Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, November 18, 2015

Obama supports altering Civil Rights Act to ban LGBT discrimination

From WaPo: 

The White House endorsed legislation Tuesday that would amend the 1964 Civil Rights Act to ban discrimination on the basis of sexual orientation or gender identity.

White House press secretary Josh Earnest said the Obama administration had been reviewing the bill “for several weeks.”

“Upon that review it is now clear that the administration strongly supports the Equality Act,” he said. “That bill is historic legislation that would advance the cause of equality for millions of Americans.

“We look forward to working with Congress to ensure that the legislative process produces a result that balances both the bedrock principles of civil rights . . . with the religious liberty that we hold dear in this country,” Earnest added.

November 18, 2015 in LGBT | Permalink | Comments (0)

Sunday, November 15, 2015

Utah Judge Drops Order on Lesbians’ Foster Child

From the NYT: 

Under fire from critics including gay rights activists and the state’s Republican governor, a judge in Utah on Friday reversed, at least temporarily, his order that a foster child be taken away from a lesbian couple because it was “not in the best interest of children to be raised by same-sex couples.”

While the child may remain with the couple for the moment, Judge Scott N. Johansen signaled that the matter might not be settled. He continued to question the placement of children with same-sex parents, a matter that will be taken up at a Dec. 4 hearing on what is in the best interests of this child, a 9-month-old girl.

The judge’s actions, coming after the Supreme Court this year established a right to same-sex marriage, put him at the center of another front in the nation’s legal and culture wars: the question of whether gay men and women can get, and keep, custody of children under various circumstances.

November 15, 2015 in Family, LGBT | Permalink | Comments (0)

Thursday, November 5, 2015

How Bathroom Fears Conquered Transgender Rights in Houston

From the Atlantic: 

A city ordinance protecting residents from discrimination based on sexual orientation and gender identity is defeated after a fierce campaign.

The nation’s fourth-largest city has elected a lesbian mayor three consecutive times without much controversy, and in 2014, its city council approved an ordinance protecting residents from discrimination based on sexual orientation, gender identity, and 13 other factors. But when that same proposal came before the electorate on Tuesday, it lost out to an opposition campaign armed with a startlingly simple message: “No men in women’s bathrooms.” Opponents led 61 to 39, with 66 percent of the precincts reporting on Tuesday night.

November 5, 2015 in Legislation, LGBT | Permalink | Comments (0)

Transgender Students in High School Locker Rooms

Discussion happening at the NYT: 

Federal education officials have ruled that an Illinois school would illegally discriminate against a transgender student if they did notlet her use the girls’ locker room without restrictions, rejecting a plan to have her change beyond privacy curtains. Students leda walk out of a Missouri school earlier this year when a transgender girl started using the girl’s locker room. “Some girls already have insecurity problems getting dressed in front of other girls as it is,” one student said.

Can transgender equality be protected while still recognizing student concerns about privacy in a locker room, or do such accommodations create inequality?

November 5, 2015 in Education, LGBT | Permalink | Comments (0)

Monday, October 26, 2015

NY transgender protections rely on 1945 law

The story from NY: 

ALBANY -- Gov. Andrew Cuomo’s move to provide legal protections to transgender New Yorkers hinges on interpreting the word “sex.”

Cuomo late Thursday introduced regulations that would legally prevent New York employers, businesses and housing providers from discriminating against transgender individuals and those with gender dysphoria.

Within hours of Cuomo’s proposal, conservative groups pushed back, questioning whether the governor has the legal authority to install such rules. The Cuomo administration has stood its ground, with one official calling the plan a “progressive interpretation” of a law that first took effect in 1945.

October 26, 2015 in LGBT | Permalink | Comments (0)

Friday, October 23, 2015

Tokyo Ward to Start Issuing Same-Sex Partnership Certificates

From the WSJ blog: 

Tokyo’s Shibuya ward said Friday that it will start accepting applications for same-sex partnership certificates beginning next week after passing an ordinance earlier this year that permits the ward to recognize the partners equivalent to those married under the law.

According to the ward, same-sex couples applying for a certificate must both reside in Shibuya and be at least 20 years old. They must also be unrelated and have no spouses or other same-sex partners. The ward will also require that the couple submit notarized documents proving their relationship.

The ward said it will start issuing the certificates beginning Nov. 5.

