Sexuality and the Law Commons^™

For The Sake Of All Children: Opponents And Supporters Of Same-Sex Marriage Both Miss The Mark, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Eliminating The Exception? Lawrence V. Texas And The Arguments For Extending The Right To Marry To Same-Sex Couples, Tyler S. Whitty

Kentucky Law Journal

No abstract provided.

Book Review, Walking A Gantlet: Nielsen’S License To Harass, Lynne Henderson

Scholarly Works

No abstract provided.

Check Only One: M/F/Other, Julie Shapiro

Faculty Articles

In this extremely brief essay, the author questions Lawrence Summers' generalizations about women in science. We live in a world of uncertainty about the boundaries of gender. Transgendered and intersexed individuals challenge us to step away from strict categories of men and women.

Reflections On Complicity, Julie Shapiro

Faculty Articles

The author of this article participated in the litigation of Andersen v. King County, Washington in which lesbian and gay couples unsuccessfully sought access to marriage. Although part of the plaintiffs' litigation team, she is a feminist anti-assimilationist and as such, is generally opposed to articulating marriage as a priority of the lesbian/gay civil rights movement. Confronted with the undeniable reality that marriage has become the central demand of the lesbian and gay movement, the author explores the tensions and contradictions encountered during the litigation. The article examines how one might critically manifest resistance even while working for an assimilationist …

The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard

NYLS Law Review

No abstract provided.

The Political Science Of Hormone Folklore, Rebecca M. Young

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Hacking The Gender Binary Myth: Recognizing Fundamental Rights For The Intersexed, Sara R. Benson

Cardozo Journal of Equal Rights & Social Justice

The article argues that current medical practices allowing parents and doctors to assign a physical sex to intersex children through surgery violate the child's fundamental rights to bodily integrity, personality, gender identity, and sexuality. These rights, while not yet fully defined in jurisprudence, provide a framework for protecting individuals from unwarranted governmental and medical intrusion. The article advocates for delaying such decisions until the child can consent, drawing on the Colombian Constitutional Court's recognition of a child's right to develop their gender identity. It also highlights the broader implications for transgender rights and challenges societal gender binaries.

Outside The Law: Intersex, Medicine And The Discourse Of Rights, Jo Bird

Cardozo Journal of Equal Rights & Social Justice

The article argues that the legal system perpetuates the erasure of intersex individuals by constructing intersex as a medical rather than a legal issue, leading to human rights violations. It contends that the law requires individuals to fit into a binary sex classification to be recognized as fully human, thereby denying intersex people legal visibility and protection. The article advocates for the recognition of intersex as a legal category to address the systemic discrimination and violence intersex individuals face, particularly in medical practices.

Cutting It: Surgical Interventions And The Sexing Of Children, Marie Fox, Michael Thomson

Cardozo Journal of Equal Rights & Social Justice

The article critiques the normalization of non-consensual surgical interventions on children, particularly focusing on male circumcision and intersex surgeries, arguing that these practices are rooted in cultural and gender norms rather than medical necessity. It challenges the legal and ethical frameworks that allow such surgeries, emphasizing the need for informed consent and stricter regulations.

Engendering Sex: Birth Certificates, Biology And The Body In Anglo American Law, Saru Matambanadzo

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the legal determination of sex, particularly for transgender individuals, arguing that current systems relying on rigid biological definitions fail to account for the complexity of gender identity. It advocates for a shift towards recognizing "lived gender," which integrates biology, culture, psychology, and social interactions to create a more inclusive and accurate legal framework. This approach challenges traditional legal and medical constructs that have historically marginalized transgender individuals and calls for legal reform to better reflect individual experiences and promote inclusivity.

