Sexuality and the Law Commons^™

What Personhood Means, Laura Portuondo

Michigan Law Review

A review of Personhood: The New Civil War over Reproduction. By Mary Ziegler.

Unwelcomeness Reconsidered: Adapting Sexual Harassment Law In The Long Wake Of #Metoo, Collin Christner

Michigan Law Review

The federal cause of action for sexual harassment in employment grew out of Title VII’s prohibition of workplace sex discrimination. In many circuits, for sexual harassment claims to be actionable, the plaintiff must show they found the referenced conduct “unwelcome.” Commentators have criticized that requirement since its inception; nonetheless, it has been wielded by courts that are either resistant or reluctant to abandon it. “Unwelcomeness” (or lack of evidence thereof) has been used to permit swaths of inappropriate workplace conduct— enshrining old, sexist stereotypes into America’s employment regulations. This Note evaluates the current approach to the unwelcomeness requirement and proposes …

Pornographic Deepfakes And Ugly Social Facts: The Costs Of A Normative Approach To Defamation, Kathleen Ross

Michigan Law Review

Around the world, women and girls are being victimized by pornographic deepfakes— alarmingly convincing, sexually exploitative images and videos generated using artificial intelligence (AI). Facing statutory gaps, victims may turn to traditional tort law claims to recover for the injuries inflicted by pornographic deepfakes. Defamation law, which protects against reputational injuries caused by false statements, is a particularly compelling arena for vindicating the interests invaded by a pornographic deepfake—interests which are, at their heart, social and reputational. Fortunately for deepfake victims, a pornographic deepfake will often satisfy defamation’s basic elements: A false and defamatory communication that concerns the victim and …

Health Care Civil Rights: Addressing The American Maternal Mortality Disparity Through Health, Law, And Policy, Victoria Pedri

Michigan Journal of Gender & Law

The United States is facing a pressing issue in maternal health, standing out as uniquely dangerous among similarly situated nations, with significant disparities in maternal mortality rates, particularly affecting Black American pregnant people. This paper, “Health Care Civil Rights: Addressing the American Maternal Mortality Disparity Through Health, Law, and Policy,” argues that by addressing the root cause of the Black Maternal Mortality Disparity (BMMD)—structural racism—and implementing rigorous, enforced standards of care, the United States can ensure safer childbirth experiences for Black pregnant people. Utilizing intersectional and anti-racist frameworks, the analysis identifies inferior medical care, particularly in diagnosing and treating preventable …

From Medical Exceptions To Reproductive Freedom, David S. Cohen, Greer Donley

Michigan Law Review

Since the Supreme Court overruled Roe v. Wade in 2022, there has been a significant focus on pregnancy complications. This focus has created some risks. Highlighting medically indicated abortion stories could stigmatize the vast majority of abortion seekers who lack medical reasons for abortion and result in narrow remedies that do nothing to undermine abortion bans. This Article presents a way to convert these risks into an opportunity: to use pregnancy complications as a wedge to challenge abortion bans more generally and make abortion more accessible for everyone. We present a long-term strategy to dismantle abortion bans, using several legal …

Retrenchment By Diversion: The New Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Michigan Law Review

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

The Comstock Act’S Equal Protection Problem, Danny Y. Li

Michigan Law Review Online

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Affiliates of the second Trump Admin- istration—including the vice president-elect—have endorsed the re- newed enforcement of the 1873 Comstock Act as one avenue for implementing such a ban. This Essay argues that contemporary enforce- ment of the Comstock Act as a national abortion ban would be unconsti- tutional. The Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of in- hibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally …

Free To Be You But Not Me?, Leah Litman

Reviews

In Gendered Liberty, Prof. Laura Portuondo presents a doctrinal puzzle: While claims to individual liberty are in decline in some spaces, they are ascendant in others. As Portuondo describes things, constitutional law has become increasingly hostile to claims by people who seek to defy gendered stereotypes. That includes the women who, for whatever reason, do not want to become mothers when they are pregnant, as well as the women whose lives, health, or fertility would be in jeopardy if they became mothers. The Supreme Court overruled their claims to liberty in Dobbs v. Jackson Women’s Health Organization.

