March 16, 2012 | 3:48 pm

Asking Too Much

Posted by  David A. Lehrer

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Last Friday we had an op/ed in the Times about Senate Bill 182 that mandates that California’s Administrative Office of the Courts (“AOC”)  survey every judge and justice in California and all judicial applicants as to their gender, their gender identity and their sexual orientation.

Since that op/ed was published we have heard from judges and others intimately involved in this sorry story. One judge informed us that the AOC in its e-mails to sitting judges never mentioned that their intrusive queries were voluntary. That, despite the fact that the legislative analysis by both the Assembly and Senate staffs concluded that the questionnaire was voluntary.

In fact, not only did the AOC not note the voluntariness of the survey, its tone was demanding:

We have not received your response to the survey as of noon today. Please follow the link below and provide your information at your earliest convenience on or before this Friday. If you prefer to provide your information by telephone, please contact Romunda Price at the AOC.

     
Betraying their amazing obtuseness regarding what they were asking about, the AOC suggests that perhaps the judges would like to offer their responses as to sexual orientation and sexual identity “by telephone.” I can imagine a Bob Newhart-like telephone routine where the questions probe a judge about his/her bisexuality, transgenderness and gayness and what it means to him/her (i.e.“sexual identity”).

The AOC’s emails felt compelled to offer a rationale for their prying beyond simply the mandate of SB 182. Gathering the data, they wrote, “is crucial to garnering legislative support for securing critically needed judgeships.”  In other words, the judiciary has to satisfy the legislature’s demand for their personal information or likely no new judges down the road.

In fact, the legislature has made clear; it is the personal data they want. Senator Ellen Corbett, the author of the snooping legislation, has written that she wants to collect information on “sexual orientation or gender identity and gender expression” to help identify who’s who and if there is a “lack of diversity” on the bench. 

You can’t make this stuff up. As the federal government abandons “Don’t Ask Don’t Tell”, California embraces its antithesis, “Ask and Tell.”

Imagine receiving a survey like this and trying to parse what it all means. As one of our correspondents from the bench sagely observed,

What does gender identification mean? ‘Is it a purely sexual inquiry or is it broader than that?’ I asked myself. I concluded that survey questions were clearly prying into sexuality.  This is how I processed the question; ‘gender identification’ in the survey context given the purported survey purpose was inextricable interwoven with sexuality.  For example, if a survey subject were biologically a woman with a male gender identification, and a sexual orientation as “lesbian” then this means one type of sexuality though the survey subject could be a biological woman with a male gender identification with a sexual orientation of heterosexual which connotes a very different type of sexuality.  Bottom line, the survey demanded sexual information which is my own damn business. 

Even just asking the question as a mandate for the judicial branch subjects us to criticism analogous to that of our military, albeit at least the military doesn’t ask.  The legislatively enacted policy directed at the California judicial branch of “Do ask, and tell” outranks “Don’t ask, don’t tell” when considered side-by-side.

The legislation, its implementation by the bureaucracy, and its impact bespeak an attitude in Sacramento that is deeply troubling.

Despite the fact that the electorate has made transparently clear that it endorses equality of opportunity and rejects preferences, the legislature seems to have no compunction about setting up systems that seem ultimately designed to promote preferences and mandates for sexual orientation-based outcomes.  Since Sen. Corbett declared the intent of the legislation was to determine whether there is a “lack of diversity” on the bench, one has to wonder not only how she will determine that “lack of diversity,” but how she will know when the “lack” is gone (i.e. what is the goal?).

Determining whether there is a “lack of diversity” is the first hurdle. Forty percent of the judges surveyed refused to provide the information on sexual orientation. Does the legislature act on the data received (i.e. in the latest survey 1.1% of judges said they were lesbian, 1% said they were gay, .06% said they were transgender, 0% were bisexual). If that’s not sufficient, do they force the mute judges to talk?

If it were up to Equality California, which lobbied for SB 182, the absence of knowledge is not a bar to concluding that the “California judiciary suffers from a substantial lack of diversity…..While LGBT people represent a sizable and important part of the state, their representation in the judicial branch of government is virtually unknown.”  But, if we don’t know the number of LGBT judges and a significant number of judges are clearly not interested in telling us about their sexual orientation how does Equality California conclude that there is a “substantial lack of diversity?”

This begs another practical question, how will the legislature know when the proper “diversity” has been reached, what percentage is the appropriate percentage of judges who are gay, lesbian, bisexual or transgender? Is the Kinsey Report (10% of the population is gay) the benchmark, or is it the Hite Report, or is it “just a feeling”? Is it judges who are openly gay or do closeted folks count too?

The problem is that the legislature and the AOC are in quicksand and can’t get out of it. They want to resolve what may or may not be a problem, absent information that will probably never be forthcoming, with a remedy that Californians and reasonable concerns about privacy say should be rejected out of hand.

Thank goodness the judiciary has more sense. They are, by a sizeable minority refusing to provide the intimate details of their sexual interests, telling us it’s none of our or the state’s business. 

It will be telling whether the legislature amends an offensive statute that asks the unaskable and has engendered such substantial resistance from the folks it probes. Sadly, I doubt they will see the light.