Sexuality and the Law Commons^™

Laws As Tactics, Dean Spade

Faculty Articles

This article will look at how trans scholarship and activism have taken up disciplinary critiques of gender, often influenced by Butler, and suggest that further development of critical trans perspectives focused on sites of regularization is needed, for which Butler's work on governmentality can be useful. To start, it describes some of the key concepts from Butler's work that have been taken up in trans politics and briefly reviews the distinctions Foucault offers between sovereignty, discipline and biopolitics. The article then examines some of the ways that trans politics has critiqued disciplinary norms, looking at resistance to the medicalization of …

Gay Vet’S Separation Pay Claim Alive, Arthur S. Leonard

Other Publications

No abstract provided.

Is Ze An American Or A Foreigner? Male Or Female? Ze's Trapped!, Annette De La Torre

Cardozo Journal of Equal Rights & Social Justice

The note argues that the legal and medical frameworks governing the treatment of transgender and transsexual immigrant detainees in U.S. Immigration and Customs Enforcement (ICE) facilities are inadequate, leading to violations of their Eighth Amendment rights. It contends that the legal system's reliance on narrow medical definitions and outdated gender roles fails to protect these detainees from unsafe and inhumane conditions. The analysis emphasizes the need for comprehensive reforms to address housing, medical care, and staff training to ensure dignity and safety for transgender detainees.

Protecting The Right To Choose: Regulating Conscience Clauses In The Face Of Moral Obligation, Huseina Sulaimanee

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Where Are The Grounds For The Legality Of Abortion? A 13th Amendment Argument, Laura Sjoberg

Cardozo Journal of Equal Rights & Social Justice

The article critiques the legal framework supporting abortion rights, arguing that privacy-based jurisprudence, as established in *Roe v. Wade*, is inadequate due to its roots in a gendered public/private divide that perpetuates inequality. It proposes a new constitutional basis for abortion rights under the Thirteenth Amendment, framing forced pregnancy as a form of involuntary servitude and emphasizing gender subordination rather than privacy or equality.

The Constitutionality Of And Need For Retroactive Civil Legislation Relating To Child Sexual Abuse, Jenna Miller

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the constitutionality and necessity of retroactive child sexual abuse laws, arguing that they provide victims with a pathway to justice despite statutes of limitations. It supports this stance with Supreme Court rulings and examples of successful implementations in states like California and Delaware, emphasizing the balance between victims' rights and defendants' rights.

He's So Gay ... Not That There's Anything Wrong With That: Using A Community Standard To Homogenize The Measure Of Reputational Damage In Homosexual Defamation Cases, Abigail A. Rury

Cardozo Journal of Equal Rights & Social Justice

The note examines the role of the community standard in determining defamation, particularly in cases involving false claims of homosexuality. It argues that the current application of the community standard often lacks clarity and may reflect judicial biases, leading to inconsistent rulings. The note proposes reforms to enhance the accuracy and transparency of defamation analysis by adopting a contemporary community standard, similar to that used in obscenity law, which considers specific geographic and social contexts.

Using Gender Equality Analysis To Improve The Wellbeing Of Prostitutes, Barbara Havelkova

Cardozo Journal of Equal Rights & Social Justice

The article presents a framework for analyzing prostitution through the lens of gender equality, aiming to improve the wellbeing of prostitutes by offering regulators and judges a tool for evaluation. It challenges the asymmetric legal treatment of prostitutes and clients, arguing that such treatment violates gender equality principles. The framework proposes symmetric treatment or measures benefiting prostitutes to address structural inequalities rooted in gender, class, race, and socioeconomic status. The analysis draws on European and common law jurisdictions, emphasizing the need for gender-conscious policies to ensure fairness and proportionality.

Common Law Same-Sex Marriage, Peter Nicolas

Articles

In this Essay, I demonstrate that, with the extension of the right to marry to same-sex couples in Iowa, the District of Columbia, and New Hampshire (all states that recognize common law marriage), there now exists the possibility that—for the first time in the United States—a same-sex couple may enter into a legally recognized common law marriage.

In the Essay, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in these three jurisdictions, and I explain and compare the criteria for entering into common law marriages in each of them. …

Same-Sex Marriage, Same-Sex Cohabitation, And Same-Sex Families Around The World: Why “Same” Is So Different?, Macarena Saez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

National Report: Canada, Marie-France Bureau

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Amending The Defense Of Marriage Act: A Necessary Step Toward Gaining Full Legal Rights For Same-Sex Couples, Nancy Kubasek, Christy Glass, Kate Cook

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Erotic Entitlements Part I: A Reply To Sex Therapy In The Age Of Viagra: “Money Can’T Buy Melove”, Adrienne D. Davis

Scholarship@WashULaw

This is the first of three inquiries into what might be thought of as erotic entitlement. It explores the role of the erotic in regulatory and distributive regimes. Conceived as a reply to Susan Stiritz and Susan Appleton‘s provocative and rich essay Sex Therapy in the Age of Viagra, it starts by summarizing the innovations of their argument. It next uses their paper to pose some questions. First, in this time of contentious feminist, constitutional, and human rights sexual discourse, how is the erotic defined? How is the erotic related to and distinct from desire, the sexual, and even the …

Homosexual Single Individuals’ Right To Adopt Before The European Court Of Human Rights And In The French Legal Context, Elena Falletti

Human Rights Brief

No abstract provided.

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators – those who are like a discrimination claimant but for the protected characteristic – as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed …

Same-Sex Marriage, Same-Sex Cohabitation, And Same-Sex Families Around The World: Why ‘Same’ Is So Different?, Macarena Saez

Scholarly Articles in Law Reviews & Journals

This paper briefly explains the situation of same sex couples in countries that have opened marriage to individuals of the same sex, offers a summary and analysis of the status of same sex unions in several countries that have not opened marriage to same sex couples, and provides a comparative analysis of the most recurrent arguments used in the processes of recognition and denial of same sex unions in the countries reviewed.

Forty years ago, same sex couples were not legally accepted in any country. In the last thirty years, however, around 20% of the world has granted some rights …

The Miraculous Year 2010 In United States' Gay Rights Law: Anomaly Or Tipping Point?, Arthur S. Leonard

Articles & Chapters

During 2010 a series of decisions by United States District Court judges appeared to mark a significant breakthrough in the ongoing struggle by sexual minorities in the United States to achieve legal equality through the removal of objectionable laws and policies. Almost as if a dam had broken, there was a sudden rush of developments on three highly contested fronts: (1) the statutory ban on military service by openly gay individuals, (2) the exclusion from federal recognition for lawfully contracted same-sex marriages, and (3) a popularly enacted California state constitutional amendment taking away same-sex marriage rights that had previously been …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman

Articles & Chapters

This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …

Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives Book Review, Zanita E. Fenton

Articles

No abstract provided.