October 23, 2015 in International, LGBT | Permalink | Comments (0)

Monday, October 12, 2015

Only the third constitution to guarantee LGBT rights

From HuffPost: 

In the midst of earthquake reconstruction and political violence in the country's south, Nepal's new constitution provides a reason for many citizens to celebrate -- particularly its lesbian, gay, bisexual, transgender, and intersex (LGBTI) community.

After more than seven years of deliberation, on September 20, Nepal's President Ram Baran Yadav promulgated the small Himalayan country's historic constitution. It stands as the first national constitution in Asia--and only the third in the world along with South Africa (1996) and Ecuador (1998)--to include explicit rights and protections for LGBTI people.

October 12, 2015 in International, LGBT | Permalink | Comments (0)

Friday, October 9, 2015

"Delhi Court Protects Transgender Teen"

From Human Rights Watch: 

"Everyone has a fundamental right to be recognized in their gender," the Delhi High Court declared this week in a short but powerful judgment that vindicates the rights of India’s transgender people.

The court stepped in to protect Shivy, a 19-year-old transgender man studying neurobiology in California, who was being mistreated by his parents during a family holiday to India. Shivy said his parents confined him to his grandparents’ home in Agra, took away his Indian passport and United States residency card, and compelled him to enroll in a university in Agra. When he ran away, his parents reported him to the police, who searched for him and reportedly harassed activists who had assisted him.

October 9, 2015 in International, LGBT | Permalink | Comments (0)

Wednesday, October 7, 2015

Keith Cunningham-Parmeter's new article

Prof. Keith Cunningham-Parmeter has uploaded a new article onto SSRN.  The article is titled "Marriage Equality, Workplace Inequality:  The Next Gay Rights Battle," and its abstract reads:  

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.

This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.

Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.

October 7, 2015 in LGBT, Scholarship | Permalink | Comments (0)

Friday, October 2, 2015

"Pope Francis' Visit With a Transgender Man Deserves the Same Media Coverage Given Kim Davis"

From HuffPost: 

Since the American press largely ignored or downplayed the Pope's January 2015 Vatican visit with a transgender man from Spain, many Americans have nothing to counterbalance off the Pope's Kim Davis visit to understand that the pontiff's visit is not meant to signal he has taken Davis' side, or joins in condemning gay culture. Rather it is the Pope's demonstration of compassion for all people.


While those eager to criticize and even hate the Pope for his visit with Davis, those with open minds can consider the Vatican visit with Diego Neria Lejarraga and his fiancee as a refutation of the hatred that the Davis camp is spreading. The public following the Pope is due more comprehensive exposure to Pope Francis' inclusion of the different voices and lifestyles he embraces in his spiritual vision of the Church in the future, and the vist with Neira represents the Pope's boldest departure from Catholic doctrine to date.

October 2, 2015 in LGBT, Religion | Permalink | Comments (0)

Monday, September 14, 2015

"Kim Davis, back to work, faces taunting billboard — and a whole lot of questions"

From WaPo: 

She’s back — but what happens now?

That is the question on the minds off all Rowan County watchers. There, in small-town Kentucky, clerk Kim Davis went to jail earlier this month rather than issue marriage licenses in the wake of the Supreme Court’s legalization of same-sex marriage. Davis, an Apostolic Christian, said her faith prevented her from blessing such unions, so she refused to issue any licenses despite a court order. This landed her in jail for contempt of court.

Last week, after five days behind bars, Davis triumphantly emerged arm-in-arm with Republican presidential candidate Mike Huckabee to the strains of “Eye of the Tiger” — and, though clerks have been issuing licenses in her absence — with a bit of ambiguity about what would happen when she returned to her job.

September 14, 2015 in LGBT | Permalink | Comments (0)

Friday, September 11, 2015

"Once a Pariah, Now a Judge: The Early Transgender Journey of Phyllis Frye"

From the NYT: 

Nearly four decades before Caitlyn Jenner introduced herself to the world, Phyllis Randolph Frye came out as a transgender woman in a far less glamorous way. No Diane Sawyer, no Vanity Fair.

It was the summer of 1976. As Bruce Jenner, 26, was celebrating his decathlon victory at the Montreal Olympics, Phillip Frye, 28, was admitting defeat in suppressing his gender identity. He, becoming she, had already lost a lot: He had been forced to resign from the military for “sexual deviation.” He had been disowned by his parents, divorced by his first wife and separated from his son. He had been dismissed from several engineering jobs.

