LGBTQ people are under attack in state legislatures. Help us fight back.
The Jury Non-Discrimination Act and Jury Access for Capable Citizens and Equality in Service Selection (ACCESS) Act prohibits attorneys from seeking to strike potential federal jurors based on their sexual orientation or gender identity.
Access to a trial arbitrated by 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.
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.
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.
In June 2020, the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation and gender identity because they are types of sex discrimination. While this landmark ruling is a crucial step forward in addressing discrimination against LGBTQ people, the Equality Act is still necessary.
President Biden issued an executive order directing agencies to appropriately interpret the Bostock ruling to apply not just to employment discrimination, but to other areas of law where sex discrimination is prohibited, including jury service, housing, education, and health care. However, a future administration may refuse to interpret the law this way, leaving these protections vulnerable. Congress must codify the Bostock decision by passing measures like the Juror Non-Discrimination Act and Jury ACCESS Act to ensure future administrations fully enforce non-discrimination laws.
The Juror Non-Discrimination Act was introduced in the House of Representatives by Rep. Mondaire Jones (D-NY) on February 18, 2021. The Jury ACCESS (Access for Capable Citizens and Equality in Service Selection) Act have not yet been reintroduced in the 117th Congress.
Last Updated: March 24, 2021