Marriage, Courts, And Substantive Equality: A Transformative Interpretation, Kushagr Bakshi

Michigan Law Review

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

University of Michigan Journal of Law Reform

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision that overruled Roe v. Wade’s constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy …

Toward An Absolute Privilege From Defamation For Statements Made In Campus Sexual Misconduct Proceedings, Elizabeth Munoz-Smith

University of Michigan Journal of Law Reform

Title IX prohibits recipients of federal funding from discriminating on the basis of sex in their education programs and activities. The regulations implementing Title IX impose strict requirements on the procedures that institutions must follow in investigating and adjudicating complaints of sexual harassment. But survivors using campus processes are facing potential liability for defamation at an increasing rate. The existence of this threat leads to further underreporting of an already-underreported crime, a detrimental impact on survivors’ education, and psychological stress created by the re-traumatization of a civil suit that carries potential monetary liability for their report. This Note argues that …

Sexual Assault Victims Face A Penalty For Adjacent Consent, Jillian J. Jordan, Roseanna Sommers

Articles

Sexual assault is pervasively underreported, and victims are often blamed and stigmatized. We highlight an important but overlooked factor that may contribute to these outcomes: adjacent consent. Even when a rape is objected to verbally and physically, and accomplished only through violent force, respondents see the victim as less virtuous and deserving of support if she previously consented to something sexual with her perpetrator (e.g., kissing, foreplay, sex on a prior occasion). Our findings are striking in an age of “no means no” and “affirmative consent”—and notably hold among even young and politically progressive respondents who do not otherwise disapprove …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

Articles

On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …

On The Genealogy Of Intimate Digital Harm, Aziz Z. Huq

Michigan Law Review

A review of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. By Danielle Keats Citron.

How Viable Is Viability? Artificial Womb Technology And The Threat To Abortion Access, James E. Brown

Michigan Journal of Gender & Law

The viability standard plays an important role in abortion access around much of the United States. In fact, before the Dobbs decision, the viability standard was the constitutional gatekeeper to abortion access and was uniform across the entire nation. Unfortunately, the Supreme Court has removed the constitutional right to abortion altogether. Nevertheless, I will provide an argument as to why Dobbs does not signal the end of viability-based abortion around the U.S. I will prove the importance of the viability standard even in a post-Dobbs society, highlighting its operation within various state laws, such as Michigan’s Prop. 3, as well …

Public Accommodations Parlance, Grace Vedock

Michigan Law Review

Anxieties linger in the interstices of public accommodations law. 303 Creative LLC v. Elenis is the latest in a string of First Amendment cases that call into question the common law duties underpinning public accommodations doctrine. Many commentators have speculated about the decision’s immediate implications. But criticism of the decision is incomplete. This Note takes 303 Creative as a welcome opportunity to reevaluate basic assumptions about how property law operates in relation to constitutional norms. Beginning with the provocative assertion that no legal axiom is infallible, this Note examines permutations of public accommodations and First Amendment law as rhetorical threads …

Toggle Boggle, Leah Litman

Reviews

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin

Articles

Disruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease …

Policing Queer Sexuality, Ari Ezra Waldman

Michigan Law Review

A Review of Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall. By Anna Lvovsky.

