Sexuality and the Law Commons^™

Aligned: Sex Workers’ Lessons For The Gig Economy, Yvette Butler

Michigan Journal of Race and Law

Society’s perception of a type of work and the people who engage in money-generating activities has an impact on whether and how the law protects (or does not protect) the people who perform those activities. Work can be legitimized or delegitimized. Workers are protected or left out to dry depending upon their particular “hustle.” This Article argues that gig workers and sex workers face similar challenges within the legal system and that these groups can and should collaborate to their collective advantage when seeking reforms. Gig workers have been gaining legitimacy while sex workers still primarily operate in the shadow …

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 …

June Medical Services L.L.C. V. Gee: Brief For Constitutional Law Scholars Ashutosh Bhagwat, Lee C. Bollinger, Erwin Chemerinsky, Michael C. Dorf, Daniel Farber, Joanna L. Grossman, Pamela S. Karlan, Leah Litman, Martha Minow, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David A. Strauss, Laurence H. Tribe, And Mary Ziegler As Amici Curiae Supporting Petitioners, Leah Litman

Appellate Briefs

Amici are constitutional law scholars who teach and write in the field of constitutional law, including as it relates to regulation of abortion, and who have a shared interest in identifying the proper standards of review. This brief sets forth Amici's considered understanding of the framework governing abortion regulation, as established by the decisions of this Court, and how to preserve the undue burden test as established in this Court's precedents over the last two decades. It also explains why the decision below, if permitted to stand, would threaten the uniformity and supremacy of federal law.

Louisiana's Act 620 requires …

Bostock V. Clayton County, Georgia: Brief Of Statutory Interpretation And Equality Law Scholars As Amici Curiae In Support Of The Employees, Richard Primus

Appellate Briefs

Amici are law professors who specialize in statutory interpretation and/or equality law issues. Amici are well versed in this Court's statutory interpretation and Title VII precedents and have written on these issues. Although amici have otherwise diverse views, they agree that a textualist analysis compels the conclusion that discrimination against individuals because of their sexual orientation or their transgender status is a form of discrimination "because of ... sex" within the meaning of Title VII.

The question presented in these cases is whether Title VII prohibits discrimination against individuals because of their sexual orientation or their transgender status. This Court's …

R.G. & G.R. Harris Funeral Homes, Inc. V. Equal Employment Opportunity Commission: Brief Of Professors Samuel R. Bagenstos, Michael C. Dorf, Martin S. Lederman, Leah M. Litman, And Margo Schlanger As Amici Curiae In Support Of Respondent Stephens, Sameul Bagenstos, Leah Litman, Margo Schlanger

Appellate Briefs

Amici are legal scholars who teach and write on constitutional law and civil rights law. They submit this brief to call attention to one particular means of resolving this case that would not require the Court to determine whether Title VII prohibits discrimination against transgender individuals based upon their transgender status, as such. More broadly, amici seek to offer guidance on how to interpret Title VII in cases where employers require employees to comply with sex-specific dress, grooming, and presentation requirements in the workplace.

In order to resolve this case, it is not necessary for the Court to decide whether …

United States V. Haymond: Brief Of Social Science And Law Scholars As Amici Curiae In Support Of Respondent, J. J. Prescott

Appellate Briefs

Amici are eighteen scholars across six disciplines whose work includes the leading empirical studies of persons convicted of sexual offenses and the laws applied to them. The Appendix identifies them and describes their work.

Amici believe it critical that judicial decisions affecting constitutional rights be grounded on an accurate understanding of empirical realities. At the very least, they should not propagate misunderstandings. Unfortunately, such misunderstandings about the re-offense risk posed by people who have been convicted of sexual offenses are not only commonplace, but often traceable to language in early opinions of this Court. The Government invites the Court to …

Vasquez V. Foxx: Brief Of Eighteen Scholars As Amici Curiae In Support Of Petitioners, J. J. Prescott

Appellate Briefs

Amici are eighteen scholars across six disciplines whose work includes the leading empirical studies of persons convicted of sexual offenses and the laws applied to them. The Appendix identifies them and describes their work.