Out Of The O.R. And Into The Streets: Exploring The Impact Of Intersex Media Activism, Sharon E. Preves

Cardozo Journal of Equal Rights & Social Justice

Babies are born intersexed, with ambiguous genitalia or other reproductive anatomical features, every day. Physical sexual ambiguity occurs frequently, affecting approximately one in 2000 births. Most infants born intersexed are surgically and hormonally altered to reflect the sexual anatomy associated with "standard" female or male sex assignment. This article explores the mobilization and methods of intersex individuals and their allies to destigmatize intersexuality and to alter the medical treatment they receive. I explore the intersex movement's use of mass media as a strategic activist tool and the implications of this mobilization for cultural and medical reform, arguing that media attention …

What Happened At Hopkins: The Creation Of The Intersex Management Protocols, Alison Redick

Cardozo Journal of Equal Rights & Social Justice

The article examines the development of intersex management protocols at Johns Hopkins University, highlighting their significance as a pivotal shift in medical treatment and the conceptual understanding of sex and gender. It argues that these protocols, introduced by John Money and his team in 1955, moved away from a case-by-case approach to a standardized method, influenced by Money's theory of gender acquisition, which emphasized environmental factors over biological ones. The protocols aimed to enforce binary gender norms through practices like early surgical interventions, which the article critiques as flawed and harmful.

Do Prisoners Get A Better Deal? Comparing The Abortion Rights And Access Of Military Women Stationed Abroad To Those Of Women In Prison, Leah Ginsberg

Cardozo Journal of Equal Rights & Social Justice

The note examines the systemic barriers faced by military women and incarcerated individuals in accessing abortion services, despite Supreme Court rulings that establish a woman's right to abortion. It highlights how statutory bans, restrictive policies, and logistical challenges disproportionately affect these groups, arguing that their unique circumstances—such as overseas deployment or incarceration—subject them to additional layers of legal and practical obstacles. The analysis underscores the need for legislative or executive action to address these inequities and ensure constitutional rights are upheld.

Federal And State Laws Improve Sex Offender Registry, Andrea Binion

Public Interest Law Reporter

No abstract provided.

Marriage Equality In New Jersey, Suzanne B. Goldberg

Faculty Scholarship

The question at the heart of the current challenge to New Jersey's marriage law is not a complicated one: Can the state maintain different rules for recognizing the relationships of gay and non-gay couples?

The Use And Abuse Of Social Science In The Same-Sex Marriage Debate, Stephen A. Newman

NYLS Law Review

No abstract provided.

Lesbian And Gay Parenting: The Last Thirty Years, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Screening Historical Sexualities: A Roundtable On Sodomy, South Africa, And Proteus, Noa Ben-Asher, R. Bruce Brasell, Daniel Garrett, John Greyson, Jack Lewis, Susan Newton-King

Faculty Publications

(Excerpt)

Proteus (2003; 100 min., Canada and South Africa) is a low-budget feature film, directed by John Greyson (Toronto) and Jack Lewis (Cape Town), that made the international rounds of “art cinema” and queer festivals in 2003 and 2004, with limited theatrical release in New York, Toronto, and other cities. The film advances Greyson’s and Lewis’s experiments with political essay-narrative forms both in their respective documentary, experimental, and dramatic videos dating back to the early 1980s (including Lewis’s Apostles of Civilized Vice [1999]) and in Greyson’s theatrical feature films beginning with Urinal in 1988. Based on an early-eighteenth-century court record, …

The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard

Articles & Chapters

The Supreme Court's decision in Lawrence v. Texas (2003) marked the first time that tribunal took notice of how foreign and international courts were dealing with the civil rights claims of lesbians and gay men as part of its discussion of American constitutional law. If this evinces a new openness by the Court to looking at such external sources in gay rights cases, what would it find on the major legal issues now facing the LGBT community in the United States? This article summarizes developments abroad on legal recognition of same-sex partners (including for purposes of immigration status) and military …

Gay Is Good: The Moral Case For Marriage Equality And More, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

The struggle for marriage equality in this country is ripe for an intervention. If the effort continues along in the manner in which it has been headed, gay couples may or may not succeed in gaining access to civil marriage. But even if gay couples succeed in "getting marriage," the gay rights movement may have missed a critical opportunity-a chance to make a positive moral case for gay sex and gay couples. In other words, it will have missed the opportunity to argue that "gay is good."

