Sexual Orientation and the Law Blog

Defining "queer"

In her major essay, "Queer and Now," literary theorist Eve Kosofsky Sedgwick asked why we should expect to infer reliably a person's gender identity and sexual practice from a cursory observation of secondary, or in some cases primary, sex characteristics. 

She invoked "queer" as a term to capture as widely as possible the potential combinations of gender identity, sexual orientation, and sexual practice that violate existing norms.  Sedgwick was an early practitioner of what came to be called "queer theory," or the intellectual effort to understand the political/cultural effects of beliefs and practices surrounding issues of sexuality and gender. 

Like the acronym "LGBT," "queer" strives to encompass virtually any variation in sexuality and gender that anyone could think up, with only very libertarian boundaries marked by consent.  One could contemplate substituting "queer" for "LGBT" entirely in order to stop using an awkward and confusing acronym, and to allow for future expansion to include groups we don't know about yet, but many potential constituents of a "queer" movement continue to object to the term. 

The queer approach to the topic begins by rejecting the proposition that gender identity and/or sexual orientation flow in any "natural" or inevitable way from genital configuration or other bodily elements of "sex."  Whatever links one may be able to demonstrate between the meanings of various terms describing sexuality and gender, and body parts as referents, queer theorists suspect that the meanings are more the result of cultural than biological determination. 

Many, perhaps all, queer theorists consider discrimination against sexual minorities to be unjust and unjustifiable.  Heterosexual supremacy -- the belief that heterosexual persons are somehow inherently superior to queers -- is a form of regulation for its own sake.  No rational or empirical justification exists for any form of discrimination in law or policy against LGBT persons.   

But heterosexual supremacy is endlessly creative in its legal manifestations, requiring constant observation and critique.  That the issue is not really "homosexual" conduct or persons per se, but control over representations of "homosexuals," becomes increasingly clear from the way the law has changed.  In Bowers v. Hardwick, 478 U.S. 178 (1986), the Supreme Court examined a facially neutral sodomy statute to determine if "homosexuals" had a right to engage in sodomy.  The Court first endorsed the trial court's dismissal of a heterosexual couple for lack of standing -- they were in no danger, according to the Supreme Court, of suffering the harm of enforcement of the statute against them even though they expressed the desire to engage in conduct that the statute prohibited and felled chilled from doing so.  Id. at 188 n.2. 

In other words, no one could reasonably expect that any law enforcement officer would arrest heterosexuals for violating the statute that they arrested Michael Hardwick for violating even though the statute prohibited conduct defined exclusively in terms of body parts, with no reference whatsoever to the gender or sexual orientation of the participants.  See id. at 188 n.1.  It is hard to imagine a clearer admission that the issue with respect to queers is status, not conduct, and that a majority of Supreme Court Justices, at least in 1986, took so much for granted the legitimacy of status-based discrimination against "homosexuals" that they uncritically endorsed it in a decision.

From a purely legal perspective, of course, Lawrence v. Texas, 539 U.S. 558 (2003), was a huge improvement.  Now, no one in the United States is subject to arrest for engaging in consensual sodomy.  However, as various observers have pointed out, the Lawrence decision still involves the deployment of rhetorical control over same-sex relationships, assimilating them as much as possible to opposite-sex relationships as the justification for striking down sodomy statutes. 

Why do same-sex couples only get "liberty" to engage in sexual activity when their relationships look like those of opposite-sex couples?  The only answer I can see is that, at least as currently interpreted by the Supreme Court, the United States Constitution's definition of citizenship contains an implicit requirement of heterosexuality. 

