Law Commons^™

“Made To Feel Broken”: Ending Conversion Practices And Saving Transgender Lives, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

There has been a recent unprecedented, coordinated campaign by state governments to deny gender-transition care to transgender youth. It is within this context that Florence Ashley argues in Banning Transgender Conversion Practices: A Legal and Policy Analysis that legislation banning conversion practices is both lifesaving to transgender people directly affected and an important step in securing health and the recognition of dignity for all transgender people. The Authors highly recommend the book as a thoughtful and well-researched look at the issue. They also expand on several topics discussed in the book, including the harm caused by these practices, the constitutionality …

Athletic Scholarships And Title Ix: Compliance Trends And Context, Erin E. Buzuvis

Faculty Scholarship

This Article evaluates enforcement practices and compliance trends related to Title IX's requirement for gender equity in the distribution of athletic financial aid. It confirms that universities in the most competitive athletic programs continue to underfund women's athletic scholarships relative to the proportionality standard required by law. It also confirms that the under-allocation of women's athletic opportunities at universities across divisions results in additional disparities in scholarship funding that is not captured by an analysis of compliance. This Article concludes with suggestions that the government clarifies its expectations and enforcement priorities. It further calls for regulators, scholars, and advocates to …

Foreword, Jennifer Taub

Faculty Scholarship

This Foreword highlights the central points of the Articles in Volume 43, Issue 1 of Western New England Law Review. The Article topics include emotional support animals, distribution rights for small beer brewers, fairness in accident insurance coverage, alternative legal education materials, and custody challenges for parents with abusive partners. Each share the identification of a perceived problem with the legal status quo and presents proposed solutions.

Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration's open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people's continued …

Constitutional Law—Do Black Lives Matter To The Constitution?, Bruce K. Miller

Faculty Scholarship

Do Black lives matter to the Constitution? To the original Constitution, premised as it is on white supremacy, they plainly do not. But do the post-Civil War Amendments, sometimes characterized as a "Second Founding," provide a basis for a more optimistic reading? The Supreme Court's application of the Fourteenth Amendment's Equal Protection guarantee, shaped by the long discredited (and now formally overruled) decision in Korematsu v. U.S., has seriously diminished the likelihood that our basic law can redeem the promise of racial equality. Korematsu's embrace of a purely formal account of racial discrimination, its blindness to the history and present …

Coaches In Court: Legal Challenges To Sex Discrimination In College Athletics, Erin E. Buzuvis

Faculty Scholarship

Sex discrimination continues to operate in the working environment of college athletics. Female coaches experience bias both because of their sex and the intersections of gender stereotypes with stereotypes about women of color, lesbians, and aging. The law continues to be a leverage to challenge barriers to women’s leadership in college sports. This Article provides an overview of the relevant legal protections in three cases brought by coaches Beth Burns, Tracey Griesbaum, and Shannon Miller. Their cases expose discrimination and the double standard related to the value of female coaches’ success.

Challenging Gender In Single-Sex Spaces: Lessons From A Feminist Softball League, Erin E. Buzuvis

Faculty Scholarship

This Article explores transgender inclusion within adult recreational women’s leagues by using the example of the Mary Vazquez Women’s Softball League (MVWSL), in Northampton, Massachusetts. A MVWSL policy addressing transgender inclusion became necessary due to a noticeable increase in gender-identity diversity. The resultant policy respects the league’s core lesbian constituency by providing individuals with the freedom to acknowledge openly a gender identity that has or is evolving from lesbian to something else, and reflects the league’s founding feminist principles by refusing to define for others the suitability of a women’s community.

The Author demonstrates the successful creation of a policy …

Better Locker Rooms: It’S Not Just A Transgender Thing, George B. Cunningham, Erin E. Buzuvis

Faculty Scholarship

No abstract provided.

Title Ix And Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine The Role Of Title Ix In Campus Sexual Assault, Erin E. Buzuvis

Faculty Scholarship

As a matter of civil rights, Title IX mandates that federally funded educational institutions address reports of sexual assault. Often disciplined-student plaintiffs argue unsuccessfully that the college or university’s decision to discipline them is tainted by “reverse” sex discrimination. This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. It provides a historical context for Title IX’s application to sexual assault on campuses and the requirements the law imposes on the educational institutions. Next, it describes the role Title IX plays in disciplined-student …

Obama’S National Security Exceptionalism, Sudha Setty

Faculty Scholarship

This Article discusses how continued national security exceptionalism engenders a view of the United States as considering itself to be above international obligations to investigate and prosecute torturers and war criminals, and the view by the global community that the United States is willing to apply one standard for itself, and another for the rest of the world. Exceptionalism not only poses real challenges in terms of law, morality, and building useful relationships with allied nations, but acts as a step backward for the creation of enforceable international norms and standards, and in efforts to restore a balance in the …