Amici believe it critical that judicial decisions affecting constitutional rights be grounded on an accurate understanding of empirical realities. At the very least, they should not propagate misunderstandings. Unfortunately, such misunderstandings are commonplace and often traceable to language in early opinions of this Court. The Seventh Circuit opinion in this case is an example. It relies on mistaken assumptions about both the re-offense risks posed by …

Gundy V. United States: Brief Of Scholars Whose Work Includes Sex Offense Studies As Amici Curiae In Support Of Petitioner, J. J. Prescott

Appellate Briefs

Amici are scholars whose work includes leading studies of persons convicted of sexual offenses and the laws applied to them. Amici are concerned that judicial decisions regarding these offenders have sometimes relied upon misunderstandings about the re-offense risks they pose and the impact of laws applied to them. Amici wish to provide the Court with accurate information about these subjects. Short biographies of each amicus are appended to this brief.

Discussions of sex offender registration take place against a backdrop of fear and loathing -fear that any change in law or practice that lifts registration requirements will result in great …

Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea

Michigan Law Review

A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.

The Strange Pairing: Building Alliances Between Queer Activists And Conservative Groups To Recognize New Families, Nausica Palazzo

Michigan Journal of Gender & Law

This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.”

The central claim of this Article is thus that …

The First Queer Right, Scott Skinner-Thompson

Michigan Law Review

A review of Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History.

Working Sex Words, Anita Bernstein

Michigan Journal of Gender & Law

Imagine yourself tasked to speak for a few minutes about legal controls on sex-selling in the United States, or any other country you choose. You need not have thought about the particulars. As someone willing to read a law review article, you have enough to say because sex-selling overlaps with the subject knowledge you already have. Criminal law, contracts, employment law, immigration law, tort law, zoning, commercial law, and intellectual property, among other legal categories, all intersect with this topic. In your brief remarks on how law attempts to mediate the sale and purchase of sex, you have only one …

Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission: Brief Of Amici Curiae Public Accommodation Law Scholars In Support Of Respondents, Samuel Bagenstos

Appellate Briefs

Amici are legal scholars with expertise in the historical and contemporary applications of the public accommodation laws. This brief argues that the First Amendment exemption Masterpiece claims would subvert the historic purpose of these laws: to promote equal dignity in the marketplace.

For more than half a century, state public accommodation laws across the country have protected against denials of dignity and equal treatment in the public marketplace. Throughout that period, this Court has consistently rejected arguments that businesses open to the general public have a constitutional right to provide less than the full and equal services required by such …

Frontiers Of Sex Discrimination Law, Jessica A. Clarke

Michigan Law Review

Review Gender Nonconformity and the Law by Kimberly A. Yuracko.

Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck

Michigan Journal of Gender & Law

This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of …

Can Prostitution Law Reform Curb Sex Trafficking? Theory And Evidence On Scale Substitution, And Replacement Effects, Simon Hedlin

University of Michigan Journal of Law Reform

Sex trafficking, a pervasive problem in many parts of the world, has become increasingly salient to policymakers and the general public. Activists, politicians, and scholars continue to engage in debates about how best to curb it. This Article discusses one especially contentious dimension of these debates: does banning prostitution reduce sex trafficking? Or is legalizing prostitution the optimal approach? Or is there a third, better way? Proceeding both theoretically and empirically, this Article seeks to cast light on the relationship between different types of prostitution laws and the prevalence of sex trafficking and human trafficking. It attempts to make three …

Gender And Non-Normative Sex In Sub-Saharan Africa, Johanna Bond

Michigan Journal of Gender & Law

This Article argues for the adoption of a gender-based framework to supplement rights promotion strategies and campaigns based on LGBTI identity. The Article draws upon feminist, queer, and trans theory to develop an expansive understanding of gender within international human rights law. An analysis incorporating such theory will catalyze more systematic promotion of LGBTI rights. Although the approach is applicable across a variety of geographic contexts, this Article uses sub-Saharan Africa as an illustrative case study. A focus on gender rights as supplementary to and interrelated with LGBTI rights offers both conceptual and pragmatic benefits in the struggle to promote …

The Incest Horrible: Delimiting The Lawrence V. Texas Right To Sexual Autonomy, Y. Carson Zhou

