Sexuality and the Law Commons^™

Taking A Break From Acrimony: The Feminist Method Of Ann Scales, Katherine M. Franke

Faculty Scholarship

In this Essay, written as part of a symposium honoring the work of Professor Ann Scales, Professor Katherine Franke explores how Professor Scales may have approached the cutting edge problem of same-sex couples divorcing. Professor Scales's work evidenced a deep commitment to the twin projects of recognizing structural gender disadvantage suffered by women and the tyranny of gender stereotypes. This Essay speculates that Professor Scales's feminist commitments would be unsettled by the application to divorcing same-sex couples of rules and norms of divorce forged in the heterosexual context where gender inequality set the parameters of justice. Indeed, Franke speculates that …

Implications Of Conscience Clause Legislation On Access To Contraceptive Pills, Alicia D. Massidas

Student Works

No abstract provided.

The Effect Of Pre-Legal Recognition Cohabitation On Alimony And Equitable Distribution In Same-Sex Dissolution Cases, Alison J. Miller

Student Works

No abstract provided.

[Including But Not Limited To] Violence Against Women, Giovanna Shay

Faculty Scholarship

This Article highlights three developments in criminal justice in 2012 that marked the move toward more gender-inclusive anti-violence movements: the FBI’s adoption of a gender-neutral definition of rape; the debate regarding the reauthorization of the Violence Against Women Act (VAWA); and the promulgation of new Department of Justice (DOJ) regulations under the Prison Rape Elimination Act of 2003 (PREA). These recent developments reveal a growing movement towards more gender-inclusive conceptions of rape and intimate partner violence. The change to a more gender-inclusive approach will have many implications for criminal justice policy and institutions. One critical project is to ensure that …

Western Universalism And African Homosexualties, Nicholas Kahn-Fogel

Law Faculty Scholarship

This article draws on original historical research, queer theory, communitarian philosophy, and an array of anthropological sources to suggest that efforts by Western liberals to protect practitioners of same-sex intimate conduct in Africa may be relatively unsuccessful and could further endanger the intended beneficiaries of advocacy.

Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg

Faculty Scholarship

In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed …

Western Universalism And African Homosexualties, Nicholas A. Kahn-Fogel

Faculty Scholarly Works

This article draws on original historical research, queer theory, communitarian philosophy, and an array of anthropological sources to suggest that efforts by Western liberals to protect practitioners of same-sex intimate conduct in Africa may be relatively unsuccessful and could further endanger the intended beneficiaries of advocacy.

Multidimensionality Is To Masculinities What Intersectionality Is To Feminism, Athena D. Mutua

Nevada Law Journal

No abstract provided.

Sexual Privacy In The Internet Age: How Substantive Due Process Protects Online Obscenity, Jennifer M. Kinsley

Vanderbilt Journal of Entertainment & Technology Law

Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence's potential applicability to online obscenity has created tension in lower-court decisions and produced …

The Sex Selection Debate: A Comparative Study Of Sex Selection Laws In The United States And The United Kingdom, Deidre C. Webb

South Carolina Journal of International Law and Business

No abstract provided.

Mocking Equality: Reproduction Of Gender Hierarchy In Collegiate Mock Trial, Lily M. Foss

Scripps Senior Theses

During the information sessions that the Scripps Mock Trial Team hosts at the beginning of the school year for those interested in mock trial, it's customary for all the returning team members to talk about why we decided to join mock trial in college. We had no team at my high school, but at the end of my senior year, my AP American Government teacher decided that having a mock trial in class would give us valuable insight into the American legal system. I was chosen to give the closing statement for the defense, and I found my calling. My …

Toward A New Age Of Consumer Access Rights: Creating Space In The Public Accommodation For The Lgbt Community, Justin Muehlmeyer

Cardozo Journal of Equal Rights & Social Justice

The article advocates for an expanded interpretation of public accommodation laws to include LGBT individuals, arguing that current legal frameworks often fail to address their unique experiences of discrimination. It emphasizes the need to modernize the definition of public accommodations to encompass contemporary spaces where cultural interactions occur, such as schools and photography services, while proposing limited exemptions to accommodate religious beliefs. The analysis underscores the ongoing tension between anti-discrimination laws and First Amendment rights, highlighting the human impact of these legal battles through compelling cases and statistics.

Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker

All Faculty Scholarship

This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle …

The Incoherence Of Marital Benefits, Robin West

Georgetown Law Faculty Publications and Other Works

En route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment's Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States gave short shrift to one of Congress's primary arguments in defense of the Act: that the federal government has a compelling interest in limiting federal marriage benefits to opposite-sex couples because traditional marriage has the laudable purpose-or function-of channeling the heterosexual sex that creates children into a way of life that provides the optimal environment for the rearing of those children. In other words, DOMA aims to minimize irresponsible …

Deleuze And The Maiden: A Short Introduction To Legal Pornology, Laurent De Sutter

NYLS Law Review

No abstract provided.

“Rugged Vaginas” And “Vulnerable Rectums”: The Sexual Identity, Epidemiology, And Law Of The Global Hiv Epidemic, Aziza Ahmed

Faculty Scholarship

AIDS remains amongst the leading causes of death globally. Identity is the primary mode of understanding HIV and organizing in response to the HIV epidemic. In this Article, I examine how epidemiology and human rights activism co-produce ideas of identity and risk. I call this the "identity/risk narrative ": the commonsense understanding about an identity group's HIV risk. For example, epidemiology offers the biological narrative of risk: anal sex and the weak rectal lining make men who have sex with men more vulnerable to HIV; while the fragility of a woman's vaginal wall provides a biological foundation for women's vulnerability. …

E Proper Remedy For Possession Of Child Pornography: Shifting From Restitution To A Victims Compensation Program, Michelle Minarcik

NYLS Law Review

No abstract provided.

Transsexual And Intersex Athletes, Erin Buzuvis

Faculty Scholarship

In her chapter, the Author examines the impact of both past and present policies enacted by many sport organizations, such as the International Olympic Committee (IOC) on intersex and transsexual athletes. At the root of many of these policies, and therefore the issues, are the binary gender system and the concern that fraudulent competitors could gain an advantage relative to the rest of the field. While no longer mandatory, women athletes are still subject to varying degrees of sex verification testing on a case-by-case basis, as evidenced by the 2009 testing of South African runner, Caster Semenya.

Recent policies point …

"On The Basis Of Sex": Using Title Ix To Protect Transgender Students From Discrimination In Education, Erin E. Buzuvis

Faculty Scholarship

Transgender students are vulnerable to discrimination, exclusion, and harassment, and it is not clear to what extent this discrimination is prohibited by law. Title IX, the federal law prohibiting discrimination "on the basis of sex" in federally-funded schools, does not expressly prohibit discrimination against transgender students. Yet it is possible to interpret the prohibition on sex discrimination in a number of different ways that would make the law available to transgender plaintiffs in some, many, or all cases of discrimination otherwise covered by the statute. Since Title IX has only been invoked in a handful of transgender rights cases, litigants …

Securing Equal Access To Sex-Segregated Facilities For Transgender Students, Harper Jean Tobin, Jennifer L. Levi

Faculty Scholarship

If Title IX is to have any real meaning for transgender students, it must protect a student's ability to live and participate in school as a member of the gender with which they identify. This means that students must be permitted to use gender-segregated spaces, including restrooms and locker rooms, consistent with their gender identity, without restriction. Denial of equal access to facilities that correspond to a student's gender identity singles out and stigmatizes transgender students, inflicts humiliation and trauma, interferes with medical treatment, and empowers bullies. A student subjected to these conditions is, by definition, deprived of an equal …