September 11, 2015 in LGBT | Permalink | Comments (0)

Monday, September 7, 2015

"Activists Say Police Abuse of Transgender People Persists Despite Reforms"

From the NYT: 

New Year’s revelers clamored outside the window of Shagasyia Diamond’s apartment in the Bronx the day she was arrested.

Newly into 2014, she was in the midst of a dispute with her husband when officers showed up at her front door, placed her in handcuffs and escorted her to a nearby precinct. It was there, Ms. Diamond recalled, that the violations began.

Although the New York Police Department amended its patrol guide in 2012 to require respectful treatment of transgender people, Ms. Diamond, who is a transgender woman, said she was subjected to a strip search by a male officer. Two other officers watched from a few feet away, gawking as she spread her legs. Officers then placed Ms. Diamond in a cell for men, she said, where she cowered in the corner as other inmates heckled her and used the exposed toilet in her presence. When she expressed her discomfort to an officer, he replied, “You know you like it in there with all the men.”

September 7, 2015 in LGBT | Permalink | Comments (0)

Wednesday, September 2, 2015

LGBT Rights (or lack thereof) in Tunisia

From the Guardian: 

Nawel was in Tunis’s city centre when it happened. “This guy came up to me from nowhere. He was dressed really religiously and, without any warning, he just slapped me across the face – and the weird thing was that it wasn’t just the slap. It was that no one did anything. They all just carried on. It was if I deserved it.”

Nawel shakes her head, still stung by the casual indifference of the crowd. There isn’t anything unusual about her that might mark her out for attack. With her short hair, jeans and T-shirt she is indistinguishable from many other young women.


Tunisia’s attitude to its lesbian, gay, bisexual and transgender (LGBT) community goes beyond the social. Article 230 of Tunisia’s constitution forbids acts of sodomy, with those found guilty facing jail sentences of up to three years. Article 226 rules against outrages to public decency, a catch-all law often used to target the country’s trans community. Both laws date from 1914 and remain untouched by the 2011 revolution and the subsequent rush to reform.

Much of the focus for Tunisia’s LGBT pushback has focused on the pressure group Shams, which campaigns for the repeal of Article 230. But an organisation formed in June last year is providing a feminist alternative. Chouf, whose members see themselves primarily as visual activists, offers a desperately needed safe haven for Tunisia’s most isolated and vulnerable groups, its lesbian, bisexual and trans communities.

September 2, 2015 in Constitutional, International, LGBT | Permalink | Comments (0)

Monday, August 31, 2015

Transgender and Immutability

One of the informal prerequisites for the court to deem something a suspect class for purposes of equal protection is that the members of that class have an "immutable trait," something that they are born with and is not amenable to change.  

As its name suggests, transgender implies an identity that is mutable.  However, a recent NYT story challenges that inference.  

Dr. Kranz studied four different groups: female-to-male transsexuals; male-to-female transsexuals; and controls who were born female or male and identify as such. Since hormones can have a direct effect on the brain, both transsexual groups were studied before they took any sex hormones, so observed differences in brain function and structure would not be affected by the treatment. He used a high-resolution technique called diffusion tensor imaging, a special type of M.R.I., to examine the white matter microstructure of subjects’ brains.

What Dr. Kranz found was intriguing: In several brain regions, people born female with a female gender identity had the highest level of something called mean diffusivity, followed by female-to-male transsexuals. Next came male-to-female transsexuals, and then the males with a male gender identity, who had the lowest levels.

In other words, it seems that Dr. Kranz may have found a neural signature of the transgender experience: a mismatch between one’s gender identity and physical sex. Transgender people have a brain that is structurally different than the brain of a nontransgender male or female — someplace in between men and women.

This gradient of structural brain differences, from females to males, with transgender people in between, suggests that gender identity has a neural basis and that it exists on a spectrum, like so much of human behavior.

August 31, 2015 in LGBT | Permalink | Comments (0)

Friday, August 21, 2015

LGBT Couples and Social Security

From the NYT: 

Same-sex couples may have won marriage equality, but some gay and lesbian individuals have been left wondering if their unions are still less than equal in the eyes of the government.

Kathy Murphy is one of them. She has been unable to collect survivor and death benefits from Social Security since she lost her spouse, Sara Barker, to cancer in 2012. Ms. Murphy retired from her career in publishing in 2011, earlier than she expected, to care for Ms. Barker, who died at 62.

