Sexuality and the Law Commons^™

To Pee Or Not To Pee? "Where" Is The Question: Transgender Students And The Right To Use Public School Restrooms, Melissa Sterling

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Contested Spaces During Transition: Regime Change In Myanmar And Its Implications For Women, Amy Barrow

Cardozo Journal of Equal Rights & Social Justice

This article examines recent political and legal developments in Myanmar to promote and protect Buddhism and their implications for women. Myanmar is currently undergoing political regime change. While periods of transition often present an opportunity to contest stereotypical gender roles and discriminatory cultural practices, a rise in Buddhist ethno-nationalism risks undermining women's "spaces" in society. Drawing on qualitative research interviews with members of civil society and other actors in Yangon, this article discusses the accelerated development of laws on the protection of race and religion alongside the parallel development of Myanmar's first law specifically addressing violence against women, to explore …

Legal And Ethical Concerns About Sexualorientation Change Efforts, Tia Powell, Edward D. Stein

Articles

The United States has recently made significant and positive civil rights gains for LGB people, including expanded recognition of marriages between people of the same sex. Among the central tropes that have emerged in the struggle for the rights of LGB people are that they are “born that way,” that sexual orientations cannot change, and that one's sexual orientation is not affected by choice. Writer Andrew Sullivan put it this way:

“[H]omosexuality is an essentially involuntary condition that can neither be denied nor permanently repressed.… [S]o long as homosexual adults as citizens insist on the involuntary nature of their condition, …

Employer Perceptions Of Trans Women's Sex And Behavior In Title Vii Sex Stereotyping Claims: The Case For Reading Price Waterhouse V. Hopkins As A Blanket Prohibition Of Gender Policing By Employers, Alexandra Fiona Mcspedon

Cardozo Law Review

No abstract provided.

Contempt, Status, And The Criminalization Of Non-Conforming Girls, Cynthia Godsoe

Cardozo Law Review

No abstract provided.

Federally Recognized Rights Of Lgbtq Students To Form Gay-Straight Alliance Organizations (Gsas), Jerry Foxhoven

Cardozo Law Review de•novo

The purpose of this article is to explore the various avenues that have been used in the federal courts to ensure the right to organize Gay Straight Alliances (GSAs), and to detail the use of the federal courts by students who assert the right to express contrary views on sexual orientation issues.

The Limits Of Christian Legal Society, William E. Thro

Cardozo Law Review de•novo

In Christian Legal Society v. Martinez, a sharply divided Supreme Court held that officials at a public institution might require a student religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of being a recognized student organization. Put another way, the Court declared that the government, through university officials, might force religious groups to choose between compromising their values and receiving benefits that other student groups receive as a matter of constitutional right.

While Christian Legal Society remains the controlling constitutional rule until explicitly overruled, there are significant limits …

An Expanding Human Rights Corpus: Sexual Minority Rights As International Human Rights, Xavier B. Lutchmie Persad

Cardozo Journal of Equal Rights & Social Justice

The article argues that sexual minorities are entitled to equal rights under principles of human dignity, equality, and non-discrimination. While international human rights frameworks like the Universal Declaration of Human Rights (UDHR) and regional systems, particularly the European Union’s Charter of Fundamental Rights, provide some protections, sexual minorities remain vulnerable due to the lack of explicit inclusion in most treaties. The European Court of Human Rights (ECtHR) and the UN Human Rights Committee (HRC) have advanced protections through jurisprudence, but significant gaps persist, especially for transgender and intersex individuals. The article advocates for a specialized treaty to address these disparities …

Liberty And Justice For All? Protecting The Right To Privacy For Incapacitated Individuals: The Need For Comprehensive Sterilization Legislation In All Fifty States, Mindy K. Fersel

Cardozo Journal of Equal Rights & Social Justice

The note examines the intersection of disability rights and reproductive rights, highlighting the legal confusion and human rights violations that arise from the lack of comprehensive federal guidance on the sterilization of individuals with disabilities. While landmark Supreme Court decisions like Griswold v. Connecticut and Roe v. Wade established constitutional protections for reproductive autonomy, the legacy of cases such as Buck v. Bell and inconsistent state statutes continue to undermine the rights of individuals with disabilities. The article argues that the absence of clear legislative frameworks leaves vulnerable populations at risk of exploitation and discrimination, necessitating urgent reform to ensure …

Chaperoning Love Online: Online Dating Liability And The Wavering Application Of Cda § 230, Lindsey A. Datte

Cardozo Journal of Equal Rights & Social Justice

The note argues that the online dating industry's voluntary adoption of screening initiatives, while well-intentioned, is legally misguided. Such practices may expose platforms to increased liability and undermine the protections afforded by the Communications Decency Act (CDA) 230, which shields interactive computer services from liability for third-party content. The analysis contends that these efforts to self-regulate, though driven by legislative and societal pressure, may inadvertently erode the industry's immunity under CDA 230 and create new legal vulnerabilities.

Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein

Articles

A popular and intuitively plausible argument for the rights of lesbians, gay men and bisexuals (LGB people) focuses on the claim that sexual orientations are inborn and/or unchangeable. This argument draws on three sources: ethical, scientific, and legal. The scientific source is the widely held observation that people generally (and LGB people particularly) do not choose their sexual orientation. This observation is buttressed by claims about the causes and character of human sexuality. The ethical source is the general intuition that people should not be punished for something that they did not choose. Together, these ethical and scientific beliefs lead …

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

Articles

No abstract provided.

No Promo Hetero: Children's Right To Be Queer, Clifford J. Rosky

Cardozo Law Review

This Article argues that the state has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand.

Building upon a schema familiar to legal scholarship on LGBT rights, this Article challenges the state's interest in promoting heterosexuality in childhood by articulating a tripartite defense of children's homosexual speech, status, and conduct. It argues that these three aspects of children's homosexuality are connected to and protected by the Constitution's free …

Toward A New Age Of Consumer Access Rights: Creating Space In The Public Accommodation For The Lgbt Community, Justin Muehlmeyer

Cardozo Journal of Equal Rights & Social Justice

The article advocates for an expanded interpretation of public accommodation laws to include LGBT individuals, arguing that current legal frameworks often fail to address their unique experiences of discrimination. It emphasizes the need to modernize the definition of public accommodations to encompass contemporary spaces where cultural interactions occur, such as schools and photography services, while proposing limited exemptions to accommodate religious beliefs. The analysis underscores the ongoing tension between anti-discrimination laws and First Amendment rights, highlighting the human impact of these legal battles through compelling cases and statistics.

Employee Benefits Law: The Hidden Gap Enabling Sexual Orientation Discrimination In Employment, Jason E. Shapiro

Cardozo Journal of Equal Rights & Social Justice

The note argues that state anti-discrimination laws are ineffective in protecting individuals from sexual orientation discrimination in employment, particularly in cases involving ERISA-governed employee benefits. It highlights how federal ERISA preemption undermines state laws, creating a legal gap that allows employers to discriminate without consequences. The note advocates for federal legislation to address this issue, as amending ERISA or relying on state laws alone cannot fully protect LGB individuals from discrimination in employment.

What's Law Got To Do With It?: Why We Should Mediate, Rather Than Litigate, Cases Of Wrongful Life, Shawna Benston

Cardozo Journal of Conflict Resolution

In light of the legal and societal disfavor toward wrongful life suits, this Note examines the cultural, (bio)ethical, legal, and philosophical background of the wrongful life tort. While the disability rights movement and the pro-life strains of the abortion debate hope to silence proponents of wrongful life suits, the evolution of a legal right to die underscores the importance of autonomy and privacy for the individual. Philosophical exploration of prospective children-including the nonidentity problem, claim-rights and corresponding duties, and the subjunctive-threshold notion of harmhelps explain the confusion and moral conundrum that pervade the very notion of "wrongful life" and that …

An Unlikely Feminist Icon?: Justice Harry A. Blackmun's Continuing Influence On Reproductive Rights Jurisprudence, Sarah Primrose

Cardozo Journal of Equal Rights & Social Justice

The article examines Justice Harry Blackmun's pivotal role in the landmark *Roe v. Wade* decision, which legalized abortion in the United States and significantly advanced women's reproductive rights. Despite his initial reluctance to take on the case, Blackmun's opinion established a woman's right to privacy under the Fourteenth Amendment, balancing this right against state interests. The decision has had profound and enduring implications for women's autonomy and equality, though it has also faced persistent challenges and critiques, including concerns about its constitutional basis and the arbitrariness of the trimester framework. The article highlights Blackmun's personal background and jurisprudential approach, emphasizing …

The Extension Of The Presumption Of Legitimacy To Same-Sex Couples In New York, Alexandra Eisman

Cardozo Journal of Equal Rights & Social Justice

The note argues that the presumption of legitimacy, a cornerstone of family law, should be extended to same-sex couples to ensure legal equality and protect the rights of their children. It critiques the traditional application of the presumption, which excludes same-sex couples, and advocates for its evolution to align with modern legal trends and the best interests of children. The analysis emphasizes the importance of legislative and judicial action to address the disparities faced by same-sex families under current laws.

