Did You Know It’s Legal To Discriminate Against LGBT Jurors? (We Didn’t)

Most of us try as hard as we can to get out of serving jury duty, but that doesn’t make the fact that gays and lesbians can be excluded from a jury pool any less galling.

According to The American Independent, even though it’s illegal to boot a potential juror solely based on race or sex, only California and Oregon have rules prohibiting such decisions based on sexual orientation or gender presentation—and the U.S. Department of Justice says it “takes no position” on the matter.

Minnesota State Senator Scott Dibble (D-Minneapolis) is pushing for legislation to correct this inequity, stating that if  jurors can be dismissed for being gay, defendants “[may] not being judged by their peers.”

“This affects people’s lives,” Dibble told The American Independent. “LGBT people provide important perspectives in terms of jury duty. Being specifically excluded because of [sexual orientation] status flies in the face of the values that all Americans share,” he said.

As writer Andy Birkey reminds us, gays and lesbians were excluded from Dan White’s trial for the murders of Harvey Milk and  George Moscone, despite comprising anywhere from 15% to 20% of San Francisco’s population at the time.

Birkey goes through numerous cases where Lawyers, usually prosecutors, struck LGBT jurors from the pool because they perceive them to be more liberal or empathetic to defendants.

In 2000 a California prosecutor removed a trans juror, saying:

I believe that people who are either transsexuals or transvestites—I don’t know what the proper term is —traditionally are more liberal-minded thinking people, tend to associate more with the defendants because, obviously, they have been either ridiculed before or are feeling in a position of being in a microscope all the time and are outcasts which lends themselves to associating more with the defendant.

Well, there might be some validity to that assumption, but the entire jury system is predicated on the idea that everyday citizens can put aside their prejudices and preconceived notions and render an impartial judgement. Are LGBTs any less able to do that than anyone else?

As Phil Duran of Outfront Minnesota says,”Nobody should be allowed to hang a ‘no gays allowed’ sign on the jury room door.”

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  • the other Greg

    I’ve been called to jury duty several times and every time in the questioning, as soon as one side or the other seemed to suspect I was gay, they dismissed me. Nothing definite in the wording (from me either), but that did seem to be what was happening.

  • Law Student

    The Cali prosecutor’s reasoning also aligns with gender and race. If minorities by race cannot be excluded from trials involving bias motivated charges, then isn’t it a far more attenuated for governments to say that LGBT’s can be excluded because they stereotypically are sympathetic to minorities themselves?

    And as a personal soap box note … when a juror swears that he or she will be impartial, have faith that he or she WILL BE impartial.

  • LaTeesha

    I was dismissed from jury duty (my goal – I’ve served twice before) because I chewed out the District Attorney for using the term “sexual preference” instead of “sexual orientation” during the voir dire process. I felt a CA prosecutor should know better, particularly someone whose job responsibility may include prosecuting people who’ve targeted a member of the LGBT community.

  • Kristopher

    Lawyers also try to dismiss anyone that shows any sign of critical thinking or who have any knowledge whatsoever of anything that pertains to the trial.

  • Dylan

    Last month, I received my very first jury summons. I haven’t changed my name legally yet (even though I’m completely passable as a male) so when I introduced myself during the voir dire, I confirmed my legal name but then asked that they call me Mr.(Surname). They did, and without giving me the stinkeye. I was selected as a juror. In fact, I overheard both lawyers while talking to the judge, and both of them immediately stated they had no objections to me being a juror. My transsexuality was a complete non-issue. My point is, just because they can legally discriminate doesn’t mean they will. The discrimination laws in this country definitely need an update, but just remember it’s not all bleak. Not everyone is an intolerant asshole.

  • mike

    It could be that the two lawyers were thinking that as a transman you wouldn’t be as emotional as a female and you would think about the crime commited with your head and not your emotions, just a thougt, or who knows they could be transmen themselves, kinda stretching it but its possible.

  • Jesse Archer

    @Dylan, I wonder what kind of case you were on? During the selection process for a federal grand jury case, when the judge asked me if I was married I answered, “not until you change the law” – assuming (ok, hoping) they’d discriminate and excuse me. To my shock, I was selected – for 17 days! The case accused a Bronx law office of swindling illegal immigrants and I believe that they federal prosecutors selected me specifically because of my gayness, figuring as an outsider I’d identify with the immigrants. Turns out, all 12 of us did.

  • Larkin

    While I’m sure that there is some discrimination going on just because someone is gay, I think it’s quite overblown.

    D.A.’s and defense lawyers want the most sympathetic jury to their side. They will excuse anyone who they believe, for whatever reason will not render a fair verdict… and by ‘fair’, I mean a verdict in favor of the respective attorney.

  • Dylan

    @Jesse Archer: It was for home invasion (with minors under the age of 12 present). An man broke into the home of his ex-girlfriend and tried to commit suicide in front of her. He took a plea on the second day. During the voir dire, the lawyers were only particularly interested in the fact I was a psychology undergrad,—for obvious reasons. One of my profs later revealed to me that since he became a psychologist, not a single lawyer wanted him on their jury. Now THAT’S discrimination! Hehe. They didn’t ask me anything related to gender identity. I’m guessing they rightly realized that my being a transman had diddly-squat to do with my effectiveness/ineffectiveness as a juror.

  • Homomofo

    SO all transexuals are super empathetic Mother Theresa types who could never judge or condemn anyone else. Wow. Is this possibly a rare moment of positive bigotry?!?! *gags*

  • Dylan

    @Homomofo: It is indeed weird. Although, they weren’t just implying that about transsexuals, but LGB people too. Now, if the case was a hate crime, it could potentionally hit much closer to home for an LGBT person, just as it would for any minority person… Otherwise, there’s really no reason to assume that an LGBT person would be more empathetic, and even if they are more empathetic, it doesn’t automatically mean they’ll be biased.

  • Michael

    “We didn’t”? Hmm… maybe that’s because this website (like far too many in the LGBT community) does very little to actually change the laws of this nation to benefit the LGBT community. The legal ignorance among gays and lesbians is astounding.

    True or false — you can be fired from your job in Pennsylvania just because you are not heterosexual.

  • Trent

    I am surprised that people did not know this information. They can kick you off of a jury for almost any reason. Its all about who the prosecutor and defense think can win their case. In a media law class I was in, we had mock trials where we got to choose our jury. You best believe when their was a case dealing with a guy who dressed as a girl came up, I was selected to be on that jury. They assumed that I would be empathetic to their cause.

    Same thing happens in real life. Also if you are college educated, especially in a small town, you will get kicked out of the pool really quick.

  • Somebody

    I think they should have the right to dismiss anyone for any reason if they think there is a potential conflict of interest, even race and sex. I’d want my jury to be as unbiased as possible.

    I mean if Zimmerman is getting a jury trial (I dunno if if he is), do you really think they will allow any black jurors? Do you really think any black juror could be totally unbiased and think of Zimmerman as innocent until proven guilty?

  • kouros

    Yup I knew, I have heard of people using amazing excuses relating to their sexuality to get out of jury [email protected]Jesse Archer: im sorry that didnt work for you, it worked for one of my straight guy friends, he argued thats an ally to the community he didnt not agree with the lack of marriage equality in the country. Needless to say he was one of the first out the door. Lets be honest after reading this article a lot of us are going to make sure our sexuality is more proclaimed when it comes to being chose for jury duty

  • mike

    Yah,I’m so sad us gays can’t serve on jury duty cause the pay is so great.

Comments are closed.