Sexuality and the Law Commons^™

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Respondents: St. Mary Catholic Parish V. Roy, Catherine Smith, Tanya Washington, Robin Walker Sterling, Suzette Malveaux, Barbara Bennett Woodhouse, Sara S. Hildebrand, Abigail L. Fleming, Jeremiah Chin

Scholarly Articles

This Court should consider those most directly impacted by the decision in this case: the intended beneficiaries of Colorado’s Universal Preschool Program (“UPK”), Colorado’s children. To paraphrase Shakespeare, though they be but little, they are constitutional rights-bearers and are thus entitled to be free from state-funded discrimination.

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the significant harms children in the LGBT community would bear should Colorado be compelled to allow state-funded religious schools to discriminate against preschoolers. Exempting religious schools from the State’s equal-opportunity and antidiscrimination …

Chevron Deference, Prospective Gay Parents, And The Need For A Centralized Child Welfare System, Mantas Grigorovicius

Washington and Lee Journal of Civil Rights and Social Justice

For over four decades, Chevron deference allowed federal agencies to exercise considerable discretion in interpreting laws, enabling them to implement broad regulatory agendas. This deference was pivotal for administrative agencies, such as the U.S. Department of Health and Human Services (HHS), in shaping public policy. However, in 2024, the U.S. Supreme Court decided to overturn this precedent, shifting power from agencies to courts and potentially reshaping the regulatory landscape. This Article examines the implications of this change within the context of child welfare, focusing on HHS’s role in foster care. As states often rely on taxpayer-funded private child-placing agencies to …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellants: Roy V. Darren Patterson Christian Academy, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to the Colorado Universal Preschool Program’s equal opportunity requirement would allow plaintiffs to discriminate against these children and raise unfair barriers in their paths to a high-quality education. An exemption would also inflict dignitary, psychological, and familial harms upon an entire class of young people – …

Life In Limbo: Cryptocurrency And Fosta As The Pillars Of Cyber-Trafficking, Rebecca Liu

Washington and Lee Journal of Civil Rights and Social Justice

As the internet continually advances into Web 3.0, human traffickers thrive in using online platforms to prey on their victims, creating a new form of human trafficking: cyber-trafficking. In 2018, Congress passed the Fight Online Sex Trafficking Act (“FOSTA”) to dampen the stringent protection that 47 U.S.C. § 230 (“Section 230”) offered to internet intermediaries in cyber-trafficking litigation. However, Congress’s intended effect in passing FOSTA failed, as courts continue to interpret FOSTA narrowly, upholding the stringent protection that Section 230 offers internet intermediaries. Beyond FOSTA’s indifferent impact, governmental bodies struggle adapting to Web 3.0’s landscape, neglecting to intervene with traffickers’ …

Saving Private Unfaithful: An Argument For Administrative Separation And Action In Lieu Of Criminalizing Extramarital Sexual Conduct, Annelise Burgess

Washington and Lee Law Review Online

In order to keep America’s armed forces deadly, ESC must be decriminalized. The MCM’s 2019 update to start including non-heterosexual marriages and affairs tragically expands the reach of ESC. This Note presents new data on charging patterns of ESC in the Marines, highlighting the crime’s active use. ESC continues to overcompensate for behavior prejudicial to good order and discipline or service discrediting; this overcompensation results in subjecting non-prejudicial and non-service-discrediting behavior to criminal action, simultaneously infringing on service members’ constitutional rights and serving as fodder for public outcry. Military leaders should decriminalize ESC and alternatively penalize the behavior by administrative …

Religious Exemptions To Anti-Discrimination Law: Children's Rights In The Constitutional Calculus, Tanya Washington, Catherine Smith, Robin Walker Sterling

