10 Fortune 500 corporations, universities and state governments nationwide
have also acted to stem discrimination against people merely because they are gay or
lesbian.11 The ABA House of Delegates voted in August 1996 that sexual orientation
discrimination within the profession and the justice system should be studied and
recommendation made to eliminate such bias.12 There is a groundswell of opposition to
sexual orientation discrimination. D. The Second Circuit Needs a Policy Implementing
Its Stated Views
There is a significant volume of cases concerning sexual orientation litigated before
Second Circuit courts. The Ninth Circuit and the Second Circuit lead the country in
deciding sexual orientation discrimination cases. If issues of sexual orientation
discrimination and fairness in litigating arose only in those cases, there are more than
enough to show the need for a policy. As LeGaL's Poll and Survey show, there is evidence
that bias and fairness issues invade cases far beyond landmark cases about Constitutional
protections. For these reasons, LeGaL urges the Task Force to include sexual orientation
in developing its plan to address bias.
Justice Kennedy, writing for the majority, noted that "[a] law declaring that in
general it shall be more difficult for one group of citizens than for all others to seek
aid from government is itself a denial of equal protection of the laws in the most literal
sense." Evans v. Romer, __ U.S. __, 116 S. Ct. 1620 (1996). By the same token,
lesbians and gay men should not be hindered from obtaining fair hearings in federal
courts. A non-discrimination policy is necessary to ensure such fairness in Second Circuit
courts. Such a policy is in keeping with Supreme Court doctrine, the laws of the states
where the Second Circuit sits, policies of judicial, governmental and private bodies
around the country and prior Second Circuit rulings.
IV CONCLUSIONS
A. This Report Demonstrates the Need for Action
The results of the Survey reveal not only that isolated incidents of misconduct (both
verbal and demonstrative) occur in Second Circuit courts, but that such bias has been
widely observed. Some 57% of attorneys reported offensive behavior from their fellow
attorneys. Another 13% reported such behavior from judges or special masters. Forty-four
percent stated that it was a disadvantage to be a gay male lawyer and 35% stated that it
was a disadvantage to be a lesbian lawyer.
Sexual orientation bias does not manifest in a social vacuum. The instance of a federal
magistrate calling a fellow judge a "three-fer" and saying that she "looked
like a man" demonstrates the interrelationship between biases based on sexual
orientation, race, and gender. Such comments tend to undermine the credibility and
effectiveness not only of those targeted by such remarks, but also of a judicial system
grounded on equal access and impartiality.
LeGaL's results confirm the findings of other reports. As the ABCNY Report concluded:
"Although the courts are likely to reflect the values of the larger society ... [we]
... feel ... that the level of bias is intolerable." The toxic impact of bias should
not further poison either the Second Circuit's internal working environment, its public
persona, or its mission as an arm of justice.
B. Proposals for Action
This report and others identified above demonstrate the need for the Second Circuit to
take corrective steps. "The courts must be seen to act affirmatively to discourage
open hostility toward minority groups in society." ABCNY Report, p. 10. The obvious
step is for the Second Circuit to adopt a policy to address the problem.13
The Second Circuit should use as models the policies implemented in other federal and
state court systems. In 1995, the Lawyer Delegations from the Northern and Southern
Districts of California, inter alia, called on the Ninth Circuit to move to eliminate
sexual orientation bias. The Ninth Circuit subsequently adopted a policy of sexual
orientation non-discrimination. (Ninth Circuit Resolution No. 8, a copy of which is Annex
6 hereto.) The Second Circuit should do the same.
The court systems of twenty states, including New York, have already taken similar
steps to eliminate such prejudice by conforming their judicial conduct codes to the
language of the ABA Model Code on Judicial Conduct. This language bars judges from
engaging in discriminatory acts and from holding memberships in clubs that discriminate,
inter alia, on a sexual orientation basis. Judges in these twenty jurisdictions are also
required to prohibit lawyers who practice before them from exhibiting bias through
"words or conduct." (see Wise, "Bias Amendments Added to Judges Conduct
Code" New York Law Journal, February 6, 1996, a copy of which is Annex 7 hereto).
LeGaL urges the Second Circuit to treat this report as a call to action.
The Lesbian and Gay Law Association of Greater New York, Inc.
799 Broadway, Suite 340
New York, New York 10003
1997 Board of Directors
Randye Bernfeld, President
Cynthia Kern, 1st Vice President
Toby Butterfield, 2nd Vice President
Lori Cohen, Treasurer
Edward Liao, Secretary
Thomas Basile
Norris Case
Jackie Deane
Kevin Farrelly
Angie Iglesia Martell
Michael Shay Ryan
(This report was prepared by a subcommittee of LeGaL's Professional Services
Committee.)
1 The list was composed of LeGaL members whose membership forms
indicated they were admitted to Second Circuit courts.
2 In some charts, percentages may not total 100 due to rounding.
3 Although the Survey inquired as to bias incidents involving lesbians, gay men,
bisexuals, and transgendered individuals, most of the responses focused on bias aimed at
lesbians and gay men.
4 The fact that 73% of respondents identified as male and only 26% of respondents
identified as female may account for the higher incidents of reported bias towards gay
men.
5 The ABCNY Report analyzed a March 1994 survey of 1100 lawyers working for the New York
City Legal Aid Society. That report concluded that "there are many instances of
anti-gay and -lesbian bias and some instances of discrimination in the court system.
Although jokes and ridicule are the most frequently cited and are evidence of bias, there
were also a number of discriminatory actions noted." ABCNY Report, p.10.
6 See, e.g., Annex 5 hereto (Report of Los Angeles County Bar Association Committee on
Sexual Orientation Bias).
7 Norway, Sweden, Denmark, the Netherlands, Austria, New Zealand and Canada, inter alia,
recognize gay and lesbian relationships for immigration purposes. Achtenberg (Ed.), Sexual
Orientation and the Law, sec. 7.01[5][d], n. 121 (Clark Boardman Callaghan, Supp. 1996).
8 Connecticut, District of Columbia, Massachusetts, New Jersey, Wisconsin and Vermont.
9 New York City Charter & Code §8-107.
10 Austin, TX, Madison, WI, Los Angeles, CA, Miami, FL, Miami Beach, FL, San Francisco,
CA, and Seattle, WA, among others, prohibit sexual orientation discrimination.
11 Claims under these laws and policies are increasingly litigated in Second Circuit
courts. See, e.g., Rentos v. Oce-Office Systems, 1996 WL 737215 (S.D.N.Y. Dec. 24, 1996)
(Preska, J.) (discrimination claim not actionable under Title VII could continue under
state law theory); O'Malley v. AIDS Institute, 1996 WL 447748 (S.D.N.Y. Aug. 7) (Leisure,
J.) (same; claim by heterosexual man).
12 1996 Lesbian/Gay Law Notes 158 (reporting ABA resolution at August 1996 meeting).
13 For instance, the Second Circuit could also adopt an equal employment opportunity
employment plan and provide diversity training for its employees.