Moreover, to the extent that the struggle for marriage equality focuses solely on …

Limited In Sex, They Dare: Attitudes Toward Issues Of Patient Sexuality, Michael L. Perlin

Articles & Chapters

The author frequently speaks on issues involving the sexuality rights of persons with mental disabilities who are institutionalized. In this article, he discusses the prevalent attitudes of audience members to these presentations, attitudes ranging from anger to denial to projection to transference/countertransference to fear to expressions of religiosity. In some cases, an important connection is made between the speaker and audience members. The article considers these attitudes and seeks to offer explanations for why this is such a threatening topic to so many listeners.

Love, Change, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

This is morality: to include all as human and entitled to the deepest love and care. This is the distillation of everything the author fights for as a feminist, a critical race theorist, and a peace activist. Since we are at war, having sent to date 1,500 U.S. soldiers off to die, speaking against war and for peace is a current imperative. Then comes this invitation to speak as a critical race theorist on the subject of same-sex marriage.

Without marriage you can do everything that counts in marriage except that which requires the imprint of the state. What you …

A Response To Professor Bix, Robert F. Nagel

Publications

No abstract provided.

The Afterlife Of The Meretricious Relationship Doctrine: Applying The Doctrine Post Mortem, John E. Wallace

Seattle University Law Review

The meretricious relationship doctrine has received increased attention in recent years largely due to its application to same-sex couples' and the national debate on same-sex marriage. However, the importance of the doctrine, applicable also to heterosexual couples, extends beyond this recent focus. The number of unmarried, committed persons cohabitating has been increasing rapidly. Over eleven million people reported being unmarried but living with a partner in 2000, an increase of seventy-two percent since 1990. As the number of unmarried persons cohabitating increases, so will the importance of the doctrine. The meretricious relationship doctrine is a judicially-created equitable doctrine that allows …

Law's Nobility, Robin West

Georgetown Law Faculty Publications and Other Works

This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon's theoretical project, the article proposes some modifications to the original that are drawn from, in part, the critiques of queer theorists. The crucial departure proposed here concerns MacKinnon's "critique of desire," which in my view is deeply mistaken. Rather than distrusting the sexual desires of women as hopelessly polluted by subordination, we should be neutral -- neither critical nor confident -- regarding the degree to which our desires, if fulfilled, …

Same Sex Marriage And Its Implications For Employee Benefits: Proceedings Of The 2005 Meeting Of The Association Of American Law Schools Sections On Employee Benefits, And Sexual Orientation And Gender Identity Issues, Maria O'Brien, Constance Hiatt, Shannon Minter, Teresa S. Collett

Faculty Scholarship

Professor Maria O'Brien Hylton*: Welcome to this session on "Same Sex Marriage and its Implications for Employee Benefits." I'm Maria Hylton and I will introduce our speakers and moderate the program.

Our first speaker is Constance Hiatt, who is a partner with the Hanson Bridgett law firm here in San Francisco. She represents mostly large employers and large employee benefit plans, including the State of California's 401(k) and 457 plans as well as the University of California's benefits office. So, she has extensive experience in the employee benefits area and she came to us, to me really, through several …

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

The Best Interest Standard: How Broad Judicial Discretion And Influences Of Social And Political Suggestion Have Led To An Abandonment Of The Rule’S Primary Purpose In Child Custody Decisions, Lakeisha J. Johnson

ExpressO

The vital questions in child custody disputes all concern that which is in the best interest of the child. Historically, interpretations of the “best interest” standard have been founded upon presumptions steeped in the notion of natural rights and duties based largely upon a mix of scientific and subjective conclusions regarding gender-based parenting roles and the need to sustain them. My research demonstrates that, as courts attempt to avoid the decisions of the past and submit to the societal will of the present, the modern application of the “best interest of the child” standard has led unexpectedly to an abandonment …

Continuing The Lord's Work And Healing His People: A Reply To Professors Lupu And Tuttle, Mark E. Chopko

BYU Law Review

No abstract provided.