The LGBT Bar is proud to be leading the effort to prohibit exclusion from jury service on the bases of sexual orientation, gender identity, and gender expression across the country. In 2018, the American Bar Association (ABA) unanimously approved a resolution—introduced by the LGBT Bar—urging federal, state, local, territorial and tribal courts to extend Batson v. Kentucky to prohibit discrimination against jurors on the bases of sexual orientation, gender identity, and gender expression. The states of Illinois, Colorado, Washington, Maine, and Minnesota, have all passed jury access legislation that bans discrimination in voir dire on the bases of sexual orientation, gender identity, and gender expression. Jury access legislation in Oregon and Wisconsin applies solely to discrimination on the basis of sexual orientation, while New Hampshire’s legislation applies to discrimination on the basis of gender identity and gender expression. Legislation is pending federally as well as in multiple states. H.R. 5, more commonly known as the Equality Act, was recently reintroduced in 117th Congress and passed the House of Representatives on February 25th, 2021. An earlier version of the bill passed the House in May 2019. This legislation would prohibit exclusion from jury service on the bases of sexual orientation, gender identity, and gender expression at the federal level. We encourage you to call your United States Senator at (202) 224-3121 and urge them to pass the Equality Act.
What does “Jury Access” mean?
Currently, the United States Code prohibits discrimination on the bases of race, color, religion, sex, national origin and economic status. There are no explicit protections at the federal level to prohibit discrimination in the jury selection process on the bases of sexual orientation, gender identity, and gender expression; while the Bar believes that the U.S. Supreme Court’s opinion in Bostock v. Clayton County should ultimately be interpreted to mandate that all federal law reference to nondiscrimination on the basis of sex also include sexual orientation, gender identity, and gender expression, that interpretation has not yet been applied in the voir dire context. Failing to include sexual orientation, gender identity, and gender expression in nondiscrimination provisions denies countless individuals their constitutional right to a jury of their peers. Equality extends to the courtroom, and especially to jury composition. No one should be subjected to discrimination simply for performing a civic duty. Jury access legislation ensures that LGBTQ+ people will not be discriminated against in jury selection on the bases of their sexual orientation, gender identity, or gender expression.
How does jury selection happen?
To ensure the rights of the defendant are fully protected, defendants must be tried by a jury of their peers. Federal law requires that jurors be selected from a “fair cross-section of the community in the district or division wherein the court convenes.” The Supreme Court ruled in Strauder v. West Virginia that juries should be “composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds.”
Following the creation of a jury pool, defense attorneys and prosecutors have the opportunity to question potential jurors in order to eliminate jurors with personal knowledge of the case or any biases that would prevent that person from weighing evidence impartially. If an attorney believes a potential juror is not qualified because of some bias, the objecting attorney can remove the juror for cause. But attorneys on both sides also have a certain number of strikes for any or no reason at all, which are called peremptory strikes.
What is the holding of Batson v. Kentucky, and how does it implicate this issue?
The Supreme Court ruled in Batson v. Kentucky that prosecutors cannot exclude racial minorities from juries based solely on their race, nor based on the assumption that members of a particular race are incapable of fairly and impartially weighing evidence. Justice Powell correctly recognized that intentional discrimination against one group of citizens “undermine[s] public confidence in the fairness of our system of justice.” Thanks to this ruling and that in JB v. Alabama ex. Rel. T.B. which extended the Batson holding to sex discrimination in voir dire, attorneys who suspect that racial or sex discrimination is at play in jury selection may make what is known as a “Batson challenge.” The Batson challenge, while not a guarantee against bias, is a strong protection against racial and sex discrimination in jury selection.
While logically it would seem that Batson should also extend to discrimination on the bases of sexual orientation, gender identity, and gender expression, federal courts have struggled to apply the Batson decision to such preemptory juror dismissals. For example, in Carter v. Duncan, Jimmy Lee Carter was charged with committing petty theft with a prior conviction and being an ex-felon in possession of a firearm and ammunition. During voir dire, a prosecutor used a preemptory challenge to remove a transgender woman named Chris Lewis, referring to her as a “transvestite.” When the defendant challenged the peremptory strike of Lewis, the federal district court hearing the challenge in 2005 said its hands were tied and no relief could be granted, claiming that “cross-dressers” did not constitute a cognizable group as defined by Batson. No federal court has yet extended Batson to sexual orientation, gender identity, and gender expression.
While the Supreme Court’s ruling in Bostock v. Clayton County should dictate that discrimination on the bases of sexual orientation, gender identity, and gender expression is discrimination on the basis of sex, lower courts have not yet taken up this reasoning. Additionally, the Bostock decision applies only to federal law, not state law. We therefore need equal jury access to be enshrined in federal and state laws.
Why is jury access so important?
