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The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake Jan 2024

The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake

Articles

The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …


Lawyers For White People?, Jessie Allen Jan 2021

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …


The Thirteenth Amendment And Interest Convergence, William M. Carter Jr. Jan 2011

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

Articles

The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …


The First Principles Of Standing: Privilege, System Justification, And The Predictable Incoherence Of Article Iii, Christian Sundquist Jan 2011

The First Principles Of Standing: Privilege, System Justification, And The Predictable Incoherence Of Article Iii, Christian Sundquist

Articles

This Article examines the indeterminacy of standing doctrine by deconstructing recent desegregation, affirmative action, and racial profiling cases. This examination is an attempt to uncover the often unstated meta-principles that guide standing jurisprudence. The Article contends that the inherent indeterminacy of standing law can be understood as reflecting an unstated desire to protect racial and class privilege, which is accomplished through the dogma of individualism, equal opportunity (liberty), and “white innocence.” Relying on insights from System Justification Theory, a burgeoning field of social psychology, the Article argues that the seemingly incoherent results in racial standing cases can be understood as …


What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake Jan 2008

What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake

Articles

This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its …


Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr. Jan 2007

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

Articles

The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …


The Cruelest Of The Gender Police: Student-To-Student Sexual Harassment And Anti-Gay Peer Harassment Under Title Ix, Deborah L. Brake Jan 1999

The Cruelest Of The Gender Police: Student-To-Student Sexual Harassment And Anti-Gay Peer Harassment Under Title Ix, Deborah L. Brake

Articles

Title IX, like other sex discrimination laws, addresses discrimination that occurs because of an individual’s sex. Courts interpreting Title IX, like those interpreting Title VII of the Civil Rights Act of 1964, have struggled to demarcate a line separating discrimination because of sex from discrimination because of sexual orientation. This article constructs an argument for viewing anti-gay discrimination, and in particular anti-gay harassment between students, as a form of sex discrimination under Title IX. The article first explores why school inaction in the face of sexual harassment discriminates on the basis of sex. Although sex discrimination law generally has long …


Sex As A Suspect Class: An Argument For Applying Strict Scrutiny To Gender Discrimination, Deborah Brake Jan 1996

Sex As A Suspect Class: An Argument For Applying Strict Scrutiny To Gender Discrimination, Deborah Brake

Articles

In United States v. Commonwealth of Virginia' ("VMI"), the Supreme Court has a landmark opportunity to revisit the legal standard courts should use to review classifications which treat men and women differently. The VMI case involves an equal protection challenge to the state's exclusion of women from VMI and its establishment of an alternative, sex-stereotyped women's leadership program as a remedy to that exclusion. The United States, which brought the case against VMI, has asked the Supreme Court to rule that sex-based classifications, like classifications based on race, must be subjected to the highest level of constitutional scrutiny, or "strict …