Hormone Check: Critique Of Olympic Rules On Sex And Gender, Erin E. Buzuvis

Faculty Scholarship

Most sports, including all Olympic sports, are divided into two categories: men's and women's. This Article first presents a history of gender testing in Olympic and international sports to illustrate why past attempts to define eligibility for women's sports have proven unfair to women with intersex conditions. It then describes the shortcomings of the International Olympic Committee’s (IOC) first effort to articulate standards of eligibility for transgender athletes. In its second Part, this Article explains the more recent efforts of the IOC and the International Association of Athletics Federations (IAAF) to define eligibility for women's sports solely on the basis …

"As Who They Really Are": Expanding Opportunities For Transgender Athletes To Participate In Youth And Scholastic Sports, Erin E. Buzuvis

Faculty Scholarship

The aim of this Article is to assist the efforts of inclusion of transgender athletes by helping decision-makers in scholastic athletics and youth sports understand why and how to create inclusive policies. These decision-makers include leaders and stakeholders in local, state, and national sport organizations.

This Article begins with an overview of policies already adopted by interscholastic athletic associations and sport governing bodies that regulate youth sport programs. It critiques policies that categorically exclude and otherwise impose limitations on transgender persons who seek to participate in sports in a manner consistent with their gender identities (what this Article will refer …

Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of The Voting Rights Act Of 1965, Bridgette Baldwin

Faculty Scholarship

The Supreme Court, having found that certain states received unequal treatment under the Voting Rights Act, struck down the Act’s preclearance provision in its Shelby v. Holder holding. The Author, in an effort to critique the conclusion reached by the Court, argues that these states, historically responsible for obstructing the ability of African-Americans to vote, continue to engage in practices that result in voting irregularities and acts of discrimination in the electoral process. Today, this strategic disenfranchisement rears its head in the form of legislation making voting difficult or impossible for many minority voters, a criminal justice system that targets …

Preferential Judicial Activism, Sudha Setty

Faculty Scholarship

The Author examines the Supreme Court’s use of “preferential judicial activism”—whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences—through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the …

Barriers To Leadership In Women's College Athletics, Erin E. Buzuvis

Faculty Scholarship

Today there is an enormous gender disparity among collegiate head coaches and athletic administrators in the United States. Women fill less than a quarter of head coach and athletic director positions in college athletics and are even minorities among coaches of women's teams. Few other professions are as impervious to gender integration. Leadership in college athletics is, in the words of one scholar, one of the "few male bastions remaining," which raises the question: Why are women so starkly underrepresented in leadership positions within college athletics? There is no easy answer, but rather a variety of factors that exclude, deter, …

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Faculty Scholarship

The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a …

Symposium: Building The Arc Of Justice: The Life And Legal Thought Of Derrick Bell: Foreword, Matthew H. Charity

Faculty Scholarship

The four articles in this Symposium issue pay tribute to the work of Professor Derrick Bell by building on his challenges to the permanence of racial domination, to the potential limitations of good will inherent in the concept of interest convergence, and to the question of permanence not just of racism, but of other systemic biases since recognized, written on, and litigated. The articles range from the 19th century to the hegemonic war on terror, from Latin identity as a disruptive force, to recognition of subjugated identities allowing for the creation of coalitions to end oppression.

Was The First Justice Harlan Anti-Chinese?, James W. Gordon

Faculty Scholarship

The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one …

Targeted Killings And The Interest Convergence Dilemma, Sudha Setty

Faculty Scholarship

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur.

Twelve years after the terrorist attacks of September 11, 2001, numerous …

A Reasonable Belief: In Support Of Lgbt Plaintiffs' Title Vii Retaliation Claims, Erin E. Buzuvis

Faculty Scholarship

When an LGBT employee is punished for complaining about discrimination in the workplace, he or she has two potential causes of action under Title VII: first, a challenge to the underlying discrimination, and second, a challenge to the resulting retaliation. The first claim is vulnerable to dismissal under courts’ narrow interpretation of Title VII’s prohibition of discrimination “because of sex” as applied to LGBT plaintiffs. But such an outcome need not determine the fate of the second claim. Faithful application of retaliation law’s “reasonable belief” standard, which protects a plaintiff from reprisal so long as she reasonably believed that she …

In The Box: Voir Dire On Lgbt Issues In Changing Times, Giovanna Shay

Faculty Scholarship

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT …

Title Ix Feminism, Social Justice, And Ncaa Reform, Erin E. Buzuvis

Faculty Scholarship

This Article discusses social justice feminism as it applies to gender discrimination in collegiate and scholastic athletics in the context of Title IX requirements. Title IX activists today are primarily concerned with securing equal resources and opportunities for women in a college athletic environment. Today, that environment is becoming increasingly commercialized; this presents a Title IX problem because it creates an incentive to invest more athletic department resources into certain men’s athletic programs instead of distributing them equitably to women’s (and other men’s) programs. In addition, the NCAA is presently considering or has recently undertaken deregulation initiatives in a variety …

Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer Levi

Faculty Scholarship

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on …

Federal Equal Protection, Taylor Flynn

Faculty Scholarship

The Author explores the use of due process and equal protection guarantees from the U.S. Constitution as a means to challenge workplace discrimination faced by LGBT government employees. The Author also discusses how private employees must rely on Title VII of the Civil Rights Act to assert similar claims. Because sex discrimination is prohibited under both the Constitution and Title VII, federal courts have relied on reasoning in the former context when analyzing the latter, and vice versa. This means that a watershed case regarding one law can contain reasoning for the other. The Author goes on to the discuss …

"On The Basis Of Sex": Using Title Ix To Protect Transgender Students From Discrimination In Education, Erin E. Buzuvis

Faculty Scholarship

Transgender students are vulnerable to discrimination, exclusion, and harassment, and it is not clear to what extent this discrimination is prohibited by law. Title IX, the federal law prohibiting discrimination "on the basis of sex" in federally-funded schools, does not expressly prohibit discrimination against transgender students. Yet it is possible to interpret the prohibition on sex discrimination in a number of different ways that would make the law available to transgender plaintiffs in some, many, or all cases of discrimination otherwise covered by the statute. Since Title IX has only been invoked in a handful of transgender rights cases, litigants …

Transsexual And Intersex Athletes, Erin Buzuvis

Faculty Scholarship

In her chapter, the Author examines the impact of both past and present policies enacted by many sport organizations, such as the International Olympic Committee (IOC) on intersex and transsexual athletes. At the root of many of these policies, and therefore the issues, are the binary gender system and the concern that fraudulent competitors could gain an advantage relative to the rest of the field. While no longer mandatory, women athletes are still subject to varying degrees of sex verification testing on a case-by-case basis, as evidenced by the 2009 testing of South African runner, Caster Semenya.

Recent policies point …

Securing Equal Access To Sex-Segregated Facilities For Transgender Students, Harper Jean Tobin, Jennifer L. Levi

Faculty Scholarship

If Title IX is to have any real meaning for transgender students, it must protect a student's ability to live and participate in school as a member of the gender with which they identify. This means that students must be permitted to use gender-segregated spaces, including restrooms and locker rooms, consistent with their gender identity, without restriction. Denial of equal access to facilities that correspond to a student's gender identity singles out and stigmatizes transgender students, inflicts humiliation and trauma, interferes with medical treatment, and empowers bullies. A student subjected to these conditions is, by definition, deprived of an equal …

Equality Beyond The Three-Part Test: Exploring And Explaining The Invisibility Of Title Ix’S Equal Treatment Requirement, Erin E. Buzuvis, Kristine E. Newhall

Faculty Scholarship

It is clear from the proliferation of cases and complaints challenging programmatic disparities in school and college athletic programs that Title IX’s goal of equal treatment has not been fully realized. As the scholarship addressing equal treatment in athletics has been minimal, this Article is an effort to add to this scholarship in order to provide a greater understanding of equal treatment provisions. It examines why many school officials administer athletic departments in apparent oblivion to Title IX’s equal treatment mandate.

The Article provides the history of Title IX’s equal treatment provisions and their enforcement at the high school and …

The Dangers Of Reform: Normal Life: Administrative Violence, Critical Trans Politics, And The Limits Of Law, Jennifer L. Levi, Giovanna Shay

Faculty Scholarship

Professors Jennifer Levi and Giovanna Shay review Dean Spade's new book "Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law." They argue that Professor Spade's theoretical approach, which he describes as "critical trans politics," is most useful when employed to analyze issues relating to criminal punishment and mass incarceration, and that it is less appropriate as a critique of the marriage equality movement. Despite some areas of disagreement with Professor Spade, the Authors conclude that the book makes an important contribution.

The Place Of Law In Ivan Illich's Vision Of Social Transformation, Bruce K. Miller

Faculty Scholarship

This Article discusses Ivan Illich’s direction for social reform that led to his book, "Tools for Conviviality", where Illich targeted development, technology, and the exploitation of nature. Illich identified three key cultural institutions that needed to be reclaimed in order to bring about an inversion of industrial society: science, language, and law. This Article focuses on the rule of law and its central institutional invention—formal adjudication.

The Author suggests that Illich’s idealism can still be found in the law reform litigation effort and identifies the diminished stature of the ideal of disinterested adjudication as a significant threat to Illich’s hopes …