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Juror Jeopardy: What Is Gender Fluidity and How Does It Impact Voir Dire?

October 2019 - IADC Trial Techniques and Tactics Committee Newsletter
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Recently, we were preparing for a trial in San Francisco County, California. As part of preparation, we consulted with colleagues who practice in the area seeking insights into the practical aspects of how the court conducted voir dire. We expected to learn typical things, such as the educational and economic status of the jury pool, the number of jurors called vs. the number seated in the jury box, the types of questions the court permitted the parties to include in the jury questionnaire, the judge’s level of involvement, and how the judge resolved preemptive strikes and objections thereto. We did not anticipate a discussion of gender fluidity.

Merriam-Webster defines gender-fluid as: "of, relating to, or being a person whose gender identity is not fixed." Many Americans identify as non-binary, rather than male or female. As society becomes more diverse, so do potential jurors. We were advised that, starting with elementary school, people in San Francisco are taught about the issue of gender fluidity.

So, how does this relate to voir dire? During the jury selection process, lawyers often address potential jurors as "Ladies and Gentlemen" and using personal titles such as, "Mr.," "Mrs.," or "Miss." Individuals who self-identify as non-binary, however, may not want to be addressed with such conventional titles. On the other hand, even if a juror does self-identify as male or female, you may not be able to identify easily which gender-specific title is appropriate. Ultimately, we did not have to address these issues because our case resolved before the trial started. However, we will incorporate what we learned about gender fluidity into all future voir dire.

Read Trial Tips for Dealing with Gender Fluidity During Voir Dire here.

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