LGBT supportive members of the U.S. House and Senate last week reintroduced legislation that would prohibit discrimination against LGBT people in the process of selecting jurors for trials in the nation’s federal courts.
In the House on March 13, Rep. Susan Davis (D-Calif.) introduced the Juror Non-Discrimination Act of 2017, which calls for amending an existing law that bans discrimination against prospective jurors on the basis of race and sex to cover sexual orientation and gender identity.
Two days later, Sens. Jeanne Shaheen (D-N.H.) and Susan Collins (R-Maine) jointly introduced the Senate version of the same bill but which bears a different name, the Jury Access for Capable Citizens and Equality in Service Selection, or ACCESS, Act of 2017.
Both bills state that their intent is to “prohibit the exclusion of individuals from service on a federal jury on account of sexual orientation or gender identity.”
As of early this week, three other senators signed on as co-sponsors, Sens. Sheldon Whitehouse (D-R.I.), Patty Murray (D-Wash.), and Ed Markey (D-Mass.).
Sixteen House members – 14 Democrats and two Republicans – signed on as co-sponsors of the House version of the bill as of early this week.
Legal observers have pointed out that during the jury selection process in trials attorneys for plaintiffs in civil cases and prosecutors in criminal cases as well as attorneys for defendants have an opportunity to “strike” or disqualify a limited number of potential jurors without providing a reason.
Although the Supreme Court has ruled that using such challenges to exclude jurors based on their race or gender is unconstitutional, the high court ruling did not apply to sexual orientation or gender identity. A federal law expanded the Supreme Court ruling by banning discrimination in the selection of jurors based on race, religion, sex, national origin, and economic status but also did not cover sexual orientation or gender identity.
Meanwhile, in a development hailed by LGBT rights attorneys, the U.S. Court of Appeals for the 9th Circuit in Northern California ruled in 2014 that it’s unconstitutional for a potential juror to be excluded solely because of his or her sexual orientation. But that ruling covers only the seven western states and Hawaii that are in the 9th Circuit.
Supporters of the Juror Non-Discrimination Act and the Jury ACCESS Act say the legislation is needed to extend the 9th Circuit ruling nationwide.
“Serving on a jury is a fundamental right and obligation that no one should be prohibited from fulfilling based on his or her sexual orientation,” said Collins, who’s the only Republican so far to sign on to the Senate version of the legislation. “I have long worked to fight discrimination, and I am proud to join this effort to eliminate bias from our judicial system,” she said in a statement.
In her own statement, Shaheen said, “Our jury selection process should represent our country’s values of inclusion and acceptance, not fall prey to discrimination.”
Aaron Hunter, a spokesperson for Davis, said Davis and other House supporters of the legislation are hopeful that it will gain traction in the current 115th Congress even though it has never made it out of committee since it was first introduced in 2012. The 2017 version of the legislation has been referred to the Republican controlled Judiciary Committees in the House and Senate.
As of early this week, Rep. Mark Pocan (D-Wis.) was the only one of the six openly LGBT House members – who are all Democrats — to sign on as a co-sponsor of the House bill. As of early this week, Sen. Tammy Baldwin (D-Wis.), the nation’s first openly gay or lesbian U.S. senator, also had not signed on as a co-sponsor.
Hunter said he believes it was the logistics of arranging to be a co-sponsor of a newly introduced bill rather than any type of objection or disagreement that has prevented many lawmakers from immediately becoming co-sponsors, including the LGBT members.