Sexuality and the Law Commons^™

Foreword: Re-Orienting Law And Sexuality, Tayyab Mahmud, Ratna Kapur

Faculty Articles

This forward to a symposium issue of the law review maps the terrain of legal regulation of sexuality. It locates sexuality within a matrix of power, knowledge, and resistance and the question of regulation of sexuality is approached from the perspective of the sexually marginalized subject -- the sexual subaltern. It briefly reviews the contributions to the symposium and forwards a research agenda about questions of theory and praxis related to the production and regulation of sexual subjects.

The Baker [Baker V. State, 744 A.2d 864 (Vt. 1999)] Case, Civil Unions, And The Recognition Of Our Common Humanity: An Introduction And A Speculation, David L. Chambers

Articles

Every. Vermonter seems to know about two recent decisions of the Vermont Supreme Court. In the first, the court struck down the system of local financing of public schools. Like similar decisions in many other states, the school financing case led to a struggle in the legislature and difficulties for legislators at election time. In the second and even more controversial decision, the court reached an outcome that no other state supreme court had ever reached: it held unconstitutional the state's marriage law on the ground that it inappropriately denied the legal benefits of marriage to same-sex couples. This decision, …

Lessons From The Past And Strategies For The Future: Using Domestic, International And Comparative Law To Overturn Sodomy Laws, Charlene Smith, James Wilets

Seattle University Law Review

This Article will first discuss the legal importance of challenging sodomy laws, even though those laws are rarely enforced. It will then discuss the importance of incorporating international and comparative law in formulating these challenges. In Section II, Professor Charlene Smith will discuss past and future strategies, focusing on the topics of equal protection, morality, and the difference (or lack thereof) between acts and status. In Section III, Professor Jim Wilets will explore incorporating international and comparative law into domestic challenges to U.S. sodomy laws. This Article will demonstrate that there is binding Supreme Court authority requiring all U.S. courts …

Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegatative State, Carson Strong

Journal of Law and Health

Although a number of additional legal questions can be raised, including issues of paternity and inheritance, this paper focuses on the legal issues pertaining to consent, as well as the ethical questions raised above, which need to be discussed in order to address adequately the legal consent issues. The paper is organized as follows: first, the current law of consent to sperm retrieval and insemination after death or PVS is discussed in order to identify gaps in the law - areas that the law does not address or concerning which it is unclear; second, ethical issues are discussed that are …

Second-Parent Adoption By Same-Sex Couples In Ohio: Unsettled And Unsettling Law, Susan J. Becker

Cleveland State Law Review

In addition to the need for homes for children without any legally recognized parent, the need for a child who already has one legal parent to be adopted by the parent's gay or lesbian partner who is already serving as a de facto parent is very important to the child's emotional stability and material well being. This type of adoption, frequently referred to as a "second-parent" adoption,' is the focal point of this article. However, the matters discussed herein also apply directly and by analogy to situations where gay and lesbian couples and heterosexual unmarried couples desire to jointly adopt …

The Strengths And Weaknesses Of Local Human Rights Ordinances, Robert Salem

Cleveland State Law Review

This panel will discuss the prospects and perils of local human rights initiatives. Specifically, I will talk about the nature of these local initiatives and their advantages and disadvantages. Time permitting, I will also talk about our successful effort last year in Toledo, Ohio to pass a human rights ordinance that includes sexual orientation as a protected category, and why it is so crucial that lawyers and law professors become involved in these local campaigns. I believe that with determination, most communities can achieve what we did in Toledo. Local human rights ordinances (HROs) take a variety of forms, and …

Gay People, Trans People, Women: Is It All About Gender?, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A few gay rights theorists have long pointed out that discrimination on the basis of sexual orientation can be conceived of as discrimination based on sex. But those of us who play primarily in the legislative or litigation arenas have largely ignored the practical applications of that insight. In this brief essay, I want to consider whether it makes sense for gay rights legislative advocates and litigators to continue to downplay the gender non-conformity aspects of gay sexual orientation . . . the first part of this essay reviews activities that occurred between 1993 and 2001 regarding coverage of gender …

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

Faculty Publications

(Excerpt)

