A trio of U.S. senators has introduced federal legislation to ban bias based on sexual orientation and gender identity in jury selection.
U.S. Sens. Jeanne Shaheen, D-New Hampshire, Susan Collins, R-New Hampshire and Sheldon Whitehouse, D-Rhode Island, are the sponsors.
The National LGBT Bar Assocation worked with Shaheen's office on drafting the legislation, called the Jury ACCESS – Access for Capable Citizens and Equality in Service Selection – Act.
“Extending federal jury non-discrimination policy to include sexual orientation and gender identity is truly a step forward for the LGBT movement and a notable achievement for the entire LGBT community. We applaud the senators' efforts for bringing equality to the forefront of the judicial process.” D’Arcy Kemnitz, the association's executive director said in a statement.
The federal non-discrimination policy was first enacted in Batson v. Kentucky, when the U.S. Supreme Court ruled that peremptory challenges could not be used to remove a juror based solely on their race. The provisions were extended to a juror’s sex in Georgia v. McCollum.
Only California law prohibits discrimination in jury selection based on sexual orientation. In the trigger case of People v. Garcia, the prosecution used its peremptory strikes to remove two lesbian jurors. The defense objected, stating that the prosecution dismissed the jurors simply because of their sexual orientation. The judge initially denied the defense’s motion, but on appeal, the court found that the “exclusion of lesbians and gay men on the basis of group bias violates the California Constitution.” The Court of Appeal also ruled that gay men and lesbians constitute a cognizable group and should therefore be included in non-discrimination policies.
The Jury ACCESS Act would amend the federal statute to include sexual orientation and gender identity. Striking jurors on the basis of their sexual orientation or gender identity then would be prohibited under federal law for the first time.