Sexuality and the Law Commons^™

Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont

Articles & Book Chapters

Myths and stereotypes represent an ongoing problem in Canadian sexual assault trials. Often, and paradigmatically, defence lawyers and trial judges rely on discredited sexist assumptions to the prejudice of female sexual assault complainants. However, a review of the recent appellate case law reveals many cases that do not fit this paradigm. Complications that have arisen include stereotypes about men or accused persons, legitimate defence arguments misidentified as stereotypes, close cases where reasonable people disagree about whether stereotypes have been invoked, and prejudicial forms of reasoning based other axes of discrimination. This paper surveys these developments and assesses an attempt by …

New Book From India Thusi Explores Conflicts Between Sex Work And Policing In Johannesburg, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Classrooms Into Courtrooms, Naomi M. Mann

Faculty Scholarship

The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …

Litigation, Legislation, And Love: The Comparative Efficacy Of Litigation And Legislation For The Expansion Of Lesbian, Gay, And Bisexual Civil Rights, Mallory Harrington

Honors College Theses

This research examines the comparative efficacy of federal appellate court decisions and federal legislation with regards to the furtherance of civil rights on the basis of sexual orientation. The research examines efficacy based upon the number of measures which have been implemented as well as the content of each measure. The research examines federal appellate and Supreme Court decisions, as well as adopted pieces of federal legislation since 1950. It also examines the likely causes of the disparities in efficacy that are indicated in this analysis. The findings of this research indicate that litigation has been much more effective at …

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

Notre Dame Law Review

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, …

The 5th Annual Stonewall Lecture: Featuring Keynote Speaker Taylor Brown, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Chosen Family, Care, And The Workplace, Deborah Widiss

Articles by Maurer Faculty

Employees often request time off work to care for the medical needs of loved ones who are part of their extended or chosen family. Until recently, most workers would not have had any legal right to take such leave. A rapidly growing number of state laws, however, not only guarantee paid time off for family health needs, but also adopt innovative and expansive definitions of eligible family.

Several provide leave to care for intimate partners without requiring legal formalization of the relationship. Some go further to include any individual who has a relationship with the employee that is “like” or …

Integrating Doctrine And Diversity Speaker Series: When Law School Classroom Discussions Of Diversity Issues Go Wrong, Roger Williams University School Of Law, City University Of New York School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Stemming The Tide: Social Norms And Child Sex Trafficking, Melissa L. Breger

Dickinson Law Review (2017-Present)

Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.

Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and …

Addressing The Harms Of Pornography, Gillian Allison

Honors Program: Senior Projects (Public)

Within this paper I look at the existing philosophical work on pornography, from scholars like Catherine MacKinnon, Ronald Dworkin, and Rae Langton to show the current state of the pornography debate that I intend to enter by presenting my own argument about the morality of pornography. I argue that while pornography is harmful, these harms are best resolved through increased sexual education and the popularization and production of more inclusive pornography. The harms pornography causes are so great because pornography is where a lot of people learn about sex. Pornography was never designed to depict an average sexual experience. If …

Why Are You Here? Modeling Illicit Massage Business Location Characteristics With Machine Learning, Anna White, Seth Guikema, Bridgette Carr

Articles

Illicit massage businesses are a venue for sex and labor trafficking in the United States. Though many of their locations are made publicly available through online advertising, little is known about why they choose to locate where they do. In this work, we use inferential modeling to better understand the spatial distribution of illicit massage businesses within the U.S. Based on addresses web-scraped weekly from online advertisements over 6 months, we modeled illicit massage business prevalence at the census tract and county levels. We used publicly available data to characterize census tracts and counties, finding that the state in which …

Equal Justice Under Law: Navigating The Delicate Balance Between Religious Liberty And Marriage Equality, Meg Penrose

Faculty Scholarship

This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections …

Dobbs V. Jackson Women's Health Organization: Brief For Constitutional Law Scholars Lee C. Bollinger, Erwin Chemerinsky, Sherry F. Colb, Michael C. Dorf, Daniel Farber, Joanna L. Grossman, Leah Litman, Martha Minow, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David A. Strauss, And Laurence H. Tribe As Amici Curiae Supporting Respondents, Leah Litman

Appellate Briefs

Amici, listed in Appendix A, are constitutional law scholars who teach and write in the field of constitutional law, including on limits on the regulation of abortion. They share an interest in promoting the stability of this Court’s abortion jurisprudence as well as its continuity with the constitutional law governing related rights.<\p>

For nearly 50 years, the Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects a woman’s fundamental right to decide whether to have an abortion. See Roe v. Wade, 410 U.S. 113, 153-54 (1973). Accordingly, in Roe, the Court held that prior …

Federal Court Orders Reinstatement Of Discharged Trans Professor, Arthur S. Leonard

Other Publications

No abstract provided.

