Sexuality and the Law Commons^™

Protecting Transgender Families: Strategies For Advocates, Taylor Flynn

Faculty Scholarship

For a transgender (trans) man or woman, what begins as the dissolution of a relationship may be transformed into a public nightmare in which the individual is forced to defend the authenticity of his or her gender in the face of relentless, brutal, and humiliating questions about the most intimate details of personal anatomy and sexual practices. This Article discusses this reality in the case of Michael Kantaras, a transsexual man in Clearwater, Florida in 2002.

Transgender Jurisprudence: Dysphoric Bodies Of Law, Jennifer L. Levi

Faculty Scholarship

This is a book review of Andrew Sharpe's "Transgender Jurisprudence: Dysphoric Bodies of Law." The Author discusses the contribution Sharpe makes to the transgender rights movement as invaluable for two reasons. First, it provides the first in-depth and full-length comprehensive treatment of the topic of transgender jurisprudence, and emerges as the foundational work by which others will be measured. Second, it exposes the homophobia underlying many of the key decisions, particularly in the area of marriage and family law, and provides an important link between the lesbian, gay, bisexual, and transgender movements which should not be ignored by activists from …

On Making Anti-Essentialist And Social Constructionist Arguments In Courts, Suzanne B. Goldberg

Faculty Scholarship

One of my most intense disagreements with another lawyer during nearly a decade of lesbian and gay rights litigation concerned social constructionism. The lawyer (a law professor, if truth be told) wanted to argue in an amicus brief to the United States Supreme Court that sexual orientation, like race, was a social constructed category. He reasoned that since the Court had condemned race discrimination even while recognizing the "socio-political, rather than biological" nature of race, it would similarly be willing to invalidate a measure discriminating against lesbians, gay men and bisexuals, even while recognizing the socially constructed nature of sexual …

Illegalized Sexual Dissent: Sexualities And Nationalisms, Katherine M. Franke

Faculty Scholarship

In this essay, Katherine Franke explores how dissent becomes a different, and in some ways more interesting, phenomenon when the dissenter emerges not from outside the political horizon drawn by the state, but rather from within it, and as an integral part of the state's project of governance. In these cases, the state calls up a set of subjects who are in some fundamental sense positioned to gain state, if not public, disfavor. These subjects are then isolated, excised or otherwise managed in ways that further state interests. Three cases are discussed in which the production of sexual outlaws proves …

Transforming The Debate: Why We Need To Include Transgender Rights In The Struggles For Sex And Sexual Orientation Equality, Taylor Flynn

Faculty Scholarship

The Author observes that sex and sexual orientation equality jurisprudence is premised upon the traditional understanding of "sex" as determined by anatomy at birth. The presumption typically following from this reduction of sex to anatomy is the notion that certain gendered attributes are inherent in biological male- or femaleness. The Author asserts that these erroneous and unduly narrow views significantly hamper courts' ability to address the core of sex and sexual orientation discrimination-hostility based on failure to conform to conventional gender norms. Surveying workplace, public accommodation, asylum, marriage, and custody cases, Flynn explains how conventional jurisprudence fails a wide array …

Don't Ask Us To Explain Ourselves, Don't Tell Us What To Do: The Boy Scouts' Exclusion Of Gay Members And The Necessity Of Independent Judicial Review, Taylor Flynn

Faculty Scholarship

In Boy Scouts of America v. Dale, the U.S. Supreme Court held by a five to four majority that the Boy Scouts of America is entitled to ban gay persons from membership despite New Jersey's prohibition against sexual orientation discrimination. The Dale majority sharply departed from the Court's long line of expressive association cases, in which it has rejected the claims of private clubs that application of civil rights laws to their membership policies violates their associational rights. This Author argues that by "reading" the plaintiff in Boy Scouts of America v. Dale as a cipher for gay sex, and …

Theorizing Yes: An Essay On Feminism, Law, And Desire, Katherine M. Franke

Faculty Scholarship

In this Essay, Professor Franke observes that, unlike feminists from other disciplines, feminist legal theorists have neglected to formulate a positive theory of female sexuality. Instead, discussions of female sexuality have been framed as either a matter of dependency or danger. Professor Franke begins her challenge to this scheme by asking why legal feminism has accepted unquestionably the fact that most women reproduce in their lifetimes. Why have not social forces that incentivize motherhood – a dynamic she terms repronormativity – been exposed to as exacting a feminist critique as have heteronormative forces that normalize heterosexuality? Furthermore, she continues by …

Feminism At The Millennium, Carol Sanger

Faculty Scholarship

Sexism of all kinds – subtle and blatant, criminal and legal, commercial and private – is the topic of the three books under review. The books initially sort themselves out by discipline: Everyday Sexism and Subtle Sexism are anthologies whose editors and contributors are primarily sociologists; Speaking of Sex is written by a law professor and offers a more focused argument about the persistence of gender inequalities. Distinctions in authorship aside, the three books pose a pair of similar and painfully familiar questions: Why is so much still organized to the disadvantage of women, and what can (feminist) academics contribute …

Divorce, Children's Welfare, And The Culture Wars, Elizabeth S. Scott

Faculty Scholarship

Are children harmed when their parents divorce? If so, should parents' freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together "for the sake of the children" was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children's lives as possible. This stance has been challenged sharply …

Oscar Wilde: Paradoxical Poster Child For Both Identify And Post-Identify, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Contract Sports, Martha M. Ertman

Faculty Scholarship

No abstract provided.

When Fathers' Rights Are Mothers' Duties: The Failure Of Equal Protection In Miller V. Albright, Kristin Collins

Faculty Scholarship

The history of coverture and the transmission of American citizenship brings an elementary point into focus: The allocation of parental rights is always correlated with the allocation of parental responsibility. This basic legal truism, and its numerous implications for citizenship law, suggests that the principal gender injustice caused by § 1409 is not its truncation of fathers' rights, but its creation and perpetuation of a legal regime in which mothers assume full responsibility for foreign-born nonmarital children. Once we recognize this gendered operation of § 1409, broader failures of equal protection analysis come into relief. First, while the jurisprudential understanding …

Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott

Faculty Scholarship

Americans have interesting and somewhat puzzling attitudes about the state's role in defining and enforcing family obligations. Most people view lasting marriage as an important part of their life plans and take the commitment of marriage very seriously. Yet any legal initiative designed to reinforce that commitment generates controversy and is viewed with suspicion in many quarters. For example, covenant marriage statutes, which offer couples entering marriage the option of undertaking a modest marital commitment, are seen by many observers as coercive and regressive measures rather than ameliorating reforms.

The law tends to reflect – and perhaps contributes to – …

Personal Harms And Political Inequities, Suzanne B. Goldberg

Faculty Scholarship

When we think back to where the legal battle for gender equality and the rights of gay people stood a century ago, we see that, in fact, there was not much of a battle. Indeed, advocates for change were seldom triumphant. A survey in 1900 would have shown that American women were twenty years away from obtaining the right to vote, were unfit to be lawyers according to the U.S. Supreme Court, and were nowhere near being eligible-let alone required-to serve on juries. The survey would also have revealed a wide-ranging web of federal and state laws and policies that …

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), M.V.H., Laura Spitz

Faculty Scholarship

LEAF submits that the heterosexual definition of spouse ins. 29 of the Family Law Act R. S.O. 1990 c. F .3 completely denies lesbians who otherwise meet the tl:1reshoid criteria to apply for a support award. The effect of this denial violates lesbians' right to equal benefit and protection of the law contrary to s. 15(1) of the Charter, and cannot be justified under s.1 of the Charter.

Massachusetts' Domestic Partnership Challenge: Hope For A Better Future, Jennifer Levi

Faculty Scholarship

Acknowledging that its decision means that "some household members" may be without a "critical social necessity," the Massachusetts Supreme Iudicial Court (SJC) ruled in Connors v. City of Boston that Boston Mayor Thomas M. Menino's executive order granting health insurance benefits to the domestic partners of city employees could not stand in the face of a Massachusetts state insurance law. In Connors, the SJC simultaneously recognized that although the demographics of Massachusetts households have changed within the more than forty years since the state insurance law, G.L. c. 32B (Chapter 32B), was adopted, that law nevertheless constrains municipalities from extending …

The Supreme Court, Sexual Citizenship And The Idea Of Progress, Kendall Thomas

Faculty Scholarship

Is American Progressive Constitutionalism dead ... yet? I propose to seek the beginnings of an answer to this question in the pages of a recent decision by the United States Supreme Court. I do feel obliged to say this, not because I am committed to a court-centered adjudicative conception of American constitutionalism; to the contrary. But rather, because the decision on which I want to focus seems to me to offer a rich resource for critical reflection on the idea of self-government whose connections to Progressive Constitutionalism give us our topic this afternoon.

International Decisions: Grant V. Southwest Trains Ltd., Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins

Faculty Scholarship

The public/private distinction has been a target of thoroughgoing feminist critique for quite some time now. Indeed, attacking the public/private line has been one of the primary concerns (if not the primary concern) of feminist legal theorizing for over two decades. If Carole Pateman is correct, one would think that this particular problem might be assigned to the category of "finished business" by this time. In this Essay, I do argue that the critique is, in certain ways, finished business in that it is no longer particularly useful in its most common forms. More importantly, however, I suggest several ways …

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Caring For Justice, Reviewing Robin West, Michael T. Cahill

Faculty Scholarship

No abstract provided.

The Erotic Of Torts, Carol Sanger

Faculty Scholarship

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual" (p. 12). Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means – and what its implications are for …

Putting Sex To Work, Katherine M. Franke

Faculty Scholarship

When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went – after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn't see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not …

Regarding Rights: An Essay Honoring The Fiftieth Anniversary Of The Universal Declaration Of Human Rights Introduction: Locating Culture, Identity, And Human Rights Symposium In Celebration Of The Fiftieth Anniversary Of The Universal Declaration Of Human Rights, Tracy E. Higgins

Faculty Scholarship

The half-century since the drafting of the Universal Declaration of Human Rights' has been famously heralded as the "Age of Rights" and the concept of human rights described as "the only political-moral idea that has gained universal acceptance." During the same period, however, both terms defining the subject-human and rights-have become increasingly contested. Informed by the emergence of identity-based political movements, critics have attacked the category human has as bearing the baggage of Western Enlightenment assumptions about personhood and community, inherently racist, sexist, and classist. Theorists across the political spectrum have criticized the concept of rights as indeterminate, destructive of …

Treating Sexual Harassment With Respect, Anita Bernstein

Faculty Scholarship

No abstract provided.

Homosexuals, Torts, And Dangerous Things, Katherine M. Franke

Faculty Scholarship

Negligent, intentional, and strict liability torts. From a canonical standpoint, whatever else one might teach, it is not a first-year torts course if these three concepts are not covered. Torts has a canon, even a Restatement. Yet a canon evolves only after some criteria of value has been established such that privileged texts can be identified according to some authoritative standard. In other words, a canon is the result of a process by which a rule of recognition identifies authoritative texts.

At what point can we say that torts became a field and an intact legal subject, the canon …

What's Wrong With Sexual Harassment, Katherine M. Franke

Faculty Scholarship

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as …

Sexual Orientation And Human Rights: Toward A U.S. And Transnational Jurisprudence, Laurence R. Helfer, Alice M. Miller

Faculty Scholarship

No abstract provided.

The "Straight Mind" In Russ’S The Female Man, Susan Ayres

Faculty Scholarship

In The Female Man Russ contrasts our present-day heterosexual society with two revolutionary alternatives: a utopian world of women and a dystopian world of women warring with men. The novel functions as what Monique Wittig calls a "literary war machine" because it tries "to pulverize the old forms and formal conventions." Specifically, Russ critiques the "straight mind"—heterosexual institutions that regulate gender—by showing how two representatives from "our world" respond to those institutions. She also shows two alternative worlds that further undermine, but do not solve, the way heterosexual institutions regulate gender.

In responding to the straight mind and to the …

The Central Mistake Of Sex Discrimination Law: The Disaggregation Of Sex From Gender, Katherine M. Franke

Faculty Scholarship

Contemporary sex discrimination jurisprudence accepts as one of its foundational premises the notion that sex and gender are two distinct aspects of human identity. That is, it assumes that the identities male and female are different from the characteristics masculine and feminine. Sex is regarded as a product of nature, while gender is understood as a function of culture. This disaggregation of sex from gender represents a central mistake of equality jurisprudence.

Antidiscrimination law is founded upon the idea that sex, conceived as biological difference, is prior to, less normative than, and more real than gender. Yet in every way …