Sexuality and the Law Commons^™

Teaching With Feminist Judgments, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

This chapter, part of Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (Carolina Academic Press 2021), provides an overview of the U.S. Feminist Judgments Project, a collaboration of feminist scholars and lawyers who rewrite significant judicial opinions using feminist methods and reasoning. One of the primary goals of the series of Feminist Judgments books is to demonstrate that the law has a vast, but often unrealized, potential for social justice. The feminist judgment methodology requires the authors of rewritten opinions to act as judges in following the rules of precedent and custom—and to be bound by …

The Slippery Discourse Of Sexual Consent: Feminist Acumen And Feminist Excess, Dan Subotnik

Scholarly Works

No abstract provided.

Sex Discrimination In Healthcare: Section 1557 And Lgbtq Rights After Bostock, Amy Post, Ashley Stephens, Valarie K. Blake

Law Faculty Scholarship

Section 1557 of the Affordable Care Act (“ACA”) banned sex discrimination in health care. In June of 2020, however, the Trump administration finalized a rule that explicitly removed sexual orientation and gender identity from Section 1557’s safeguards. That same month, the Supreme Court held that sexual orientation and gender identity discrimination are forms of sex discrimination for purposes of Title VII employment discrimination in Bostock v. Clayton County. Following the Court’s decision in Bostock, this Article argues that sex discrimination under Section 1557 necessarily encompasses gender identity and sexual orientation discrimination.

Columbia Law School Center For Gender And Sexuality Law Launches New Era Project, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

New York, New York – Columbia Law School Professor Katherine Franke announced the creation of a new project that will bring cutting-edge research, strategy, and legal resources to the fight for gender-based equality. The Equal Rights Amendment (ERA) Project will be housed at the Law School’s Center for Gender and Sexuality Law (CGSL), which Franke founded in 2004.

The Slippery Discourse Of Sexual Consent: Feminist Acumen And Feminist Excess, Dan Subotnik

Touro Law Review

The Kavanaugh confirmation hearings, the Harvey Weinstein case, and the Jeffrey Epstein case have done us a valuable service. By focusing mass media attention and academic discourse on consent to sex and on assault, they have brought to a boil two issues that have been simmering for some time in feminist circles. The present essay invites readers to consider feminist writings over the last half-century that have influenced this discourse and continue to incite febrile talk today.

First to be examined is the American “heartbalm” regime, an early effort to protect women from the emotional harm resulting from seduction by …

Bundle Of Joy: Why Same-Sex Married Couples Have A Constitutional Right To Enter Into Gestational Surrogacy Agreements, Benjamin H. Berman

Touro Law Review

No abstract provided.

Foreword, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

1 Step Forward 2 Steps Back: The Transgender Individual Right To Access Optimal Health Care, Alexandre Rotondo-Medina

Journal of Race, Gender, and Ethnicity

No abstract provided.

Neither “Post-War” Nor Post-Pregnancy Paranoia: How America’S War On Drugs Continues To Perpetuate Disparate Incarceration Outcomes For Pregnant, Substance-Involved Offenders, Becca S. Zimmerman

Pitzer Senior Theses

This thesis investigates the unique interactions between pregnancy, substance involvement, and race as they relate to the War on Drugs and the hyper-incarceration of women. Using ordinary least square regression analyses and data from the Bureau of Justice Statistics’ 2016 Survey of Prison Inmates, I examine if (and how) pregnancy status, drug use, race, and their interactions influence two length of incarceration outcomes: sentence length and amount of time spent in jail between arrest and imprisonment. The results collectively indicate that pregnancy decreases length of incarceration outcomes for those offenders who are not substance-involved but not evenhandedly -- benefitting white …

Aligned: Sex Workers’ Lessons For The Gig Economy, Yvette Butler

Articles by Maurer Faculty

Society’s perception of a type of work and the people who engage in money-generating activities has an impact on whether and how the law protects (or does not protect) the people who perform those activities. Work can be legitimized or delegitimized. Workers are protected or left out to dry depending upon their particular “hustle.” This Article argues that gig workers and sex workers face similar challenges within the legal system and that these groups can and should collaborate to their collective advantage when seeking reforms. Gig workers have been gaining legitimacy while sex workers still primarily operate in the shadow …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia N. Sawicki

Faculty Publications & Other Works

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers' rights to refuse-- and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences--are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This …

Transgender Healthcare Is Medically Necessary, Molly Nunn

Mitchell Hamline Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Beyond Sex-Plus: Acknowledging Black Women In Employment Law And Policy, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and …

Sexkopslagen In The States: An American Version Of The Nordic Model To Address Sex Trafficking In The United States, Olivia Hartjen

Vanderbilt Journal of Transnational Law

Prostitution, and the widely-encompassing commercial sex industry, has been a staple of all societies for centuries. Although the typical narrative regarding prostitution is one of moral abhorrence and criminalization, prostitution's spotlight has been recast with the acknowledgment and advocacy against related conduct: sex trafficking. Traffickers earn about $150 million annually from trafficking operations, $99 million of which is accounted for by sex trafficking. Although the United States officially criminalized trafficking in 2000, those engaged in prostitution, whether voluntarily or via trafficking, continue to be criminalized and further victimized through legal schemes perpetuated by the federal and state governments. Various other …

Rights For The “Non-Conforming” Woman: The Intersectionality Of The Fight For Women’S Rights And Lgbtq+ Rights In Argentina, Talia C. Housman

