Currently, the United States Code prohibits discrimination on the basis of race, color, religion, sex, national origin and economic status. Failing to include sexual orientation and gender identity denies countless individuals a jury of their peers. Serving on a jury is a civic duty and to infringe upon that right is prejudicial. Equality extends to the courtroom and especially to juries. No one should be subjected to discrimination simply for performing a civic duty.
The Jury ACCESS/Juror Non-Discrimination Acts would amend the federal statute to include sexual orientation and gender identity, protecting those groups from being removed from a jury without cause. Striking jurors on the basis of their sexual orientation or gender identity would be prohibited under federal law for the first time.
In February 2018, upon the urging of the National LGBT Bar Association’s Executive Director, D’Arcy Kemnitz, the ABA House of Delegates adopted HOD Resolution 108D, which urges federal, state, local, territorial and tribal courts to extend Batson v. Kentucky to prohibit discrimination against jurors on the basis of sexual orientation or gender identity or expression. Batson v. Kentucky, a 1986 Supreme Court decision, protects jurors from being removed due to their race, gender or any other classification warranting heightened scrutiny. Through adopting Resolution 108D, the American Bar Association is requesting that courts view sexual orientation and gender identity under this classification of heightened scrutiny. The LGBT Bar drafted this resolution, worked with the Criminal Justice Section of the ABA to bring this to vote at the 2018 ABA Midyear Meeting, and D’Arcy encouraged the passage of this Resolution before the House of Delegates. Resolution 108D passed on an unanimous voice vote, without objection. You can read HOD Resolution 108D here.
In Recent News
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)
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)