Trial Magazine

Every trial lawyer should know and understand the cognitive biases that might shape and inform attitudes about clients.¹ Of course, the biases of potential jurors should be considered, but they’re not the only people involved: The biases of judges, adjusters, defense counsel, witnesses, and even ourselves must be considered too. One area that shouldn’t be overlooked is bias against LGBTQ people. We all need to recognize the specific issues this bias presents to ensure that LGBTQ clients have fair access to justice.

Recognizing the Bias

It is fundamental to first understand the heteronormative bias. “Heteronormative” is defined as “of, relating to, or based on the attitude that heterosexuality is the only normal and natural expression of sexuality.”² Heteronormativity is both taught and modeled from an early age, and we all undoubtedly have belief systems in which heteronormativity is an unexamined default.³

Understanding heteronormative bias also requires understanding the difference between sex and gender: “Sex is generally assigned at birth, based on external genitalia, after which a broad range of biological, particularly reproductive, sex differences are assumed. Individuals are then, usually, forced into a binary model of gender—with distinct masculine and feminine categories—when the possibilities are much broader and more expansive.”⁴

In this context, gender is “the behavioral, cultural, or psychological traits typically associated with one sex.”⁵ A person’s gender identity can be different from a person’s sex assigned at birth—as is most often the case with transgender people.⁶

Gender biases are woven into the fabric of the heteronormative bias. Obvious examples of these biases are that men are masculine and women are feminine, men and women are attracted to people of the opposite sex, and marriage between a man and a woman is expected. Under this rubric, same-sex relationships are not viewed as “normal.” The conditioning of a norm is persistent and feeds into biases about gender and heteronormativity.

It’s imperative for trial lawyers, at a minimum, to be aware of their own biases when they have LGBTQ clients and also to consider the potential biases of jurors. (A self-assessment tool for examining biases can be found at www.tolerance.org.⁷) Ignoring this can have serious consequences,⁸ and a valid claim can be lost or devalued, leaving injured plaintiffs without the justice they deserve.

LGBTQ Bias in the Courtroom

Even though attitudes have changed rapidly over the last 20 years, a recent report found that between 20% and 40% of non-LGBTQ Americans are uncomfortable with situations such as seeing a coworker’s LGBTQ wedding picture or having their children learn about LGBTQ history in school.⁹ These are not small numbers, and it is likely that some jurors will be uncomfortable, if not hostile, toward an LGBTQ client.

This bias can have irrevocable consequences. For example, in the death penalty case of Charles Rhines in South Dakota, it appears that the defendant’s status as a gay man may have helped convince the jury that the death penalty was a better sentence than life in prison. One juror even suggested that the defendant would be glad to be in prison: “If he’s gay, we’d be sending him where he wants to go,” the juror said, according to a sworn statement from another juror.¹⁰ Another juror who chose the death sentence stated, “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison.”¹¹ One juror admitted the bias: “There was lots of discussion of homosexuality,” he said. “There was a lot of disgust. This is a farming community.”¹² The U.S. Supreme Court refused to review the case, and Rhines was executed on Nov. 4, 2019.¹³

The Model Code of Judicial Conduct specifically addresses bias by judges in Rule 2.3(B) and also states that judges “shall not permit court staff, court officials, or others subject to the judge’s direction and control to” engage in bias based on characteristics such as sex, gender, sexual orientation, or marital status.¹⁴ This code of conduct contains one of the more far-reaching recognitions of the problem of bias based on sexual orientation and gender identity. Citing the code’s explicit acknowledgement of sex, gender, sexual orientation, and marital status can be a way to approach a court, particularly in the context of finding a fair jury.

Take the first opportunity to remind a judge that the model code goes far beyond what many states require by law. In my home state of West Virginia, for instance, employment and housing discrimination against LGBTQ people is not prohibited,¹⁵ and the judicial code is one of the few places where the words “sexual orientation” or “gender” exist in state law at all.

Challenging when jurors are struck because they identify as LGBTQ is equally important for ensuring fair jury selection. The legal basis for addressing LGBTQ bias in jury selection and peremptory strikes is a Batson challenge.¹⁶ Recognized first by the Ninth Circuit, this should be the foundation for building your argument.¹⁷ The state of Washington has specifically recognized bias against LGBTQ jurors, and bipartisan legislation has been proposed in Congress to address it,¹⁸ although Batson is the fundamental basis for raising these objections.

Be Proactive With Jurors

I first delved into the heteronormative jury bias about a decade ago. I represented a young gay couple who had been assaulted and battered outside of a bar. The defendant used homophobic slurs during the attack.

As we prepared to go to trial in West Virginia, I was very concerned about the attitude of potential jurors to gay litigants in a state that as a whole is generally less tolerant of same-sex couples.¹⁹ I asked the judge to permit individual voir dire—away from the rest of the panel—so I could explore the potential jurors’ attitudes regarding same-sex couples and LGBTQ equality. I focused my questions on attitudes about whether same-sex marriage should be legal and why or why not. The judge, perhaps in part because he knew I was openly gay, permitted the voir dire to go forward in camera. The defense attorney remained strangely silent, perhaps because he also knew I was gay.

