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The Women’s Bar Association and the Massachusetts Lesbian and Gay Bar Association have come to the defense of Massachusetts Superior Court Judge Linda E. Giles who is being asked to recuse herself from a case involving a 15-year-old male student who wears girls’ clothing to school. The two groups filed an amicus curiae brief Nov. 1 with the Appeals Court asking the court to deny a request by school officials in Brockton, Mass., that Giles take herself off the case because she is gay. “The central issue in this case — whether Judge Giles is qualified to hear this case given her sexual orientation, bar affiliations, and background — raises serious policy concerns regarding the effect of discriminatory and stereotypical beliefs on our judicial system,” wrote attorney Andrea C. Kramer of Boston’s Sullivan, Weinstein & McQuay in a motion outlining the two groups’ position in the brief, Pat Doe v. John Yunits, et al., 2000-J-0638. Last month, Giles granted a preliminary injunction ordering the Brockton, Mass., public schools to allow the student, identified as “Pat Doe” in court documents, to attend classes. School officials did not allow the student to attend classes if he continued to dress in female clothing, alleging that his manner of dress caused disruptions. The request for Giles to recuse herself is part of the school officials’ appeal of her preliminary injunction. Although he did not rule on the recusal issue, Appeals Court Judge George Jacobs on Monday ordered the two sides in the case to draft a plan that would allow the student to go back to school. Giles, meanwhile, must decide the issue of whether the eighth-grader has the right to wear female clothing. The WBA and the MLGBA became involved in the case because they have similar goals of pushing for diversity in the court system and eliminating bias, according to the motion filed with the brief. “If the defendants’ position prevails in this case, it would establish a dangerous precedent that would seriously undermine the credibility and integrity of this Commonwealth’s judicial system and thwart the goals inherent in having a diverse judiciary,” according to the motion. Quincy, Mass., attorney Edward F. Lenox Jr. of Murphy, Hesse, Toomey & Lehane, who represents the Brockton schools, could not be reached for comment before deadline. According to the amicus brief, Brockton school officials argue that Giles’ homosexuality, her affiliation with the International Gay and Lesbian Judges Association and the MLGBA, and her work years ago with the Gay and Lesbian Advocates and Defenders, which is serving as Doe’s counsel, raise a question concerning the judge’s impartiality. The WBA and the MGLBA counters that there is no basis in law or fact for the school’s position. “To the contrary, case law, common sense, and good policy dictate that notions of judicial bias cannot be based solely on a judge’s personal characteristics, bar affiliation, or background,” according to the brief. The two groups go on to say that there are no reported Massachusetts or federal cases in which a judge’s recusal has been required based on personal characteristics, such as sex, race, ethnicity, religion, physical status, or sexual orientation. “To the contrary, the cases unanimously hold that these factors without any facts supporting the suggestion of partiality can never form the basis for judicial recusal,” according to the brief, citing United States v. Alabama, 582 F.Supp 1197, 1203 (N.D. Ala. 1984).

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