Senate confirms 12th LGBTQ lifetime judge under Biden, breaking Obama-era record

The Senate on Tuesday confirmed the 12th openly LGBTQ person to the federal bench since President Biden took office, the most of any presidential administration.

The Democratic-controlled Senate voted 52-41 late Tuesday to confirm Mary Kay Costello, a U.S. Air Force veteran and former prosecutor who has served as an assistant U.S. attorney in Philadelphia since 2008.

Her confirmation breaks the record set during former President Obama’s two terms.

“Today is a proud day for Pennsylvania and for our country. Mary Kay Costello’s historic confirmation is a win for every American who believes our courts are stronger when they reflect the diversity of the people they serve,” Sen. John Fetterman (D-Pa.) said in a statement following Costello’s confirmation. 

Less than 3 percent of the nation’s nearly 900 Article III lifetime federal judges are openly LGBTQ, according to The Leadership Conference on Civil and Human Rights, a civil rights lobbying group, and no openly transgender or nonbinary judges have ever been nominated or confirmed to the federal bench. An openly LGBTQ person has never served as a lifetime judge on nine of the 13 federal circuit courts, according to the group, or 77 of the country’s 94 federal district courts. 

Costello’s confirmation won’t change that — Nitza Quiñones Alejandro, an Obama appointee, was confirmed to the same court in 2013 — but that doesn’t negate the significance of Costello’s appointment, said Ethan Rice, a senior attorney for the fair courts project at Lambda Legal, an LGBTQ civil rights organization. 

“I don’t think it’s enough to have one judge per district or one judge per state that’s LGBTQ,” he said, pointing to a March Gallup poll that found more than 7 percent of the nation’s adult population identifies as lesbian, gay, bisexual, transgender or “something other than heterosexual.” “We have a pretty decent-sized gap that still needs to be worked on.” 

“Representation changes the way judges think about cases,” Rice added, “so we know that diversity impacts decisions.” 

Federal courts across the country are grappling with whether recently enacted laws that ban gender-affirming health care, restrict transgender student-athlete participation and prevent students from using restrooms and locker rooms that match their gender identity are constitutional. The Supreme Court, which has never had an openly LGBTQ person nominated or confirmed to its bench, will review the constitutionality of Tennessee’s gender-affirming care ban during its upcoming term, setting the stage for a blockbuster showdown over transgender rights. 

“As LGBTQ rights are being subject to litigation across the country, it is increasingly clear that we need judges at all levels of the judiciary who understand what’s at stake,” said Lena Zwarensteyn, the senior director of the fair courts program at The Leadership Conference on Civil and Human Rights. 

Only in the past three decades have presidents nominated — and the Senate confirmed — openly LGBTQ people to the federal bench.

Deborah A. Batts, nominated to the U.S. District Court for the Southern District of New York by former President Clinton, became the nation’s first openly queer federal judge upon her confirmation in 1994. Two previously confirmed judges — Vaughn Walker, appointed by former President George W. Bush, and Martin Jenkins, appointed by Clinton — came out as gay after they joined the federal judiciary. 

Walker, who in 2010 struck down a California constitutional amendment banning same-sex marriages, only publicly confirmed his sexual orientation after his retirement in 2011. 

The Senate confirmed a record 11 openly LGBTQ federal judges during Obama’s eight years in office, and former President Trump appointed two in four years.