I struck more than a few potential jurors for anti-gay bias. During a break, the defense lawyer approached me with an offer that was difficult for my clients to refuse. I could not help but imagine that the reason we reached a settlement was because the defense counsel could no longer assume that the bias against the gay couple would cause a jury to ignore the uncontroverted evidence of what had happened.

Regardless of the why, it was an important lesson for me: Do not hesitate to explore LGBTQ bias with potential jurors and witnesses. (Lambda Legal has published a useful guide on how to conduct voir dire to eliminate LGBTQ bias.²⁰) Questions about attitudes toward same-sex marriage or same-sex parents adopting children can be revealing. Here are a few examples:

• Do you support or oppose same-sex marriage?
• Do you feel that same-sex marriages are the same as opposite-sex marriages?
• Do you feel that gay people should have the right to adopt children?
• Do you feel that transgender people should be able to serve in the military?

For potential jurors, the focus should be rooting out the bias for a strike for cause, and for witnesses, to show their bias to a jury.

I also have often considered whether LGBTQ bias should be explored simply because a trial lawyer is LGBTQ. I’m well aware that when a trial begins, any juror who Googles me will quickly learn that I am gay and have been active in social justice all of my adult life. I recognize that I come from a place of incredible privilege and am able to avoid a lot of bias because I am a white, cisgender man.

As advocates, we must be sensitive to the fact that the gender and heteronormative biases are very real. To best represent an LGBTQ client, these biases must be considered from the outset.

Stephen Skinner is a partner in the Skinner Law Firm based in Charles Town, W. Va., and can be reached at sskinner@skinnerfirm.com.

Notes

1. For more on cognitive biases, see Gregory S. Cusimano, How We Make Decisions, Trial, Nov. 2020, at 40.
2. Heteronormative, Merriam-Webster, https://www.merriam-webster.com/dictionary/heteronormative.
3. Lindsey Wilkinson & Jennifer Pearson, School Culture and the Well-Being of Same-Sex-Attracted Youth, 23 Gender & Soc’y 542 (2009).
4. Krista Conger, Of Mice, Men and Women, Stan. Med., Spring 2017, https://tinyurl.com/y85poysx.
5. Gender, Merriam-Webster, https://www.merriam-webster.com/dictionary/gender.
6. Kathy A. Gainor, Including Transgender Issues in Lesbian, Gay, and Bisexual Psychology: Implications for Clinical Practice and Training, in Education, Research, and Practice in Lesbian, Gay, Bisexual, and Transgendered Psychology: A Resource Manual, at 131 (Beverly Greene & Gladys L. Croom, eds. 2000).
7. Teaching Tolerance, Professional Development: Test Yourself for Hidden Bias, https://www.tolerance.org/professional-development/test-yourself-for-hidden-bias.
8. See Jennifer M. Hill, The Effects of Sexual Orientation in the Courtroom: A Double Standard, 39 J. Homosexuality 93, 102 (2000); Bradley H. White & Sharon E. Robinson Kurpius, Effects of Victim Sex and Sexual Orientation on Perceptions of Rape, 46 Sex Roles 191, 198 (2002); Shane W. Kraus & Laurie Ragatz, Gender, Jury Instructions, and Homophobia: What Influence Do These Factors Have on Legal Decision Making in a Homicide Case Where the Defendant Utilized the Homosexual Panic Defense?, 47 Crim. L. Bull. 237, 240 (2011).
9. GLAAD, Accelerating Acceptance 2019: Executive Summary, 2019, https://www.glaad.org/sites/default/files/Accelerating%20Acceptance%202019.pdf.
10. Adam Liptak, A Jury May Have Sentenced a Man to Death Because He’s Gay. Now, the Supreme Court Could Hear His Appeal, N.Y. Times, Apr. 1, 2019, https://tinyurl.com/y5c69weq.
11. Id.
12. Id.
13. ABA, Charles Rhines Executed by South Dakota Despite Evidence of Jurors’ Anti-Gay Bias, Dec. 1, 2019, https://tinyurl.com/y4xq6opj.
14. Model Code of Judicial Conduct R. 2.3 (2020). See also Model R. of Prof’l Conduct 8.4(g) (2020); ABA Standing Comm. on Ethics & Prof’l Responsibility Formal Op. 493 (2020).
15. See Pride Legal, West Virginia LGBT Laws, https://pridelegal.com/west-virginia-lgbt-laws.
16. Batson v. Kentucky, 476 U.S. 79, 100 (1986).
17. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 476–78 (9th Cir. 2014).
18. See Anna L. Tayman, Looking Beyond Batson: A Different Method of Combating Bias Against Queer Jurors, 61 Wm. & Mary L. Rev. 1759 (2020); Equality Act, H.R. 5, 116th Congress (as passed by the House, May 17, 2019).
19. Movement Advancement Project, Mapping LGBT Equality: 2010 to 2020, https://www.LGBTmap.org/2020-tally-report.
20. Lambda Legal, Jury Selection and Anti-LGBT Bias: Best Practices in LGBT-Related Voir Dire and Jury Matters, Dec. 2015, https://tinyurl.com/yxdosfna.