A transgendered woman, who has undergone extensive hormonal therapy and cosmetic surgery, is convicted and imprisoned. Because she still has a penis, albeit a nonfunctioning one, prison officials categorize her as a male, and place her in a men's prison. "You were born a boy, and you're going to stay a boy," the prison doctor says, rejecting continuation of her long-term estrogen treatment. Her body begins to regain the masculinity she had largely escaped. Bruised by the changes, her body no longer feels like her own, but one imposed on her by the criminal justice system. Her femininity stands …

Sexuality And Civil Rights: Re-Imagining Anti-Discrimination Laws, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I first describe the origins and current status of anti-discrimination laws that cover sexual orientation and/or gender identity. I examine the debates over whether existing laws are underutilized, and I analyze the variations in the structures of state and local laws that contribute to an unevenness in the patterns of utilization. These factors suggest that even persons living in states or local jurisdictions that already have anti-discrimination laws may lack meaningful mechanisms for redress. Part two raises the ante in my exploration of the relationship between sexuality and civil rights laws by asking whether there are ways …

Chronicling A Movement: 20 Years Of Lesbian/Gay Law Notes, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Video Voyeurism, Privacy, And The Internet: Exposing Peeping Toms In Cyberspace, Clay Calvert, Justin Brown

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Personal Harms And Political Inequities, Suzanne B. Goldberg

Faculty Scholarship

When we think back to where the legal battle for gender equality and the rights of gay people stood a century ago, we see that, in fact, there was not much of a battle. Indeed, advocates for change were seldom triumphant. A survey in 1900 would have shown that American women were twenty years away from obtaining the right to vote, were unfit to be lawyers according to the U.S. Supreme Court, and were nowhere near being eligible-let alone required-to serve on juries. The survey would also have revealed a wide-ranging web of federal and state laws and policies that …

Planning For The Future: Using Child Support Trusts To Prepare Both Father And Child For Life After Professional Sports, Thomas C. Quinlen

Vanderbilt Journal of Entertainment & Technology Law

The issue of professional athletes siring children out of wedlock was first thrust into the national conscience in an article in Sports Illustrated in May 1998. The SI piece was followed by several newspaper articles in various cities around the country, but like most hot news topics, it was quickly forgotten as the nation moved on to more pressing issues. This Note aims to revisit this issue with an eye towards practical and legal resolution of this pervasive problem, suggesting ways that lawyers and agents can establish child support trusts to represent their clients' interests and provide the best result …

Introduction: A Retrospective On The Lesbian/Gay Law Notes, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Confronting The Limits Of Gay Hate Crimes Activism: A Radical Critique, Dean Spade, Craig Willse

Faculty Articles

Questioning the emancipatory potential of hate crimes activism for sexual and gender non-normative people, this paper outlines the limits of criminal justice remedies to problems of gender, race, economic and sexual subordination. The first section considers some of the positive impacts of hate crimes activism, focusing on the benefits of legal "naming" for disenfranchised constituencies seeking political recognition. In the next section the authors outline the political shortcomings and troubling consequences of hate crimes activism. First, they examine how hate crimes activism is situated within a "mainstream gay agenda," a term they use to designate the set of projects prioritized …

History Unbecoming, Becoming History, Toni M. Massaro

Michigan Law Review

The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge, a prominent voice in this fin-de-siecle literature, now draws together and expands on his previous work in Gaylaw: Challenging the Apartheid of the Closet. Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation …

Word Games, War Games, Diane H. Mazur

Michigan Law Review

In 1993, the country's interest in the issue of military service by gay citizens escalated to a level that can only be described as a national obsession, and "obsession" is by no means too strong a term. The subject of gay servicemembers was debated within all three branches of government, all ranks of the military, and all walks of civilian life.1 The issue of military service by gay citizens became a line in the sand, a cultural standoff on issues as sensitive and disparate as sexuality, patriotism, civil rights, and civic obligation. Janet Halley2 returns to that time of obsession …

When Fathers' Rights Are Mothers' Duties: The Failure Of Equal Protection In Miller V. Albright, Kristin Collins

Faculty Scholarship

The history of coverture and the transmission of American citizenship brings an elementary point into focus: The allocation of parental rights is always correlated with the allocation of parental responsibility. This basic legal truism, and its numerous implications for citizenship law, suggests that the principal gender injustice caused by § 1409 is not its truncation of fathers' rights, but its creation and perpetuation of a legal regime in which mothers assume full responsibility for foreign-born nonmarital children. Once we recognize this gendered operation of § 1409, broader failures of equal protection analysis come into relief. First, while the jurisprudential understanding …

Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott

Faculty Scholarship

Americans have interesting and somewhat puzzling attitudes about the state's role in defining and enforcing family obligations. Most people view lasting marriage as an important part of their life plans and take the commitment of marriage very seriously. Yet any legal initiative designed to reinforce that commitment generates controversy and is viewed with suspicion in many quarters. For example, covenant marriage statutes, which offer couples entering marriage the option of undertaking a modest marital commitment, are seen by many observers as coercive and regressive measures rather than ameliorating reforms.

