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Amicus brief to the U.S. Court of Appeals for the Ninth Circuit urging that heightened scrutiny be applied to discrimination based upon sexual orientation.

Lambda Legal filed an amicus brief before the U.S. Court of Appeals for the Ninth Circuit in SmithKline Beecham (SKB) v. Abbott Laboratories arguing that the heightened scrutiny standard that the Supreme Court applied in its 1986 ruling in Batson v. Kentucky, holding that the Equal Protection Clause of the U.S. Constitution precludes using peremptory challenges to strike prospective jurors because of their race, should be applied to sexual orientation. Batson had already been extended to apply to sex, and the Lambda Legal brief argued that the same level of review that resulted in sex and race being classified as suspect classes also applies to sexual orientation. SKB v. Abbott Laboratories is an antitrust, contracts and business tort case SKB filed against Abbott after Abbott quadrupled the cost of its protease inhibitor (PI) booster drug, Norvir. Abbott had marketed Norvir as a PI booster to SKB and other manufacturers of HIV medications, which allowed people with HIV to take smaller doses of PIs and thereby reduce the negative side effects. During jury selection for the trial, counsel for Abbott used his first peremptory challenge to strike a prospective juror because he is a gay man. Counsel for SKB objected and asserted that the U.S. Supreme Court’s 1986 ruling in Batson precluded using peremptory challenges to strike jurors based solely on their sexual orientation. The judge questioned whether Batson applied to sexual orientation and over-ruled the objection. SKB appealed that ruling to the Ninth Circuit.