Sexuality and the Law Commons^™

Restructuring The Marital Bedroom: The Role Of The Privacy Doctrine In Advocating The Legalization Of Same-Sex Marriage, Nadine A. Gartner

Michigan Journal of Gender & Law

Part I of this paper examines the reasons underlying queer rights advocates' reluctance to insert privacy arguments into the case for legalizing same-sex marriage. Part II illustrates that, due to such disinclination, advocates transformed notions of privacy into concepts of liberty. Part III argues that, after the Lawrence decision, proponents of same-sex marriage can and should use privacy-based arguments to fortify their claims.

Lawrence & The Road From Liberation To Equality, Suzanne B. Goldberg

Faculty Scholarship

To think about the future of lesbian and gay rights in the wake of Lawrence v. Texas, we inevitably need to look to the past. After all, the movement that first sparked efforts to challenge statutes like the Texas "Homosexual Conduct" law was not a rights movement at all. Instead, when lesbian, gay, bisexual, and transgender individuals began organizing in 1969, their rallying cry was for liberation. To gauge what Lawrence means, then, we need to think in terms of both liberation, as the movement's early aim, and legal equality, which is the dominant demand of today's activists and advocates. …

The Internal Revenue Code As Sodomy Statute, Anthony C. Infanti

ExpressO

This essay attempts to bridge the gap between gay and straight understanding of the Internal Revenue Code’s impact on gay and lesbian couples. Through a combination of personal narrative and legal analysis, I try to explain how, from a gay perspective, the Code can be viewed as discriminating against gay and lesbian couples – regardless of whether, on a net basis, they are required to pay more or less tax than similarly-situated straight couples.

Live And Let Love: Self-Determination In Matters Of Intimacy And Identity, Kim Forde-Mazrui

Michigan Law Review

Are you free to choose the race of your spouse, . . . of your child, . . . of yourself? Historically, the legal and social answer to these questions was No. Matters of racial identity and interracial intimacy were strictly circumscribed by ideologies of racial essentialism and separation, ostensibly rooted in science, morality, and religion. In contrast, according to Professor Randall Kennedy in his new book, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, the answer to all three questions should be a resounding Yes. The exclusive source of racial identification and intimacy should be individual choice, free from legal …

Finding Fundamental Fairness: Protecting The Rights Of Homosexuals Under European Union Accession Law, Travis J. Langenkamp

San Diego International Law Journal

In tackling the issue of sexual orientation discrimination, the European Union must make significant efforts to conform or, perhaps, eradicate incongruous legislation within Applicant Countries. The difficulty of this endeavor is two-fold: first, in terms of the number and complexity of the laws of each Applicant Country; and, second, in the absence of any detailed and systematic documentation of sexual orientation discrimination within those same Applicant Countries. Compounding, if not confounding, such legitimate endeavors are the inconsistent anti-gay legislation prevalent within the present Member States. The stakes are high for Member States and Applicant Countries alike. Thus, the European Union's …

From Presumed Fathers To Lesbian Mothers: Sex Discrimination And The Legal Construction Of Parenthood, Susan E. Dalton

Michigan Journal of Gender & Law

In Part I of this article, Dalton briefly reviews the way legal scholars commonly define sex-based discrimination, particularly as it pertains to issues of reproduction. Part II is a brief historical review of legal constructions of parenthood. In Part III, Dalton examines two legal concepts: retroactive legitimation and presumed fatherhood. Both concepts were introduced in 1872 and each independently encouraged judges to think of fatherhood as consisting of two distinct spheres, the biological and the social. She then traces the legal development of these concepts through a series of presumed father, retroactive legitimation, and putative father cases. In Part IV …

Introduction To The Symposium: Homophobia In The Halls Of Justice: Sexual Orientation Bias And Its Implications Within The Legal System, Brenda V. Smith, Pamela Bridgewater

Scholarly Articles in Law Reviews & Journals

The gay moment is unavoidable. -Andrew Kopkind

Gay activist, journalist and political commentator Andrew Kopkind made this profound observation at a critical moment in the queer rights movement, in the midst of the March on Washington, pride rallies, queer organizing and the ever strengthening movement to address the AIDS crisis within the queer community. The moment, however, meant different things to participants in the movement. Over the years, the queer or sexual liberation movement transformed itself into a much more equality-based movement with the most energy focused on securing recognition of gay marriage and equal access to the military. As …

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 …

Sexual Orientation And International Law: A Study In The Manufacture Of Cross-Cultural "Sensitivity", Eric Heinze

Michigan Journal of International Law

Interest groups advocating rights of sexual minorities have been lobbying international organizations for years without success. A standard explanation for that failure is that human sexuality is something complex, even mysterious, which requires that international organizations proceed with special caution. In this essay, it will be argued that such an explanation amounts to a self-fulfilling prophecy. Sexual orientation is neither more nor less complex than many other issues, such as race, ethnicity, religion or gender, which have nevertheless found wide recognition within leading intergovernmental organizations. It is not because sexual orientation is uniquely complex or mysterious that it is barred …

