The Most Forgotten Constitutional Right Protected for Trans and Non-Binary People – We have a Right to Serve on a Jury

by Connor Barusch

Public Defender and first openly transgender/non-binary public defender to be qualified to represent people in Massachusetts on murder cases and former MTPC Steering Committee Member.

On Monday, August 16th the Supreme Judicial Court, the lead Massachusetts court, issued a decision that established the right of trans, queer, lesbian, gay, and bisexual people to not be discriminated against in a new area for the first time – jury service.  In Commonwealth v. Antwan Carter, the Court recognized the history of discrimination based on sexual orientation and continued to explain “[s]uch discrimination is not only historical; its cultural and societal effects continue in modern times.”  I knew the author of this decision, Justice Serge Georges when he was a trial court judge in Dorchester where I was a public defender.  While I disagreed with him at times, as every public defender does, it was always evident to me that he was a Black man who cared deeply about the impact of racism on the people whose cases were before him, people who were overwhelmingly disproportionately Black.  He was also a mentor, supporter, and role model to those of us who were different, including lawyers of color and also me, as the only openly trans or non-binary lawyer practicing in that area at that time.  Justice Georges’ decision in Antwan Carter makes clear his fluency and thoughtfulness in describing discrimination and is a testament to why we as trans and non-binary communities benefit from the inclusion of other people who understand and know discrimination into decision-making positions.

Empty Jury Chairs

The decision extends the decision of Bostock, last year’s United States Supreme Court decision that said that Federal protections from employment discrimination based on sex also protect LGBT people from discrimination based on sexual orientation and gender identity to the state level in the jury context.  Even though the case is about sexual orientation, its reliance on Bostock makes it evident that it protects from discrimination based on gender identity as well.

In recent years, the jury questionnaire every person called to jury duty must fill out switched from binary gender checkboxes to a blank that requests “sex/gender identity”, hopefully communicating to people a desire of the courts to see our community on juries but why should we want to be on juries ourselves?  Serving on a jury is an opportunity for people to be a part of government in the most direct way possible and to really impact someone’s life.  Imagine being accused of a crime, arrested by police, taken to court, and being brought back to court for months or even years awaiting trial.  If you plea not guilty and demand a trial, your case will be brought to a small group of people, jurors, who will deny your fate.  As trans and non-binary people, we should not be excluded from being these decision-makers and the Carter decision says that discrimination against jurors based on sexual orientation (and by implication gender identity) is illegal.  Will Snowden, who founded The Juror Project, which discusses the importance of juror service, summarized it well, saying “Our country has recognized the benefits of diversity in our classrooms and our board rooms. For the sake of the fairness of our criminal legal system, we need to recognize and protect, the benefit of diversity in our jury deliberation rooms which must include members of the LGBTQ community. Their presence helps contribute to a fair criminal legal system which we all should want.”

Published Aug 19th, 2021

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