Sexuality and the Law Commons^™

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …

Eeoc Win Shows What Trump Era Might Undo, Arthur S. Leonard

Other Publications

No abstract provided.

Memorandum On Mississippi House Bill 1523, Katherine M. Franke, Michèle Alexandre, Deborah A. Challener, Judith J. Johnson, Richard Gershon, Elizabeth A. Sepper, Noa Ben-Asher, Daria Roithmayr, Nomi M. Stolzenberg

Faculty Scholarship

As legal scholars with expertise in matters of religious freedom, civil rights, and the interaction between those fields, we offer our opinion on the scope and meaning of Mississippi House Bill 1523, which was signed into law today by Governor Phil Bryant. Specifically, we wish to call attention to language in the law that we believe conflicts with the Establishment Clause of the U.S. Constitution. We share the view of Justice Kennedy when he expressed that “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” and would add that neither can …

Testimony On Pennsylvania Sb1306: No Additional Protections For Religious Freedom, Katherine M. Franke, Burton Caine, Lenore F. Carpenter, Eric A. Feldman, Thersa Glennon, Nancy J. Knauer, Jules Lobel, Wendell Pritchett, Dara E. Purvis, Brishen Rogers, Victor C. Romero, Kathryn M. Stanchi, Nancy A. Welsh

Faculty Scholarship

On behalf of the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School I offer the following legal analysis of Senate Bill 1306. Overall, the current version of the bill promises to modernize Pennsylvania’s Human Relations Act by expanding antidiscrimination protections in employment to include sexual orientation and gender identity-based discrimination. Were the Pennsylvania legislature to pass SB 1306, the Commonwealth would join twenty-two states that include sexual orientation and nineteen states that include gender identity in their laws assuring equal employment opportunities for their citizens.

Testimony Regarding The First Amendment Defense Act (Fada), Katherine M. Franke, Elizabeth A. Sepper, Ariela Gross, Sylvia A. Law, Martin S. Flaherty, Suzanne B. Goldberg, Carol Sanger, J. Stephen Clark, Florens Wagman Roisman, Gregory Magarian, Caroline Mala Corbin, Nomi Stolzenberg, Carlos A. Ball, Aaron Ezra Waldman, Aziza Ahmed, Jennifer A. Drobac, Deborah Widiss, Arthur S. Leonard, Martha M. Ertman

Faculty Scholarship

My testimony today is delivered on behalf of twenty leading legal scholars who have joined me in providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law. We feel particularly compelled to provide testimony to this Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.” As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and …

Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus

Michigan Journal of Gender & Law

LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …

Trending @ Rwu Law: Christopher Gerlica's Post: Beyond Same-Sex Marriage, Christopher Gerlica

Law School Blogs

No abstract provided.

Negative Identity, Nancy Leong

Sturm College of Law: Faculty Scholarship

This Article examines the social and legal status of “negative identity”—identity marked by indifference or antipathy to something that much of society considers fundamental. As examples of negative identity, the Article considers those who identify as atheist, asexual, single, or childfree.

The Article begins by giving content to negative identity. Atheist, asexual, single, and childfree identity consists of more than merely the respective lack of religion, sexual attraction, partnership, or children. Rather, these negative identities are meaningful to group members, add value to society, and thus deserve legitimacy and respect. Unfortunately, respect is not always forthcoming: negative identity group members …

Scrutiny Of The Venire, Scrutiny From The Bench: Smithkline Beecham Corp. V. Abbott Laboratories And The Application Of Heightened Scrutiny To Sexual Orientation Classifications, Parker Williams

Catholic University Law Review

In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit Court of Appeals applied heightened scrutiny to a sexual orientation classification. Through SmithKline, the Ninth Circuit became one of the first federal circuit courts to do so explicitly; and by unequivocally applying a more exacting standard than rational basis, it furthered the framework developed in cases such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. This Note asserts that SmithKline is a significant victory for the advancement of LGBT rights, as evidenced by its use to strike down several same-sex marriage bans …

A Joyful Heart Is Good Medicine: Sexuality Conversion Bans In The Courts, Wyatt Fore

Michigan Journal of Gender & Law

Led by California and New Jersey, states have begun to ban Sexual Orientation Change Efforts (SOCE) for minors. States have targeted SOCE, also called ‘gay conversion therapy,’ by regulating state licensure requirements for mental health professionals. Conservative legal groups have challenged these bans in federal court, alleging a variety of constitutional violations sounding in the First and Fourteenth Amendments. More specifically, these legal groups propose theories claiming that the bans infringe upon individuals’ freedom of speech, free exercise, and parental rights. In this Note, I survey the history of these bans, as well as court decisions that have rejected constitutional …

Democracy In Disguise: Assessing The Reforms To The Fundamental Rights Provisions In Guyana, Arif Bulkan

Georgia Journal of International & Comparative Law

No abstract provided.

