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Full-Text Articles in Law
Valuing All Identities Beyond The Schoolhouse Gate: The Case For Inclusivity As A Civic Virtue In K-12, Sacha M. Coupet
Valuing All Identities Beyond The Schoolhouse Gate: The Case For Inclusivity As A Civic Virtue In K-12, Sacha M. Coupet
Michigan Journal of Gender & Law
Increasing social and political polarization in our society continues to exact a heavy toll marked by, among other social ills, a rise in uncivility, an increase in reported hate crimes, and a more pronounced overall climate of intolerance—for viewpoints, causes, and identities alike. Intolerance, either a cause or a consequence of our fraying networks of social engagement, is rampant, hindering our ability to live up to our de facto national motto, “E Pluribus Unum,” or “Out of Many, One” and prompting calls for how best to build a cohesive civil society. Within the public school—an institution conceived primarily …
Deboer V. Snyder: A Case Study In Litigation And Social Reform, Wyatt Fore
Deboer V. Snyder: A Case Study In Litigation And Social Reform, Wyatt Fore
Michigan Journal of Gender & Law
On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.
Modernizing State Vital Statistics Statutes And Policies To Ensure Accurate Gender Markers On Birth Certificates: A Good Government Approach To Recognizing The Lives Of Transgender People, Lisa Mottet
Michigan Journal of Gender & Law
Across the country, laws governing corrections to gender markers on birth certificates are relatively uniform, in large part because many states adopted the relevant provisions of the 1977 revision of the Model State Vital Statistics Act (MSVSA). The MSVSA, developed by the U.S. Department of Health and Human Services, guides states on the most efficient laws and procedures related to maintaining accurate birth, death, and other vital records at the state, local, and territorial level. At the time when the government promulgated the MSVSA provision related to gender corrections, it served as a forward-thinking model because it acknowledged that vital …
Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen
Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen
Michigan Journal of Gender & Law
In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional …
Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt
Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt
Michigan Journal of Gender & Law
Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …
Displaced Mothers, Absent And Unnatural Fathers: Lgbt Transracial Adoption, Kim H. Pearson
Displaced Mothers, Absent And Unnatural Fathers: Lgbt Transracial Adoption, Kim H. Pearson
Michigan Journal of Gender & Law
While some might believe that Black versus gay discourse only surfaces in highly politicized settings like the military and marriage, it holds sway in the area of LGBT transracial adoption. LGBT transracial adoptions are a relatively small percentage of all adoptions, which include private adoptions, LGBT second-parent adoptions, and step-parent adoptions, but they are an important site for interrogating the Black versus gay discourse because adoption and custody decisions often address parent-child transmission. When claims intersect, as they do in a case where a White LGBT foster parent and a Black maternal grandmother dispute the adoption of a Black child, …
Sex Equality's Unnamed Nemesis, Veronica Percia
Sex Equality's Unnamed Nemesis, Veronica Percia
Michigan Journal of Gender & Law
Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …
Tango Or More - From California's Lesson 9 To The Constitutionality Of A Gay-Friendly Curriculum In Public Elementary Schools, Amy Lai
Michigan Journal of Gender & Law
In August 2009, a group of parents in California filed a lawsuit, Balde v. Alameda Unified School District, in the Superior Court of California, County of Alameda. They alleged that the Alameda Unified School District refused them the right to excuse their children from a new curriculum, Lesson 9, that would teach public elementary school children about gay, lesbian, bisexual and transgender (GLBT) families. The proposed curriculum included short sessions about GLBT people, incorporated into more general lessons about family and health, once a year from kindergarten through fifth grade. Kindergarteners would learn the harms of teasing, while fifth graders …
Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich
Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich
Michigan Journal of Gender & Law
It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …
Situations, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald
Situations, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald
Michigan Journal of Gender & Law
A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain's intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality.
