Sexuality and the Law Commons^™

Medical Rights For Same-Sex Couples And Rainbow Families, Anisa Mohanty

Richmond Journal of Law and the Public Interest

The present state of the law regarding medical rights for same-sex couples and their families is highly inconsistent. A handful of states permit same-sex marriage. Another handful of states recognize samesex marriages from other states, allow civil unions with state-level spousal rights for same-sex couples, or extend some or nearly all statelevel spousal rights to unmarried couples in domestic partnerships. With these widely disparate levels of recognition, it becomes difficult for same-sex couples to navigate their options and rights when a loved one-a partner or child-has a medical emergency or is in the hospital. In Part II, this Comment will …

The Cross-Dressing Case For Bathroom Equality, Jennifer Levi, Daniel Redman

Faculty Scholarship

This Article offers a new set of arguments for transgender equality based on a little-known series of cases in which courts declined to enforce cross-dressing laws against transgender defendants. As shown below, the arguments brought by the defenders of these laws closely mirror the arguments brought today in favor of bathroom discrimination. The Authors discuss both the bathroom and cross-dressing debates in historical context, draw out the underlying reasoning in the two sets of cases,and argue that the reasoning that supports bathroom discrimination is as flawed as the reasoning behind criminal cross-dressing laws. The analysis also suggests that, just as …

Lost Children: The Abuse And Neglect Of Minors In Polygamous Communities Of North America, Kelly R. Schwab

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges of addressing child abuse in polygamous communities, highlighting the tension between religious freedom and child protection. It argues that while religious beliefs are protected under the First Amendment, religious conduct, such as polygamy, should not be exempt from legal scrutiny when it harms children. The author advocates for courts to prioritize children's best interests over religious practices, especially in cases involving criminal activities like polygamy.

Sects' Offenders: The Inefficacy Of Sex Offender Residency Laws And Their Burdens On The Free Exercise Of Religion, Amol N. Sinha

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Sexual Rights And State Governance, Katherine M. Franke

Faculty Scholarship

We sit at an interesting juncture in the evolution (in some cases, devolution) of the idea of sexual rights in international law. For at the very moment that we are experiencing a retraction in both domestic and international commitments to rights associated with sexual and reproductive health, we see sexual rights of a less-reproductive nature gaining greater uptake and acceptance. It is the moral hazard associated with perceived gains in the domain of international rights for lesbians and gay men that I want to address today. In the end, the point I want to bring home is that a particular …

"Cover My Pills": Contraceptive Equity And Religious Liberty In Catholic Charities V. Dinallo, Ayelet S. Lebovicz

Cardozo Journal of Equal Rights & Social Justice

The note  examines the tension between the New York Womens Health and Wellness Act's (WHWA) goal of promoting women's health through contraceptive access and its burden on the First Amendment rights of religious employers. It argues that while the WHWA advances significant public health interests, its contraceptive mandate imposes substantial burdens on religious freedom and free speech, necessitating strict scrutiny. The analysis critiques the New York Court of Appeals' decision for failing to fully consider the plaintiffs' hybrid-rights claims under Supreme Court precedent, highlighting the need for lawmakers to balance competing interests while adhering to constitutional protections.

Informed Choices And Uniform Decisions: Adopting The Aba's Self-Enforcing Administrative Model To Ensure Successful Surrogacy Arrangements, Christine Metteer Lorillard

Cardozo Journal of Equal Rights & Social Justice

Non-traditional families are on the rise in America today, with more and more same-sex couples raising families together. Yet, all same-sex partners seeking to become parents must make use of some assisted reproductive technique ("ART'), as must some heterosexual married couples. Despite the growing number of people who want to create families, including those that resort to ARTs to have genetically-related children, there are significant moral, economic, and legal obstacles in their way. What has long been needed is a codified roadmap for a successful surrogacy agreement that delineates the rights and obligations of the parties involved, as well as …

Security Council Resolution 1820: An Imperfect But Necessary Resolution To Protect Civilians From Rape In War Zones, Melissa Goldenberg Goldstoff

Cardozo Journal of Equal Rights & Social Justice

The note examines the significance and limitations of UN Security Council Resolution 1820, which recognizes rape as a war crime and a threat to international security. While the Resolution is a crucial step forward in protecting women during armed conflicts, it is argued to be imperfect due to its incomplete implementation mechanisms and potential to undermine earlier resolutions like Resolution 1325, which emphasizes women's roles in peace-building.