For LGBTQ+ people to have equal access and obligation to serve on federal and state juries is critical both in terms of what it means for LGBTQ+ people as potential jurors, and for LGBTQ+ people as potential defendants.
There are three core reasons why the right to serve is so critical to the dignity and equality of LGBTQ+ people. First, serving on a jury is a civic duty. To be a citizen of the United States is to be bound to a nation that upholds the shared values of liberty, equality, and freedom. America grants her citizens both rights and responsibilities in order to uphold these shared values. Jury duty is our responsibility as citizens and is vital to the administration of justice.
Furthermore, serving on a jury is a privilege. Very few countries around the world have a judicial system that guarantees citizens a trial by a jury of their peers. One of the best things about living in America is our system of checks and balances and our dedication to placing power in the hands of the people. Jury service ensures that ordinary community members themselves have a say in the justice system, and we have the right and the obligation to take advantage of this opportunity.
Finally, serving on a jury is a right, and to infringe upon this fundamental right is prejudicial. The fact that LGBTQ+ people can be dismissed from jury pools by federal courts and in most states today simply because of sexual orientation or gender identity is a violation of our dignity and citizenship. In order for LGBTQ+ people to be valued as true citizens of the United States, we must be granted the duty, right, and privilege to serve on a jury.
Moreover, and perhaps even more critically from the perspective of our justice system, failing to protect LGBTQ+ prospective jurors from discrimination denies LGBTQ+ defendants their constitutional right to be tried by their peers. LGBTQ+ people are highly criminalized due to higher rates of homelessness, higher involvement in sex work, and higher rates of HIV infection, amongst other issues. LGBTQ+ people are thus more likely to interact with our criminal justice system. For example, though LGBTQ+ youth represent just 5%-7% of the nation’s overall youth population, they compose 13%-15% of those currently in the juvenile justice system. Denying them the right to a jury that can include other LGBTQ+ people is a violation of their right to a fair trial.
A criminal defendant has the right to a jury truly representative of their community; a citizen has the right to be considered for that jury not based on stereotypes and prejudices, but on their ability to impartially weigh evidence and administer justice.
What can be done?
Several state legislatures have taken steps to ensure that the exclusion of jurors from jury service on the bases of sexual orientation, gender identity, and gender expression is prohibited. We urge every state and territory to pass similar legislation. Additionally, the Equality Act of 2021 would amend Chapter 121 of Title 28 of the United States Code to include sexual orientation, gender identity, and gender expression, thereby explicitly providing that LGBTQ+ people cannot be removed from a jury without cause.
Despite the advances made over the years thanks to rulings like Batson, discrimination against minority groups, including LGBTQ+ Americans, persists in the jury selection process today. But there is hope! In March of 2019, the Equality Act was introduced by Rep. David N. Cicilline (D-RI) in the United States House of Representatives and passed the House in May of the same year, though it was ultimately blocked from consideration in the Senate. In February 2021, Rep. Cicilline reintroduced the Equality Act in the 117th Congress and it passed the House on February 25th, 2021. We need to keep the pressure on the Senate to pass this comprehensive LGBTQ+ civil rights legislation this year. Legislation like the Equality Act represents an important step towards creating a jury that is truly of one’s peers. Help us pass it this term – call your U.S. Senator today at (202) 224-3121.
If you would like to read more on the history of jury access and the LGBT Bar’s advocacy on this issue, you can do so here.
In Recent News
Rep. Mondaire Jones Introduces Juror Non-Discrimination Act as Part of Landmark Equality Act (Press Release)
LGBTQ-Inclusive Jury Service Non-Discrimination Legislation Advances to Illinois Gov. JB Pritzker (Equality Illinois)
A team from Akerman pushed back against a judge’s decision not to allow attorneys to question jurors about potential biases against LGBT individuals (The National Law Journal)
ABA House resolutions address juror discrimination, remedies for convictions based on bad science (ABA Journal)
Jurors Can Be Asked About Anti-Gay Bias, Eleventh Circuit Rules (Daily Report)
The LGBT Bar Joined an Amicus Brief in Berthiaume v. Smith et al. (Filed Brief)
Batson In Transition: Prohibiting Peremptory Challenges On The Basis Of Gender Identity Or Expression (Columbia Law Review)
HERO opponents try to ban gay jurors in trial (Project Q)
Judge Slams Prosecutors for Dismissing Gay Juror (U-T San Diego)
Federal Ruling on Jury Exclusion Carries Big Impact for Gay Rights (MSNBC)
The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers from Removing Gay/Lesbian Jurors (Verdict)
A Jury of Your Peers – The Right to a Jury Trial Free from Discrimination (ACLU Blog)
Courts consistently allow flagrant discrimination against LGBT jurors (Colorado Independent)