Opinion 25-74
May 15, 2025
Digest: A judge who is a member of a court-sponsored committee on diversity and inclusion in the courts (1) may host a courthouse Pride month event that will provide a historical retrospective of the protests of the Gay Rights Movement and raise awareness about discrimination against transgender individuals, but (2) may not advertise the program using a title that is specifically linked to or suggests a heavily politicized “call to action” or “rally.”
Rules: 22 NYCRR 100.2; 100.2(A), (C), (D); 100.3(A); 100.3(B)(4)-(6), (8); 100.4(A)(1)-(3); 100.5(A)(1); Opinions 23-83; 23-70; 22-13; 13-123.
Opinion:
The inquiring judge, as a member of his/her local Equal Justice in the Courts Committee (EJC),[1] is helping plan a Pride month celebration to be held at the courthouse. The EJC is aware that NYC Pride, a not-for-profit organization which produces LGBTQ+ and Pride events in New York City, has chosen “Rise Up: Pride in Protest” as the theme of this year’s 2025 Pride month. Mindful of this theme, the EJC’s program is designed to give a “historic retrospective on the gay rights movement from the protests in the 1950’s by the Mattachine Society through the Stonewall riot of June 28, 1969” and to “raise awareness as to discrimination against the transgendered.” The judge asks if “rendering the history of the gay rights movement in protest, or speaking to the discrimination faced by the transgendered, runs afoul of any ethical restrictions.” The judge also asks if it is permissible, when advertising the event, to use the title “History of Pride in Protest” and/or a title that more directly invokes the “Rise Up: Pride in Protest” theme.[2]
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). In general, a judge may participate in extra-judicial activities provided they are compatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge’s participation is also subject to generally applicable limitations on judicial speech and conduct, including the rules against impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and “any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]). Significantly, a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).
Given the specific program under consideration, we also briefly review some of a judge’s obligations relating to diversity and inclusion. A judge must, of course, “perform judicial duties without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]). For example, a judge must not, “by words or conduct, manifest bias or prejudice, including but not limited to bias and prejudice based upon . . . sexual orientation, gender identity [or] gender expression” and “shall require staff, court officials and others subject to the judge’s direction and control to refrain from such words or conduct” (id.). A judge must similarly curb “such words or conduct” on the part of “lawyers in proceedings before the judge,” although this does not bar “legitimate advocacy” concerning issues in the proceeding (22 NYCRR 100.3[B][5]). As a judge’s judicial duties “take precedence” over all of the judge’s other activities (22 NYCRR 100.3[A]), a judge also must not “hold membership in any organization that practices invidious discrimination on the basis of … sexual orientation, gender identity [or] gender expression” (22 NYCRR 100.2[D]).
We now turn to the judge’s questions.
1. Choice of Subject Matter
We first address the judge’s question about the event itself. Clearly, a judge may host a courthouse Pride month event that will provide a historical retrospective of the protests of the Gay Rights Movement and raise awareness about discrimination against transgender individuals.[3] We note that the proposed program appears to be entirely consistent with the judicial goals of advancing equity in the legal system and promoting diversity and inclusion (see e.g. Opinions 23-70; 22-13 [“Working to ensure equal justice in the court system is not merely a laudable goal but an imperative”).
2. Choice of Title
Although the proposed content of the EJC’s Pride program is permissible, the title used by the judge must also be appropriate (cf. Opinion 13-123 [“A judge may not use a title for his/her law-related book which suggests that the book is a partisan guide for law enforcement.”]).
Initially, we conclude it is ethically permissible to use a title such as “History of Pride in Protest.” In our view, this title primarily describes the content of the program and cannot reasonably be mistaken as a politicized call to action.
However, the judge should not advertise the program using a title that is specifically linked to or suggests a heavily politicized “call to action” or “rally.” NYC Pride’s own social media campaign describes its theme “Rise Up: Pride in Protest” as a “call to action,” urging the public to “rally” or “rise up” in response to “legislative attacks” in the current “political climate.” Thus, in our view, the judge should not use the other three titles mentioned in this inquiry.
[1] These court-sponsored committees “are ‘charged with implementing reforms at the local court level with the aim of changing our institutional culture’ while ‘engaging with members of the bar and community members’” (Opinion 23-83 [citations omitted]). They often sponsor local courthouse programs and events to raise awareness about diversity and bias-related issues.
[2] The judge offers three such variations: (a) “Rise Up: Pride in Protest,” (b) “Exploring the 2025 Pride Theme, ‘Rise Up: Pride in Protest,’” and (c) “Rise Up: The Fabric of Freedom.”
[3] As always, the judge’s participation is subject to the public comment rule and other generally applicable limitations. For example, the judge may not comment on “pending or impending” litigation concerning the rights of transgender individuals at this public event (22 NYCRR 100.3[B][8]).