Law Commons^™

Gender Regrets: Banning Abortion And Gender-Affirming Care, Noa Ben-Asher, Margot J. Pollans

Utah Law Review

Conservative politicians, lawmakers, and media have generated a national moral panic about transgender children and youth that has resulted, as of early 2024, in restrictions or bans on GAC for minors in twenty-four states. In these bans and the advocacy around them gender-affirming care for minors is presented as harmful, ideological, unnecessary, and likely to lead to future regret. The role of regret in the movement to ban gender-affirming care parallels the role of regret in the ongoing conservative campaign to ban abortion. In the years between Roe v. Wade (1973) and Dobbs v. Jackson Women’s Health Organization (2022), politicians …

Then They Came For Us: Access To Justice Harm And Opportunity For Our Transgender And Nonbinary Youth, Sarah Steadman

The Scholar: St. Mary's Law Review on Race and Social Justice

Transgender and nonbinary youth are under legislative and political siege as the latest victims in our nation’s culture wars. They are acutely aware of the hostility towards their existence and best interests, damaging their often already precarious well-being. There is a concerning risk they will associate biased and antagonistic lawmakers with our entire legal system, including legal service providers. Fear of encountering discrimination and bias leads targeted individuals to avoid accessing services. I fear that means too many among this generation transgender and nonbinary youth may avoid addressing their legal health needs as they age.

Consequently, the legal profession must …

The Violation Of Transgender Prisoners: The Violent Impact Of Gender Discrimination Experienced By Incarcerated Trans People In The United States Of America, Brooklyn Jennings Mx.

Access*: Interdisciplinary Journal of Student Research and Scholarship

U.S prison reform policies such as the Prison Rape Elimination Act pacify the government and the public into believing that prisons are a less harmful place for vulnerable inmates. However, thousands of transgender inmates in the United States experience extraordinary rates of violence and discrimination for their gender identity. There are difficulties in determining exact statistics of gender-based incidents of assault due to dueling structures of legal power and questionable support from prison authorities. However, from available information, trans inmates report dehumanizing prison environments that severely impact their wellbeing. This literature draws upon the current status of incarcerated trans inmates’ …

Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry

Washington Law Review

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …

Identity Documents For Transgender Texans: A Proposal For A Uniform System For Correcting Gender Markers In Texas, Lydia R. Harris

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas’s lack of a codified gender correction process is unjust, illegal, and against public policy. This comment highlights the injustice faced by transgender Texans without gender concordant identity documents. These injustices include discrimination based on gender stereotypes, violation of the transgender individual’s right to privacy, and violations of public policy. This comment explores possible solutions to the injustices faced by transgender Texans due to the lack of a codified uniform way to correct gender markers in Texas modeled on other jurisdictions’ approaches to this problem.

First, this comment traces the history of the recognition of transgender people and transgender rights …

“That Name Is Dead To Me”: Reforming Name Change Laws To Protect Transgender And Nonbinary Youth, Sarah Steadman

University of Michigan Journal of Law Reform

Content warning: this Article discusses suicidality.

For transgender and some nonbinary youth, living under a chosen name is a first step toward becoming their authentic selves. For these youth, a name change is powerful; it allows them to choose a name that matches their gender identity. They consider their birth name to be a distressing “dead” name—one that they cannot relate to and need to bury.

Using one’s chosen name decreases suicidality among transgender youth who face many challenges, including family rejection and other severe mental health stressors. Transgender and nonbinary youth can only require others to use their chosen …

Modernizing Discrimination Law: The Adoption Of An Intersectional Lens, Marisa K. Sanchez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Because Of Bostock, Noelle N. Wyman

Michigan Law Review Online

On a below-freezing January morning, Jennifer Chavez, an automobile technician, sat in a car that she was repairing to keep warm while waiting for delayed auto parts to arrive. Without intending to, she nodded off. Her employer promptly fired her for sleeping on the job. At least, that is the justification her employer gave. But Chavez had reason to believe that her coming out as transgender motivated the termination. In the months leading up to the January incident, Chavez’s supervisor had told her to “tone things down” when she talked about her gender transition. The repair-shop owner said that the …

