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July 18, 2011 Articles

A Trial Lawyer's Guide to LGBT Issues in the Courtroom

Trial lawyers should consider a few things to avoid the inadvertent unfair or disrespectful treatment of LGBT judges, jurors, witnesses or others in the courtroom

by James A. Reeder Jr.

The composition of juries has changed over time, either as a result of changes in the law or as a reflection of changes in the composition of society. As such, jurors have gone from being all white and all men to both men and women, and then to men and women of all races. Perhaps surprisingly, one change that has not occurred is in regard to the service of lesbian, gay, bisexual, and transgender (LGBT) individuals on juries—as far as we know, there were gay men on juries 70 years ago. What has changed in regard to LGBT jurors—and for LGBT lawyers, judges, witnesses, and courtroom personnel, for that matter—is the degree to which they are open about their sexual orientation and the extent to which, at the very least, they are comfortable with and confident in who they are.

Few people could argue that these developments have produced anything but positive results in the judicial system. More representative juries do not merely honor a civil right or a constitutional ideal but provide an effective tool for achieving more thorough and competent jury deliberations. Studies show that diverse juries reason better, not just as groups but as individuals; everyone on the jury benefits, and justice, it appears, is better served. Moreover, increased gender, racial, and ethnic group representation, especially in a system where those groups sit in judgment of others, contributes to the elimination of real and perceived inequality in justice administration. The equal, fair, and respectful treatment of all is the touchstone of the American judicial system and the foundation of our society.

And yet, LGBT individuals are subjected to, at a minimum, micro-inequities in courtrooms all over the United States today. At worst, they are the victims of unequal, unfair, and disrespectful treatment. Often, such treatment is not out of malice, but out of unawareness, misinformation, or lack of exposure to LGBT people. Although any potentially marginalized group may be the subject of such treatment, it is particularly likely with regard to LGBT people because their distinguishing characteristic is not obvious. Whereas a lawyer might refrain from asking a question on voir dire if he or she knows it might offend one of the Hispanic members of the venire, it will likely not be apparent if you even have an LGBT person on the venire, as a witness, or even as a judge.

As a consequence, I have prepared the following list of things trial lawyers should consider to avoid the inadvertent unfair or disrespectful treatment of LGBT judges, jurors, witnesses or others in the courtroom. Hopefully, keeping these things in mind will ensure that your case is decided fairly on the merits and that your client receives the full benefits recognized as inuring from a diverse jury.

1. First, you must recognize that someone sitting in judgment of your client—whether a judge or juror—is LGBT. This is also true for key witnesses. This is just a matter of odds.

2. You are likely not going to know who your LGBT jurors, judges, or witnesses are. Even if they are "out" to friends, family, or colleagues, they may feel it is easier to not be open to others in the courtroom because they would rather avoid having to deal with awkwardness or discrimination when their service may only last a day or two. Being open in that situation is just not worth it to them. Moreover, many may not be out at all, in which case they are also facing the fear that some question they are asked will require deciding between revealing their secret and lying.

3. This raises the question: Do you want to know if a judge, juror, or witness is LGBT? Think long and hard before asking a jury panelist about his or her sexual orientation. First, you may not get a truthful answer. Second, the mere question may be looked upon as an accusation by others. Finally, rarely, if ever, will a judge's or a juror's sexual orientation be relevant to the ability to fairly consider the law or the evidence in your case. Take the most recent example of Judge Vaughan Walker. Judge Walker presided over the California Proposition 8 litigation. Judge Walker revealed publicly that he had a long-term relationship with a man after he left the bench. The judge considering whether Judge Walker should recuse himself reminded us that the fact that a federal judge shares a fundamental characteristic with a litigant does not mean he or she has an interest in the outcome of the litigation, and this has been consistently rejected as a basis for requiring recusal.

4. Just because an LGBT person is not open in the courtroom doesn't mean that he or she won't feel and react to overt or implicit prejudice—he or she will! Don't make the mistake and assume that because someone has, for a variety of reasons, made the personal choice not to be publicly out that they are shrinking violets who are uncomfortable or ashamed of who they are. Virtually every LGBT person, out or not, will react strongly and adversely to disrespectful or unequal treatment.

5. If you generate resentment in or offend the judge or even one juror, you have just given one person sitting in judgment of your client a single reason to view the facts of your case in a manner that is unfavorable. That becomes very hard to overcome.

6. Assuming you want to avoid offending or even making uncomfortable the LGBT judge or juror, education and experience increases understanding and decreases inappropriate behavior. Start by honestly examining your own stereotypes and learning about what it is like to be LGBT. Maybe start with A Straight Guide to LGBT Americans.

7. Even though you probably won't have an occasion where you have to express a viewpoint on the topic, and even though you may have a personal opinion that differs, it is beyond doubt that sexual orientation and gender identity are not choices, any more than one's eye color, handedness, race, etc. If you are straight, did you choose to be?

8. Learn the language. There are certain terms and ideas that LGBT people are particularly sensitive to. As mentioned above, being LGBT is not a choice, so don't use the term "sexual preference." Don't refer to being LGBT as a "gay lifestyle"; the term trivializes LGBT people. It is not a lifestyle; it is their life. In most states, two men or two women cannot marry, so two gay men may be in a committed relationship, but they are not spouses. Learn to use the phrase "spouse, partner, or significant other." Instead of asking people if they are married, ask them to tell you about their family.

9. Don't assume. Don't assume an LGBT person does not have children. There are more than 1 million children in the United States being raised by same-sex parents. Don't assume an LGBT person has never been married or is not currently in a committed relationship. Don't assume that all white men don't know what it is like to be in a minority or to be the subject of discrimination. Much of LGBT discrimination is sanctioned by law and affects people of all genders and races.

10. Make sure your witnesses and co-counsel have the same sensitivity to LGBT personal issues as you do. A flippant or thoughtless remark in or out of the courtroom is as hurtful as an intentional slur.

Finally, I will leave you with a couple of things to think about that may contribute to a more respectful, fair, and equal society. First, never tell a "gay" joke or tolerate the telling of a "gay" joke. Not only is it inherently disrespectful and demeaning, you have no idea who is LGBT in your audience. Second, you often hear people say that they have no problems with or even love LGBT people, but that they do have a problem with LGBT behavior or same-sex relationships. Although this may be a viewpoint you consider valid, to LGBT people it is nonsensical and disingenuous. LGBT people do not believe that you can love the LGBT person while denouncing LGBT behavior or relationships. The thing that makes one gay, lesbian, or bisexual is the behavior—the relationship. To be gay is to be a man or a woman who is emotionally, romantically, sexually, and relationally attracted to members of the same sex. To say you love lesbians but don't like that two lesbians act out on their attraction for each other is the equivalent of saying you love black people but you don't like the color of their skin.

Keywords: litigation, trial evidence, LGBT

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).