Across the United States, potential jurors may not be dismissed from a jury on the basis of race, religion, sex, national origin, or economic status, but there are no similar uniform and explicit protections against dismissal on the basis of sexual orientation, gender identity, or gender expression. Instead, the few protections that exist create a patchwork quilt across jurisdictions. Most Americans live in states where LGBTQ+ jurors may be lawfully removed from a jury on the basis of their identity, creating a gap in protection that undermines our legal system. This unchecked discrimination denies litigants their constitutional right to a jury truly composed of their peers, excludes LGBTQ+ Americans from meaningful civic participation, and fundamentally erodes our democracy’s promise of a judicial system rooted in community involvement and the rule of law.
One of the most famous instances of striking jurors on the basis of sexual orientation occurred during the trial of Dan White in 1979. White was charged with the murder of Harvey Milk, a San Francisco city supervisor and one of the first openly gay elected officials in the United States, and Mayor George Moscone. Prior to trial, 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.” Over four decades later, most Americans still live in jurisdictions that do not protect against this kind of discrimination and injustice.
The National LGBTQ+ Bar is determined to address this gap in our legal system. In 2018, the American Bar Association (ABA) unanimously approved a resolution introduced by the National LGBTQ+ Bar that urged 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. Today, we are proud to be a part of the movement to prohibit the exclusion of LGBTQ+ individuals from jury service on the basis of sexual orientation, gender identity, or gender expression across the country.
Why Is This Important?
Protecting LGBTQ+ Americans’ ability to serve on juries strengthens our democracy’s core promise of a government by and for the people, advances community-driven justice, and builds trust in a legal system that represents, respects, and values everyone. Jury service is a fundamental duty of citizenship, empowering everyday Americans to shape the administration of justice. This cornerstone of our democracy remains incomplete as long as individuals can be excluded from juries solely because of their sexual orientation, gender identity, or gender expression. LGBTQ+ individuals, as integral members of every community across America, should have a voice in shaping those values. When courts permit discriminatory peremptory challenges, they effectively endorse bias, eroding public trust in a legal system meant to serve and represent everyone and undermining the integrity of the judicial process.
LGBTQ+ people are an essential part of America’s diverse fabric. We are your neighbors, coworkers, friends, and community members. The intentional exclusion of LGBTQ+ individuals from juries deprives all litigants—LGBTQ+ and non-LGBTQ+ people alike—of their right to impartial juries composed of their peers and reflective of their community. Anti-LGBTQ+ discrimination in jury selection also undermines a jury’s neutrality and compromises its ability to deliver justice impartially, ultimately denying all parties a fair trial. Moreover, LGBTQ+ individuals’ presence on juries ensures a more accurate reflection of the broader community, bringing diverse lived experiences that enrich deliberations, promote fairness, and foster just outcomes while actively reducing bias.
Finally, excluding LGBTQ+ Americans from jury service on the basis of their LGBTQ+ identity entrenches harmful stereotypes, perpetuates a long history of systemic discrimination, and denies us our rightful place in public life. LGBTQ+ Americans, like all other citizens, deserve the ability to carry out their civic duty and meaningfully serve their communities as jurors. Permitting the exclusion of jurors based on their sexual orientation or gender identity sustains a deeply entrenched pattern of discrimination and legitimizes harmful, baseless stereotypes about a strategically devalued community. Like stereotypes rooted in racism and sexism, negative presumptions about LGBTQ+ people perpetuate discrimination, exclusion, and erasure. These biases have no place in our justice system.
How Does Jury Selection Occur?
Jury selection in the United States typically follows a multi-step process:
Step 1: Potential jurors are selected randomly from voter registration lists, driver’s license databases, or other sources.
Step 2: Those selected are summoned to court for jury duty, where they fill out questionnaires about their background.
Step 3: Attorneys for both sides (prosecution and defense) and the judge ask the potential jurors questions to determine any biases or conflicts of interest. This is called voir dire, meaning to speak the truth.
Step 4: During voir dire, attorneys can ask the judge to dismiss a juror if they believe the juror is biased or unqualified. This is often called “for cause” dismissal.
Step 5: Each side can also dismiss a limited number of jurors without giving a reason. This is called a “peremptory challenge,” and it cannot be used to dismiss jurors due to their race or sex.