Identity Crisis: "Intersectionality," "Multidimensionality," And The Development Of An Adequate Theory Of Subordination, Darren Lenard Hutchinson

Michigan Journal of Race and Law

This Article arises out of the intersectionality and post-intersectionality literature and makes a case against the essentialist considerations that informed the Human Rights Campaign's endorsement of United States Senator Alfonse D'Amato. Part I discusses the pitfalls that occur when scholars and activists engage in essentialist politics and treat identities and forms of subordination as conflicting forces. Part II examines how essentialism negatively affects legal theory in the equality context. Part III considers the historical motivation for and the efficacy of the "intersectionality" response to the problem of essentialism. Part III also extensively analyzes the "multidimensional" critiques of essentialism offered by …

Europe Enters A New Millennium With Gays In The Military While The United States Drowns In Don't Ask, Don't Tell: Twin Decisions By The European Court Of Human Rights , Scott Morris

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Boy Scouts Of America V. Dale 530 U.S. 640 (2000), Dennis Amari

American University Journal of Gender, Social Policy & the Law

No abstract provided.

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 …

Afterword – Straightness As Property: Back To The Future-Law And Status In The 21st Century, Symposium: Liberalism And Property Rights, Berta E. Hernández-Truyol, Shelbi D. Day

UF Law Faculty Publications

As is evident from the other works in this Symposium, throughout history in both the United States and the greater Western World, status-based exclusion of individuals and groups from property rights has been central to the existence of political and social hierarchies. Specifically, exclusion based on status — whether it be nationality, culture, race, sex or sexuality — has plagued our history and has been integral in the formation and development of both constitutional and property law regimes. Consequently, both regimes are at best uneven in the grant and distribution of rights and benefits.

A forward-looking examination of the link …

Franco's Spain, Queer Nation?, Gema Pérez-Sánchez

University of Michigan Journal of Law Reform

This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. The Article concludes by analyzing a literary work to illustrate the social impact of Francoism's homophobic law against homosexuality.

Querying A Queer Spain Under Franco, Peter Kwan

University of Michigan Journal of Law Reform

There should be more articles in the legal journals such as Professor Gema Pérez-Sánchez's. In Franco's Spain, Queer Nation?, Professor Pérez-Sánchez has done a great service to legal scholarship in four respects. Firstly, she has written an appropriately far-ranging piece. In a discipline that has as one of its central missions the broadening of critical legal discourse, LatCrit can sometimes appear to suffer from symptoms of parochialism in its understandable emphasis on the Latina/o experience within American borders, or on the experience of its Latina/o immigrants once they have reached these shores. To be sure, this is not a problem …

Hegemony, Coercion, And Their Teeth-Gritting Harmony: A Commentary On Power, Culture, And Sexuality In Franco's Spain, Ratna Kapur, Tayyab Mahmud

University of Michigan Journal of Law Reform

Professor Gema Pérez-Sánchez's article, Franco's Spain, Queer Nation? focuses on the last years of Francisco Franco's fascist dictatorship and the early years of the young Spanish democracy, roughly from the late 1960's to the early 1980's. The centerpiece of her article looks at how, through law, Franco's regime sought to define and contain what it considered dangerous social behavior, particularly homosexuality. She traces how the state not only exercised hegemonic control over definitions of gender and sexuality, but also established well-defined roles for women and drew clear lines between what constituted legitimate and illegitimate sexualities, namely, the line between heterosexuality …

Contract Sports, Martha M. Ertman

Faculty Scholarship

No abstract provided.

"Trapped" In Sing Sing: Transgendered Prisoners Caught In The Gender Binarism, Darren Rosenblum

Michigan Journal of Gender & Law

This Article first summarizes gender, transgendered identity, and legal issues facing transgendered people to contextualize the lives of transgendered prisoners. Parts II and III explore respectively the placement and treatment issues that complicate the incarceration of the transgendered. Corrections authorities, through indifference or incompetence, foster a shockingly inhumane daily existence for transgendered prisoners. In Part V, I examine the plight of transgendered prisoners through the metaphor of the miners' canary. Transgendered prisoners signal the grave dangers facing all of us in a wide array of social structures, elucidating the apparently intractable problems of gender. This Article simultaneously explores a human …

Law And The Sexual Subaltern: A Comparative Perspective , Ratna Kapur

Cleveland State Law Review

I am entering this conversation as a comparativist who wants to complicate the received wisdom about India in the West in regard to matters of sex, desire and the law. I want to address three issues:* First, how sex generally and alternative sexuality more specifically, are emerging as zones of contest in the legal arena and are simultaneously cast as cultural controversies in post-colonial India.* Second, I address how sexual subalterns, that is, gays, lesbians and sexworkers, are challenging dominant sexual and cultural norms.* And finally, I examine why a project of pleasure and desire is an important political goal …

