Our Common Humanity
When I received an invitation to submit a piece about my work on transgender legal issues for this edition, some familiar questions crossed my mind. What should I say? What could I say?
I’m a transgender person and a superior court judge. The Canons of Judicial Ethics constrain and guide what I can discuss publicly. Nothing about pending cases or controversies. I can discuss my own life story. I can’t discuss political matters.
Sadly, my life story, and my very existence, has become controversial and political in some places, and only growing more so over the years. My health care, my presence in public facilities, and so many other matters are the subject of legislative debate in a majority of states this year.
Not all of this is new. I transitioned in my last semester at the Paul M. Hebert Law Center at Louisiana State University in the spring of 1989. I was prohibited from using both the men’s and women’s restrooms – I was given a key to the dean’s bathroom. I was shunned and ridiculed.
When I applied to take the Louisiana bar exam, my application was denied by the state bar because they said I was not of sound mind because I disclosed that I was transgender. I appealed this to the Louisiana Supreme Court pro se, and I was granted the right to take the bar exam. In re Kolakowski, 546 So.2d 184 (La. 1989). My first appellate victory was to gain the right to prove myself professionally qualified to represent others. Many of us in this profession forget the great privilege we have to stand at the bar.
Coming from an often-excluded community, I am very sensitive to the ways in which people are restricted from access to the very system in which I serve. Therefore, I have served on numerous bodies aimed at increasing access to the legal system for all people, including the Judicial Council’s Advisory Committee on Providing Access and Fairness and the California Access to Justice Commission.
The notion that being transgender is a mental illness has permeated the discussion of transgender rights for many years. This is one reason that the faith of the people of Alameda County who elected me matters so much to me – they entrusted me, knowing who I am, in a contested election, with exercising judicial authority in our county. It was unprecedented.
It is also why it is important to me to remain visible. One of my goals has been to be a role model for transgender people and a successful public official to break stereotypes for others. It is hard to do that if I am hidden from the world.
As a result, I have taken advantage of many opportunities to educate the public, attorneys, and other judges about my personal transgender experience. I have created podcasts and served on educational panels for judges and attorneys. I have spoken at several ABA conventions, the National Association of Women Judges annual conference, was honored by California Women Lawyers, and spoken to LGBT legal groups in multiple states.
The biggest surprise, and a great honor, began in February 2017, when I was approached by the U.S. Embassy in New Delhi, India. They wanted someone to speak to audiences in four cities in India over a two-week period. I agreed, and prepared to travel in March 2017. The Indian government did not approve my trip, and we eventually had to scrap it. Not to be thwarted, the embassy and I set up four virtual appearances in different Indian cities in June 2017 for Pride month.
This began a long and ongoing relationship with the U.S. Department of State, through its U.S. Speaker’s program. I do all of this without compensation, for the benefit of those who want to learn more about my own experiences, and as a way of enriching my own understanding of our common humanity.
In June 2019, I was contacted by the U.S. consulate in Bordeaux, France to arrange a series of appearances and events to honor Stonewall 50. We had in-person programs in Bourdeaux, Toulouse, and Paris.
The consulate in Sao Paolo, Brazil arranged for me to participate in a virtual program with the local bar association (OAB Sao Paolo) in June 2021 as part of the 4th International Congress on Diversity Law. I shared the program with a Brazilian Supreme Court Justice, and we had a great discussion.
This was followed six months later with another virtual program for Mumbai in December 2021. I did two virtual programs with Israel in March 2022.
Then I was invited to Colombia for in-person sessions in Cartagena, Barranquilla, and Bogota in June 2022. This led to my invitation as a keynote speaker at the 23rd Constitutional Rights Conference of the Universidad Externado de Colombia in October 2022 that focused on the legal rights of women and transgender people.
Most recently, I had a video appearance organized in Warsaw, Poland for “Queer Week” this past June.
In my appearances, I often discuss the similarities and differences between the legal systems in the countries and how law gets translated into action. Some countries, like Brazil and India, have federal systems somewhat like our own. Others, like Columbia and Israel, have much more unitary legal systems. Gender and sexuality are socially constructed differently in other countries For example, India has long had a concept of a third gender. Yet in each of these countries, the lived experiences of LGBTQI+ people have so much in common.
One of the common challenges we all face is how to reconcile religious faith and transgender inclusion. This is my central area of research and teaching. I wrote an essay for the ABA’s Human Rights Magazine’s June 2022 issue: The Role of Religious Objections to Transgender and Nonbinary Inclusion and Equality and/or Gender Identity Protection. (Americanbar.org)
I have the great fortune to serve as adjunct faculty at the University of San Francisco School of Law, where I teach a class that I created, “Equality and Religious Freedom,” which investigates the complex intersection of religious freedom rights under the first amendment and equal protection rights, and examines whether there can be common ground, or at least an uneasy peace. I am currently scheduled to teach it again this coming spring semester.
One of my greatest joys has been helping others to move past the stereotypes and see the full humanity of transgender people. I believe that promotes the development of the law and it should not be controversial, so I will continue to speak, teach, and write with the belief that this is something which our bench and bar should be proud.