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy Ten Years After Bisexual Erasure, Heron Greenesmith

Cardozo Journal of Equal Rights & Social Justice

The article argues that bisexuality remains legally invisible, both in legal culture and jurisprudence, due to its inherent complexity and the reliance of legal arguments on a binary understanding of sexual orientation. It extends Kenji Yoshino's theory of bisexual erasure into the legal context, proposing that bisexuality is not just socially invisible but also legally inconspicuous. The analysis focuses on two main hypotheses: first, that bisexuality is inherently invisible to the law beyond deliberate erasure, and second, that where bisexuality is legally relevant, it complicates legal arguments that depend on the binary of sexuality. The article concludes by advocating for …

“Immutability” And Stigma: Towards A More Progressive Equal Protection Rights Discourse, M. Katherine Baird Darmer

American University Journal of Gender, Social Policy & the Law

No abstract provided.

(Law) Breaking Gender: In Search Of Transformative Gender Law, Richael Faithful

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Forced Marriage As A Harm In Domestic And International Law, Catherine Dauvergne, Jenni Millbank

All Faculty Publications

This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages …

Taking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Vanderbilt Journal of Transnational Law

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention--the ultimate goal--and addressing these problems in a comprehensive and systematic manner. Instead, efforts to date have …

Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg

Faculty Scholarship

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as "sticky intuitions," to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions' work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public …

Achieving Accountability For Migrant Domestic Worker Abuse, Janie Chuang

Scholarly Articles in Law Reviews & Journals

Domestic work has become increasingly commoditized in the global economy. Migrant domestic workers' remittances constitute a rich source of revenues for their countries of origin, while their labor ameliorates the “care deficit” experienced in wealthier countries of destination. Despite the importance of their work, migrant domestic workers are some of the most exploited workers in the world. They are often discriminated against based on their gender, class, race, nationality, and immigration status, and they are excluded from labor law protections in most countries of destination.

This essay examines some of the underlying reasons for this mistreatment and neglect. After describing …

New York Recognition Of A Legal Status For Same-Sex Couples: A Rapidly Developing Story, Arthur S. Leonard

Articles & Chapters

In New York State at the beginning of 2010, same-sex couples cannot get married but can be married. The state’s highest court, the Court of Appeals, construed the state’s marriage law in 2006 to prohibit state officials from issuing marriage licenses to same-sex couples, but said nothing in that decision about whether same-sex couples married outside the state would be considered married when they were in the state. In February 2008, an intermediate appeals court in Rochester ruled that New York’s marriage recognition law supported extending comity to a same-sex marriage performed in Canada, and several other appellate courts have …

Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders

Articles by Maurer Faculty

This article analyzes the complex interplay between adoption (traditionally a matter reserved to state family law) and the federal Indian Child Welfare Act in the context of adoptions by gays and lesbians.

As a federal statute that partially preempts state law for the benefit of Native Americans, ICWA implicates three sovereigns: the United States, the state where the adoption petition is brought, and the tribe whose child is the focus of the proceeding. This interplay of sovereigns in itself makes Indian child welfare law complicated and interesting. Beyond these sovereign interests, also to be considered are the interests and rights …

A Marriage Is A Marriage Is A Marriage: The Limits Of Perry V. Brown, Robin West

Georgetown Law Faculty Publications and Other Works

The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of …

Love As Legal Methodology: Comments On Love In A Time Of Envy, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In academic papers about emotion, it is not uncommon to find a kind of disconnect between the detachment of theoretical and scholarly language and the subject of the paper--the emotions. One of the lovely, and challenging, aspects of Jonathan Goldberg-Hiller's article is that it not only conveys the emotions that are its subject, but it brims with its own emotion; it reads like a text written out of shattered love. Goldberg-Hiller takes up Jean-Luc Nancy's contention that "love is shattered by its very essence. It fragments the self at the same time as it refracts into many forms." Goldberg-Hiller understands …

Introduction To The Symposium Issue Sexuality And Gender Law: The Difference A Field Makes, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

For a very long time, issues of sexuality and gender remained outside the boundaries of what was considered important legal scholarship. Indeed, the very presence in the legal academy of the concepts of sexuality and gender was viewed as barely legitimate, certainly not respectable, and, in intellectual terms, at best facetious-or, to let Justice White rest in peace, at best frivolous.

One result of this now dying worldview was a series of categorical exclusions and erasures-exemplified by the exclusion of sexual speech from the First Amendment, the exclusion of nonreproductive kinship networks from the definition of family, the exclusion of …