What does Jury Access mean?
All citizens should be considered for jury service based solely on their ability to impartially weigh evidence and administer justice.
Jury Access refers to the ability of all American citizens to perform the important civic duty of serving on a jury without fearing discrimination on the basis of their identity. Across the United States, potential jurors may not be dismissed from a jury on the basis of race, color, religion, sex, national origin, or economic status. There are no similar uniform protections against dismissal on the basis of sexual orientation, gender identity, or gender expression. That means that someone can be dismissed from jury service because they are a member of the LGBTQ+ community, denying LGBTQ+ Americans the opportunity to serve on a jury and all Americans the right to truly be judged by a jury representative of their community.
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.
In 2018, the American Bar Association (ABA) unanimously approved a resolution (introduced by the National LGBTQ+ 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 National LGBTQ+ Bar is proud to join the effort to prohibit the exclusion of LGBTQ+ individuals from jury service on the basis of sexual orientation, gender identity, or gender expression across the country.
The Right to Serve
Protecting every American’s right to serve on a jury regardless of their sexual orientation, gender identity, and gender expression is critical to both realizing full equality for LGBTQ+ people under the law and to upholding a democratic justice system.
America grants citizens both rights and responsibilities in order to uphold the shared values of liberty, justice, and equality. Jury duty is a vital responsibility of citizenship because it ensures that ordinary community members have a say in the justice system, placing power in the hands of the people.
The fact that LGBTQ+ individuals can be dismissed from some jury pools simply because of their identity is a violation of their dignity and betrayal of the values Americans hold dear. In order for LGBTQ+ people to be full citizens of the United States, they must be granted the duty, privilege, and right to serve on a jury.
A Jury of Our Peers
Failing to protect LGBTQ+ prospective jurors from discrimination denies LGBTQ+ people their constitutional right to be tried by their peers, in violation of their right to a fair trial. This is especially concerning because LGBTQ+ people, especially trangender people of color, are more likely to encounter the justice system. In recent years, we have also seen an alarming increase in extremist attempts to criminalize various aspects of LGBTQ+ people’s lives, including drag, speaking about LGBTQ+ experiences in school and libraries, medical care for transgender children and adults, and publicly identifying as trans. In this landscape, it is more important now than ever that LGBTQ+ people are empowered to serve on juries.
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.
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 an 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. However, race and gender based discrimination is prohibited during the jury selection process under federal 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.
Currently, there is legislation pending in the United States Congress that would protect LGBTQ+ people from discrimination during jury service. The Equality Act, as currently written, 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. In June 2024, Rep. Becca Balint also introduced H.R. 8707, which would provide the same necessary update as the Equality Act, if passed. The National LGBTQ+ Bar Association endorsed this important legislation.
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.
Bostock v. Clayton County, 590 U.S. 644 (2020)
In this landmark case, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation and gender identity. The Court ruled 6-3 that discrimination on these grounds constitutes sex discrimination, as firing someone for being gay or transgender inherently involves treating them differently based on their sex. While the Supreme Court’s ruling should dictate that discrimination on the basis of sexual orientation, gender identity, and gender expression is discrimination on the basis of sex (meaning J.E.B v. Alabama ex. Rel. T.B. should apply to sexual orientation and gender identity), courts have not yet taken up this reasoning.
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!