On the other hand, Justice Kennedy came suprisingly close to performing a queer theoretical analysis of his own in the Lawrence opinion.  One of the key moves that allowed queer theorists to begin examining the cultural politics of sexuality and gender apart from biology and anatomy was the growing historical and theoretical evidence in the late 1970s and early 1980s for significant variation in definitions of proper sexuality and gender over time and across cultures.  If bodies change their configuration only over evolutionary time, but historians and anthropologists can document substantial variation in historical time in what humans do with those bodies under the western rubric of "sexuality," then the variations must reflect differences of culture, not of biology.  At the height of debate over Simon Levay's claim to have found significant differences in brain structures between gay and non-gay men -- the claim, that is, to have grounded the difference of sexual orientation in a difference of anatomy -- Sedgwick asserted that the focus was misplaced not least because humans have proven much more successful at deliberately changing our biology than our culture.  In this respect, she echoed feminist legal theorist Catharine MacKinnon. 

Kennedy, in turn, relied in Lawrence on the assertions of three historians, Jonathan Ned Katz, Estelle Freedman, and John D'Emilio, that "homosexual" did not exist as a category of persons before the late nineteenth century (the historians' brief in Lawrence offered 1868, the same year as the ratification of the 14th amendment, as the year in which a German researcher first published a paper describing something like the modern notion of "homosexuality"). 

This move allowed him to identify the novelty of the Texas statute at issue in Lawrence -- laws providing criminal penalties for sodomy may have existed in the Anglo-American tradition since Henry VIII broke from the Catholic Church, as the Bowers Court noted, but those laws never singled out same-sex couples as the only types who could violate them.  Statutes singling out same-sex couples were an innovation of the 1970s -- the first decade of the modern lesbian/gay civil rights movement. 

As the next post, on a recent rejection of an asylum claim by a Lithuanian lesbian, demonstrates, the problem is still regulation of queers solely for the sake of regulation.  Now, however, instead of a blanket prohibition on same-sex conduct, judges get to enforce definitions of who is and who is not properly queer.

For more information on queer theory, see my A Genealogy of Queer Theory (2000). 

-WBT

Syllabus for LGBTI issues course

I will teach a course on lesbian/gay/bisexual/transgender/intersex legal issues starting on Monday, August 27 at Emory Law School.  Here is a PDF copy of the syllabus: Download schedule.pdf .  Please let me know if you have comments or suggestions.

I do not use a casebook.  I don't like casebooks (although I'd be happy to write one on this topic ;-)).  I think requiring students to get cases and articles themselves via the various databases they have available reinforces the point that research is an essential part of practicing law. 

I have two other reasons for this decision.  I hope to be as current as possible in this course.  This area of the law is changing rapidly, so it's essential to use the most recent cases.  Also, since Emory is in the San Francisco of the 11th Circuit, I try to focus on cases from the 11th Circuit (which is a bit hard to do just because, unlike the circuit where the original San Francisco resides, some important issues for LGBTI persons have not arisen yet in the 11th Circuit). 

I have at least three practitioners scheduled as guest speakers.  I think this is essential because outcomes for LGBTI clients, even more than most, can depend on the care and knowledge of the attorney, and can vary widely from county to county, even from judge to judge. 

As the schedule indicates, this course is a seminar, which has a specific meaning at Emory Law.  The primary assignment is a writing project of at least 30 pages, which the students can count toward a graduation requirement. 

-WBT

Sexual Orientation Meets Contracts and Torts

In Bubbles'n'Bows, LLC v. Fey Publishing Co., 2007 U.S. Dist. Lexis 60790 (D. N.J., Aug. 20, 2007) (designated "not for publication"), the court dismissed all of the Counts in the initial complaint, but instructed the plaintiff to refile the complaint after correcting it according to the opinion.  Id. at *1-*2. 

What makes this case fascinating for present purposes is how the abstract issue of sexual orientation enters into a business transaction and becomes the basis for a complaint that combines a discrimination claim with a contract claim and a tort claim.  The court held that Bubbles'n'Bows could pursue a discrimination claim against Fey Publishing because the threshold for standing is much lower in discrimination cases than in most cases, but that to pursue the discrimination claim, Bubbles'n'Bows must at least clarify in its complaint who were the potential members of the protected class who suffered from Fey Publishing's allegedly discriminatory act. 

