Legally Bi: Finally, A Bi Judge

5/18/2018

Judge Mike Jacobs

The past month marks a historic development for bi advancements in the legal community. For the first time ever, a sitting judge in the United States has openly identified as bi.  After coming out as bi in a Stonewall Bar event speech, Judge Mike Jacobs, a Republican trial judge in the DeKalb County State Court in Georgia, subsequently shared this statement with Project Q, as reported in a May 1 article:

Two weeks ago at an event hosted by the Stonewall Bar Association, I came out publicly for the first time. I am bisexual. My wife Evan and I have made a mutual decision that it would be a positive step for me to come out, and she proudly stood with me at the Stonewall Bar event.

DeKalb County is home to a substantial LGBTQ population, probably the second largest of any county in our state. I see LGBTQ citizens in my courtroom on a regular basis, particularly as prospective jurors, and in other courtroom roles as well. DeKalb County has never had a trial judge who openly identifies as LGBTQ.

This is something I can change simply by sharing this part of who I am with the public.  Of course, my identity has no effect on my work as a judge. It is my solemn and absolute duty to deliver fair and impartial justice for every citizen. However, this decision to come out does help show the broader community the diversity of our bench.

Most importantly, Evan and I are the parents of three wonderful children who are growing up quickly. We are happy they are growing up in a world in which young people can be who they are as soon as they recognize who they are. We want that world to be a reality for them. The most meaningful contribution I can make to that world is to be authentic myself.

I am hopeful the decision Evan and I have made will help others. Coming out, or at least knowing there are others like us, is just as affirming and significant for bi people as it is for other members of the LGBTQ community. I have chosen to be a positive role model in this regard.

Judge Jacobs coming out as bi is a big deal. It’s actually a bit sad how big of a deal this is. You see, as documented by Lambda Legal, until Judge Jacobs came out as bi, there were no out bi judges on the bench — i.e., presiding over either state or federal trials or appeals in any courts — in this country.  As I previously wrote about the bi bench problem:

The complete absence of out bisexual judges is unparalleled. And the problem is not just one of tokenism or numbers. Rather, it is one critical factor that contributes toward the broader harm of bisexual erasure in LGBT-rights litigation and discourse. With no bisexual judges on the bench, it is that much harder for bisexual litigants to explain to courts why their sexual orientation does not render them unstable, unfit parents (an unfortunately common misunderstanding by family courts, for example, about bisexuals) or to immigration boards why their marriage should not be viewed as a sham marriage just because they were married to a different gendered person in a previous relationship, for example.

Why the dramatic dearth of bi judges? You would think that we bi folk would make the perfect judges. After all, we’re quite capable of seeing things from both sides, from multiple angles. Such a skill is essential for a trier of fact in our adversary system, in which competing truths are pitted against each other and justice is supposed to be bias-blind in evaluating the multiple sides of a case. And we bis are also quite intersectional and diverse in our lived experiences, which would even further equip us to be fair and empathetic to those who put their trust in the justice system to resolve some of their most painful and delicate life conflicts.

Judge Jacobs with his family

But, sadly, while bi people would certainly bring a lot to the bench as judges, so far, it seems we haven’t been given much of a chance to do so, as evidenced by our complete invisibility on the federal and state bench, save for Judge Jacobs.

And if you’re thinking to yourself, no, I could have sworn there was a bi judge on the bench somewhere in this country, one who stood up vocally and eloquently against biphobia, even, you’re probably thinking of the fictional bi judge in an Ally McBeal show. Judge Hammond was a brilliant bi judge character indeed, checking Ally on her biphobic presumptions with this delicious speech:

As for your concern over promiscuity — when any person gets married, he or she pledges fidelity. For you to assume a bisexual person is less able to be monogamous — that is a prejudice.
As for taking my son to a ball game — well, if your straight husband took your daughter to a women’s basketball game, and you were concerned about daddy checking out the point guard’s glutes; you’d have issues to work on with your husband, straight or not.
As for your fears of your kids being teased –that’s cowardice.
Your fears of disease – that is ignorance, bias, take your pick.
As for your all too comfortable resignation to being homophobic without the will to root out the why or the compulsion to address it — that’s as sad as it is inexcusable.

But Judge Hammond was, sadly, just a fictional character. A fictional character in an episode of a TV show that aired eighteen years ago. Before that, and for another eighteen years after Judge Hammond brought a couple of minutes of bi enlightenment to TV from his fictional bench,  there still hadn’t been an out bi judge anywhere, on any bench in this country, until this past month.

So, yes, that’s sad.

Huge bi kudos to Judge Jacobs for coming out and being the first. But let’s hope for the sake of a representative, fair judiciary, and for the ability of bi people to know that their rights will be determined, and cases judged, by a bench of our own peers, that Judge Jacobs will not be the last. Rather, he will hopefully be the first of many bi judges to come.

After all, as a judge friend of mine reminded me with a twinkle, we still have yet to see our first out bi female judge.

Anyone know of any judicial vacancies out there that could use an out female bi lawyer with three law degrees, a constitutional law professorship, transformative legal scholarship published and cited worldwide, and twenty years’ diverse practice under her belt? Just, you know, asking for a friend (but more about my own story and development as a BiLawrrior in a future column).

Nancy Marcus
Nancy Marcus is an out bi lawyer and LGBT rights activist. She is a co-founder of BiLaw, the national organization for bi lawyers, law professors, law students, and their allies, and is the author of "Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation," published by the University of Michigan Law School's Journal of Gender and Law.