If Batson Challenges Extended to Sexual Orientation and Gender Identity, Would it Matter?

            During jury selection, lawyers can use a specific number of peremptory challenges to eliminate potential jurors without any reason or explanation. However, there’s a catch: the opposing party can object to a peremptory challenge if they can show that the challenge was used to discriminate on the basis of race. This objection is called a Batson Challenge. This challenge is to prevent attorneys from using their peremptory challenges to discriminate based on race and prevent the defendant from receiving a fair and impartial jury. Soon after the Batson rule, this rule was extended to apply to gender as well in J.E.B v. Alabama ex rel. T.B. where the Supreme Court explained that “failing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself.”

            Now that peremptory challenges have discrimination protections when it is believed to be discriminatory based on race and gender, what about other categories of people such as gender identity or sexual identity? Although these types of classifications may be less obvious to identify as racial minorities and gender, these classifications should be afforded the same protections.  

           

            In regards to sexual orientation, the Supreme Court has yet to determine if sexual orientation is included within the Batson rule.  But the Ninth Circuit decided in SmithKlineBeechum Corp. v. Abbott Laboratories, that striking a juror based on his or her sexual orientation is prohibited based on a higher level of judicial scrutiny being applied a similar history of discrimination and exclusion from “institutions of self-governance.” Batson now extends to sexual orientation as far as the Ninth Circuit is concerned.

            As social understanding has grown in regards to gender identity and expression, the way we address members of this category has changed, and protections in certain areas of the law have been granted. The same should occur in the jury selection process. Transgender or gender non-conforming individuals are not protected under Batson and courts have ultimately allowed transgender, transsexual and gender non-conforming individuals to be discriminated against through the use of the attorney’s peremptory strikes. Only a few cases have brought this issue to light, but courts have ultimately explained that gender non-conformityis an appropriate reason to strike a juror, and striking an individual for this reason is not considered “clearly erroneous” to allow courts to overturn a ruling. Courts have even stated that excluding a juror on the basis of their gender identity is reasonable (outside the Ninth Circuit).

            Even if the Supreme Court were to allow sexual orientation and gender non-conformity to be classes of individuals that require protection under the Batson rule, it is not likely that this is going to keep them from being discriminated against in the use of peremptory strikes. It is already easy to get around Batson by simply making up a different reason why a racial minority was stricken – individual was too young, too old, living alone, unemployed, lacks maturity, etc. If it is this easy to get around obviously identifiable classifications such as race and gender, imagine how easy it would be to get around Batson regarding sexual orientation and gender identity.