Law and Gender Commons^™

Inferring Desire, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.

This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual …

Harmless Amusement Or Sexual Harassment: The Reasonableness Of The Reasonable Woman Standard, Penny L. Cigoy

Pepperdine Law Review

No abstract provided.

Images Of Men In Feminist Legal Theory , Brian Bendig

Pepperdine Law Review

No abstract provided.

"There's No Place Like Home" Doma Deportation: The Forced Expatriation Of Bi-National Same-Sex Couples From The United States To Canada, Anh "Annie" Nguyen

San Diego International Law Journal

This comment will focus on bi-national same-sex couples who are forced to expatriate from the united states to canada because of DOMA’s detrimental effects on their relationship. more specifically, part I focuses on DOMA’s constitutionality, effects on bi-national same-sex couples, and current legal challenges. Part II provides a historical analysis of the united states’ attitude towards same-sex unions before describing current legislation regarding same-sex couples. Part III describes canada’s recognition of same-sex marriage and support of immigration equality, comparing and contrasting the canadian approach with the united states’ approach. Part IV explains the current legal and financial issues that bi-national …

Put The Town On Notice: School District Liability And Lgbt Bullying Notification Laws, Yariv Pierce

University of Michigan Journal of Law Reform

Congress could mitigate the problem of lesbian, gay, bisexual, and transgender (LGBT) student bullying by requiring that teachers and school officials report all bullying incidents to their school district administrators. Many school districts are not aware of the prevalence of LGBT bullying and the extent to which each school protects, or fails to protect, its LGBT students compared to other harassed students. LGBT students often encounter difficulty demonstrating that their school district has a policy or custom of deliberate indifference toward their equal treatment when a school does not equally protect an LGBT student from peer-to-peer bullying because of the …

An End To The Violence: Justifying Gender As A "Particular Social Group", Suzanne Sidun

Pepperdine Law Review

No abstract provided.

Engaging With Tradition: Mechanisms, Strategies, And Tactics, Michael Edwards

Center for Gender & Sexuality Law

The relationships between tradition and social justice are complex and contingent, conditioned by many factors including social context, individual attachments and mechanisms of transmission and re-enactment. These relationships may be positive, negative or neutral from the perspective of LGBT concerns, and they may be approached in a variety of different ways according to the goals and circumstances at hand. The Engaging Tradition Project aims to explore these patterns in order to establish when and why tradition forms a barrier to the achievement of gender and sexual justice, and to identify how tradition can be deployed in positive ways by activists …

The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders

Michigan Law Review

Same-sex marriage is now legal in six states, and tens of thousands of same-sex couples have already gotten married. Yet the vast majority of other states have adopted statutes or constitutional amendments banning same-sex marriage. These mini-defense of marriage acts not only forbid the creation of same-sex marriages; they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These nonrecognition laws effectively transform the marital parties into legal strangers, causing significant harms: property rights are potentially altered, spouses disinherited, children put at risk, and financial, …

Deciphering A Duality: Understanding Conflicting Standards In Sex & Violence Censorship In U.S. Obscenity Law, Rushabh P. Bhakta

Political Science Honors Projects

This research examines the division in US obscenity law that enables strict sex censorship while overlooking violence. By investigating the social and legal development of obscenity in US culture, I argue that the contemporary duality in obscenity censorship standards arose from a family of forces consisting of faith, economy, and identity in early American history. While sexuality ingrained itself in American culture as a commodity in need of regulation, violence was decentralized from the state and proliferated. This phenomenon led to a prioritization of suppressing sexual speech over violent speech. This paper traces the emergence this duality and its source.

Against The New Maternalism, Naomi Mezey, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

The biggest challenge for sex equality in the 21st Century is to dismantle inequality between women and men’s family care responsibilities. American law has largely accomplished formal equality in parenting by doing away with explicit gender classifications, along with many of the assumptions that fostered them. In a dramatic change from the mid-20th Century, law relating to family, work, civic participation and their various intersections is now virtually all sex-neutral. As the Supreme Court’s 2003 decision in Nevada Department of Social Services v. Hibbs demonstrates, both Congress and the Court have accepted the feminist critique of sex roles and stereotyping …

