While peremptory challenges upon the basis of race, ethnicity, and gender have been held unconstitutional, and peremptory strikes upon the basis of sexual orientation have been regarded as increasingly suspect after United States v. Windsor, attorneys remain free to use peremptory challenges to remove potential jurors from the venire upon the basis of their gender identity or expression. The current state of affairs renders transgender and gender-nonconforming jurors vulnerable to court-sanctioned discrimination. This Note proposes that courts apply the trans-inclusive conception of sex discrimination that has gained traction in Title VII jurisprudence to the context of peremptory challenges. Because notions of sex discrimination have evolved to include discrimination on the basis of gender identity or expression, courts should apply heightened scrutiny to peremptory challenges that strike potential jurors upon these bases. And because prohibiting such peremptory challenges would otherwise accord with the judicial rationales that infused Batson v. Kentucky, J.E.B. v. Alabama ex rel. TB., and SmithKline Beecham Corp. v. Abbott Laboratories, courts should read J.E.B. to prohibit peremptory challenges upon the basis of gender identity or expression. Furthermore, this Note argues that merely barring peremptory challenges upon the basis of sexual orientation will fail to fully protect lesbian, gay, bisexual, and transgender jurors. While others have criticized the Batson framework as being ineffective in preventing discrimination in voir dire, this Note instead suggests that in light of Batson's persistence, the courts should take what steps they can to protect transgender and gender nonconforming jurors.
