The Experiences and Treatment of Lesbians and Gay Men during Jury Service in the United States

By Todd Brower.

Published by The International Journal of Diverse Identities

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Article: Print $US10.00
Article: Electronic $US5.00

For lesbian, gay, bisexual and transgender (LGBT) individuals and their heterosexual counterparts, jury service often represents their first and only direct contact with American courts. Empirical research on jurors and the public at large finds that those persons typically have positive attitudes about their court experiences and about the legal system. However, their views are not uniformly favorable. For example, both racial and ethnic minorities and the general public believe that minorities and lower income persons are treated less favorably in the courts than are white, wealthier individuals. Accordingly, specific experiences during jury service and juror demographic characteristics represent important influences on juror and public confidence in the courts and the justice system. Despite the knowledge that juror demographics color perceptions of fairness and access to justice, the experiences and treatment of lesbian and gay court users during their jury service have been relatively understudied. The literature on LGBT people during jury trials or in court has primarily focused on bias against sexual minorities as victims, defendants, or parties, or on voir dire—specifically when questions about sexuality are appropriate—or whether peremptory challenges based on sexual orientation fall within the U.S. Supreme Court’s prohibition against class-based exclusion because of sexuality. This paper fills this gap by examining empirical studies of gay persons’ experiences with the judicial system and analyzing common patterns among the research. This explores how visibility of minority sexual orientation affects the perceptions, personal experiences and treatment of court users during their jury service. It also references behavioral and economic research on LGBT persons at work and in other settings to show the similarities and differences between gay persons’ interactions with the judicial system and with other social institutions. Finally, it discusses how the treatment and experiences of sexual minorities during jury service affects their access to, and confidence in, the courts.

Keywords: Gay, Lesbian, Sexual Orientation, Courts, Judicial System

International Journal of Diverse Identities, Volume 12, Issue 1, pp.47-61. Article: Print (Spiral Bound). Article: Electronic (PDF File; 258.125KB).

Prof. Todd Brower

Professor of Law, College of Law, Williams Institute, Western State University, Fullerton, California, USA

Professor Brower has been a professor of law at Western State University College of Law since 1983 and serves as the Judicial Education Director of the Williams Institute at the UCLA School of Law. He specializes in constitutional and sexual orientation law. He received his A.B from Princeton University, his J.D. from Stanford Law School, and his LL.M. from Yale Law School. He was a Fulbright Scholar at the University of Grenoble. He was a member of the California Judicial Council Access and Fairness Committee, an academic visitor at the Institute for Advanced Legal Studies at the University of London from 2001–2002, and a visiting professor at Golden Gate University School of Law. He also served as a visiting instructor at the University of Hawaii School of Business. He is the author of two reports on sexual orientation fairness in the UK Courts (2003, 2005) and co-author of the report Sexual Orientation Fairness in the California Courts (2001). He joined the faculty of the National Judicial College in 2007.