Scholarly Articles

Increasingly, religious actors in the public sphere--whether in the provision of goods and services (Masterpiece Cakeshop) or in government contracting (Fulton)--are simply invoking a person's sexual orientation as inconsistent with their religious tenets to benefit from a legal doctrine that shields them from the requirement that they offer an underlying rationale for LGBTQ discrimination. Over the past decade, we have filed amicus briefs in United States Supreme Court cases advancing children's constitutional rights, including briefs providing a check on these religious-based arguments when they adversely impact children's rights in the familial and child regulation contexts and …

State Legislatures And Trans* Genocide (?) In The United States, Shannon Fyfe

Scholarly Articles

Certain state legislatures in the United States have targeted trans* people and other members of the queer community through an onslaught of legislative efforts since early 2020. Many of these efforts have targeted trans* youth specifically, by banning or limiting their access to gender-affirming care. As I have shown, gender-affirming care is necessary health care for trans* youth and is crucial for their mental and physical health and well-being. Some have argued that these legislative efforts targeting trans* youth are genocidal, that they are intentionally aimed at destroying the trans* community. I agree that the harm experienced by the trans* …

Faking It: A Proposed Solution To Counter Nonconsensual Pornographic Deepfakes, Rena Song

Washington and Lee Journal of Civil Rights and Social Justice

2024 Louise A. Halper Award Winner for Best Student Note.

Deepfakes have become popular due to their user-friendly nature and accessibility, allowing anyone to create one by installing deepfake software programs on their phones or laptops. Deepfake software programs allow creators to create hyper-realistic multimedia featuring anyone whose image they can find. Some industries have drawn positive uses from deepfakes; however, deepfakes also create harms that can have detrimental effects on people’s mental health, employment, and reputation. Women and children, including those without a large online presence, have become the target for nonconsensual pornographic deepfakes. Congress has yet to pass …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellees: St. Mary Catholic Parish V. Roy, Lauren Fontana, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Suzette Malveaux, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to Colorado’s Universal Preschool Program’s equal-opportunity requirement would allow plaintiffs to discriminate against these children and plant unfair barriers in their paths to a high-quality education and inflict dignitary, psychological, and familial harms upon an entire class of young people solely because of their or their …

Book Review, Kirsten Campbell, The Justice Of Humans: Subject, Society And Sexual Violence In International Criminal Justice (2022), Shannon Fyfe

Scholarly Articles

In The Justice of Humans: Subject, Society and Sexual Violence in International Criminal Justice, Kirsten Campbell sets out to analyze approaches to international justice for victims of mass violence through a feminist lens. Using a remarkable breadth of disciplines, Campbell develops a “feminist social theory of the existing legal and feminist forms of international justice and a socio-legal methodology for empirically investigating them” (p. 4). She draws on her own extensive experience with the conflict in the former Yugoslavia to consider two responses to conflict-related sexual violence there: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the …

Seeking Remedies For Lgbtq Children From Destructive Parental Authority In The Era Of Religious Freedom, Roy Abernathy

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the intersection of parents’ rights, religious rights, state’s rights, and children’s rights. This Note analyzes the development of children’s rights and how those rights may be applied to current state religious exemption policies that affect the health of LGBTQ children. This Note will argue that in the absence of direct federal legislation to stop the harm of LGBTQ children, four possible remedies may exist to protect LGBTQ children. These remedies include states asserting parens patriae authority, children asserting substantive due process claims, children utilizing partial emancipation statutes, or children utilizing mature minor exemptions, which provide a judicial …

The Many Harms Of Forced Marriage: Insights For Law From Ethnography In Northern Uganda, Myriam S. Denov, Mark A. Drumbl

Scholarly Articles

Harnessing an interdisciplinary framework that merges elements of law and social science, this article aims to recast the crime of forced marriage, and thereby enhance accountability, in light of knowledge acquired through ethnographic fieldwork in northern Uganda. More specifically, we draw upon the perspectives and experiences of 20 men who were "bush husbands" in the Lord’s Resistance Army (LRA). These men were abducted by the LRA between the ages of 10 and 38 and spent between 6 and 24 years in captivity. During their time in the LRA, these men became ‘bush husbands’ with each man fathering between 1 and …

The Moral Weight Of Preferences: Death, Sex, And Dementia, Shannon Fyfe, Elizabeth Lanphier

Scholarly Articles

In "Cognitive Transformation, Dementia, and the Moral Weight of Advance Directives," Emily Walsh raises pertinent questions regarding the stability of preferences, and interests, across time, particularly in the setting of dementia diagnosis (Walsh 2020). Advance directive policy and practice rely on an at least somewhat coherent account of personal identity, and we largely agree with Walsh that dementia raises complex issues for philosophical accounts of personal identity.

