74 Fla. L. Rev. 1003 (2022)
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Constitutional LawCriminal LawCriminal ProcedureDiscrimination Law


In Batson v. Kentucky, the Supreme Court of the United States held that using peremptory challenges to strike jurors solely on their race violates the Equal Protection Clause. Following that decision, the Supreme Court extended Batson to gender-based peremptory challenges, holding that state-sponsored group stereotypes rooted in historical prejudice that bars a potential juror from serving on a jury violates that juror’s equal protection right. As it currently stands, there is no federal statute prohibiting peremptory strikes on the basis of sexual orientation or gender identity. And although some courts at the state and federal level have held such strikes prohibited under Batson, the Supreme Court has yet to address the issue. The lack of protection for jurors based on their sexual orientation or gender identity fosters discrimination in the law, violates the rights of the stricken juror as well as a defendant’s right to an impartial jury, and undermines public confidence in judicial proceedings. Following the Supreme Court’s recent decision in Bostock, all federal courts should recognize gender identity- or sexual orientation-based discrimination as discrimination based on sex. This Note argues that Batson should be extended to all federal and state trial courts to expressly prohibit the exclusion of jurors based on sexual orientation or gender identity. There is no reason that the logic applied in Bostock should apply in the workplace but not in the jury box.