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 LGBTQ+ Bar believes that the U.S. Supreme Court’s opinion in Bostock v. Clayton County should be interpreted to mandate that all federal law referencing 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 must extend 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 basis 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?

In Batson v. Kentucky, the Supreme Court ruled 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 the ruling 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 it may seem that, logically, Batson should also extend to discrimination on the basis of sexual orientation, gender identity, and gender expression, federal courts have struggled to apply the Batson decision to such peremptory 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 peremptory 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, claiming that “cross-dressers” did not constitute a cognizable group as defined by Batson, said its hands were tied and no relief could be granted. 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 both federal and state laws.

Why is jury access so important?

There are three core reasons why the right to serve on a jury is critical to the dignity and equality of LGBTQ+ people. 

1. 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.
2. 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. Americans should be proud of 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 participate in justice.
3. 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 citizens of the United States, we must be granted the duty, privilege, and right to serve on a jury.

Moreover, 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 chances of being HIV positive. In recent years, we have also seen an alarming and extremist attempt to criminalize drag, speaking about LGBTQ+ experiences in school and libraries, medical care for transgender children and adults, and transgender people simply for their identity. LGBTQ+ people are thus more likely to interact with our criminal 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.

Just as criminal defendants have the right to a jury that is truly representative of their community, citizens have the right to be considered for a jury based only on their ability to impartially weigh evidence and administer justice, not on stereotypes and prejudices.

What can be done?

Several state legislatures have ensured that the exclusion of jurors from jury service on the bases of sexual orientation, gender identity, and/or gender expression is prohibited. We urge every state and territory to pass similar legislation protecting against discrimination on the bases of all three categories. Additionally, 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. We need to keep the pressure on the Congress to pass this comprehensive LGBTQ+ civil rights legislation. Legislation like the Equality Act represents an important step towards creating a jury that is truly composed of one’s peers. Help us pass it this term – find your legislators’ contact information today.