Judge Dan McCaffery has held numerous leadership positions in Pennsylvania courts. This includes working as an assistant district attorney in Philadelphia’s District Attorney’s Office, judge for the city’s Court of Common Pleas, and most recently as Judge of the Pennsylvania Superior Court. Now, he is running for election for judge of the Pennsylvania Supreme Court. PGN reached out to both candidates for Pennsylvania Supreme Court in advance of next month’s election to ask them about the court’s role in LGBTQ+ issues. Some responses from McCaffery’s Oct. 16 interview have been edited for length and clarity.
What are the challenges facing Pennsylvania’s LGBTQ+ community, and how can the courts address them?
The struggle for equal rights — it’s been center stage now for the better part of 20 or 30 years — [is] ongoing. There’s still cases that are kind of bubbling up in our courts. And I tell everybody, with what’s happening right now, at the United States Supreme Court level, we’re running into an unprecedented situation in my lifetime. We now have a majority of right-wing conservatives on the United States Supreme Court. My message has been consistent throughout this campaign, which is that majorities on our courts matter. These issues, such as all of the substantive due process case issues, are now issues that are going to be decided in our lifetime by the Pennsylvania Supreme Court or by each individual state Supreme Courts.
[Whether] you’re talking about abortion care, trans rights, the right to vote, the right to marry who you love — we’re now kind of in a situation right now where I think the United States Supreme Court is really rolled back. The first one up was women’s reproductive rights. Roe vs. Wade was, in fact, reversed. And for the first time in American society, it’s OK to discriminate against same-sex couples based upon an alleged First Amendment claim. These are all issues that Americans have really fought for for the last 60 years to advance equality in the law: [regarding] the LGBT community, women’s rights, affirmative action rights, [and] minority community rights. And when you start seeing these rights being peeled away by the United States Supreme Court under the federal Constitution, you quickly realize that all of those issues are now going to have to be re-litigated in state courts. And that’s why we’re at an inflection point in our country’s history.
What rulings have you made in the past concerning LGBTQ+ equality?
Adoption cases, parental rights cases, LGBTQ couples…I’ve been on the Superior Court since 2019. Before that, the answer was probably none because I was in state courts in criminal court from 2014 through 2019. As a criminal court judge, my job was to basically adjudicate criminal court proceedings. Although when I was a DA, I prosecuted hate crimes against members of the LGBT community. But since I’ve been on the Superior Court, we handle cases routinely regarding parental rights, termination of parental rights for same-sex couples, adoption issues — things of that nature. [I’ve] probably done dozens of those and participated in dozens of others.
What LGBTQ+ community leaders and organizations have you worked with in the past?
Numerous. I’ve done cases where I’ve actually helped out William Way [LGBT Community Center]. I worked for Ricky’s Pride just this weekend. I actually swore in Ricky Buttacavoli — who runs Ricky’s Pride, which is the Montgomery County LGBTQ advocacy group — to the [Governor’s Advisory Commission on LGBTQ Affairs]. I realize it’s not so much what you say. It’s what you do. You’ve got to live a life where you actually fight for the issues that you think are near and dear to your heart. And you’ve got to make sure that you stand up and you stand up for LGBTQ couples and LGBT people.
And Brian Sims was one of my coordinators when I ran for DA in 2009. Right now, Laura Shadle is one of my campaign consultants. She was on City & State Pennsylvania’s Pride [Power 100]. I campaigned around the state with Malcolm Kenyatta. I was on Dan Anders’ 2009 campaign. Dan was the first openly gay man to run for judge in the city of Philadelphia. In 2019, when I got elected, I got to meet and know and really appreciate Henry Sias. Henry Sias was my first hire. Henry is the only transgender law clerk in Pennsylvania’s entire appellate courts. He left me about a year ago to take a position with Governor Shapiro’s LGBTQ advisory committee. But they’re the kind of issues that I’m at the forefront with, which is advancing and giving opportunities to members of the LGBTQ community.
How do the courts address the issue of violence against the trans community, specifically trans women of color?
Most of those issues really have to be dealt with on a case-by-case basis. One of the things that people kind of don’t understand about how our system works is that the system is set up to handle one case at a time, so when you start talking about violence against transgender women, and especially trans women of color, judges have to handle those cases on a case-by-case basis based upon individual facts, because you’re running up against victims’ rights, and you’re running up against criminal defendants’ rights.
We have CTE classes, which are continuing judicial education classes to make sure that judges make sure that their courtrooms are a safe space for members of the LGBTQ and trans community — that they know that they’re gonna be welcomed; they’re going to be treated with dignity and treated with respect in a courtroom. But most of those cases have to be dealt with on a case-by-case basis. And the only way you can really deal with them is [to] have ongoing discussions with the trans community about how they’re treated once they come into the courtroom in the criminal justice system.
Why should members of the LGBTQ+ community give you their vote?I’m a big believer in, “Don’t do as I say. Do as I do.” Take a look at what I’ve done my entire career. I’ve always been somebody who stood up for equality; for LGBTQ couples, same-sex couples, transgender individuals. And I’ve made this pretty clear. You want judges on these courts who are not going to stand for any kind of agenda, especially a right-wing agenda. One of the issues I think that’s going to be bubbling up to our courts within the near future is what’s going on right now in our schools: the school board elections happening throughout the Commonwealth of Pennsylvania, regarding stripping away teachers rights to teach about LGBTQ issues, transgender issues, the equality of transgender teenagers to participate and live as they want to live and participate openly in school activities. There’s a whole lot of issues that are kind of coming out there.
I’m somebody who’s had a well-earned history and a well-earned reputation of being an advocate for and an ally for the LGBTQ community and the transgender community. As I said beforehand, some people talk the talk. Other people walk the walk. I like to think of myself in the latter category, as somebody who promotes, hires, and always advances LGBTQ and trans issues.
For more information on Dan McCaffery, visit judgemccaffery.com.