Ms. Murphy finds herself in this predicament largely because her spouse died before the Supreme Court’s monumental ruling in June, Obergefell v. Hodges, which declared that marriage is a fundamental right. That case came after the landmark Windsor decision, in 2013, in which the court ruled that same-sex couples are entitled to federal benefits.

August 21, 2015 in LGBT | Permalink | Comments (0)

Wednesday, August 19, 2015

Trump--Most Gay-Protective GOP Candidate?

Thus runs a tentative theory being floated by MSNBC, of all parties: 

With his penchant for name-calling and plans to deport every undocumented immigrant living in the United States, Donald Trump hasn’t exactly established a reputation for tolerance. Yet the real estate mogul and reality TV host might nevertheless be the most LGBT-friendly Republican running for president.

Asked whether private companies should be able to fire employees simply because they’re gay, Trump told “Meet The Press” host Chuck Todd on Sunday that he didn’t think sexual orientation “should be a reason” for letting workers go.

The question is a significant one for any White House hopeful – currently, 31 states lack employment protections for LGBT Americans, by the Human Rights Campaign’s count, and there are no federal barriers to discrimination based on sexual orientation or gender identity. Trump’s response, however, marked a significant departure from the rest of the crowded GOP presidential pack, many of whom have pledged to expand protections for those wishing to turn away LGBT people on religious grounds.

August 19, 2015 in LGBT | Permalink | Comments (0)

"Latin America's Transgender-Rights Leaders"

From the New Yorker: 

About three weeks before the U.S. Supreme Court legalized same-sex marriage, the Colombian government issued a directive that received little international notice. On June 4th, the government announced that it would allow Colombian citizens to change their gender on identity documents without first undergoing gender-reassignment surgery or obtaining permission from a medical professional. These requirements, which remain in place, either in whole or in part, in the U.S. and most of the rest of the world, were “profoundly invasive of the right to privacy and based upon an impermissible bias,” said Yesid Reyes, the minister of justice. “The construction of sexual identity and gender is a matter that does not depend on biology.”


England and Spain passed the first laws making it easier for a person to change her gender on official documents, in 2004 and 2007, respectively, and Uruguay followed suit in 2009. Three years later, Argentina passed the most progressive gender-identity law in the world. Not only are Argentines spared the usual requirement of reassignment surgery or a medical diagnosis to change identity documents, but medical practitioners are bound by law to provide them with free hormone treatment and gender-reassignment surgery. Colombia’s decree, which was issued by the president, lacks the reach and force of Argentina’s legislation, but it is striking just the same. Now, in Colombia, all an individual has to do to change his or her gender on official documents is appear before a notary public.

August 19, 2015 in International, LGBT | Permalink | Comments (0)

Monday, August 17, 2015

"Seattle passes all-gender bathroom law"

The story: 

Seattle follows Philly in making public restrooms gender neutral.

No matter how you identify, you’ll now be able to use a single-stall bathroom in the city of Seattle.

The Seattle City Council passed a law on Monday that requires all public spaces–both those controlled by the city and those of private businesses–to designate any existing and future single-stall restrooms as all-gender, reported local news outlet Seattle Pi.

This goes for all local businesses, including coffee shops, restaurants, hotels and stores. The law prevents business owners from labeling any restroom as gender exclusive.

August 17, 2015 in Gender, LGBT | Permalink | Comments (0)

Monday, August 3, 2015

"Andy Burnham: men convicted for being gay should get automatic pardons"

From the Guardian UK: 

An automatic legal pardon should be given to all men convicted under historical homosexuality laws without the need for families or individuals to apply to the government, the Labour leadership contender Andy Burnham has proposed. His pledge, following consultation with Sir Keir Starmer, the former director of public prosecutions and current Labour MP, means it would be possible to quash up to 50,000 convictions for acts that would be not be illegal today.

Burnham, who currently shares roughly the same number of constituency nominations as Jeremy Corbyn, said he will press prime minister David Cameron to make a relatively simple change to the law, but if he does not do so, it would form part of the first legislative programme of a Burnham-led government. The move comes two years after the royal pardon granted to second world war codebreaker Alan Turing.

Were there any women convicted the referenced law?  

August 3, 2015 in International, Legal History, Legislation, LGBT | Permalink | Comments (0)