Canadian Same Sex Relationship Recognition Struggles And The Contradictory Nature Of Legal Victories, Brenda Cossman

Cleveland State Law Review

I want to pick up on one of the themes running through virtually all of the papers in this symposium-the contradictory nature of law. Legal victories-and defeats-are always fragile, partial and contradictory. The perspective I bring to this theme is a Canadian one, where in the context of gay and lesbian struggles, legal victories now outweigh legal defeats. I will tell a story of these legal victories, which resulted in a much celebrated case in 1999 known as M v. H., in which the Supreme Court of Canada recognized the equality rights of same sex couples, and struck down a …

Bisexual Jurisprudence: A Tripolar Approach To Law And Society, Rachel Haynes

Michigan Journal of Gender & Law

Part I of this Review will briefly assess the principal arguments in Colker's book. In Part II, Colker's book will be situated within the larger currents of the discussion concerning bisexuality and the arguments for a bisexual jurisprudence. Part III critiques Colker's concept of a bisexual jurisprudence as applied to sexual hybrids from the standpoint of an identity, as well as a legal, skeptic. Part IV will sketch out some important implications for the advancement of a bisexual jurisprudence as well as question the need for a bisexual jurisprudence. This review concludes that the addition of a bisexual jurisprudence, like …

Family Law And Gay And Lesbian Family Issues In The Twentieth Century, David L. Chambers, Nancy D. Polikoff

Articles

Over these thirty years, lesbians and gay men have increasingly challenged conventional definitions of marriage and the family. In this brief article, we tell the story of gay people and family law in the United States across this period. We divide our discussion into two sections: issues regarding the recognition of the same-sex couple relationship and issues regarding gay men and lesbians as parents. These issues overlap, of course, but since family law discussions commonly treat adult-adult issues of all sorts separately from parent-child issues, we believe it convenient and helpful to do so as well.

Trends: Lesbian And Gay Rights In Zimbabwe, Leane Renée

Human Rights Brief

No abstract provided.

Naming The Grotesque Body In The "Nascent Jurisprudence Of Transsexualism", Richard F. Storrow

Michigan Journal of Gender & Law

After a description of an analytical framework constructed of theories drawn from the writings of Mikhail Bahktin, Roland Barthes, and Sigmund Freud, this Article discusses the discrepancies in courts' use of medical authority in cases considering the rights of transsexuals and then analyzes courts' ultimate refusal to recognize transsexuals' psychological sex. The thrust of this Article is an examination of the forces compelling such inconsistencies. The result is an analysis which interweaves medical, juridical, psychological and mythic perspectives to disclose the underpinnings of courts' antipathy toward transsexuals.

Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan

Michigan Journal of Gender & Law

According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.

Fighting Anti-Gay Abuse In Schools: The Opening Appellate Brief Of Plaintiff Jamie Nabozny In Nabozny V. Podlesny, Patricia M. Logue, David S. Buckel

Michigan Journal of Gender & Law

In Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), a case of first impression, the Seventh Circuit Court of Appeals recognized the constitutional right of a gay male public school student to equal protection from anti-gay harassment and assaults. The court held that Jamie Nabozny had stated equal protection claims against his school district and three school principals for gender and sexual orientation discrimination based on allegations that, because he is gay and a boy, defendants had failed to afford him the same kinds of protection given to other harassed students. At trial on remand a jury found …

Honesty, Privacy, And Shame: When Gay People Talk About Other Gay People To Nongay People, David L. Chambers, Steven K. Homer

Michigan Journal of Gender & Law

There is a longstanding convention among lesbians and gay men in the United States: Do not reveal the sexuality of a gay person to a heterosexual person; unless you are certain that the gay person does not regard his sexuality as a secret. Lie if necessary to protect her secret. Violating the convention by "outing" another person is widely considered a serious social sin.

Introduction, Paul F. Campos

Publications

No abstract provided.

The Fearful Symmetry Of Gay Rights, Religious Freedom, And Racial Equality, Walter J. Walsh

Articles

A decade has now passed since Julia Cooper Mack authored her most controversial judicial opinion, Gay Rights Coalition of Georgetown University Law Center v. Georgetown University. That opinion provoked two acts of Congress aimed at its reversal, newspaper editorials from coast to coast, and over one hundred scholarly authors debating its wisdom. In this short essay, I shall suggest that this extended hermeneutic debate has yet to touch upon the deepest implications of Judge Mack's Georgetown opinion. While recent scholarship on this story praises Judge Mack's unusual ability to reconcile clashing interest groups, a more accurate account might be …