With the trial of CeCe McDonald in a Minnesota this is a timely piece on the discrimination against trans women by the courts. If trans women aren’t considered fit for jury service, how can we expect a Black trans woman to receive a fair trial by her peers?
Also, in the examples in the article there are also racialized aspect to who is removed from a potential jury because of gender identity and sexual orientation. With overt racial discrimination barred from jury selection, prosecutors have a convenient cover that allows them to target jurors of color and sympathetic Whites based on their being LGBTQ.
This cast serious doubt on the ability of trans women of color, who are situated at the intersection of racism, sexism, cissexism. These are things that need to be factored into why Black, Latina and American Indian trans women are disproportionately targeted for mass incarceration.
There is some problematic language in this article, including the conflation of homosexual/gay with transsexual/transgender and the apparent misgendering of trans women.
“I believe that people who are either transsexuals or transvestites — I don’t know what the proper term is — traditionally are more liberal-minded thinking people, tend to associate more with the defendants because, obviously, they have been either ridiculed before or are feeling in a position of being in a microscope all the time and are outcasts which lends themselves to associating more with the defendant.”
That was part of the reason a California prosecutor gave for removing Christopher Lewis — an African-American potential juror described by the trial judge as a “man dressed as a woman” — from a jury in 2000.
It would have been illegal to remove Lewis based on the fact that she was black, so the judge had to make sure that the prosecutor could articulate a reason other than race.
“Did you excuse Chris Lewis or Christopher Lewis partly … you had
some reason to believe that this individual was a cross-dresser or transvestite?”
“Yes,” replied the prosecutor.
In 2005, a federal court upheld Lewis’ removal, observing that “no federal law” prevents attorneys from removing “cross-dressers or transvestites” from juries.
Lewis’ experience is not unique. Federal courts have consistently declined to prohibit attorneys from openly discriminating against LGBT people during jury selection. And as recently as last year, the U.S. Department of Justice told a panel of judges that it “takes no position” on whether the case law that prohibits attorneys from removing jurors based on race or sex should be extended to cover sexual orientation.
While California has since banned jury discrimination based on sexual orientation, most other states have not.
Minnesota state Sen. Scott Dibble is fighting to change that. He introduced a bill earlier this year that would add sexual orientation and marital status to the list of categories for which jurors cannot be dismissed in his state. Minnesota law currently bars discrimination in jury selection based on race, color, religion, sex, national origin, economic status, or a physical or sensory disability.
Dibble, along with Minnesota LGBT rights activists, says that under Minnesota law, the bill would also protect transgender people.
“This affects peoples lives,” Dibble, who represents Minneapolis, told The American Independent. “LGBT people provide important perspectives in terms of jury duty,” he said.
…
In 2008, a Massachusetts appellate court declined to overturn a murder conviction after the defendant argued the prosecutor had “improperly used a peremptory challenge to remove a juror who may have been either homosexual or transgendered.”
At the trial, which had taken place seven years earlier, “the prosecutor attempted to challenge the juror for cause because, the prosecutor said, the juror had some ‘identification issues,’ seemed to be a man dressed as a woman, and appeared to have breasts,” according to court documents.
The defense attorney responded, “I see a man who maybe at best I would argue might be a homosexual. And if the Commonwealth’s intention is to challenge on the homosexuals․”
The appellate court explained that after the trial judge denied the challenge for cause, the prosecutor used a peremptory challenge to remove the juror.
The prosecutor disputed the defense’s suggestion that it was engaging in a “pattern” of removing gays from the jury. “I don’t even know of any even homosexuals that have been before us,” said the prosecutor. “This particular gentleman was dressed, in my opinion, like a female and he has breasts and so forth. And, frankly, I was just looking at this from a common sense point of view. This guy has a lot of identification issues.”
In denying the appeal, the appellate court observed, “To date, this court has not considered the question whether the exercise of a peremptory challenge to remove a juror because of his or her sexual orientation or because the juror was transgendered would violate the guarantees of art. 12 [of the Massachusetts Declaration of Rights] or the equal protection clause [of the 14th Amendment to the U.S. Constitution]. Nor, it appears, has any other court.”
The appellate court ruled that defense counsel’s failure to formally object to the challenge during the trial and the “factual ambiguity” surrounding the incident prevented the court from deciding whether sexual orientation and gender identity could be considered in dismissing jurors. “Defense counsel appeared to object to the prosecutor’s supposed use of a peremptory challenge to remove the juror on the basis of homosexuality,” wrote the court, “while the prosecutor seemed clearly to focus on what he perceived to be the transgendered appearance of the juror.”
Thirteen years earlier, prospective juror Steve Grandell had been dismissed from a trial in Hennepin County District Court in Minnesota. The assistant district attorney reportedly used a peremptory challenge to strike Grandell because Grandell appeared to be a man dressed as a woman. In reality, Grandell identified as transgender.
The defense attorney in the case objected to the challenge, but the judge overruled him.
Grandell told the Star Tribune at the time that [s]he thought [s]he was dismissed by the prosecution “not only because of his [her] style but because the case that was being heard involves sexual assault between an adult and a minor.”
Transgender people, [s]he said, “are always lumped in with sexual deviants.”
He[She] told the paper, “I went to jury duty as who I am. I dressed as I always dressed. If I wouldn’t have, I would have been lying. I’d have been taking a step into the closet, and I think that’s a dark and dangerous place.”
…
Phil Duran of Outfront Minnesota, the state’s largest LGBT advocacy organization, told TAI that the bill pending in Minnesota to outlaw jury discrimination is an important one.
“We believe nobody should be refused the opportunity to serve their community simply because of their sexual orientation, gender identity, or marital status in jury service,” he said. “As numerous Court rules make clear, discrimination in any aspect of our justice system undermines the public’s confidence that a person may have their day in court where their concerns will be heard without prejudice or bias.“
[full article]
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