Step 6: Once the challenges are resolved, the final jurors (usually 12 plus alternates) are sworn in to hear the case.
LGBTQ+ people may face discrimination at any step of this process, but peremptory challenges are a particularly fraught part of jury selection for LGBTQ+ people. In most jurisdictions, there are no uniformly applied affirmative protections against peremptory challenges based solely upon a juror’s sexual orientation, gender identity, or gender expression. That makes it very easy for a party to request that an LGBTQ+ juror be dismissed from service, resulting in juries that do not accurately reflect our communities and undermining our legal system’s most fundamental principles.
Do any protections exist?
Some jurisdictions do protect against LGBTQ+-based discrimination in the jury selection process, but currently there is no broadly applicable federal protection against such practices.
In February 2018, upon the urging of the National LGBTQ+ Bar Association’s then 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 (a 1986 Supreme Court decision that protects jurors from removal due to any classification warranting heightened scrutiny) to also prohibit discrimination against jurors on the bases of sexual orientation or gender identity or expression. Through adopting Resolution 108D, the American Bar Association requested 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 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.
Federal Status
Currently, only states and territories that fall under the jurisdiction of the Ninth Circuit Court of Appeals have federal protections against jury discrimination on the basis of sexual orientation. Chapter 121 of Title 28 of the United States Code prohibits discrimination on the bases of race, color, religion, sex, national origin, or economic status. Additionally, race and gender based discrimination is prohibited during the jury selection process under federal case law. The Supreme Court case of Batson v. Kentucky (1986) prohibited the use of peremptory challenges to exclude jurors based on race, establishing a three-step process to assess claims of racial bias. This was extended in 1994 when the Court, in J.E.B. v. Alabama (1994), applied the Batson test to gender discrimination in jury selection. However, no similar protections exist for LGBTQ+ jurors or jurors perceived to be LGBTQ+.
Batson v. Kentucky, 476 U.S. 79 (1986)
This U.S. Supreme Court case established that a prosecutor’s use of peremptory challenges to exclude jurors solely based on race violates the Equal Protection Clause of the Fourteenth Amendment. The Court outlined a three-step process to determine if a peremptory strike is discriminatory: (1) the defendant must make a prima facie showing of racial discrimination; (2) the prosecutor must then provide a race-neutral explanation for the strike; and (3) the court must determine if the defendant has proven purposeful discrimination. This decision aimed to eliminate racial bias in jury selection.
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)
This U.S. Supreme Court case extended the principles of Batson v. Kentucky to prohibit the use of peremptory challenges based on gender. The Court held that striking potential jurors solely because of their sex violates the Equal Protection Clause of the Fourteenth Amendment. This decision reinforced the notion that gender, like race, cannot be a basis for discriminatory jury selection.
The only federal jurisdiction that guards against anti-LGBTQ+ discrimination in the jury selection process is the Ninth Circuit, which comprises Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands. In 2014, the Ninth Circuit issued its decision in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), finding that classifications based upon sexual orientation must be subjected to heightened scrutiny and that using peremptory challenges to strike potential jurors because of their sexual orientation violates the Constitution. Today, that case remains the only federal protection against anti-LGBTQ+ discrimination in jury selection.
SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014)
This case provides the only federal protection against anti-LGBTQ+ discrimination during jury selection, but it only applies to states and territories that fall under the jurisdiction of the Ninth Circuit Court of Appeals. In this case, the court held that peremptory challenges based on sexual orientation violate the Equal Protection Clause. The court applied the reasoning from Batson v. Kentucky and extended it to prohibit discrimination in jury selection based on sexual orientation. This ruling was influenced by United States v. Windsor (2013), which struck down parts of the Defense of Marriage Act, and emphasized that classifications based on sexual orientation warrant heightened scrutiny.
States
Protections against anti-LGBTQ+ discrimination in the jury selection process vary by state. Currently, Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Oregon, Washington, Wisconsin, Guam, and the Northern Mariana Islands prohibit juror dismissal on the basis of sexual orientation. California, Colorado, Hawaii, Illinois, Maine, Maryland, Minnesota, New Hampshire, New York, Oregon, and Washington prohibit juror dismissal on the basis of gender identity.
You can learn more about protections in states and territories by exploring our interactive map!