24 SUMMER 2011

“[Kolakowski] transitioned during her final semester in law school, then when she applied to take the bar exam, she was denied on the grounds that she was ‘not of sound mind.’ She appealed to the Louisiana State Bar, who replied with two words: ‘Appeal granted.’”

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Victoria Kolakowski made history last November by winning an election to become the first openly transgender superior court judge in the United States. The news made national head-lines as Judge Kolakowski was hailed as a trailblazer, a role model, and an

icon for the transgender community. It was a “watershed moment in the LGBT equality movement,” said BASF President-Elect Kelly Dermody of Lieff Cabraser Hei-mann & Bernstein, who headed the work on the Report of The Bar Association of San Francisco Equality Subcom-mittee on Lesbian, Gay, Bisexual, and Transgender Issues in 2007. “It reflects a real culture shift in how people think about gender.”

“Look at what she did!” said Daniel Dean, an attorney at Fotouhi Epps Hillger Gilroy and currently a board member of Bay Area Lawyers for Individual Freedom (BALIF), who first met Vicky when she was vice chair of the board of the Transgender Law Center. “It’s so excit-ing that the county of Alameda elected her, demonstrat-ing acceptance, our growth as a society, and hope for the future.” It’s also significant, he added, that “some voters didn’t know she’s transgender, so she got elected based on her experience and skills.”

Kolakowski’s journey to the bench is remarkable. She transitioned during her final semester in law school, then when she applied to take the bar exam, she was denied on the grounds that she was “not of sound mind.” She ap-pealed to the Louisiana State Bar, who replied with two words: “Appeal granted.”

“I am so impressed with what she has overcome to get where she is,” Dean said. “She didn’t have the backing of a big transgender group,” Dean noted, adding that nevertheless she still fought on. Indeed, she did fight on, carving out her own career path, becoming an ac-

tivist for transgender rights, and earning the respect of her colleagues. Prior to her election, she worked as an attorney in civil and administrative law for more than two decades, served for five years as an administrative law judge, and trained as a mediator. She has been recognized for her contributions and achievements with Equal-ity California’s “Equality and Justice Award” and with the BALIF 2010 Minority Bar Coalition Unity Award for “advancing the cause of diversity of the legal profession.”

“She has remained herself throughout,” Dean said. “She doesn’t try to make herself appear anything else but a confident, intelligent, hardworking judge. She doesn’t conform to what other people think she should look like.” Other people who know her, who have worked or volunteered alongside her, emphasized the human being inhabiting the robe, using descriptors such as “gracious and energetic” and “unpretentious.”

Three months into her new assignment in General Criminal in Alameda County’s Superior Court, she was presiding over preliminary hearings and looking for-ward to her first misdemeanor jury trial. Over an alfresco lunch, Judge Kolakowski sat down for an interview and candidly shared her insights about transgender issues, offered words of advice, and reflected on the view from the bench.

San Francisco Attorney: You’ve moved from administrative law to criminal law. What have been the biggest surprises?

Judge Kolakowski: I do a lot less reading, a lot less writing. Now I hear a couple of cases a day for preliminary hearings, and I have to make a decision right at the end. With a prelim, once I start, I can’t conduct any other business until I finish that one case. I can’t just say “I’ll come back to it” or “Let me think about it.” I have to make a decision.

A Different Point of View— An Interview with Judge Victoria Kolakowski

Kathleen Guthrie

26 SUMMER 2011

Monica Wiley

SFA: Do you miss the writing and research?

JK: A little, but I’m enjoying not doing it for a while. It’s a new area of law for me, so I’m still learning a lot, still trying to figure out the substantive stuff and also the procedural stuff. For example, trying to get waivers from people, [making sure] that I properly voir dire the defen-dant, and making sure they understand the rights they are giving up, I try to get them to say it themselves. I like learning new things, so that part is exciting. When I begin misdemeanor jury trials, there will be a whole new set of things to pick up.

SFA: Have you adjusted to being called “Your Honor”?

JK: Everyone calls me “Judge.” It’s like my new name, Judge. That’s one of the things that has been an adjust-ment for me. I’m a very horizontal person, I’m not into hierarchies, and now I’m in an environment where I’m clearly the authority. I have people who work with me—clerks and deputies and so on—and we’re friendly, but still, I know I’m the judge. SFA: From your new perspective on the bench, what advice can you give to attorneys appearing before you?

JK: Be prepared. What I see is folks don’t have a lot of time to prepare, they don’t know their own cases well enough, so they’ll ask questions because they’re curious. I’ve seen public defenders make the case for the prosecu-tion because they ask too many questions. I had a great cross-examination the other day; it was two questions. “Have you ever seen my client before?” “No.” “Did you see who shot you?” “No.” That’s it! Stopped! Stopped at that point, because he knew if he went any further it was likely that something was going to come out.