Fear Of The Queer Child, Clifford Rosky

Utah Law Faculty Scholarship

This article is about the fear of the queer child — the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual acts, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender. This fear is thousands of years old, but it has undergone a remarkable transformation in the last half-century, in response to the rise of the LGBT movement. For centuries, the fear had been articulated specifically in sexual terms, as a belief that children would be seduced into queerness by adults. Since the 1970s, it …

A Law And Literature Approach To Stumped By Debora Threedy, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

In this response, I will begin by identifying questions and issues about Stumped that might present themselves from law in literature and law as literature perspectives. This analysis will be followed by a discussion of the play from a particular law and narrative approach, one that ideologically is allied with feminist jurisprudence and critical race studies. Finally, I will conclude by examining the play in connection with scholarship on the cultural study of law, specifically emphasizing ways in which law and literature mutually constitute one another as opposed to being distinct categories of knowledge.

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Regulating At The Margins: Non-Traditional Kinship And The Legal Regulation Of Intimate And Family Life, Courtney Megan Cahill

Scholarly Publications

This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection— same-sex relationships, domestic partnerships, de facto parenthood, and nonsexual procreation—the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, then, the law can be aspirational in a way that the Constitution would ordinarily prohibit and can attempt to channel all of us in ways that …

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, …

Study Guide For United In Anger: A History Of Act Up, Matt Brim

Open Educational Resources

The United in Anger Study Guide facilitates classroom and activist engagement with Jim Hubbard’s 2012 documentary, United in Anger: A History of ACT UP. The Study Guide contains discussion sections, projects and exercises, and resources for further research about the activism of the New York chapter of ACT UP (AIDS Coalition to Unleash Power). The Study Guide is a free, interactive, multimedia resource for understanding the legacy of ACT UP, the film’s role in preserving that legacy, and its meaning for viewers' lives.

Response: And Baby Makes How Many - Using In Re M.C. To Consider Parentage Of A Child Conceived Through Sexual Intercourse And Born To A Lesbian Couple, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Trouble In Sin City: Protecting Sexy Workers' Civil Rights, Ann C. Mcginley

Scholarly Works

While Las Vegas has always been known for its libertarian attitudes toward gambling and sexually provocative shows, after a short, failed attempt during the 1990’s to characterize itself as a family destination, the City has turned up the heat. Las Vegas, which relies increasingly on selling sex appeal to promote its value to the public, has become the number one adult entertainment destination in the United States. There is, however, trouble in paradise. A number of the casino-based clubs (both day and night) have been sued; others have closed due to illegal prostitution; some have paid large fines to the …

The Lawmaking Family, Noa Ben-Asher

Faculty Publications

Increasingly there are conflicts over families trying to “opt out” of various legal structures, especially public school education. Examples of opting-out conflicts include a father seeking to exempt his son from health education classes; a mother seeking to exempt her daughter from mandatory education about the perils of female sexuality; and a vegetarian student wishing to opt out of in-class frog dissection. The Article shows that, perhaps paradoxically, the right to direct the upbringing of children was more robust before it was constitutionalized by the Supreme Court in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In …

Sexual Harassment 2.0, Mary Anne Franks

Articles

Sexual harassment is a complex and evolving practice. The rise of sexual discrimination in cyberspace is only one of the most recent and most striking examples of the phenomenon's increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately "updated" to address new and amplified practices of sex discrimination. Its two principal limitations are (1) it treats only sexual harassment that occurs in certain protected settings (e.g. the workplace or school) as actionable and (2) it assumes that both the activity and the resulting harm of sexual harassment occur in the …

Reproducing Value: How Tax Lax Differentially Values Fertility, Sexuality, And Marriage, Tessa Davis

Cardozo Journal of Equal Rights & Social Justice

Section 213 of the Internal Revenue Code permits a deduction for an individual's fertility expenses, but it does not do so evenhandedly. This paper focuses on the current discriminatory effects of Section 213 doctrine as it is applied to the deductibility of fertility treatments for single persons and or homosexual couples, as compared to heterosexual, married couples. Traditional economic analysis of the Code fails to explain such discrimination, thus a new approach is required. Utilizing tools from anthropological theory, this paper recognizes and analyzes our tax code-and specifically Section 213-as a cultural artifact and therein challenges the presumed objectivity of …

"U" Stands For Underutilization: The U Visa's Vulnerability For Underuse In The Sex Trafficking Context, Erin Bistricer