Honors Theses

Argentina has faced many challenges throughout its history of activism as the people have pushed for an equal society. Different movements have sprung up over the years, but they have begun to twist together in recent times due to the need for support during repressive regimes. This brings into question the concept of intersectionality, which spans feminist, queer, and legal theory in its attempt to explain the need for overlap, modeling the natural development of personal identities and groups like family. The feminist movement and the LGBTQ+ movements have woven together in many rallies, especially during El Encuentro Nacional de …

Reforming Sexual Health Education In Minnesota Schools: An Evidence-Based Approach, Antonia Kurtz

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Ending The War Against Sex Work: Why It's Time To Decriminalize Prostitution, Linda S. Anderson

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Biden Administration's First Hundred Days: An Lgbtq Perspective, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Stonewall To The Present: An Analysis Of The Lgbt Rights Movement And U.S. Public Policy, Jake Mericle

Capstone Showcase

The LGBT Rights Movement has been one of the most influential social movements in recent decades. The aim of this paper is to determine the extent to which the LGBT rights movement has affected U.S. law and policy. In order to study this, I employ a process tracing method to study the movement as a whole over the past few decades from Stonewall to the present. I begin with the Stonewall Riots of 1969 as they are largely considered to be the start of the modern LGBT rights movement. My analysis focuses on the power and the importance of the …

Restorative Approaches To Intimate Partner Violence And Sexual Harm, Donna Coker (Ed.)

Articles

No abstract provided.

Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle

Books & Book Chapters by Maurer Faculty

Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."

CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present …

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Cardozo Journal of Conflict Resolution

This Article began with the murder of George Floyd by an officer of the Minneapolis Police Department on May 25, 2020, after a convenience store employee reported that Floyd used a counterfeit $20 bill to purchase cigarettes. Seventeen minutes after the police arrived, Floyd was unconscious, pinned beneath them. The events were recorded by bystanders and the public was confronted with visual evidence of what has been happening to Black, Indigenous, and People of Color (BIPOC) especially Black men-for centuries. It was dramatic testimony that law enforcement is based on a system that is the product of systemic racism and …

It's About Bloody Time And Space, Lolita Buckner Inniss

Publications

Time frames relationships of power, especially in the context of law. One of the clearest ways in which time is implicated in both law and society is via discourses about women’s biological functions. This Article is an introduction to a larger project that analyzes legal discourses regarding a crucial aspect of women’s calendrically-associated biological functions: women’s menstrual periods. Over the course of the project, I explore legal discourses about menstruation through the notion of what literary theorist Mikhail Bakhtin calls “chronotopes”—a connectedness of temporal and spatial relationships. Temporality, Bakhtin argues, is closely associated with certain paradigmatic spaces, and the combination …

Distribution, Bars, And Arcade Stars: Joe Anthony’S Entrepreneurial Expansion In Houston’S Gay Media Industries, Finley Freibert

Faculty and Staff Scholarship

This article develops the concept of "gay useful media" to explore a case study of gay entrepreneurship in Houston, Texas, of the 1970s. A father and son developed a gay media empire in the city, which spanned bars, bookstores, distribution, and vending. One of the pair's key establishments was Houston's legendary gay bar Mary's at 1022 Westheimer (also known as Mary's Lounge, Mary's, Naturally, and Mary's…Naturally).

Experimental Meets Intersectional: Visionary Black Feminist Pragmatism And Practicing Constitutional Democracy, Linda C. Mcclain

Faculty Scholarship

That pragmatism can do-and already is doing-real work to repair and improve constitutional democracy in the United States is a conviction voiced in the academy, in social movements, and in social media. But what does pragmatism mean, as used in these contexts? Sometimes, pragmatism seems to connote simply being practical (rather than idealistic) and focusing on results. But sometimes, commentators are saying more: pragmatism as a distinctive political philosophy has the power to fuel meaningful democratic change. This Article focuses on the creative and productive melding of classical American pragmatism (as exemplified by John Dewey and others) with feminism. In …

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …

In Search Of Equality For Women: From Suffrage To Civil Rights, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This article analyzes women’s rights advocacy and its impact on the meanings of gender equality during the period from the achievement of suffrage in 1920 until the 1964 Civil Rights Act. It teaches that one cannot separate the conceptualization of equality or the jurisprudential philosophy underlying it from the dynamics and characteristics of the social movements that actively give it life. Social movements identify the institutions and practices that will be challenged, decisions that in turn determine which doctrinal issues will provide the raw material for jurisgenerative change. Without understanding a movement’s strategy and opportunities for action, one cannot know …

Foucault’S Keystone: Confessions Of The Flesh, Bernard E. Harcourt

Faculty Scholarship

The fourth and final volume of The History of Sexuality offers the keystone to Michel Foucault’s critique of Western neoliberal societies. Confessions of the Flesh provides the heretofore missing link that ties Foucault’s late writings on subjectivity to his earlier critique of power. Foucault identifies in Augustine’s treatment of marital sexual relations the moment of birth of the modern legal actor and of the legalization of social relations. With the appearance of the modern legal subject, Foucault’s critique of modern Western societies is complete: it is now possible to see how the later emergence of an all-knowing homo oeconomicus strips …

Not All Violence In Relationships Is "Domestic Violence", Tamara Kuennen

Brooklyn Law Review

This article argues that not all violence in intimate relationships is “domestic violence.” Domestic violence is a pattern of acts perpetrated with a motive: power and control over another. National anti-domestic violence organizations, activists and advocates, and a number of academics agree on this construct of domestic violence. Law, on the other hand, requires neither a pattern nor a motive; it defines domestic violence to include any single act of violence in a relationship, regardless of the perpetrator’s intent. Because legal intervention is the primary intervention for domestic violence today, feminist legal scholars have sought to reform the law to …