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Berner was born in Woking, Surrey, England to American parents. During her childhood, her family moved to the United States, settling in Oakland, California. She earned a Bachelor of Arts degree in women's studies from the University of California, Berkeley. During her studies, she spent a semester in Israel studying at the University of Haifa, and decided to move there. After completing her degree, she moved to Israel. In 1990 in Tel Aviv, she founded the Bat Adam organization, an advocacy group for victims of sexual assault and domestic violence.
In 2000, as a dual American-Israeli citizen, represented by the Association for Civil Rights in Israel, Berner and her then-wife Ruti Kadish prevailed in a landmark civil rights case before the Israeli Supreme Court. Berner had legally adopted their son in California, but when the family moved to Israel, attempts to register their son with two mothers were refused by the Ministry of Interior in Israel. The subsequent legal case, Berner-Kadish v. Minister of Interior, challenged the refusal to register Kadish and Berner's second parent adoption of their son. The Israel Supreme Court ruled that the Ministry of Interior must register the adoption decree, accepting legally that the child has two mothers.
From 2004 to 2006, Berner worked as a staff attorney at Planned Parenthood.
Berner joined the SEIU's legal department as in-house counsel in 2006 and was named general counsel in 2017. Her work with the SEIU has included legal efforts to support the Affordable Care Act, to oppose the Defense of Marriage Act, and to oppose an effort to end the Deferred Action for Childhood Arrivals (DACA) program during the Trump administration. She was the lead attorney on the amicus curiae brief filed on behalf of the SEIU in California v. Texas. She was also involved with the Fight for $15 movement.
In 2019, liberal group Demand Justice included Berner on their list of suggested Supreme Court nominees for any future Democratic president. In 2023, Berner was named an adjunct professor of law at Vanderbilt Law School.
On November 15, 2023, President Joe Biden announced his intent to nominate Berner to serve as a United States circuit judge for the United States Court of Appeals for the Fourth Circuit. On November 27, 2023, her nomination was sent to the Senate. President Biden nominated Berner to the seat vacated by Judge Diana Gribbon Motz, who assumed senior status on September 30, 2022.
On December 13, 2023, a hearing on her nomination was held before the Senate Judiciary Committee. During her confirmation hearing, she answered questions, including about her work as general counsel for the SEIU. On January 3, 2024, her nomination was returned to the president under Rule XXXI, Paragraph 6 of the United States Senate and she was renominated on January 8, 2024. On January 18, 2024, her nomination was reported out of committee by an 11–10 party-line vote. On March 14, 2024, the Senate invoked cloture on her nomination by a 48–40 vote, with Senator Joe Manchin voting against the motion. On March 19, 2024, her nomination was confirmed by a 50–47 vote, with Senator Manchin voting against confirmation. She received her judicial commission the same day. Berner is the first openly LGBTQ judge to serve on that court.
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