Virginia Court Reinstates Teacher Suspended For Opposing Trans Inclusion Policy, Arthur S. Leonard

Other Publications

No abstract provided.

Constructing The Yellow Brick Road: Preventing Discrimination In Financial Services Against The Lgbtq+ Community, Cyrus Mostaghim

Michigan Business & Entrepreneurial Law Review

The Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (“LGBTQ+”) community lacks explicit statutory protections from discrimination in financial services. After the Supreme Court held in Bostock that employment discrimination based on sexual orientation or gender identity was illegal, the Consumer Financial Protection Bureau (CFPB) issued an informal interpretive rule for the Equal Credit Opportunity Act (ECOA) and Regulation B that made discrimination in the access to credit based on sexual orientation or gender identity illegal.

However, this article argues that an informal interpretive rule is easily rescinded and does not provide sufficient protection. Thus, alternative action is needed to create …

The Enemy Is The Knife: Native Americans, Medical Genocide, And The Prohibition Of Nonconsensual Sterilizations, Sophia Shepherd

Michigan Journal of Race and Law

This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. …

Law, Criminalisation And Hiv In The World: Have Countries That Criminalise Achieved More Or Less Successful Pandemic Response?, Matthew M. Kavanagh, Schadrac C. Agbla, Marissa Joy, Kashish Aneja, Mara Pillinger, Alaina Case, Ngozi A. Erondu, Taavi Erkkola, Ellie Graeden

O'Neill Institute Papers

How do choices in criminal law and rights protections affect disease-fighting efforts? This long-standing question facing governments around the world is acute in the context of pandemics like HIV and COVID-19. The Global AIDS Strategy of the last 5 years sought to prevent mortality and HIV transmission in part through ensuring people living with HIV (PLHIV) knew their HIV status and could suppress the HIV virus through antiretroviral treatment. This article presents a cross-national ecological analysis of the relative success of national AIDS responses under this strategy, where laws were characterised by more or less criminalisation and with varying rights …

Twists & Swirls: Caregiving & Sexualization—Femininity Construct In Gendered Migration From Nigeria To Italy, Christiana Essie Sagay

Indiana Journal of Global Legal Studies

With globalization, interconnectivity, and the possibilities of increased income through wage differentials comes the desirability to migrate for labour. Contrary to early migration theories, women are increasingly migrating for labour independent of male breadwinners. Therefore, "temporary and permanent movements are globalizing, accelerating, diversifying and feminizing." The influence of gender on migration has become so convoluted that culturally and socially constructed roles of masculinity and femininity motivate and inspire migration trends among many women migrating from Nigeria to Italy, creating a sort of gendered social agency. This piece offers an analysis of how social contexts and gendered expectations shape the desires …

“I Want Justice From People Who Did Bad Things To Children”: Experiences Of Justice For Sex Trafficking Survivors, John G. Morrissey, James Havey, Glenn M. Miles, Nhanh Channtha, Lim Vanntheary

Dignity: A Journal of Analysis of Exploitation and Violence

This research from the Butterfly Longitudinal Research Project focused on understanding the experiences and perceptions of justice and the justice system for 93 Cambodia participants (including 88 survivors of sex trafficking) as they navigated the legal system. Thirty-two of these survivors had experiences in court and provided details into their courtroom experiences, predominantly within Cambodia but also in the United States. The survivors’ experiences were diverse; however, the prevailing themes were: fear throughout their legal journeys; a low level of awareness and understanding of their legal experiences; and that NGO support was essential for these survivors to engage in the …

Court Rejects Web Designer’S Challenge To Colorado Anti-Discrimination Law, Arthur S. Leonard

Other Publications

No abstract provided.