The law tends to reflect – and perhaps contributes to – …

Sexual Policy And The Military: A Need For A Primer On The Birds And The Bees, Ibpp Editor

International Bulletin of Political Psychology

This article describes some basic misconceptions about sex as explicated in the personnel and security policies of the United States Department of Defense (DOD).

Suffer The Little Children: Justifying Same-Sex Marriage From The Perspective Of A Child Of The Union, Lewis A. Silverman

West Virginia Law Review

No abstract provided.

It's Not Just Hair: Historical And Cultural Considerations For An Emerging Technology, Deborah Pergament

Chicago-Kent Law Review

History reflects the social, religious and political importance of human hair. Individuals have used hairstyles to flaunt social conventions about gender, race, sexual identity, and social status. Totalitarian governments have regulated hairstyles as a means of social control and dehumanization. Today, advances in technology now make it possible to discover information about an individual's current or potential health status. Judicial decisions and administrative regulations offer individuals limited protection from state or institutional intrusion into the information revealed by genetic hair analysis. This Article argues that the explosion of technologies that use hair to reveal intimate details of an individual's biological …

What Money Cannot Buy: A Legislative Response To C.Rac.K., Adam B. Wolf

University of Michigan Journal of Law Reform

Children Requiring a Caring Kommunity (C.R.A.C.K.) is an organization that pays current or former drug addicts $200 to be sterilized. While generating great public controversy, C.R.A.C.K. is expanding rapidly throughout the country. Its clients are disproportionately poor women of color, who are coerced by the offer of money into permanently relinquishing their reproductive rights. This Note argues that C.R.A.C.K. is a program of eugenical sterilization that cannot be tolerated. Moreover, C.R.A.C.K. further violates settled national public policy by offensively commodifying the ill-commodifiable, by demeaning women, and by starting down a slippery slope with devastating consequences. This Note proposes legislation that …

The Case Against Legislative Codification Of Religious Liberty, Ira C. Lupu

Cardozo Law Review

No abstract provided.

Multivocal Prejudices And Homo Equality, William N. Eskridge

Indiana Law Journal

Addison C. Harris Lecture, October 27, 1998, Indiana University Law School.

The Right To Her Embryos: An Analysis Of Nahmani V. Nahmani And Its Impact On Israeli In Vitro Fertilization Law, Janie Chen

Cardozo Journal of International and Comparative Law

The note examines the landmark 1996 Israeli Supreme Court decision in Nahmani v. Nahmani, which ruled that a woman’s right to parenthood outweighs her estranged husband’s objections to fatherhood in the context of frozen embryos created through IVF. The Court established a three-prong test to balance conflicting interests, legitimate expectations, and public policy, ultimately prioritizing the woman’s right to motherhood over the man’s right to refuse parenthood. The decision reflects broader tensions between reproductive rights, personal autonomy, and cultural-religious values, particularly the Jewish legal and ethical emphasis on procreation and the sanctity of life.

"Distinctions Without A Difference"; How The Sixth Circuit Misread Romer V. Evans, Jason D. Kimpel

Indiana Law Journal

No abstract provided.

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), M.V.H., Laura Spitz

Faculty Scholarship

LEAF submits that the heterosexual definition of spouse ins. 29 of the Family Law Act R. S.O. 1990 c. F .3 completely denies lesbians who otherwise meet the tl:1reshoid criteria to apply for a support award. The effect of this denial violates lesbians' right to equal benefit and protection of the law contrary to s. 15(1) of the Charter, and cannot be justified under s.1 of the Charter.

The Anatomy In Property Law: "It's Not About Sex," Or Is It?, David S. Caudill

Cardozo Law Review

No abstract provided.

Pansexuality And The Law, Jennifer Ann Drobac

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.