Law and Gender Commons^™

Bostock And Contact Theory: How Will A Single U.S. Supreme Court Decision Reduce Prejudice Against Lgbtq People?, Mantas Grigorovicius

Indiana Law Journal

In 1954, Gordon Allport, one of the nation’s leading social psychologists, laid out a hypothesis explaining how prejudice could be reduced by intergroup contact. Decades later, his hypothesis became a theory with thousands of research hours behind it. Under contact theory, one of the factors that facilitates a reduction in prejudice between two groups is support of authorities or law. This Comment focuses on Bostock v. Clayton County, a recent Supreme Court decision holding that Title VII prohibits discrimination based on sexual orientation. Allport suggested that antidiscrimination laws help to “lead and guide the folkways,” and this Comment explores how …

Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

Law Faculty Articles and Essays

Fourteenth Amendment substantive due process fundamental rights doctrine is about love. It is, at least, based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, the case in which the Supreme Court held that same-sex marriage is a fundamental right of individual autonomy and dignity.

Part I of this Article discusses the concept of love. Part II examines Justice Kennedy’s majority opinion in Obergefell and argues that it expresses unconditional love for LGBT people in tone, language, and substance. Part III argues that, in Obergefell, Kennedy’s key reasons for concluding that marriage is …

Gendered Normativities: The Role And Rule Of Law, Susanne Baer

Book Chapters

In the 21st century, human rights are as present as they are endangered. Specifically, sex/gender equality rights are contested, or actively abridged, which is to be understood as an attack on women and on people who do not fit a ‘normal’ pattern of gender relations. Yet in addition, these are attacks on democratic constitutionalism itself. The article argues that to properly understand the recent contestations of human rights, one must distinguish between critique and attack, and revisit the very form and content of human rights, to deal with law’s ambivalence, such as ‘legal colonialism’, and also take into account critical …

What We Are Owed: The Possibilities Of A Civil Law Response To Sexual Injuries, Nathalie Marx

Scripps Senior Theses

Drawing from philosophical, feminist, and legal frameworks, this thesis aims to reconceptualize our understanding of sexual violations. I suggest that rape and other sexual violations produce injuries unique from other forms of physical violence that must be addressed as an extension of a culture which objectifies, restricts the agency of, and shames women. It is argued that through the ability for survivors to bring a civil claim of negligence against their perpetrators following a sexual injury, pathways for restorative healing and cultural transformation are opened, and a more responsive legal standard for fault is created. This paper responds to theories …

Leaving “Sex” Out Of It: Amending The Federal Arbitration Act To Ensure Bostock’S Victory For Lgbtq Employee Rights, Sheya Rivard

Roger Williams University Law Review

No abstract provided.

Small Gestures And Unexpectedconsequences: Textualist Interpretationsof State Antidiscrimination Lawafter Bostock V. Clayton County, Anastasia E. Lacina

Fordham Law Review

The U.S. Supreme Court’s landmark decision in Bostock v. Clayton County expanded Title VII’s coverage of victims of sex discrimination in employment by interpreting the statute to also protect LGBTQ+ employees who were discriminated against because of their sexual orientation and/or gender identity. Although Bostock only applies precedentially to Title VII, the long and interwoven history of state antidiscrimination statutes shows that the ruling may reach beyond federal law. This Note examines state court cases that have considered whether to apply Bostock’s reasoning to the interpretation of state antidiscrimination statutes. Furthermore, this Note argues in favor of a path …

The Visibility Trap, Kate Redburn

Faculty Scholarship

Vice Patrol offers a novel history of the visibility trap. It integrates interventions in legal history, history of sexuality, and queer theory with remarkable ease. Lvovsky brings new insight to a question that has puzzled scholars across several fields: Why and how does cultural representation lead to increased state repression? Blending impressive archival research with sophisticated theoretical analysis, Lvovsky follows cultural knowledge into the legal system to offer a fresh diagnosis of the problem and how it develops. In her discovery of “epistemic gaps,” she uncovers a key mechanism of the visibility trap. Disagreements between the police and the courts, …

What's Wrong With The Ncaa's New Transgender Athlete Policy?, Erin E. Buzuvis

Faculty Scholarship

This Article examines the NCAA’s 2022 transgender athlete participation policy, which replaced the 2011 uniform eligibility rule with a sport-by-sport approach deferring to external governing bodies. It assesses the ambiguities created by this deference, particularly in sports where no clear policy exists, as well as the arbitrariness of the default testosterone threshold the NCAA adopted. It analyzes the tension between the NCAA’s stated alignment with Olympic frameworks and the reality that those frameworks were not designed for the collegiate context. It also considers the legal risks posed to NCAA member institutions, including potential liability under Title IX and the Equal …

The Limitations And Alternatives To Expanding The Equal Pay Act Under Bostock V. Clayton County, Ga., Valentina Wilson

University of San Francisco Law Review

No abstract provided.

