Mary Dunlap and the Constitutional Rights of Sexual Minorities: Robson's Saturday Evening Review

[U]nder a system that permits individualized sex identification, the past exercises of the legal power to enforce a male/female order might be discovered to have played a primary role in retarding the progress of creativity and diversity among human beings in their relationships to each other, to institutions and to the environment.  While such discoveries now seem far distant from the horizons of the United States Constitution, perhaps tomorrow's journeys into extraterrestrial space, or earth creatures' own ventures into the technology of cloning and test-tube productions of new life forms, or even today's silent mutations, will rapidly and vividly bring the nascent potentials of individual sex definition, free of the present paradigm of two sexes, into focus in the constitutional galaxy.

Mary Dunlap, The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, 30 Hastings L. J. 1131, 1148-49 (1979).

Turning to the work of Mary Dunlap (1949 - 2003), the pioneering law professor and litigator, seems appropriate the day after the Iowa Supreme Court's opinion in Varum v. Brien (our most recent post here) and as the California Supreme Court continues to deliberate on the constitutional challenge to Proposition 8 (our most recent post here).   Dunlap did not live to see the United States Supreme Court overturn Bowers v. Hardwick, a case she called a "grievous loss," and it is difficult not to wonder what she would think about post-Lawrence developments, especially in the area of state constitutional opinions finding same-sex marriage prohibitions unconstitutional.  It is easy, of course, to assume she would have been overjoyed.  However, it is also possible to imagine the ways in which she might criticize constitutional doctrine for continuing to reify the "present paradigm of two sexes" or to regulate sexual freedom.

Indeed, the entire volume of the Hastings Law Journal issue in which Dunlap's piece appears invites reflection.  Published in March 1979, it is entitled "Sexual Preference and Gender Identity: A Symposium," with a full page dedication to Harvey Milk, 1930 - 1978, complete with a large photo of the murdered San Francisco Board of Supervisors member.  The volume opens with the classic article by another pioneering law professor - - - Rhonda Rivera, entitled "Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States," and also includes an article by constitutional scholar David A.J. Richards (now at NYU), entitled "Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution." 

While many of the specific doctrinal issues discussed in these articles may seem dated, the theoretical perspectives and constitutional arguments remain current.   These articles from 1979 can be difficult to find in electronic copy, but are worth a trip to a law library's shelves. 

RR