Litigation, Referendum Or Legislation? The Road To Becoming The First In Asia To Institutionalize Same-Sex Marriage, Tzu-Chiang Huang

Michigan Journal of Gender & Law

In the pursuit of same-sex marriage, advocates in each country evaluate the appropriate decision-making process for addressing this highly disputed issue—litigation, legislation, or referendum. The choice may be partially based on the institutional advantages of each approach, but more importantly, the choice is also conditioned by the legal and political context of each country, such as the authority of the court, the framing of public opinion, and the dynamics between movement and countermovement. Uniquely, all three decision-making processes are involved in the course of the institutionalization of same-sex marriage in Taiwan. This Article, focusing on the experience in Taiwan, examines …

Sexual Orientation, Gender Identity, And Homelessness Post-Bostock, Alaina Richert

University of Michigan Journal of Law Reform

Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, …

Defining Sexual Orientation: A Proposal For A New Definition, Andrew Park

Michigan Journal of Gender & Law

Laws prohibiting discrimination based on sexual orientation are becoming more common in all parts of the world. Few of these laws provide useful definitions of the term sexual orientation. As a result, the meaning and impact of these laws remains unclear. This Article reviews past and current definitions of sexual orientation according to how well they incorporate current empirical knowledge of sexual orientation, and how their use in human rights laws impacts the dignity, right to equality, and human development of sexual minorities. The Article gives particular attention to the definition of sexual orientation found in the Yogyakarta Principles which …

Reproduction And Gender Self-Determination: Fertile Grounds For Trans Legal Advocacy, Samira Seraji

Michigan Journal of Gender & Law

Current medical constructions of trans identities reflect heterosexist understandings of gender expression—understandings that deny access to gender-affirming healthcare to those who fail to perform normative binary genders. As medical providers establish norms for how to “properly” be trans, the state codifies these norms, basing trans existence on rigidly defined and harshly enforced understandings of binary gender. When this construction of transness is codified on an institutional level, such as with gender reclassification rules for government identification, it forces trans people to conform their bodies to cisgender norms, and dangerously disrupts trans people’s bodily autonomy and diminishes their control over their …

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 …

Why Are You Here? Modeling Illicit Massage Business Location Characteristics With Machine Learning, Anna White, Seth Guikema, Bridgette Carr

Articles

Illicit massage businesses are a venue for sex and labor trafficking in the United States. Though many of their locations are made publicly available through online advertising, little is known about why they choose to locate where they do. In this work, we use inferential modeling to better understand the spatial distribution of illicit massage businesses within the U.S. Based on addresses web-scraped weekly from online advertisements over 6 months, we modeled illicit massage business prevalence at the census tract and county levels. We used publicly available data to characterize census tracts and counties, finding that the state in which …

Dobbs V. Jackson Women's Health Organization: Brief For Constitutional Law Scholars Lee C. Bollinger, Erwin Chemerinsky, Sherry F. Colb, Michael C. Dorf, Daniel Farber, Joanna L. Grossman, Leah Litman, Martha Minow, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David A. Strauss, And Laurence H. Tribe As Amici Curiae Supporting Respondents, Leah Litman

Appellate Briefs

Amici, listed in Appendix A, are constitutional law scholars who teach and write in the field of constitutional law, including on limits on the regulation of abortion. They share an interest in promoting the stability of this Court’s abortion jurisprudence as well as its continuity with the constitutional law governing related rights.<\p>

For nearly 50 years, the Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects a woman’s fundamental right to decide whether to have an abortion. See Roe v. Wade, 410 U.S. 113, 153-54 (1973). Accordingly, in Roe, the Court held that prior …

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 …

The Enemy Is The Knife: Native Americans, Medical Genocide, And The Prohibition Of Nonconsensual Sterilizations, Sophia Shepherd

Michigan Journal of Race and Law

This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. …

Illegal Sex Toy Patents, W. Nicholson Price Ii

Reviews

In Patenting Pleasure, Professors Sarah Rajec and Andrew Gilden highlight a surprising incongruity: while many areas of U.S. law are profoundly hostile to sexuality in general and the technology of sex in particular, the patent system is not. Instead, the U.S. Patent and Trademark Office (USPTO) has over the decades issued thousands of patents on sex toys—from vibrators to AI, and everything in between. This incongruity is especially odd because patent law has long incorporated a doctrine that specifically tied patentability to the usefulness of the invention, and up until the end of the 20th century one strand of that …

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …