Sexuality and the Law Commons^™

From Third Parties To Parents: The Case Of Lesbian Couples And Their Children, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Sex, Science, And The Age Of Anxiety, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article examines the question of whether the HPV vaccine should be mandated (for girls and/or boys) in the context of declining rates of childhood immunization, and the potential threat to public health that this decline poses. The article addresses two interconnected legal issues: first, is mandating vaccines to prevent the spread of disease constitutional under substantive due process and equal protection principles, and second, should parents be permitted to “opt out” of mandatory vaccination on their children’s behalf, either for all vaccines or those which prevent particular diseases. The article addresses these issues in the context of America’s growing …

The Postcolonial Problem For Global Gay Rights, Stewart Chang

Scholarly Works

As the United States and Europe have progressed to the issue of same-sex marriage, countries that are still working through antecedent issues, such as the decriminalization of anti-sodomy laws, are regarded by international gay rights advocates as lagging behind the times. This often leads to pressures from the Western-dominated international community for reform. Through this Article, Professor Stewart Chang contributes to the ongoing scholarly debate between international human rights activists who desire to advance gay rights by utilizing the same rights-based models that prevail in the United States and Europe and critics of this approach who deem the universal imposition …

Flexible Feminism And Reproductive Justice: An Essay In Honor Of Ann Scales, Lynne Henderson

Scholarly Works

Professor Ann Scales began her distinguished career by taking feminism and reproductive justice seriously. She became a leading feminist voice and influence on a number of topics. In later years, she returned to concerns about reproductive justice by presciently emphasizing the need to preserve women’s access to abortions.

This Essay discusses Professor Scales’s concerns and feminist method and then turns to reproductive justice. The Essay notes that, with Scales, a right to abortion is foundational for reproductive justice. The Essay then examines the increasing narrowing of access to abortion through law. The Essay next examines a current crisis over access …

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

Scholarly Works

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

Breaking Unanimous String Of Victories, Federal Judge Rules Against Marriage Equality In Louisiana, Arthur S. Leonard

Other Publications

No abstract provided.

The Clean Up Begins, Arthur S. Leonard, Paul Schindler

Other Publications

No abstract provided.

How To Feel Like A Woman, Or Why Punishment Is A Drag, Mary Anne Franks

Articles

If a man in prison says that he was made -to feel like a woman," this is commonly understood to mean that he was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison but also sexual abuse generally These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both …

Civil Rights 3.0, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is now commonplace to hear the LGBT rights movement being described as the last, or the next, or today’s, pre-eminent civil rights issue. This chapter will explore what that means from several perspectives: What does the label tell us about the civil rights paradigm itself? If the achievement of marriage equality is the great civil rights achievement of this generation, what does that suggest about a future for equality more generally? How have new forms of, and technologies for, movement building affected the idea and practice of civil rights? Does the civil rights paradigm have a future? I focus …

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 …

Hidden In Plain Sight: Gender-Based Differences In Addressing Sex Trafficking In Chicago, Kathryn Huber

Public Interest Law Reporter

No abstract provided.

“Doomed Social Engineering?” Ethics And Professionalism Related To Sexual Orientation: The Florida Experience, Robert W. Lee

Barry Law Review

No abstract provided.

Religious Exceptionalism And Human Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

The liberal-democratic governmental compact assures that citizenship, political power, and civic participation in all of its forms will be afforded to all citizens on an equal basis. In particular, simple identity—as a presumptive matter—cannot be the basis for the denial of human rights. It is on this simple yet elegant principle that all civil-rights laws are founded.

Freedom of religion presents a particularly complex problem in this context. On the one hand, it is—itself—a universally recognized member of the human rights family, and is protected under civil-rights laws. On the other hand, it is— because of its possible invocation by …

Conferring Dignity: The Metamorphosis Of The Legal Homosexual, Noa Ben-Asher

Faculty Publications

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right …

All His Sexless Patients: Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison Lynch

Articles & Chapters

With the growth in the field of mental disability law over the past 50 years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges who face these issues daily. However, discussions of the question of whether persons with mental disabilities have a right to voluntary sexual interaction often touches a raw nerve in conversations about mental disability law, even with those who are practicing in the field, and the discomfort people feel in examining this topic is exacerbated when discussing individuals who are institutionalized.