Bubbles'n'Bows is a designer and seller of greeting cards.  Fey Publishing is a printing company.  Bubbles'n'Bows contracted with Fey Publishing to produce a line of cards that included a "traditional lifestyle" component and an "alternative lifestyle" component.  In February 2006, after entering the contract, the proprietor of Bubbles'n'Bows reminded the sales representative at Fey Publishing that she needed samples of the cards in question in time for the National Stationery Show on May 21, 2006.  As late as May 18, 2006, the sales representative at Fey repeatedly assured the proprietor of Bubbles'n'Bows that Fey would provide the samples in time. 

On May 20, 2006, however, the day before the Show, Fey delivered only some of the samples, and had failed to print even those according to the standards Bubbles'n'Bows had stipulated. The sales representative called Bubbles'n'Bows' proprietor to explain that the chairman of Fey Publishing had decided that he did not wish to publish the "alternative lifesyle" line for fear that it would "tarnish the reputation of Fey Publishing."  2007 U.S. Dist. Lexis 60790 at *3-*5.   

The sales representative at Fey did help the Bubbles'n'Bows proprietor find another printer, but he failed to discuss the mechanics of transferring the work from one company to another, adding to Bubbles'n'Bows' monetary loss.  Id. at *5-*6.

The initial complaint contained six counts: I) Breach of contract for defendants' failure to print the cards; II) violation of the New Jersey Law against Discrimination (NJLAD) for refusing to print the "alternative lifestyle" cards; III) a claim for punitive damages for the NJLAD violation; IV) violation of the New Jersey Consumer Fraud Act (CFA) for falsely promising to print the cards; V) negligent misrepresentation that defendants would print the cards, on which plaintiff relied to its detriment; and VI) a claim for attorneys' fees and costs.  Id. at *1-*2, *7.   

Defendant moved to dismiss all of the claims against the chairman of Fey Publishing and all but the first count against Fey Publishing itself.  After defendants filed their motion, the parties agreed to dismiss counts I, IV, and V against the chairman.  "For the reasons herein stated, Counts IV and V are dismissed; and Counts II, III, and VI are dismissed without prejudice.  However, Plaintiff shall have ten days to amend its Complaint to reflect the decision of this Court herein with regards to Counts II, III, and VI against Defendants."  Id. at *2.

The court dismissed the consumer fraud claim (IV) because the assertions guaranteeing customer satisfaction at the Fey Publishing website, which plaintiff adduced as its sole basis for fraud, were mere "puffery" of the sort that definitionally cannot give rise to a fraud claim.  Id. at *23-*28.   Similarly, the court dismissed the negligent misrepresentation claim (V).  Id. at *28-*31.  This complaint defines the difference between a contract claim and a tort claim.  The complaint offers no reason to believe that anyone at Fey Publishing was negligent in agreeing to print the cards.  Rather, they genuinely intended to fulfill the contract until an 11th hour review of the cards' content by the chairman.  Further, plaintiff alleges only a breach of contractual duty, not a breach of any legal duty that exists independently of the contract.  Finally, the money damages plaintiff claims under the negligent misrepresentation count are the same as under the breach of contract count.  Therefore, the court found no legal basis for a tort claim in addition to the breach of contract claim.

The most interesting parts of the opinion involve the claim of discrimination in violation of the New Jersey Law Against Discrimination (NJLAD).  Id. at *9-*23.  Defendants' motion to dismiss rested largely on their assertions that the plaintiff lacked standing to bring the suit, and that she had failed to identify any members of a protected class who suffered any injury from Fey Publishing's action.  These might seem to be different ways of stating the same point -- who could have standing to sue under an antidsicrimination statute except members of a protected class who had suffered discrimination first-hand?  The court explained otherwise, however. 

The court acknowledged that Bubbles'n'Bows's standing was dubious in this case by ordinary standards, but cited both U.S. and New Jersey Supreme Court precedents, and findings of the New Jersey legislature, for the holding that the standing threshold is lower where the claim involves invidious discrimination.  Id. at *12-*13.  Even so, defendants assert that Bubbles'n'Bows cannot complain of discrimination under NJLAD because it is not a person for purposes of the Law, indeed it cannot have any of the personal characteristics, including sexual orientation, that give rise to protected classifications.  Id. at *15. 