The Ninth Circuit's Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian Bartrum

Michigan Law Review First Impressions

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional amendment banning same-sex marriage, which is currently under review in the U.S. Court of Appeals for the Ninth Circuit. Perhaps even more surprising, Nevada's Republican governor agreed with that decision, concluding that the "case is no longer defensible in court." Ironically, all of this came after the plaintiffs had lost their case in the district court. But the federal constitutional landscape surrounding same-sex marriage is rapidly shifting, and in the nation's largest circuit change is coming quickly indeed. The latest upheaval—the decision that in fact prompted …

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

Chicago-Kent Law Review

A popular and intuitively plausible type of argument for the rights of lesbians, gay men, and bisexuals is based on claims that sexual orientations are inborn and/or unchangeable. Many advocates of such rights view expressing doubts about the immutability and innateness of sexual orientation as tantamount to opposing gay rights. Legally, claims that sexual orientations are innate and/or immutable intersect with the so-called immutability factor in equal protection jurisprudence. This article considers the legal, ethical, and empirical support for arguments for LGB rights based on immutability and innateness. I raise a variety of problems for such arguments in various contexts, …

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 …

“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 …

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 …

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

Spelling Out Lgbt: Enumerating Sexual Orientation In Virginia's Bullying Law, Melissa Wright

Law Student Publications

This comment explores the various steps being taken to stop LGBT bullying in the Commonwealth of Virginia. Section I discusses why it is important to address the issue of bullying and the deep impact that bullying can have on students' lives. Section II provides a comprehensive look at how other states have addressed bullying and provided enumerated protection for LGBT students. This section also examines federal laws that have been used in bullying claims in the absence of federal anti-bullying legislation. Section III focuses specifically on Virginia anti-bullying legislation and the steps that Virginia has taken to combat LGBT bullying …

Spelling Out Lgbt: Enumerating Sexual Orientation In Virginia's Anti-Bullying Law, Melissa Wright

University of Richmond Law Review

No abstract provided.

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.

Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt

Michigan Journal of Gender & Law

Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …

Sexual Orientation Of Fatherhood, Dara Purvis

Faculty Scholarship

In this Article, I examine how same-sex fathers affect the perception of heterosexual caretaking fathers - and by extension, could affect the perception of heterosexual non-caretaking mothers. I conclude that gay stay-at-home fathers offer a provocative opportunity to broaden societal views of men and caregiving more generally, and argue that greater recognition of parents who counteract gender stereotypes - even where the recognition might arguably lessen women's rights in family law - ultimately helps women as well as children and nontraditional parents. Part I discusses fathers, particularly stay-at-home fathers, the practical problems fathers face combining work and caregiving responsibilities, and …

Inferring Desire, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.

This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual …

Displaced Mothers, Absent And Unnatural Fathers: Lgbt Transracial Adoption, Kim H. Pearson

Michigan Journal of Gender & Law

While some might believe that Black versus gay discourse only surfaces in highly politicized settings like the military and marriage, it holds sway in the area of LGBT transracial adoption. LGBT transracial adoptions are a relatively small percentage of all adoptions, which include private adoptions, LGBT second-parent adoptions, and step-parent adoptions, but they are an important site for interrogating the Black versus gay discourse because adoption and custody decisions often address parent-child transmission. When claims intersect, as they do in a case where a White LGBT foster parent and a Black maternal grandmother dispute the adoption of a Black child, …

Response: The Death Of The Bisexual Saboteur, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

Professor Glazer offers us, in Sexual Reorientation, an appealing and intuitive way to deal with the difficulty of bisexual identity, an identity that has always fit uneasily and sometimes quite unhappily in the LGBT rights movement. If the principal problem of bisexuality is its very temporal changeability, its tendency to dissolve into heterosexuality or homosexuality depending on the gender of one's sexual partner, then Glazer's solution is elegant. She proposes that we bifurcate (so to speak) sexual orientation into two subcategories and acknowledge for everyone both a general and a specific orientation. General orientation "is the sex toward which …

Queer Cases Make Bad Law, James C. Hathaway, Jason Pobjoy

Articles

The Refugee Convention, now adopted by 147 states, is the primary instrument governing refugee status under international law. The Convention sets a binding and nonamendable definition of which persons are entitled to recognition as refugees, and thus to enjoy the surrogate or substitute national protection of an asylum state. The core of the article 1A(2) definition provides that a refugee is a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group.” A person is thus a refugee, and entitled to the non-refoulement and other protections …

Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter

Michigan Law Review

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Michigan Law Review

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, landmark marriage-equality victories in a few states suggest that the law is …

Artificial Insemination And The Presumption Of Parenthood: Traditional Foundations And Modern Applications For Lesbian Mothers, William M. Lopez

Chicago-Kent Law Review

This note traces the history of the presumption of parenthood and applies the traditional rationales underlying the presumption to support its application to married lesbian couples. Part I discusses the formation of the presumption in England and recognizes that the presumption was created for three important reasons: to protect the child; to protect the public purse; and to protect the biological family. Part II discusses state laws on artificial insemination and dissects the basic requirements for both same-sex and opposite-sex parents. This Part then applies the presumption's traditional rationales to lesbian couples having children, arguing that the same presumption should …