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Washington and Lee Law Review

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …

What Happens Next? Will Protection Against Gender Identity And Sexual Orientation Workplace Discrimination Expand During President Obama’S Second Term?, Sarah M. Stephens

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Equal Protection For Children Of Same-Sex Parents, Catherine E. Smith

Scholarly Articles

Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This Article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge—a legal claim that is separate and distinct from that of the child’s gay or lesbian parents. It is well-settled equal protection law that the government may not treat nonmarital children differently than marital children because of moral disdain for their parents’ relationship, and laws …

Eluding The Grim Reaper: How Section 2 Of The Defense Of Marriage Act Could Survive Strict Scrutiny, Michael Disiena

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Ask, Tell, But Do Not Get Greedy: The Inequalities That Pervade In The Military In Light Of The Repeal Of “Don’T Ask, Don’T Tell”, David Barnes

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Need For Change: Evaluating The Medical Necessity Of Gender Reassignment Through International Standards, Chad Ayers

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Liberty Of Innocent Delights: Obscene Devices And The Limits Of State Power After Lawrence V. Texas, E. Benton Keatley

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Editor's Note: The Future Of Lgbt Scholarship

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Microperformances Of Identity: Visible Same-Sex Couples And The Marriage Controversy, Marc R. Poirier

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Double-Edged Sword In Gay Economic Life? Marriage And The Market, M.V. Lee Badgett

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Repeal Of "Don't Ask, Don't Tell:" A Smooth Transition, Sharon E. Debbage Alexander, Kathi S. Westcott

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Gender Trouble In The Law: Arguments Against The Use Of Status/Conduct Binaries In Sexual Orientation Law, Diane S. Meier

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

White Sexual Imperialism: A Theory Of Asian Feminist Jurisprudence, Sunny Woan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Rape And The Exception In Turkish And International Law, Ruth A. Miller

Washington and Lee Law Review

This Comment suggests, first, that Turkey's new (2004) rape law is indebted to recent trends in international sexual legislation, and second, that both Turkish and international rape law are in turn the product of a century of European exceptionalism. The 2004 Turkish criminal code is a text that has redefined the Turkish state's approach to issues ranging from torture to corruption to immigrant smuggling to rape and adultery. Fundamentally a domestic document, it is aimed at rearticulating and liberalizing the state-citizen relationship in Turkey. At the same time, it is emphatically an international text-a spectacle geared toward moving Turkey one …

Twenty-Five Years Of Hudood Ordinances- A Review, Martin Lau

Washington and Lee Law Review

Shortly after coming into power in 1979, General Zia ul-Haq began to Islamize the Pakistan legal system. One measure used to convert Pakistan into an Islamic state was the introduction of hadd offenses-those offenses for which the Qur'an prescribed fixed punishments-into the criminal law. This Article specifically examines the impact of one of these provisions, the Offense of Zina (Enforcement of Hudood) Ordinance, on sexual offenses under the Pakistan Penal Code. This statute criminalized all forms of adultery and fornication outside of a legally valid marriage, including instances of rape where the burden of proof had not been met. In …

Hard Bargains: The Politics Of Heterosexuality, Linda Hirshman

Washington and Lee Law Review

No abstract provided.

Doma As A Defensible Exercise Of Congressional Power Under The Full-Faith-And-Credit Clause, Timothy Joseph Keefer

Washington and Lee Law Review

No abstract provided.