#Metoo: Music Industry Edition, Nazarene Anderson

University of San Francisco Law Review

No abstract provided.

Weathering The Storm: Is California’S Anti-Harassment Education Training The Life Preserver Lgbtq Youth Have Been Hoping For?, Natalie Purcell O'Dwyer

University of San Francisco Law Review

No abstract provided.

Transgender Student-Athletes Punch Back: A Legal Analysis Of States' "Fairness In Women's Sports Act" And How It Violates The Fourteenth Amendment And Title Ix, Daniel Jimenez

University of San Francisco Law Review

No abstract provided.

How To Bring Your Kids Up Queer: Family Law Realism, Then And Now, Kris Franklin, Noa Ben-Asher

Faculty Publications

(Excerpt)

Paula Ettelbrick fought for us.

As a pragmatic and radical litigator, Ettelbrick spent years trying to use a frequently uncomprehending and often outright hostile court system to protect LGBTQ+ Americans. While her work took her into the many areas of law that touched queer lives, a special focus and passion of her advocacy was reserved for queer families.

Paula also tried to warn us.

In the absence of legal recognition for the families we construct, queer lives are rendered not just invisible but virtually nonexistent; we become legal strangers to our loved ones in ways that violently obliterate our …

Weaponizing Fear, Lisa S. Washington

Faculty Scholarship

No abstract provided.

Introduction To Julie Bilotta’S Story, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Julie Bilotta’s contribution to this special volume is a straightforward denunciation of prison-based inhumanity and institutionalized misogyny. I write to show solidarity with her and to alert the reader to some of the ways her story exposes intersectional injustice while enlivening feminist abolitionist prison resistance. I write, too, to challenge my own and others’ thinking about whether or how law (litigation, law reform) might contribute to that resistance.

In her essay, Julie offers an intimate glimpse of prisons as sites of reproductive injustice. As this special volume attests, incarceration in Canada and elsewhere produces systematic gendered harms, including lack of …

Religious Mediation As A Tool To Resolve Disputes Between Religious Universities And Their Lgbt Students, Isaac Altman

Cardozo Journal of Conflict Resolution

Though the LGBT (Lesbian, Gay, Bisexual, and Transgender) rights movement has made immense strides in recent years, there are many people who have been left behind in the sprint towards LGBT equality. Some of those are students or prospective students at religious schools, who can face discriminatory attitudes or be rejected outright by these institutions. While religiosity is generally associated with positive mental health outcomes, research shows that LGBT people who experience religious identity conflict are at significant risk of suicide. Religious institutions, for their part, are scrambling to adjust to the new reality in which their positions on LGBT …

Before Equal Protection: The Fall Of Cross-Dressing Bans And The Transgender Legal Movement, Kate Redburn

Faculty Scholarship

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms – for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, …

Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont

Articles & Book Chapters

Myths and stereotypes represent an ongoing problem in Canadian sexual assault trials. Often, and paradigmatically, defence lawyers and trial judges rely on discredited sexist assumptions to the prejudice of female sexual assault complainants. However, a review of the recent appellate case law reveals many cases that do not fit this paradigm. Complications that have arisen include stereotypes about men or accused persons, legitimate defence arguments misidentified as stereotypes, close cases where reasonable people disagree about whether stereotypes have been invoked, and prejudicial forms of reasoning based other axes of discrimination. This paper surveys these developments and assesses an attempt by …

Classrooms Into Courtrooms, Naomi M. Mann

Faculty Scholarship

The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

Notre Dame Law Review

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, …

The 5th Annual Stonewall Lecture: Featuring Keynote Speaker Taylor Brown, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Integrating Doctrine And Diversity Speaker Series: When Law School Classroom Discussions Of Diversity Issues Go Wrong, Roger Williams University School Of Law, City University Of New York School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Addressing The Harms Of Pornography, Gillian Allison