Beyond The Binary: What Can Feminists Learn From Intersex Transgender Jurisprudence, Julie Greenberg, Marybeth Herald, Mark Strasser
Beyond The Binary: What Can Feminists Learn From Intersex Transgender Jurisprudence, Julie Greenberg, Marybeth Herald, Mark Strasser
Michigan Journal of Gender & Law
Our panel will be discussing recent developments in the intersex and transsexual communities. The transsexual community began to organize in the 1970s, but did not fully develop into a vibrant movement until the 1990s. The intersex movement was born in the mid-1990s and has rapidly developed a strong and influential voice. Recently, both movements have undergone profound changes and each has provided new and unique theoretical perspectives that can potentially benefit other social justice groups. The purpose of our dialogue today is to describe these developments and explore how feminists could potentially benefit from the theoretical frameworks that are being …
Chaos, Law, And God: The Religious Meanings Of Homosexuality, Jay Michaelson
Chaos, Law, And God: The Religious Meanings Of Homosexuality, Jay Michaelson
Michigan Journal of Gender & Law
This Article argues that the religious meaning of homosexuality cannot be explained merely in terms of homophobia, "church and state," or traditional values versus progressive ones. Rather, the regulation of sexuality has a particular religious meaning: sexuality is a primary site in which religious law is engendered, where the lawfulness of religion meets the chaos beyond it. Whether in Biblical times or today, changing the way sexuality is regulated is a threat to the notion of order itself, as construed by Jewish and Christian religion. Arguments about gay rights, same-sex marriage, and related issues are not merely arguments informed by …
The Evolution Of Same-Sex Marriage In Canada: Lessons The U.S. Can Learn From Their Northern Neighbor Regarding Same-Sex Marriage Rights, Christy M. Glass, Nancy Kubasek
The Evolution Of Same-Sex Marriage In Canada: Lessons The U.S. Can Learn From Their Northern Neighbor Regarding Same-Sex Marriage Rights, Christy M. Glass, Nancy Kubasek
Michigan Journal of Gender & Law
The broad differences between the United States and Canadian cases raise important questions about the social, political and legal factors that have promoted the extension of marriage rights in Canada while retarding similar efforts in the U.S. This article will compare the recent history of same-sex marriage laws in the United States and Canada. We argue that proponents of same-sex marriage as well as lawmakers could learn important lessons from the recent legalization of same-sex marriage in Canada. Section II develops a framework for comparing the U.S. and Canadian experience with same-sex marriage law. The next section traces Canada's recent …
Expanding Gender And Expanding The Law: Toward A Social And Legal Conceptualization Of Gender That Is More Inclusive Of Transgender People, Dylan Vade
Michigan Journal of Gender & Law
In Part I, the article first describes the many different ways in which one can be transgender. Many transgender women and men defy gender stereotypes. Part I next suggests a non-linear view of gender. Often, when we get past the binary gender system, the notion that there are only two genders, female and male, we do so by seeing gender as a spectrum or line running from female to male. In Part II, the article argues that the sex-gender distinction is not part of the new conceptualization of gender, the gender galaxy. In Part III, after a brief overview of …
Brief For The Plaintiff-Appellant Lucas Rosa In The United States Court Of Appeals For The First Circuit Lucas Rosa V. Park West Bank And Trust Company On Appeal From The United States District Court For The District Of Massachusetts, Jennifer L. Levi, Mary L. Bonauto
Brief For The Plaintiff-Appellant Lucas Rosa In The United States Court Of Appeals For The First Circuit Lucas Rosa V. Park West Bank And Trust Company On Appeal From The United States District Court For The District Of Massachusetts, Jennifer L. Levi, Mary L. Bonauto
Michigan Journal of Gender & Law
The District Court fundamentally misconceived the law as applicable to the Plaintiffs claim by concluding that there may be no relationship, as a matter of law, between telling a bank customer what to wear and sex discrimination. It also misapplied Rule 12(b)(6) to the extent that it resolved any factual questions beyond the allegations of the Complaint regarding the basis of the Bank's different treatment of the Plaintiff. Finally, because the District Court incorrectly dismissed the single federal claim in Plaintiffs Complaint, it improperly dismissed Plaintiffs pendant state claims for want of federal court jurisdiction.
Amicus Curiae Brief Of Now Legal Defense And Education Fund And Equal Rights Advocates In Support Of Plaintiff-Appellant And In Support Of Reversal In The United States Court Of Appeals For The First Curcuit Lucas Rosa V. Park West Bank And Trust Company On Appeal From The United States District Court For The District Of Massachusetts, Katherine M. Franke
Michigan Journal of Gender & Law
By dismissing the plaintiffs complaint under the Equal Credit Opportunity Act ("ECOA") on the ground that "the issue in this case is not [Rosa's] sex, but rather how he chose to dress when applying for a loan" (Bench Order at 1), the lower court erroneously established that there are no set of facts in which clothing-based sex stereotyping can form the basis of a legitimate claim of sex discrimination in access to credit. This view of the meaning and scope of the ECOA runs contrary to well-established Supreme Court precedent which prohibits, inter alia, the adverse treatment of a …
Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke
Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke
Michigan Journal of Gender & Law
In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application on …
Epilogue, Jennifer L. Levi
Epilogue, Jennifer L. Levi
Michigan Journal of Gender & Law
The First Circuit reversed the district court's order dismissing Lucas Rosa's claim against Park West Bank. The appeals court's reversal seems to be part of an emerging nationwide rejection of cases from the 1970s and 1980s in which courts summarily dismissed sex discrimination claims brought by transgender plaintiffs, no matter how squarely the facts appeared to present a clear-cut case of discrimination based on sex. Creating what appeared to be a "transgender" exception to sex discrimination law, those earlier courts ignored what the First Circuit recognized here-that a bank officer who tells an applicant to go home, change, and return …
"Trapped" In Sing Sing: Transgendered Prisoners Caught In The Gender Binarism, Darren Rosenblum
"Trapped" In Sing Sing: Transgendered Prisoners Caught In The Gender Binarism, Darren Rosenblum
Michigan Journal of Gender & Law
This Article first summarizes gender, transgendered identity, and legal issues facing transgendered people to contextualize the lives of transgendered prisoners. Parts II and III explore respectively the placement and treatment issues that complicate the incarceration of the transgendered. Corrections authorities, through indifference or incompetence, foster a shockingly inhumane daily existence for transgendered prisoners. In Part V, I examine the plight of transgendered prisoners through the metaphor of the miners' canary. Transgendered prisoners signal the grave dangers facing all of us in a wide array of social structures, elucidating the apparently intractable problems of gender. This Article simultaneously explores a human …
Bisexual Jurisprudence: A Tripolar Approach To Law And Society, Rachel Haynes
Bisexual Jurisprudence: A Tripolar Approach To Law And Society, Rachel Haynes
Michigan Journal of Gender & Law
Part I of this Review will briefly assess the principal arguments in Colker's book. In Part II, Colker's book will be situated within the larger currents of the discussion concerning bisexuality and the arguments for a bisexual jurisprudence. Part III critiques Colker's concept of a bisexual jurisprudence as applied to sexual hybrids from the standpoint of an identity, as well as a legal, skeptic. Part IV will sketch out some important implications for the advancement of a bisexual jurisprudence as well as question the need for a bisexual jurisprudence. This review concludes that the addition of a bisexual jurisprudence, like …
Fighting Anti-Gay Abuse In Schools: The Opening Appellate Brief Of Plaintiff Jamie Nabozny In Nabozny V. Podlesny, Patricia M. Logue, David S. Buckel
Fighting Anti-Gay Abuse In Schools: The Opening Appellate Brief Of Plaintiff Jamie Nabozny In Nabozny V. Podlesny, Patricia M. Logue, David S. Buckel
Michigan Journal of Gender & Law
In Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), a case of first impression, the Seventh Circuit Court of Appeals recognized the constitutional right of a gay male public school student to equal protection from anti-gay harassment and assaults. The court held that Jamie Nabozny had stated equal protection claims against his school district and three school principals for gender and sexual orientation discrimination based on allegations that, because he is gay and a boy, defendants had failed to afford him the same kinds of protection given to other harassed students. At trial on remand a jury found …
Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
Michigan Journal of Gender & Law
According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.
Honesty, Privacy, And Shame: When Gay People Talk About Other Gay People To Nongay People, David L. Chambers, Steven K. Homer
Honesty, Privacy, And Shame: When Gay People Talk About Other Gay People To Nongay People, David L. Chambers, Steven K. Homer
Michigan Journal of Gender & Law
There is a longstanding convention among lesbians and gay men in the United States: Do not reveal the sexuality of a gay person to a heterosexual person; unless you are certain that the gay person does not regard his sexuality as a secret. Lie if necessary to protect her secret. Violating the convention by "outing" another person is widely considered a serious social sin.
Second-Parent Adoption: Overcoming Barriers To Lesbian Family Rights, Maxwell S. Peltz
Second-Parent Adoption: Overcoming Barriers To Lesbian Family Rights, Maxwell S. Peltz
Michigan Journal of Gender & Law
Part I of this Article will discuss some of the legal difficulties associated with co-parenting and why lesbian couples have sought second-parent adoptions. Part II will examine the particular statutory obstacles to second-parent adoptions and then analyze the various ways courts in several states have overcome these obstacles. Finally, Part III will discuss the implications of these decisions in terms of their creation of legal and social norms.