Cardozo Journal of Equal Rights & Social Justice

The U Visa, established in 2000 under the Violence Against Women Act (VAWA) reauthorization, was designed to provide legal status to victims of certain crimes, including sex trafficking, without fear of deportation. However, its implementation has been hindered by significant challenges, including delayed regulations, confusion among applicants, and reliance on law enforcement cooperation, which can be a barrier for traumatized victims. While the U Visa offers more flexibility than the T Visa by covering a broader range of crimes and requiring a lower standard of proof, its effectiveness is limited by factors such as annual caps, inadequate state anti-trafficking laws, …

Factions For The Rest Of Us, John D. Inazu

Scholarship@WashULaw

This essay responds to essays by Professors Ashutosh Bhagwat, Susan Appleton, and Robert Vischer on my book Liberty’s Refuge: The Forgotten Freedom of Assembly. The essays were presented at a March 2012 discussion hosted by Washington University School of Law that included additional presentations from Gregory Magarian, Bernadette Meyler, Ian MacMullen, and Neil Richards.

I had three objectives in writing Liberty’s Refuge, one diagnostic, one historical, and one normative. The diagnosis highlights difficulties with the current doctrine of intimate and expressive association. The history excavates the prominent role that the right of assembly occupies in our constitutional and popular past. …

The New Illegitimacy: Winning Backward In The Protection Of The Children Of Lesbian Couples, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Dealing With Doma: Federal Non-Recognition Complicates State Income Taxation Of Same-Sex Relationships, Carlton M. Smith, Edward D. Stein

Articles

Various states now recognize relationships between people of the same-sex, but due to the Defense of Marriage Act, the federal government does not. In the context of income taxes, this combination of state recognition and federal non-recognition of same-sex relationships produces a significant problem for many same-sex couples and some state taxing authorities. Most states have income tax and, typically, state income tax laws “piggyback” on federal income tax laws. Depending on the state, same-sex couples in legally-recognized relationships must file their state income tax returns as married (either “filing jointly” or “filing separately”), as domestic partners, or as parties …

Between Victim And Agent: A Third-Way Feminist Account Of Trafficking For Sex Work, Shelley Cavalieri

Indiana Law Journal

Feminist legal theorists have devoted enormous attention to conceptualizing the issues of sex work and trafficking for sexual purposes. While these theories vary, they typically fall into one of two camps. The abolitionist perspective, having grown out of dominance feminist theory, perceives sex work as inherently exploitative. In contrast, a second group of theorists adopts a liberal notion of individual choice and draws on the poststructuralist rejection of gender essentialism to envision a theoretical model of sex-worker rights. The legal and public policies that grow from these two models are similarly polarized. Radical feminist abolitionists are often strange bedfellows with …

From 'Barbarity' To Regularity: A Case Study Of 'Unnecesarean' Malpractice Claims, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This paper is a case study from “barbarity” to “regularity” examining comparatively the first ever “unnecesarean” lawsuit arising out of an 1858 cesarean section malpractice case next to a modern forced cesarean section malpractice suit. It positions the modern “unnecessarean” epidemic, in which 30% of births today are by cesarean section, in a historical medical malpractice context. This case study primarily examines a controversial 1858 lawsuit arising out of the first documented cesarean section performed by the revered Dr. Elias Cooper in California. The surgery left Mary Hodges’s bladder, womb, and intestines permanently fused together and left her permanently disfigured. …

Band-Aid Solutions: New York’S Piecemeal Attempt To Address Legal Issues Created By Doma In Conjunction With Advances In Surrogacy, James Healy

Pace Law Review

No abstract provided.

Who Am I And Who Do You Want Me To Be? Effectively Defining A Lesbian, Gay, Bisexual, And Transgender Social Group In Asylum Applications, Keith Southam

Chicago-Kent Law Review

Asylum law provides an area within immigration law that is unexpectedly friendly to lesbians, gay men, bisexuals, and transgender persons. Persons who suffer persecution on account of "membership in a particular social group" are eligible to live and work in the United States. This encompasses lesbians, gay men, bisexuals, and transgender persons who suffer persecution. However, United States law does not clearly define applicable standards in this area. As a result, different adjudicators in the asylum process focus on different methodological approaches and sometimes inject bias into the process. In addition, because the terms "lesbian," "gay," "bisexual," and "transgender" are …

The Iaaf Hyperandrogenism Regulations And Discrimination, Shawn Crincoli

Scholarly Works

No abstract provided.