Pregnancy Discrimination In Higher Education: Accommodating Student Pregnancy, Emily Mcnee

Cardozo Journal of Equal Rights & Social Justice

The article argues that despite Title IX's protections against sex discrimination, pregnant students in higher education continue to face subtle discrimination, particularly through rigid academic policies that fail to accommodate pregnancy-related needs. It advocates for clarifying Title IX regulations to explicitly require schools to provide accommodations, drawing parallels to the Americans with Disabilities Act (ADA) model, to ensure equal educational opportunities for pregnant students.

Unlikely Partners: Tort Law As A Tool For Trans Activism, Courtney Sirwatka

Cardozo Journal of Equal Rights & Social Justice

The note argues that tort law reform and trans activism can mutually benefit each other by addressing systemic discrimination and advancing equality for trans individuals. It critiques the legal system for perpetuating discrimination through its emphasis on physical injury over emotional or sexual harm and its refusal to validate trans identities. The analysis proposes that recognizing sexual autonomy and reproduction as protected interests in tort law, along with legal education reforms, could legitimize trans narratives and lead to meaningful change.

Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt

Cardozo Law Review

No abstract provided.

Brand Counterfeiting: Mass Fetishism?, Geneviève Morel

Cardozo Law Review

No abstract provided.

Online Sexual Solicitation Of Minors: An Analysis Of The Average Predator, His Victims, What Is Being Done And Can Be Done To Decrease Occurrences Of Victimization, Elana T. Jacobs

Cardozo Public Law, Policy & Ethics Journal

The Internet, while a transformative tool for society, has become a breeding ground for online sexual solicitation of minors, with predators exploiting its anonymity to target vulnerable adolescents, particularly females aged 13 to 17. Despite efforts by government programs like the Internet Crimes Against Children Task Force and independent organizations, the lack of uniform sentencing guidelines and inconsistent data collection undermine deterrence and prevention. The note advocates for stricter sentencing, enhanced awareness campaigns, and improved data collection to combat this growing issue effectively.

Plaintiff Anonymity During Civil Litigation Of Childhood Sexual Abuse Cases, Amit Shertzer

Cardozo Law Review

No abstract provided.

The Topography Of Legal Recognition Of Same-Sex Relationships, Edward D. Stein

Articles

This article categorizes and explains the variety of forms of relationship recognition that have emerged in the United States over the last dozen or so years. Five issues regarding same-sex marital andnonmarital relationship statuses are examined: (1) eligibility, (2) benefits, (3) dissolution, (4) recognition from other jurisdictions, and (5) the intersection of state and federal law. The article then offers various proposals about what states should do in the face of the options that have emerged: (a) states that recognize same-sex marriages and nonmarital relationships should adapt their statutes to recognize "substantially similar" relationships; (b) jurisdictions should adopt statutes that …

"I Didn't Agree To Arbitrate That!"-How Courts Determine If Employees' Sexual Assault And Sexual Harassment Claims Fall Within The Scope Of Broad Mandatory Arbitration Clauses, Eric Koplowitz

Cardozo Journal of Conflict Resolution

Throughout the last few decades, mandatory arbitration clauses have become more prevalent in employment contracts. Mandatory arbitration clauses provide employers with a cheaper and less formal method to resolve disputes with their employees once they occur. Employers who want most or all of their employees' claims subjected to mandatory arbitration will use broad language in the arbitration clauses. Despite the use of broad and seemingly all-encompassing language in broad mandatory arbitration clauses, some employees' claims can escape their reach and proceed to court. This Note will look at how courts determine if employees' sexual assault and sexual harassment claims against …

Cyber Crime Control: Will Websites Ever Be Held Accountable For The Legal Activities They Profit From?, Ashley Ingber

Cardozo Journal of Equal Rights & Social Justice

The note examines the evolving legal landscape surrounding the liability of online platforms like Craigslist under Section 230 of the Communications Decency Act (CDA). While Section 230 currently shields Internet Service Providers (ISPs) from civil liability for third-party content, courts are increasingly narrowing its protections, particularly when platforms actively influence or profit from illegal activities. Criminal liability remains a significant exception to Section 230 immunity, and future legal developments may further restrict these protections, balancing free speech with accountability for online platforms.

"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, …

Where Are They Coming From, Where Are They Going: Demanding Accountability In International Adoption, Elizabeth Long

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the United States to exclusively permit international adoptions from countries that have ratified the Hague Adoption Convention (HAC). This approach aims to enhance accountability, prevent human trafficking, and ensure that adoptions are conducted ethically and transparently. The HAC provides a framework that protects the rights of children, birth families, and adoptive parents, addressing the shortcomings of non-HAC adoptions, which often lack sufficient safeguards.

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 …