The House has passed the Equality Act, which amends the Civil Rights Act of 1964 by prohibiting discrimination “based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system.” How one claims, or questions, such an identity is a mystery. The findings are replete with references to “gender nonbinary” people, but never define what that means or to whom it refers. It only refers once to “queer,” which it protects even if it’s just a random undefined word stuck in there after LGBT.
Discrimination can occur on the basis of the sex, sexual orientation, gender identity, pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes. Each of these factors alone can serve as the basis for discrimination, and each is a form of sex discrimination.
There is a host of concerns with this simplistic effort to do the good work of ending discrimination based on sexual orientation with that far harder work of addressing the litany of obvious problems that will arise, from transgender women demanding Brazilian waxes to the statutory eradication of an enumerated constitutional right to religious distinctions.
But of the array of prohibitions against discrimination, there is one of particular note for lawyers.
The right to an impartial jury of one’s peers and the reciprocal right to jury service are fundamental to the free and democratic system of justice in the United States and are based in the Bill of Rights. There is, however, an unfortunate and long-documented history in the United States of attorneys discriminating against LGBTQ individuals, or those perceived to be LGBTQ, in jury selection. Failure to bar peremptory challenges based on the actual or perceived sexual orientation or gender identity of an individual not only erodes a fundamental right, duty, and obligation of being a citizen of the United States, but also unfairly creates a second class of citizenship for LGBTQ victims, witnesses, plaintiffs, and defendants.
Was there an “unfortunate and long-documented history in the United States of attorneys discriminating against LGBTQ individuals, or those perceived to be LGBTQ, in jury selection”? Perhaps, even if I was unaware of it and had never seen it happen, my experience is unusual and it is a pervasive problem. I had never considered the sexual orientation of potential jurors during voir dire before.
What would this mean? Must potential jurors now disclose on their jury questionaire their sexual orientation and their gender identity? Are questions about these very personal matters now not only proper subjects for questioning, but mandatory lest the potential jurors be challenged and we have no means to make a LGBTQ-Batson challenge? Does this create a free-standing cause of action by a potential juror who is stricken against the lawyers or the court for a violation of their right to be on the jury?
And what do we make of the additional discriminatory factor of those “perceived” to be queer, or worse yet, perceived to be transgender? If there is no definition of what makes someone “queer,” how could anyone know if they were perceived that way? And would transgender jurors be taken to a room in the back to show their genitalia? How would one know? Why would one want to know?
There is essentially no chance of this law passing the Senate, and so these questions are academic for the time being, but should Congress ever get serious about addressing discrimination on the basis of sexual orientation and/or gender identity, maybe they would take the time to consider what issues the law creates before wreaking havoc. Maybe some potential jurors would take no issue with putting their sexual activities on display for the court and venire, but is that really what Congress believes to be the way forward?