116th Congress: H.R. 874; S. 250

The Problem

Access to a trial arbitrated by a jury of one’s peers is an American right. During the process of jury selection, attorneys for both plaintiffs and defendants have a limited number of opportunities to strike potential jurors without providing a specific reason, through what are called “peremptory challenges.” However, the Supreme Court has ruled using such challenges to exclude a juror because of their race or gender is unconstitutional. In addition, federal law prohibits discrimination in service on a federal jury based on race, color, religion, sex, national origin, and economic status.

However, neither the Supreme Court nor federal law explicitly prohibit discrimination in jury service based on sexual orientation or gender identity. Such discriminatory treatment undermines the justice system and could hurt crime victims by preventing a fair trial by a jury of their peers. This could have particularly negative impacts on victims or defendants who are lesbian, gay, bisexual, transgender, or queer (LGBTQ). The right to a trial arbitrated by a jury of one’s peers cannot be truly realized without protections from discrimination during the process of jury selection. Preventing individuals from participating in a jury simply because of their sexual orientation or gender identity infringes on the fundamental right to an impartial jury and the reciprocal right to jury service.

What are the Jury Non-Discrimination Act and Jury ACCESS Act?

The Juror Non-Discrimination Act and Jury ACCESS (Access for Capable Citizens and Equality in Service Selection) Act would amend the Jury Selection and Services Act to provide explicit protections against discrimination on the basis of sexual orientation or gender identity in the process of jury selection in federal courts. This will afford individuals serving as jurors protection from discrimination based on prejudice and ensure that both plaintiffs and defendants have access to a fair trial.

States’ Experience

There are currently 11 states that prohibit discrimination on the basis of sexual orientation in jury selection, while only 8 states prohibit discrimination on the basis of gender identity in jury selection.

What is the Current Status of the Bill?

The Juror Non-Discrimination Act was introduced in the House of Representatives by Rep. Susan Davis (D-CA) on January 30, 2019, and the Jury ACCESS Act was introduced in the Senate by Sens. Jeanne Shaheen (D-NH) and Susan Collins (R-ME) on January 29, 2019.

For more information, please contact legislation@hrc.org. Read about other Federal Legislation pertinent to the LGBTQ community here.

Last Updated: March 2, 2020