The court replied: "however, pursuant to established case law, NJLAD clearly does not require the discriminatory act to be directed at Plaintiff.  Instead, it is sufficient, for the purpose of determining standing, that Plaintiff shows it suffered an injury due to the discriminatory act, regardless of whether the act was directed at Plaintiff."  Id. at *15-*16.  This conclusion rested in part on the proposition that "[t]he victims of a discriminatory act are not just the people such an act is directed at, but also the community as a whole."  Id. at *15 (citation omitted). 

Still, the court agreed that, while Bubbles'n'Bows could have standing to pursue a discrimination claim under NJLAD, "it has failed to identify in its Complaint any individual or group of individuals within the protected class who have been discriminated against.  Although it is not necessary for Plaintiff to explicitly identify these customers in the Complaint, Plaintiff must plead sufficient allegations to state a claim for causation and damages."  Id. at *17. 

Finally, the court held that the chairman of Fey Publishing could not be directly liable for discrimination under NJLAD, but he might be liable for "aiding and abetting" discrimination.  Id. at *18-23.  Questions about the chairman's personal liability were questions of fact, not of law, such that they could proceed to trial if the Plaintiff pled them properly. 

Lavender Law Conference

The 2007 Lavender Law Conference will take place from Sept. 5-8 in Chicago, Illinois. 

This conference provides a wonderful opportunity for scholars, practitioners, and law students to discuss current legal issues affecting the LGBTIQ community.

Panels of interest to Sexual Orientation & the Law Scholars include: 

• The Family Law Practice Group presentations "From Womb to Tomb;"
• Examining Attacks on Landmark Decisions (Goodridge, Brown, and Roe);
• "Representing the Soldier, Sailor, Airman, and Marine;"
• "Speech in the Culture Wars;"
• "Recent Advances in Transgender Rights;"
• "Estate Planning for Same-Sex Couples";
• international same-sex marriage perspectives, and more.

-SRB

Introduction -- Defining "LGBTIQ"

LGBTIQ Legal Issues: An Introduction

Legal issues involving sexuality and gender identity constitute an emerging and rapidly growing field.  Law professors who teach in other areas may increasingly find themselves having to address LGBTIQ issues.  As the initial post for this web log on LGBTIQ legal issues, we provide an overview that describes something of the range of issues, and an explanation of what “LGBTIQ” stands for.

“LGBTIQ”

LGBTIQ stands for lesbian/gay/bisexual/transgender/intersexed/questioning.  This potentially confusing acronym reflects the internal politics of social movements around issues of sexual orientation and gender identity.  It conveys symbolically and rhetorically the desire to achieve a high degree of political unity among groups with diverse, potentially conflicting, legal and policy issues.  In principle, LGBTIQ activists wish to respect varied experiences of prejudice and discrimination resulting from non-conformity in terms of sexuality and gender expression.  In practice, such activists recognize the strength of numbers and hope to attract all potential participants and supporters into a mostly unified social movement.

The “homophile” movement by and for lesbians and gay men dates to 1952, with the creation of the Mattachine Society.  Reflecting ongoing tensions between lesbians and gay men over political strategy and issue priorities, a group of lesbians formed the Daughters of Bilitis in 1955.

In 1969, patrons of the Stonewall Inn in Greenwich Village rioted in response to a police raid, which was otherwise routine for the time and place.  Many of the participants were transgender, including drag queens and transvestites.  The immediate aftermath of the riots, however, produced political groups called the Gay Liberation Front and Gay Activists Alliance.  In 1974, the National Gay Task Force formed.  The names of these groups all reflect the use of “gay” as a catch-all term to indicate women as well as men, and variation in terms of gender identity as well as in terms of sexual orientation and/or practice.

