Court rules that jurors can't be removed based on sexual orientation, gender identity

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The U.S. Ninth Circuit Court of Appeals ruled today (Jan. 21) that people cannot be removed from a jury due solely to their sexual orientation or gender identity.

The National LGBT Bar Association said in a statement that the ruling ensures that the scope of "Batson challenges" will now extend to LGBT people. In Batson v. Kentucky, the U.S. Supreme Court ruled in 1986 that peremptory challenges could not be used to remove a juror based solely on race.

“Excluding jurors based on their sexual orientation and gender identity denies countless individuals a jury of their peers,” said D’Arcy Kemnitz, executive director of the National LGBT Bar Association. “The LGBT Bar commends the Ninth Circuit for its commitment to equality and for ensuring that jurors will no longer be discriminated against while performing a civic duty."

The decision out of the Ninth Circuit in San Francisco stems from a 2011 case between GlaxoSmithKline and Abbott Laboratories. GlaxoSmithKline argued that Abbott had unfairly increased the price of Norvir, a drug that combats HIV. GSK claimed that by increasing the price of Norvir, it would boost sales of Abbott’s other HIV drug, Kaletra, and would harm competitors whose drugs must be taken with Norvir.

The court ultimately ruled in favor of Abbott, but GSK appealed the ruling on the grounds that Abbott had unfairly removed a juror based on sexual orientation, arguing that the removal should have been disallowed due to Batson.

The case comes shortly after the introduction of the Jury Access for Capable Citizens and Equality in Service Selection Act, a bipartisan bill that would amend the federal statute to include sexual orientation and gender identity, protecting those groups from being removed from a jury without cause.

The bill was introduced by U.S. Sen. Jeanne Shaheen, D-NH, and co-sponsored by Sens. Sheldon Whitehouse, D-RI, and Susan Collins, R-Maine. The LGBT Bar worked closely with Shaheen’s office in drafting the bill and identified many examples of discrimination against LGBT jurors.

A companion bill in the House, the Juror Non-Discrimination Act, was introduced by Rep. Susan Davis, D-Calif.

"Jury service is a fundamental civic duty," Kemnitz said. "LGBT people are proud to serve the courts when summoned. While some might jest at jury duty, in fact the courts demand through a subpoena that a person suspend their usual daily activity to be part of the rule of law."

Editor's note: The National LGBT Bar Foundation has a board member who works for GlaxoSmithKline, but he in no way affected our handling or reporting of this issue.