Although this often appears to be a difficult …

The Rights Of Lesbian Gay Bisexual And Transgendered Peoples And International Human Rights Law, Claudia Martin, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez

Scholarly Articles in Law Reviews & Journals

Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries …

Sex Tourism In St. Thomas, United States Virgin Islands: An Exploratory Study, Elizabeth Estes

Department of Conflict Resolution Studies Theses and Dissertations

St. Thomas, United States Virgin Islands, is similar to other tourism dependent Caribbean nations where the tourism industry is dependent upon the `4 S's'- sun, sand, sea, and sex. This researcher posited that the phenomenon of sex tourism exists in St. Thomas as it does in other tourist destinations in the Caribbean like Jamaica, Belize, Costa Rica, Dominican Republic and Barbados (Bailey and Ricketts, 2003; de Albuquerque, 1998; Munshi, 2006; Ryan and Kinder, 1996). The lacuna of any U.S. Virgin Islands sex tourism literature prompted this researcher to conduct an exploratory case study in St. Thomas to learn whether or …

The Restatement Of Gay(?), Lawrence C. Levine, Courtney G. Joslin

McGeorge School of Law Scholarly Articles

No abstract provided.

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

All Faculty Scholarship

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against the …

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.

Twu Law: A Reply To Proponents Of Approval, Elaine Craig

Articles, Book Chapters, & Popular Press

Trinity Western University has a Community Covenant that only permits sexual minorities to attend at considerable personal cost to their dignity and sense of self-worth. All student and staff applicants to TWU are required to sign this covenant pledging not to engage in same sex intimacy. On April 11, 2014, the Law Society of British Columbia accredited TWU’s law degree program despite the university’s formal policy of exclusion on the basis of sexual orientation. Later that month, the Law Society of Upper Canada and the Nova Scotia Barristers’ Society refused to approve that same program because of concerns regarding the …

The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig

Articles, Book Chapters, & Popular Press

The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position. This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case …

In The Box: Voir Dire On Lgbt Issues In Changing Times, Giovanna Shay

Faculty Scholarship

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT …

“. . . Speak Now Or Forever Hold Your Peace . . .” —The Influence Of Constitutional Argument On Same-Sex Marriage Legislation Debates In Australia, Neville Rochow

BYU Law Review

No abstract provided.

Classcrits Mission Statement, Justin Deystone, Angela P. Harris, Martha Mccluskey, Athena Mutua, James Pope, Ann Tweedy

Publications

No abstract provided.

Marriage Equality Setback In Puerto Rico, Arthur S. Leonard

Other Publications

No abstract provided.

The Freedom To Marry: Politics And Law In 2014 And Beyond, Ari Ezra Waldman

Other Publications

No abstract provided.

All That Heaven Will Allow: A Statistical Analysis Of The Co-Existence Of Same Sex Marriage And Gay Matrimonial Bans, Deirdre Bowen

Faculty Articles

This article offers the first analysis to date of national data evaluating whether defense of marriage acts (mini or super-DOMAs) preserve and stabilize the family. After finding that they do not—just as same sex marriage does not appear to destabilize families—the article analyzes what variables are, in fact, associated with family stability. Specifically, those variables are: families below the poverty line; men and women married three or more times; religiosity; percent conservative versus liberal in a state; disposable income; percent with bachelor’s degree; and median age of first marriage. Next, the article applies the sociological concepts of moral entrepreneurism and …

Compulsory Sexuality, Elizabeth F. Emens

Faculty Scholarship

Asexuality is an emerging identity category that challenges the assumption that everyone is defined by some type of sexual attraction. Asexuals – those who report feeling no sexual attraction to others – constitute one percent of the population, according to one prominent study. In recent years, some individuals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classification under the antidiscrimination law of one state and several localities, but legal scholarship has thus far neglected the subject.

This Article introduces asexuality to the legal literature as …