Necessary Coverage For Authentic Identity: How Bostock Made Title Vii The Strongest Protection Against Employer-Sponsored Health Insurance Denial Of Gender-Affirming Medical Care., Jennifer A. Knackert

Marquette Law Review

In June 2020, the United States Supreme Court held that Title VII

protection from discrimination on the basis of sex extended to LGBTQ+

employees. The Bostock v. Clayton County, Georgia decision dealt with three

separate cases where LGBTQ+ employees had been fired from their jobs based

on either their sexual orientation or gender identity. While the shared issue in

these cases had to do with employee termination, the textualist argument

presented by the Court leads many legal scholars to believe that the holding

would be applicable to other areas of employment discrimination covered by

Title VII such as employer-sponsored healthcare …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

A Textuary Ray Of Hope For Lgbtq+ Workers: Does Title Vii Mean What It Says?, Eduardo Juarez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Evaluating The Classification Of Gender Confirmation Surgery As A Medical Necessity For Inmates, Alexis J. Watson

Brigham Young University Prelaw Review

In 2012, Mason Edmo pleaded guilty to the sexual abuse of a fifteenyear-

old boy and was sentenced to ten years in prison. While in

prison, Edmo announced that she identified as a female and changed

her name to Adree. Edmo went on to request gender confirmation

surgery (also known as “sex reassignment surgery”) while still in

prison. Initially, Edmo was not granted the surgery by the Idaho

Department of Corrections, and went on to self-harm and attempt

self-castration twice. In 2017, Edmo filed suit against the Idaho State

Department of Corrections (IDOC) and won. The IDOC disagreed

with the …

Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph Landau

Vanderbilt Law Review

In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, …

Title Vii And The Unenvisaged Case: Is Anti-Lgbtq Discrimination Unlawful Sex Discrimination, Ronald Turner

Indiana Law Journal

As discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment …

To Protect Or Not To Protect, An Empirical Approach To Predicting Where The Fourth Circuit Would Stand On Coverage For Sexual Orientation Discrimination Under Title Vii, Mary Stuart King

South Carolina Law Review

No abstract provided.

Transparenthood, Sonia K. Katyal, Ilona M. Turner

Michigan Law Review

Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or …

Born Free: Toward An Expansive Definition Of Sex, Laura Palk, Shelly Grunsted

Michigan Journal of Gender & Law

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety …

Sick And Tired Of Hearing About The Damn Bathrooms, Colin Pochie

Chicago-Kent Law Review

Gavin Grimm’s struggle to access restrooms which align with his gender identity brought the plight of transgender students to the fore of national consciousness. With it came scrutiny of the judiciary’s historical failure to understand transgender individuals’ place in the law. The trend in cases like G.G. ex rel. Grimm v. Gloucester County School Board and Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 1 Board of Education is reliance on equality theory and the law of sex stereotyping. And yet sex-stereotyping law does not mesh soundly with equality theory. Equality theory eradicates gendered difference—but the law of …

Medical Necessity: A Higher Hurdle For Marginalized Taxpayers?, Julie Furr Youngman, Courtney D. Hauck

Loyola of Los Angeles Law Review

Civil rights protection for transgender people—and in particular access to affordable health care—is currently the subject of intense political scrutiny, with a hostile administration chipping away at legal protections. Among other setbacks, a federal district court enjoined regulatory guidelines that were issued in 2016 to clarify that the federal prohibition on sex discrimination in health insurance applies to discrimination on the basis of gender identity and transgender status, and the promulgating agency itself is now reconsidering the guidelines. Without explicit federal protections against discrimination by health insurers and in the face of uneven state law protections, the ability to deduct …

What Is Sexual Orientation?, Mary Ziegler

Kentucky Law Journal

At a time when the Supreme Court seems closer than ever before to treating sexual orientation as a suspect classification, consideration of the legal definition of sexual orientation is both timely and important. The Court’s 2015 decision in Obergefell recognizes two guideposts for defining sexual orientation: its immutability and normalcy. While other scholars offer rich and nuanced accounts of the fight for gay, lesbian, transgender, and bisexual rights, they do not fully analyze the history of sexual orientation as a legal category. This Article closes that gap, illuminating the hidden costs of the definition of sexual orientation that Obergefell endorses. …

