GavelA US court will soon decide on whether gay men and lesbians may be excluded from jury service on the basis of their sexual orientation.

The deliberation has arisen out of a 2011 competition law trial between two major drug companies, Abbott Laboratories and rivals SmithKline Beecham, involving allegations the former drastically increased the price of a crucial HIV medication.

During the trial, an Abbott lawyer used a “peremptory challenge” to eliminate a potential juror without cause. This US legal procedure allows a certain number of potential jurors to be rejected on suspicion of unfavourable bias, but does not require the lawyer to provide a reason.

In this case, a SmithKline lawyer challenged the move, claiming Abbott rejected the juror because he appeared to be gay, and because the trial involved HIV medications.

The US Supreme Court has previously ruled race and gender may not be the basis for rejecting a potential juror in a federal case, serving as an exception to the broad discretionary nature of peremptory challenges.

While until now sexual orientation has not been considered as a third exception at a federal level, California state law included sexual orientation in its exceptions to peremptory challenges ten years ago.

Taking place in California but at a federal court, the judge in this case gave the Abbott lawyer an opportunity to reject the juror on other grounds, which he declined. Abbott Laboratories has since denied the juror’s apparent homosexuality as grounds for the rejection.

LGBTI rights advocates in the US have said a decision barring sexual orientation as a basis for a peremptory challenge would be an important symbolic step towards equality, effectively allowing equal treatment for LGBTI people serving on a jury.

The decision continues the ongoing evolution of legal understanding of sexual orientation in the US, and follows the Supreme Court’s ruling earlier this year to overturn the Defence of Marriage Act allowing same-sex marriage at a federal level.

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