Sexuality and the Law Commons^™

Abortion Pills, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Though antiabortion advocates and legislators are attacking pills with all manner of strategies, clinics, websites, and informal networks are openly facilitating the distribution of abortion pills, legally and illegally, across the United States. This Article is the first to explain this defining aspect of the post-Roe environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.

This Article first details antiabortion strategies to stop pills by any means necessary. These tactics …

The New Pornography Wars, Julie A. Dahlstrom

Faculty Scholarship

The world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. As in the “pornography wars” of the 1970s and 1980s, lawyers and activists have now turned to civil remedies and filed creative anti-trafficking lawsuits against MindGeek and third parties, like payment processing company, Visa. These lawsuits seek not only to achieve legal accountability for online sex trafficking but also to reframe a broader array of online harms as sex trafficking.

This Article explores what these new trafficking lawsuits mean for the future regulation of …

Title Ix And The Challenges Of Educating For Equality, Linda C. Mcclain

Faculty Scholarship

Educating for equality to foster practicing equality must be a vital task for the next fifty years of Title IX. It is also a task that fits into the mission and expertise of schools as educational institutions. I use “educating for equality” as shorthand for the role of schools in preparing children, adolescents, and college students to participate in and build a world in which—to echo Title IX’s “37 words that changed everything”¹—“No person in the United States, shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to …

Unlocking The Beauty From Within Title Vii: Arguing For An Expansive Interpretation Of Title Vii To Protect Against Attractiveness Discrimination, Michael Conklin

American University Journal of Gender, Social Policy & the Law

Beauty may only be skin deep, but discrimination against the unattractive runs far deeper. Research emphatically demonstrates that attractiveness discrimination affects nearly every aspect of life, including hiring and promotion decisions. For example, personal injury attorneys utilize economists as expert witnesses for how their clients’ reduced attractiveness will negatively affect their future earnings. Attractiveness discrimination is just as prevalent as discrimination based on ethnicity. Unfortunately, current interpretations of federal antidiscrimination legislation do not offer protections from attractiveness discrimination. This Article offers a comprehensive framework for providing such protections under an expansive interpretation of Title VII.

Colonizing Queerness, Jeremiah A. Ho

All Faculty Scholarship

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Policing Queer Sexuality, Ari Ezra Waldman

Michigan Law Review

A Review of Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall. By Anna Lvovsky.

Practicing Queer Legal Theory Critically, Kendall Thomas

Faculty Scholarship

This introduction to the Critical Analysis of Law special issue on queer legal studies excavates three conjugal artifacts: an academic manuscript delineating interracial and same-sex marriages as loci of state surveillance and unfreedom; a TED Talk on same-sex marriage as irrefutably queer; and the United States Supreme Court decision holding same-sex marriage a constitutional right. These artifacts, along with their singular referent (state-sanctioned marriage), point to what is or should be critical about the interdiscipline of queer legal studies: theorization not only of the subjectification of subjects of gender and sexual regulation (spouses, singles, you and me), but also theorization …

Title Ix’S Unrealized Potential To Prevent Sexual Violence, Katharine B. Silbaugh

Faculty Scholarship

The mandate of Title IX is equality in educational opportunities. If educational institutions could prevent sexual assaults from occurring, they would more fully ensure that students are not limited in their ability to benefit from the school’s educational programs. However, Title IX administration on college campuses still focuses far more on post-assault infrastructure than on assault prevention.

Yet with the ever-increasing particularity of the assault response requirements emanating from the Department of Education (“DOE”)2 and courts, Title IX jurisprudence has strayed too far from this basic purpose: to ensure that students in federally funding schools are not denied or limited …

Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past

Brooklyn Journal of International Law

So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …

Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith

Congressional and Other Testimony

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.

Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman

St. Mary's Law Journal

There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of …

Subsidiarity & Vulnerability Theory: A Case Study For Deepening The Relationship Between Catholic Social Teaching And The Responsive State, Nathaniel Romano

Catholic University Law Review

Religion and religious voices have long had a role to play in shaping community norms and values and public policy; this role continues in contemporary America. Yet, legitimate questions arise about the extent of this role and its place in a pluralist and democratic state. These questions are particularly pronounced when religion is perceived as partisan, a situation that seems apparent in contemporary America. Hoping to combat this perception, this paper explores the relationship between Catholic Social Teaching and Vulnerability Theory, aiming to show how religious values can inform legal theory across the political spectrum. This paper surveys both Catholic …

Litigation, Referendum Or Legislation? The Road To Becoming The First In Asia To Institutionalize Same-Sex Marriage, Tzu-Chiang Huang

Michigan Journal of Gender & Law

In the pursuit of same-sex marriage, advocates in each country evaluate the appropriate decision-making process for addressing this highly disputed issue—litigation, legislation, or referendum. The choice may be partially based on the institutional advantages of each approach, but more importantly, the choice is also conditioned by the legal and political context of each country, such as the authority of the court, the framing of public opinion, and the dynamics between movement and countermovement. Uniquely, all three decision-making processes are involved in the course of the institutionalization of same-sex marriage in Taiwan. This Article, focusing on the experience in Taiwan, examines …

Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry

Washington Law Review

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …

False Promise To Marry And Other Forms Of Sex By Deception In India And Singapore, Wing Cheong Chan

Research Collection Yong Pung How School Of Law

Dishonesty is unfortunately a sad fact of life in human relationships. When a woman is duped by a man intohaving sex by lies and deception, what should the response of the criminal law be? Is it rape or just a game of seduction or something in between? This article sets out and evaluates the different approaches taken by India and Singapore in cases of sex by deception. It suggests that the approach adopted in Singapore could be a model for criminal law reform in this contentious area.

Lessons From Bostock: Analysis Of The Jurisprudential (Mis)Treatment Of “Sex” In Title Vii Cases, Allison Greenberg

UC Irvine Law Review

The Supreme Court’s decision in Bostock v. Clayton County extended Title VII’s prohibition on sex discrimination to lesbian, gay, and transgender individuals. This decision represents the latest step forward in a long line of Title VII jurisprudence, which slowly expanded the definition of “sex” as the cultural understanding of sex, gender identity, and sexual orientation improved. This Note critically reviews that history of jurisprudence, using the Bostock decision as a frame to examine the ways in which the courts’ definition of “sex” has evolved out of a flawed understanding of the relationships between sex, gender identity, …

Anonymous Hacktivism: Flying The Flag Of Feminist Ethics For The Ukraine It Army, Ellen Cornelius

Homeland Security Publications

No abstract provided.

Men's Rights, Gun Ownership, Racism, And The Assault On Women's Reproductive Health Rights: Hidden Connections, Walter S. Dekeseredy

Dignity: A Journal of Analysis of Exploitation and Violence

In this current era characterized by much fear of, and anxiety about, the political influence and actions of the U.S. alternative right (alt-right), only a small number of men’s rights organizations receive attention from the media, the Democratic Party, or a large cadre of progressives. This article demonstrates that ignoring all-male anti-feminist organizations is a flawed strategy for challenging the recent rise of the alt-right because these misogynistic groups are heavily involved in the gun rights movement, major contributors to racist practices and discourses, and active participants in efforts to criminalize and curtail women’s access to abortion. Another, but equally …

Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain

St. John's Law Review

(Excerpt)

At the core of every capital sentencing proceeding is a guarantee that before condemning a person to die, the sentencer must consider the humanity and dignity of the individual facing the ultimate sanction. This principle—that “death is . . . different” and, therefore, requires consideration of the “diverse frailties of humankind”—echoes throughout the United States Supreme Court’s Eighth Amendment jurisprudence. And yet courts are reluctant to remedy the devastating impact of prosecutorial arguments that dehumanize marginalized persons facing the death penalty, condemning these arguments while nevertheless “affirm[ing] resulting convictions based on procedural doctrines such as harmless error.”

These dehumanizing …

Sexual Orientation, Gender Identity, And Homelessness Post-Bostock, Alaina Richert

University of Michigan Journal of Law Reform

Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, …