Rectifying The Tilt: Equality Lessons From Religion, Disability, Sexual Orientation, And Transgender, Chai R. Feldblum

Maine Law Review

The joy and the challenge of being located in an academic setting is that I am also able to engage in forays (albeit intermittent forays) into scholarly analysis. Delivering this lecture, and publishing this piece, provides an excellent opportunity for me to engage in such a foray. This piece, then, is a scholarly reflection on my advocacy experiences. My goal is to use my experiences in advocacy as fertile soil from which to create, I hope, a lovely flower of theory and conceptual thought. Before setting out on this endeavor, however, I would like to offer two postulates. There are …

Gender Typing In Stereo: The Transgender Dilemma In Employment Discrimination, Richard F. Storrow

Maine Law Review

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against men because they are men and against women because they are women. This familiar characterization of the Act has been quoted in dozens of sex discrimination cases to support a narrow view of who is protected against sex discrimination in this country. When transsexuals file suit, “[e]mployment discrimination jurisprudence at both the federal and state levels ... captures transsexuals in a discourse of exclusion from social participation. This wide net, using a remarkably refined system of semantic manipulations, snags all claims launched by transsexuals and reveals …

Putting The Restroom Debate To Rest: Addressing Title Ix And Equal Protection In G.G. Ex Rel. Grimm V. Gloucester County School Board, Alexandra A. Harriman

Maine Law Review

Courts, legislatures, and citizens have been debating whether transgender students should use the restroom that corresponds to their biological sex, or whether they can choose to use the facilities which align with their gender identity. The Fourth Circuit decided that Title IX required the latter in G.G. ex. rel. Grimm v. Gloucester County School Board, but that didn't settle the issue. To complicate things, the Trump Administration revoked the guidance that the Fourth Circuit had relied on. This Note argues that a court should resolve this once and for all by finding that a school policy that requires students to …

Immigrating While Trans: The Disproportionate Impact Of The Prostitution Ground Of Inadmissibility And Other Provisions Of The Immigration And Nationality Act On Transgender Women, Luis Medina

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Sex Reassignment Surgery & The New Standard Of Care: An Analysis Of The Role The Federal Court System, The States, Society, And The Medical Community Serve In Paving The Way For Incarcerated Transgendered Persons' Constitutional Right To A Sex Change, Victor J. Genchi

Barry Law Review

No abstract provided.

"In Sickness And In Health, Until Death Do Us Part": An Examination Of Fmla Rights For Same-Sex Spouses And A Case Note On Obergefell V. Hodges, Jasmine Foo

Journal of the National Association of Administrative Law Judiciary

This note discusses the history of the lesbian, gay, bisexual, and transgender (LGBT) struggle for equal rights alongside the Supreme Court's recent ruling in Obergefell v. Hodges and uses this to examine the potential effect on the rights granted to same-sex spouses by the Family Medical Leave Act (FMLA). Part II records the jurisprudence that has slowly evolved over the past forty to fifty years to make the present a more hospitable era for same-sex marriage to take root today. Part III gives a general overview of the FMLA's history and current form. Part IV reviews the facts prompting the …

Is The United States Judicial System Failing Transgender Women? A Critical Overview, Taylor J. House

Florida A & M University Law Review

This paper will discuss the rise of the transgender civil rights movement, the problems in the judicial system, and the rights that should be afforded to transgender women. In part one, I will address the LGBTQA civil rights movement led by transgender women. In part two, I will address the transphobia in the prison system. In part three, I will address the lack of visibility of black transgender issues in the current black civil rights movement. In the fourth part, I will address whether there should be certain fundamental rights given to transgender women. In the fifth part of this …

Undressing The Locker Room Issue: Applying Title Ix To The Legal Battle Over Locker Room Equality For Transgender Student-Athletes, Meghan M. Pirics

Marquette Sports Law Review

None

The Price Of Price Waterhouse: How Title Vii Reduces The Lives Of Lgbt Americans To Sex And Gender Stereotypes, Drew Culler

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Boys Will Be Girls, And Girls Will Be Boys: Urging The Supreme Court To Recognize A Transgender Student's Right To Use The Appropriate Facilities In A Federally Funded School, Dianna Felberbaum

Touro Law Review

No abstract provided.