Michigan Journal of Gender & Law

Is the criminalization of consensual sex between close relatives constitutional in the wake of Lawrence v. Texas and Obergefell v. Hodges? Justice Scalia thought not. The substantive due process landscape has changed dramatically in response to the LGBTQ movement. Yet, when a girl in a sexual relationship with her father recently revealed in an anonymous interview with New York Magazine that they were planning to move to New Jersey, one of the only two states where incest was legal, the New Jersey legislature introduced with unprecedented speed a bill criminalizing incest. But who has the couple harmed? The very …

Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus

Michigan Journal of Gender & Law

LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …

Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan

Michigan Journal of International Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …

Stealth Advocacy Can (Sometimes) Change The World, Margo Schlanger

Michigan Law Review

Scholarship and popular writing about lawsuits seeking broad social change have been nearly as contentious as the litigation itself. In a normative mode, commentators on the right have long attacked change litigation as imperialist and ill informed, besides producing bad outcomes. Attacks from the left have likewise had both prescriptive and positive strands, arguing that civil rights litigation is “subordinating, legitimating, and alienating.” As one author recently summarized in this Law Review, these observers claim “that rights litigation is a waste of time, both because it is not actually successful in achieving social change and because it detracts attention and …

Obergefell V. Hodges, Et Al.: Brief Of Amici Curiae Family Law Scholars In Support Of Petitioners, Donald N. Duquette, Suellyn Scarnecchia, Frank E. Vandervort

Appellate Briefs

Amici Curiae -seventy four scholars of family law- respectfully submit this brief in support of Petitioners. The two questions presented here concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Amici have substantial knowledge of, and experience with, the state family laws that address marriage, parentage, and the wellbeing of children. Our brief demonstrates that the rationales proposed by Respondents for declining to license or recognize same sex marriages fundamentally conflict with basic family laws and policies in every state.

Kentucky, Michigan, Ohio, and Tennessee ban same-sex couples …

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.

Certiorari And The Marriage Equality Cases, Carl Tobias

University of Michigan Journal of Law Reform Caveat

Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.

A Joyful Heart Is Good Medicine: Sexuality Conversion Bans In The Courts, Wyatt Fore

Michigan Journal of Gender & Law

Led by California and New Jersey, states have begun to ban Sexual Orientation Change Efforts (SOCE) for minors. States have targeted SOCE, also called ‘gay conversion therapy,’ by regulating state licensure requirements for mental health professionals. Conservative legal groups have challenged these bans in federal court, alleging a variety of constitutional violations sounding in the First and Fourteenth Amendments. More specifically, these legal groups propose theories claiming that the bans infringe upon individuals’ freedom of speech, free exercise, and parental rights. In this Note, I survey the history of these bans, as well as court decisions that have rejected constitutional …

The Ninth Circuit's Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian Bartrum

Michigan Law Review First Impressions

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional amendment banning same-sex marriage, which is currently under review in the U.S. Court of Appeals for the Ninth Circuit. Perhaps even more surprising, Nevada's Republican governor agreed with that decision, concluding that the "case is no longer defensible in court." Ironically, all of this came after the plaintiffs had lost their case in the district court. But the federal constitutional landscape surrounding same-sex marriage is rapidly shifting, and in the nation's largest circuit change is coming quickly indeed. The latest upheaval—the decision that in fact prompted …

Let's Get Married: An Essay In Honor Of Mari Matsuda, Richard Delgado

Michigan Law Review First Impressions

Most unbiased evaluations of marriage as an institution consider it an unmitigated benefit, at least for those who enter into it willingly and avoid the shoals of divorce. Married people report higher levels of happiness than their unmarried counterparts, live longer, and lead healthier lives. They are less depressed, drink less, and report more satisfaction with their status than those who have never married or are divorced. The benefits of marriage also accrue to the children of married couples. The children of intact couples, whether straight or gay, are happier and more well adjusted, on average, than those of either …

Tyrone Garner's Lawrence V. Texas, Marc Spindelman

Michigan Law Review

Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas has been roundly greeted with well-earned praise. After exploring the book's understanding of Lawrence v. Texas as a great civil rights victory for lesbian and gay rights, this Review offers an alternative perspective on the case. Built from facts about the background of the case that the book supplies, and organized in particular around the story that the book tells about Tyrone Garner and his life, this alternative perspective on Lawrence explores and assesses some of what the decision may mean not only for sexual orientation equality but also for …

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 …

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 …