The 9th U.S. Circuit Court of Appeals ruled on January 21 that removing a potential juror solely on the grounds of sexual orientation is discrimination, thus extending a Supreme Court protection that previously covered only gender and race.
In the final written decision, a panel of three judges unanimously ruled that removal from a jury pool over sexual orientation is unlawful discrimination; the decision came after an issue arose in a 2011 antitrust and contract dispute between the drug companies GlaxoSmithKline (GSK) and Abbott Laboratories, involving the pricing of a commonly used HIV/AIDS drug.
“Juror B,” who cannot be named, is an openly gay man who had prior knowledge of HIV drugs, and had been friends with a man who died of AIDS; defense lawyers for Abbott Laboratories declared him potentially biased during the jury selection for the trial and had him dismissed. In the resulting trial, most of the jurors chosen eventually ruled mostly in Abbott’s favor.
As a result of the 9th Circuit ruling that Juror B was unjustifiably taken off the case, the verdict of the original 2011 case was reversed and a new trial ordered.
Judge Stephen Reinhardt wrote, “Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.”
He added that recent cases have made it clear that the Supreme Court “refuses to tolerate the imposition of a second-class status on gays and lesbians.”
The executive director of the National LGBT Bar Association, D’Arcy Kemnitz, expressed his approval of the ruling; according to ABC News, he said, “Excluding jurors based on their sexual orientation and gender identity denies countless individuals a jury of their peers.”
The original multi-billion-dollar pharmaceutical case centered around contentions that Abbott Laboratories broke anti-trust laws when it raised the price of its drug Norvir—which is vital in the HIV drug regimen for many patients—by 400% in 2007. GSK has an HIV treatment regimen that, among other drugs, requires Norvir, despite its being produced by a competitor. GSK alleges that Norvir’s increase in cost was meant to harm the launch of GSK’s treatment.
In 2011, GSK appealed the original case ruling in favor of Abbott Laboratories on the grounds that the dismissal of Juror B was discriminatory. Abbott’s lawyers maintain that he was removed not because of his orientation, but because he was the only juror who had heard of Norvir and had seen a friend die of AIDS, which they saw as potential for bias.
California’s Supreme Court has forbidden the unjustified removal of LGBT jurors since 2000, but that ruling did not apply to federal courts, including the 9th US Circuit Court of Appeals.