Cases of Discrimination Against LGBTQ+ People in Jury Selection

One of the most famous instances of striking jurors because of their sexual orientation occurred during the trial following Harvey Milk’s murder in 1978. Dan White was charged with the murders of Milk, a San Francisco city supervisor and one of the first openly gay elected officials in the United States, and Mayor George Moscone. White’s defense attorneys deliberately excluded LGBTQ+ members of the prospective jury. The ensuing verdict — two voluntary manslaughter convictions and less than eight years in prison — roiled the LGBTQ+ community of San Francisco, sparking a protest where community members chanted “All-straight jury. No surprise. Dan White lives. And Harvey Milk dies.” The protest turned into a riot, now known as the “White Night Riots” and ended in a clash with police. In the decades following the Harvey Milk case, there have been a number of advances in rights for LGBTQ+ people. But in most of the country, equal jury service isn’t one of them.

Federal Caselaw

In 2014, the Ninth Circuit ruled in SmithKline Beecham Corp v. Abbott Laboratories that lawyers are barred from removing jurors on the basis of sexual orientation. Arnold & Porter LLP submitted a Rule 28(j) letter citing supplemental authority for this case on behalf of the Department of Justice, which advises the Court of the United States Attorney General’s Guidance on Application of Batson v. Kentucky to Juror Strikes Based on Sexual Orientation. The Guidance states that all DOJ attorneys must “treat sexual orientation like race, gender, and ethnicity for purposes of voir dire: no potential juror should be presumed unqualified for jury service based on their sexual orientation.” The Guidance further directs that all DOJ attorneys “should consider challenging improper defense strikes based on sexual orientation.”

No federal circuit court has officially explicitly barred gender discrimination in voir dire. The Ninth Circuit’s jurisdiction only extends to federal courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington. Outside of those jurisdictions, there are no federal protections. However, the Supreme Court’s decision in Bostock v. Clayton County (2020) asserts that under federal law, discrimination on the bases of sexual orientation, gender identity, and gender expression are covered under the definition of sex discrimination. This decision does not extend to state law, though, and it has not yet been applied to areas outside of employment discrimination. 

The 2018 ABA Resolution

In February 2018, upon the urging of the National LGBTQ+ 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 bases 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, gender identity, and gender expression under this classification of heightened scrutiny. The LGBTQ+ 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 in a unanimous voice vote, without objection. You can read HOD Resolution 108D here.