Queer Eyes Don’t Sympathize: An Empirical Investigation of LGB Identity and Judicial Decision Making

Do lesbian, gay, and bisexual judicial decision makers differ from their heterosexual counterparts? Over the past decade much has been said about queer judges, with many suggesting that they cannot be impartial in cases involving LGBTQ+ parties or religious interests. To investigate these questions, this Note presents the findings of the first empirical analysis of the decision making of lesbian, gay, and bisexual judges in the United States.

Examining employment-discrimination litigation, this Note finds no evidence that a judge’s sexual orientation affects the outcome of the cases they decide on the merits. Specifically, looking to one year of data from federal district courts, this Note’s results demonstrate that any divergence between the decisions of LGB judges and their heterosexual colleagues is not statistically significant.

Stepping back from the question of whether LGB judges are different from heterosexual ones, the latter part of this Note considers whether they should be. Against the backdrop of the Trump Administration’s appointment of explicitly anti-queer federal judges—including some who vehemently oppose equality for sexual minorities—this Note suggests that in the immediate future queer judges may play a central role in the continued fight for equal rights for LGBTQ+ Americans.