Issue:  Vol. 48 / No. 7 / 15 February 2018

Sexual orientation, gender id can’t be basis for blocking jurors, appeals court panel rules

People may not be removed as potential federal jurors based solely on their sexual orientation or gender identity, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled Tuesday (January 21).

The decision stems from a 2011 case between drug manufacturers Smithkline Beecham Corporation, doing business as GlaxoSmithKline (GSK), and Abbott Laboratories, in which GSK argued that Abbott had unfairly priced the HIV drug Norvir.

According to the National LGBT Bar Association, a lower court ruled in favor of Abbott, but GSK appealed that ruling, claiming “that Abbott had unfairly removed a juror based on sexual orientation.”

The company cited Batson v. Kentucky, a 1986 case in which the U.S. Supreme Court ruled that “peremptory challenges could not be used to remove a juror based solely on their race,” according to the bar association.

LGBT advocates applauded the Ninth Circuit panel’s decision.

D’Arcy Kemnitz, the National LGBT Bar Association’s executive director, said in a statement, “Excluding jurors based on their sexual orientation and gender identity denies countless individuals a jury of their peers. 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.”

David Codell, constitutional litigation director for the National Center for Lesbian Rights, said in a news release, “Today’s ruling by the Ninth Circuit, which covers much of the western United States, is a major advance for equality” for LGBTs.

Codell added, “The court recognized that laws that treat persons as second-class citizens based on sexual orientation are anathema to the U.S. Constitution’s guarantee of equality. Today’s ruling will make it exceedingly difficult for states to justify laws that discriminate based on sexual orientation.”

Meanwhile, Senator Jeanne Shaheen (D – New Hampshire) and others have introduced the Jury Access for Capable Citizens and Equality in Service Selection Act. The bill would amend federal law to protect people from being removed from a jury based on their sexual orientation or gender identity without cause.

Congresswoman Susan Davis (D-California) has introduced the Juror Non-Discrimination Act, a companion bill, in the House.

In its news release on Tuesday’s decision, the bar association said it has a board member who works with GSK, “but he in no way affected our handling or reporting of this issue.

— Seth Hemmelgarn, January 21, 2014 @ 3:13 pm PST
Filed under: Uncategorized

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