But tensions continued, with some lesbians finding that feminism addressed their concerns better than the gay rights movement.  The National Gay Task Force added “Lesbian” to its name in 1987.  But the gender differences between lesbians and gay men more likely involved disagreements over priorities and strategies than specific legal or policy issues.  As the debate over same-sex marriage began to heat up during the early 1990s, the authors who were most likely to reject marriage as a goal for lesbians and gay men were feminists, mostly lesbians; some gay men also doubted the wisdom of pursuing marriage as a lesbian/gay civil rights goal while many lesbians participate actively in the pursuit of marriage rights.  It is easy to over-generalize about the constituents of the LGBTIQ social movement.

Transgender Inclusion

“Transgender” is a broader term than “transsexual.”  A transsexual is usually a person who either intends to undergo, or has undergone sex reassignment surgery. 

Transgender persons can include persons who prefer to wear the clothes of the other gender, or otherwise appear publicly as the other gender in terms of deportment, make-up, etc., without necessarily undergoing surgical reassignment. 

See Phyllis Randolph Frye and Katrina C. Rose, “Responsible Representation of Your First Transgendered Client, 66 Tex. B.J. 558 (2003). 

By the 1990s, transgender persons began to assert their distinct presence within the “gay rights” social movement, and their distinct legal and policy issues.  The process of including transgender issues within the lesbian/gay rights umbrella involved substantial conflict, with the Human Rights Campaign initially resisting calls to add “gender identity” as a protected category to the Employment Nondiscrimination Act (ENDA), a bill pending in Congress that would prohibit employment discrimination on the basis of sexual orientation. 

Proponents in the late 1990s believed they had a real chance of passing ENDA and believed that adding gender identity as a protected category would make it unpassable.  Transgender activists responded that much employment discrimination against lesbians and gay men takes the form of objections to their failure to conform to gender norms, making discrimination based on “sexual orientation” and discrimination based on “gender identity” functionally indistinguishable. 

Transgender persons do often face legal and policy issues that are distinct from those of lesbians and gay men.  Several cases now exist in which courts have had to decide the validity of marriages in which the parties were different sexes at the time of marriage, or represented themselves as such, but either one partner had already undergone reassignment surgery, or would do so after the marriage.  To date, courts have consistently held that an individual’s anatomical sex at birth, or chromosomal sex, governs hir (to use the gender-neutral version of the pronoun) legal gender.  See, e.g., Kantaras v. Kantaras, 884 So. 2d 155, 2004 Fla. App. Lexis 10997 (Fla. Ct. App. 2004) (upholding nullification of marriage ab initio on grounds that husband, as female-to-male transsexual, was not male at time of marriage for purposes of state marriage statute, including useful overview of cases from other jurisdictions). 

In the United States, anyone who wishes to undergo reassignment surgery must have a doctor’s approval, which can result in conflict that might lead either or both parties to consult attorneys.  Transgender persons sometimes find that otherwise routine traffic stops can escalate if their appearance at the time of the stop is significantly different from their appearance in their driver’s license photograph.  Persons who have undergone sex reassignment typically wish to change the sex on their birth certificates.  States vary in their willingness to do so.  The issue of providing medical treatment, especially hormone therapy, to transgender inmates has produced a significant amount of litigation.  See, e.g., Brooks v. Berg, 270 F. Supp. 2d 302 (N.D. N.Y. 2003), complaint dismissed, Lewis (a/k/a Brooks) v. Berg, 2006 U.S. Dist. Lexis 21422 (N.D. N.Y. April 20, 2006); Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002).

For a critical overview, see Dean Spade, Resisting Medicine, Re/modeling Gender, 18 Berkeley Women’s L.J. 15 (2003).

In addition to transgender issues, common topics for future posts, covering issues for lesbians, gay men, bisexuals, and intersexed persons as well, will include family law, employment discrimination, military service, federalism, the First Amendment, immigration, and prisons.  Future introductory posts will define “intersexed” and “queer.”