What An Ethics Of Discourse And Recognition Can Contribute To A Critical Theory Of Refugee Claim Adjudication: Reclaiming Epistemic Justice For Gender-Based Asylum Seekers, David Ingram

Philosophy: Faculty Publications and Other Works

Abstract: Using examples drawn from gender-based asylum cases, this chapter examines how far recognition theory (RT) and discourse theory (DT) can guide social criticism of the judicial processing of women’s applications for protection under the Geneva Convention Relating to the Status of Refugees (1951) and subsequent protocols and guidelines put forward by the United Nations High Commissioner for Refugees (UNHCR). I argue that these theories can guide social criticism only when combined with other ethical approaches. In addition to humanitarian and human rights law, these theories must rely upon ideas drawn from distributive, compensatory, and epistemic justice. Drawing from recent …

Sexual Harassment: A Doctrinal Examination Of The Law, An Empirical Examination Of Employer Liability, And A Question About Ndas— Because Complex Problems Do Not Have Simple Solutions, Michael Heise, David S. Sherwyn

Indiana Law Journal

The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees …

Eyes Wide Shut: Using Accreditation Regulation To Address The “Pass-The-Harasser” Problem In Higher Education, Susan Saab Fortney, Theresa Morris

Faculty Scholarship

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when hiring faculty and administrators with little or no scrutiny related to their past misconduct. Critics use the term “pass the harasser” or more pejoratively, “pass the trash” to capture the role that institutions play in allowing individuals to change institutions without the new employer learning …

Adjudicating Patriarchy In The Nationality Law, Muhammed Samy Ahmed Mr.

Theses and Dissertations

The Egyptian legal structure has long discriminated against women. Taking nationality law as an example, it is obvious that all consecutive nationality laws have ignored women’s right concerning passing on and acquiring nationality. Even after its amendment in 2004, major gender discrimination still exists. This is caused by the fact that the nationality law is only a part of the legal system. Consequently, its essence will not deviate from the patriarchal composition of the overall nature of the legal system. This paper argues that the existing forms of discrimination in the nationality law correlate with the broader legal environment. Hence, …

Measuring The Impact Of Legal Recognition Of Same-Sex Marriage Among Sexual Minority Women, Laurie A. Drabble, Amy A. Mericle, Angie R. Wootton, Cat Munroe, Libo Li, Karen F. Trocki, Tonda Hughes

Faculty Research, Scholarly, and Creative Activity

Reductions in structural stigma, such as gaining access to legalized same-sex marriage, is associated with positive psychological and physical health outcomes among sexual minority adults. However, these positive outcomes may be less robust among sexual minority women (SMW; e.g., lesbian, bisexual, queer) than sexual minority men and new measures are needed to develop a more nuanced understanding of the impact of affirming policies on the health and well-being of SMW. This study assessed the psychometric properties of measures developed to assess the psychosocial impacts of legalized same-sex marriage on the lives of SMW. Participants (N = 446) completed an online …

The Unintentional Cost Of A Free Public Sex Offender Registry, Rebekah E. Leavitt

Intuition: The BYU Undergraduate Journal of Psychology

This literature review analyzes the efficacy of modern legislation guiding public access to sex offender registries and draws on research utilizing surveys, interviews, and statistical observations of convicted sex offenders to determine sources of ineffective practices at the legislative level. By utilizing Braithwaite’s reintegrative shaming theory (1989), in which stigmatizing shame is significantly less efficient in criminal contexts, current legislation and its impact on common issues experienced by sex offenders (including sexually addictive behaviors and childhood sexual abuse) are examined. The discerned prevalence of stigmatizing shame in modern legislation, which focuses on the individual rather than the undesirable behavior, indicates …

Tempering Glass Armor: A Demand For Improved Anti-Discrimination Housing Laws To Protect Homeless Transgender People, Jack Beasley

Student Scholarship

Homelessness is a nationwide problem that affects hundreds of thousands of people a year. Lesbian, gay, bisexual, transgender, and queer individuals face unique, additional issues in their day-to-day lives that heterosexual and cisgender individuals do not. Homeless shelters across the country are full of transgender youth and adults who are subject to more sexual violence, criminal acts, and discrimination than other homeless individuals in the same shelters. The Obama administration’s rule protecting homeless transgender people in shelters is in danger. In essence, Housing Secretary Ben Carson’s proposed rule would put homeless transgender people at a higher risk of discrimination. Agency …

Marriage Or License To Rape? A Socio-Legal Analysis Of Marital Rape In India, Vidhik Kumar

Dignity: A Journal of Analysis of Exploitation and Violence

Rape exposes the failure of society’s institutions which were established to provide better security to an individual in a society. These institutions sometimes not only failed to protect an individual from such grave assaults on their autonomy and privacy, but also sanctioned them by either providing them legitimacy by law or not illegitimating them. States often have either provided legal sanctity to rapes within marriage or have refrained from declaring it a crime, on account of it being a private sphere not open to interference. Rape within marriage or marital rape is a global problem, and it is argued that …

The Elusiveness Of Self-Defense For The Black Transgender Community, Shawn E. Fields

Nevada Law Journal

No abstract provided.