SFA: When did you first know that becoming a judge was part of your plan?

JK: To be honest, I never thought it would be possible. When I was in law school, having not been on law review, having not been clerking for a federal judge, I really didn’t think that I’d have much of an opportunity.

SFA: When did that change?

JK: When I started working for the state, it occurred to me that being an administrative law judge was a possibili-ty. I did that for five years; then in 2007 I was approached by an attorney in San Francisco who wanted me to con-sider running for judge there, because he was hoping he could get more progressive attorneys to challenge some of the sitting judges. Challenging an incumbent wasn’t something I wanted to do.

SFA: Why?

JK: Two reasons. One is practical. It’s hard to beat an incumbent. But also, I don’t like the idea of challenging judges because of their ideology. I think that the inde-pendence of the judiciary is very important, and I’m very hesitant to challenge someone just because you don’t like their politics. Being a judge isn’t like being a legislator. You don’t vote on things, you don’t hold personal opin-ions on things. You are trying your best to apply the law and legal principles to a specific question, the law and the facts. So when I ran, and I ran twice, each time, I ran based on my qualifications. I talked about the positive impacts of diversity, and what I think are positive impacts for the transgender and LGBT community in general of having people like me in positions like this. But the first and fundamental question was whether or not I was ca-pable of handling the job.

SFA: Now that you have this success, do you still feel like an activist for LGBT?

JK: Well, the words activist and judge don’t go together. One of the best things that I can do is to be really good at what I’m doing now, because there’s still a sense that being transgender is viewed as having a mental illness. When I applied to take the bar exam in Louisiana, I was denied because I was [deemed] not of sound mind.

SFA: And you appealed to the Louisiana Supreme Court?

JK: I filed my petition on Monday, I got the decision on Wednesday. It was unanimous. They all thought it was silly. That was in 1989, and the Louisiana Supreme Court was probably the most liberal institution in the state.

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SFA: You are frequently asked to speak to groups, to continue being an activist. How do you handle this?

JK: I’m an extrovert, but now I’m in a position where I have to be careful about everything I say, every place I appear, everything I do, in fear of creating an ethical issue. Most of my colleagues’ approach is that if the lines are gray or there’s some concern about speaking places or do-ing things, they’ll err on the side of just not doing things, and I’m not sure I agree with that approach. We, as judges, are supposed to be in the community, we’re supposed to be active in the community. Part of my being where I am, part of being a role model, means people actually getting to see me. I’m not going to hide under a rock.

SFA: Somewhere out there is a transgender person who is struggling, who is looking for a role model. What would you say to them?

JK: You’ve got to be true to yourself. Early in my career, colleagues tried to impress two things on me: Do what you think is right and be prepared to pay the price. There are always consequences to things. Some people have re-sponsibilities to other people, and they may not be able to pay the price. Would I have done things differently if

I had had kids? I might have. That’s a question everyone has to answer for themselves. I’m an anomaly in that most people who are attorneys who are transgender have not had the level of success even that I have had. This is a good place to be in my story, in terms of what I’ve accom-plished, and I’m very happy.

SFA: What can we all do to make a difference?

JK: Part of it is just to look at ourselves and ask, “Are we an environment that is welcoming to transgender at-torneys?” I always faced discrimination in hiring, even in the Bay Area, and I’m sure I’m not alone. The explanation I was given was people felt I wasn’t a “good fit,” which is code for “you don’t belong here.” We need to create a culture where anybody who is good, capable, and a team player is a good fit, regardless of disability, race, or gender identity. People say the bench should be a reflection of the bar, but I disagree. The bench should be a reflection of the community, and the bench will pull up the bar.

Kathleen Guthrie is a San Francisco–based freelance writer. Her work has appeared in Diablo, 805 Living, and AAA’s Westways and Via magazines.

Following the success of Judge Kolakowski’s historic election, there’s more work to be done. Learn what you can do by reading the November 2007 Report of The Bar Association of San Francisco Equality Subcom-mittee on Lesbian, Gay, Bisexual, and Transgender Issues, which contains recommendations for how to support transgender attorneys, including best practices for hir-ing, retention, and promotions. “We take an oath to uphold justice and defend the Constitution,” said Shay

Gilmore, who is cochair of the LGBT Subcommittee of BASF’s Equality Committee and who is on the board of directors of the Transgender Law Center. “We can’t say that if LGBT are treated as second-class citizens un-equal to heterosexuals.” Take a stand for equality, con-tribute money, donate your time and talents; visit the websites for the organizations listed below for informa-tion about their specific needs and opportunities for you to be part of the solution.

BASF LGBT Program: www.sfbar.org/diversity/lgbt.aspx

Bay Area Lawyers for Individual Freedom (BALIF): www.balif.org

Equality California:www.eqca.org

Transgender Law Center (TLC): http://transgenderlawcenter.org

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