Honors Program: Senior Projects (Public)

Within this paper I look at the existing philosophical work on pornography, from scholars like Catherine MacKinnon, Ronald Dworkin, and Rae Langton to show the current state of the pornography debate that I intend to enter by presenting my own argument about the morality of pornography. I argue that while pornography is harmful, these harms are best resolved through increased sexual education and the popularization and production of more inclusive pornography. The harms pornography causes are so great because pornography is where a lot of people learn about sex. Pornography was never designed to depict an average sexual experience. If …

Equal Justice Under Law: Navigating The Delicate Balance Between Religious Liberty And Marriage Equality, Meg Penrose

Faculty Scholarship

This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections …

Constructing The Yellow Brick Road: Preventing Discrimination In Financial Services Against The Lgbtq+ Community, Cyrus Mostaghim

Michigan Business & Entrepreneurial Law Review

The Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (“LGBTQ+”) community lacks explicit statutory protections from discrimination in financial services. After the Supreme Court held in Bostock that employment discrimination based on sexual orientation or gender identity was illegal, the Consumer Financial Protection Bureau (CFPB) issued an informal interpretive rule for the Equal Credit Opportunity Act (ECOA) and Regulation B that made discrimination in the access to credit based on sexual orientation or gender identity illegal.

However, this article argues that an informal interpretive rule is easily rescinded and does not provide sufficient protection. Thus, alternative action is needed to create …

Law, Criminalisation And Hiv In The World: Have Countries That Criminalise Achieved More Or Less Successful Pandemic Response?, Matthew M. Kavanagh, Schadrac C. Agbla, Marissa Joy, Kashish Aneja, Mara Pillinger, Alaina Case, Ngozi A. Erondu, Taavi Erkkola, Ellie Graeden

O'Neill Institute Papers

How do choices in criminal law and rights protections affect disease-fighting efforts? This long-standing question facing governments around the world is acute in the context of pandemics like HIV and COVID-19. The Global AIDS Strategy of the last 5 years sought to prevent mortality and HIV transmission in part through ensuring people living with HIV (PLHIV) knew their HIV status and could suppress the HIV virus through antiretroviral treatment. This article presents a cross-national ecological analysis of the relative success of national AIDS responses under this strategy, where laws were characterised by more or less criminalisation and with varying rights …

Twists & Swirls: Caregiving & Sexualization—Femininity Construct In Gendered Migration From Nigeria To Italy, Christiana Essie Sagay

Indiana Journal of Global Legal Studies

With globalization, interconnectivity, and the possibilities of increased income through wage differentials comes the desirability to migrate for labour. Contrary to early migration theories, women are increasingly migrating for labour independent of male breadwinners. Therefore, "temporary and permanent movements are globalizing, accelerating, diversifying and feminizing." The influence of gender on migration has become so convoluted that culturally and socially constructed roles of masculinity and femininity motivate and inspire migration trends among many women migrating from Nigeria to Italy, creating a sort of gendered social agency. This piece offers an analysis of how social contexts and gendered expectations shape the desires …

Court Rejects Web Designer’S Challenge To Colorado Anti-Discrimination Law, Arthur S. Leonard

Other Publications

No abstract provided.

What An Ethics Of Discourse And Recognition Can Contribute To A Critical Theory Of Refugee Claim Adjudication: Reclaiming Epistemic Justice For Gender-Based Asylum Seekers, David Ingram

Philosophy: Faculty Publications and Other Works

Abstract: Using examples drawn from gender-based asylum cases, this chapter examines how far recognition theory (RT) and discourse theory (DT) can guide social criticism of the judicial processing of women’s applications for protection under the Geneva Convention Relating to the Status of Refugees (1951) and subsequent protocols and guidelines put forward by the United Nations High Commissioner for Refugees (UNHCR). I argue that these theories can guide social criticism only when combined with other ethical approaches. In addition to humanitarian and human rights law, these theories must rely upon ideas drawn from distributive, compensatory, and epistemic justice. Drawing from recent …

Sexual Harassment: A Doctrinal Examination Of The Law, An Empirical Examination Of Employer Liability, And A Question About Ndas— Because Complex Problems Do Not Have Simple Solutions, Michael Heise, David S. Sherwyn

Indiana Law Journal

The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees …