Wednesday, October 6, 2021
Michael Higdon, LGBTQ Youth and the Promise of the Kennedy Quartet, Cardozo Law Review (forthcoming)
The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to those sexual minorities who are still children. In so doing, they have passed laws that, among other things, punish adolescent sexual activity more harshly when it involves two people of the same sex, prohibit discussions in public schools that portray homosexuality in anything other than a negative light, and deny transgender youth the ability to compete in school athletics or use restrooms that correspond to their gender identity. These laws are harmful enough in their own right but are particularly pernicious in light of the harms those children already face simply by virtue of being a sexual minority in a homophobic society. Looking at the Kennedy Quartet in conjunction with the Supreme Court’s jurisprudence regarding the constitutional rights of children, this Article argues that such laws are unconstitutional. It does so by, first, challenging the argument that the Kennedy Quartet pertains only to adults. Second, and more importantly, this Article then distills from those cases three key protections applicable to the entire LGBTQ community—children included—that these current laws violate. The hope is that this analysis will assist judges, legislators, and policy makers alike as they look for ways to put an end to this wave of discriminatory laws and, in their place, lobby for more inclusive legislation.
Tuesday, October 5, 2021
By: Nausica Palazzo
Published in: Columbia Journal of Gender and Law, Forthcoming
Same-sex marriage is now recognized in several jurisdictions in the West. This result is ascribable to the untiring work of LGBTQ groups, that have utilized much of their energies to attain it. Pervasive forms of discrimination because of one’s sexual orientation are still in place, such as legislation restricting access to foster and adoption services. But there is little doubt that marriage equality constituted a watershed moment for LGBTQ politics. As Justice Roberts’ immortal words in Obergefell attest to, “[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union two people become something greater than once they were.” After the Supreme Court’s decision in Obergefell, gay and lesbian couples could also finally create the most profound of all unions, and cease being second-class citizens. Since marriage was seen by many as “the final stop for ‘full equality’ for lesbians and gay men,” a question lurked behind these events: “what now?” The question has various ramifications. “What now?” within the LGBTQ movement? Since the final objective has now been reached, the structure, financing, and strategies of the LGBTQ movement are inevitably changing. It will thus be interesting to see which battles the movement will prioritize in the next decades. A second, more crucial “what now?” bears upon the future of family law and policy. It concerns the fate of nonmarital statuses, that have been erased at the stroke of a pen after marriage equality.
. . .
Nonmarital statuses can promote a more pluralistic model of relationship recognition, and, as I will argue, offer legal protection to families that eschew the paradigm of the traditional marital family. The case of jurisdictions that have adopted nonmarital statuses as an alternative to marriage compellingly demonstrates this point. A nonmarital status is considered as an alternative to marriage when both opposite and same-sex partners can sign up. The rationale of alternative statuses is not that of offering a separate-but-equal regime for same-sex couples but a distinct regime that any couple can choose in lieu of marriage. Examples of jurisdictions adopting these laws are Illinois, Hawaii, and Colorado and, outside of the U.S., France, Belgium, The Netherlands, and Luxemburg. Interestingly, in these countries, not only are nonmarital statuses being preserved but they are also becoming increasingly popular amongst heterosexual couples.
From Digital Platforms to Facial Recognition Technologies: Structural Challenges to Women’s Activism
By: Monika Zalnieriute
Submission to the Thematic Report on Girls’ and Young Women’s Activism for the 50th Session of the United Nations Human Rights Council
Girls and women face many challenges in engaging in activism across the globe. Both online and in public spaces in our cities, which are increasingly surveilled and monitored by government and law enforcement agencies, women face challenges. In this submission, I would like to draw attention to several issues in particular. First, many countries around the world do have discriminatory face-covering laws, which ban Muslim face coverings in public spaces and thus prevent young women and girl activists from Muslim cultural backgrounds from exercising their rights to freedom of assembly, expression and opinion, among other rights. Second, a lot of public places, including cities and airports, are increasingly equipped with facial recognition technology, which undermines women's activism in city streets and squares. Third, in the digital environment and on media platforms, women from marginalized groups, such as LGBTI communities, face new threats and challenges – their speech and expression are often suppressed and also weaponized against them. Furthermore, the rise of large-scale data collection and algorithm-driven analysis targeting sensitive information poses many threats for women activists, especially from LGBTI communities, who are especially vulnerable to privacy intrusion due to their often hostile social, political, and even legal environments. I invite the UN Working Group on Discrimination against Women and Girls to:
1) Call on the UN bodies to enhance their understanding of theory intersectionality. I have recently proposed a way to enhance judicial interpretation of reconceptualizing by reference to a modified concept of “harmful cultural practices”, (paper is freely available on SSRN).
2) Call for a ban on the use of facial recognition technology by governments in public city spaces.
3) Call for the development of binding international human rights law for private actors to remedy the violations of freedom of expression of women activists, especially from LGBTI communities in the digital environment.
Tuesday, September 28, 2021
Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?
By: Linda C. McClain
Published in: Family Court Review (Forthcoming)
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.
. . .
This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.
Thursday, September 23, 2021
Anthony Kreis, Unlawful Genders, Law & Contemporary Problems (forthcoming)
Professor Kreis critiques Bostock v. Clayton County for its neglect to expressly embrace an anti-stereotyping principle, which would have more fully revealed the interconnected relationship between discrimination against women and LGBTQ people. He is concerned that the formalistic focus on sex as a textual matter obscured the historical regulation of gender roles meant to oppress both women and sexual minorities. Professor Kreis argues that courts should revisit this more closely in the constitutional law space and analyze LGBTQ-related constitutional claims as sex discrimination.
From the introduction:
There was a real cost to Bostock’s formalism. The majority opinion correctly understood that it is impossible to divorce discrimination on the basis of a person’s sexual orientation or gender identity from their sex assigned at birth. However, beyond noting that a person has to notice and take account of a person's sex before they can take account of their sexual orientation and/or gender identity, the Court did not explain why discrimination is often the result of the connection. Specifically, the Bostock decision failed to sufficiently explain why the link between the two kinds of discrimination is non-severable. This could have been done by applying an anti-stereotyping principle. This principle, which courts have recognized since the 1970s and 1980s in both the employment discrimination context and in constitutional law, stands for the proposition that gender-based assumptions about what men or women can do and assumptions about how men or women should act are impermissible forms of sex discrimination. While the principle has been applied to a variety of stereotypes that manifest by employers’ and legislators’ expectations of how men and women can or should behave, it has not been broadly applied to claims of discrimination on the basis of sexual orientation, though it has been more regularly applied to gender identity discrimination claims.
Sex stereotype theory can both explain and address anti-LGBTQ discrimination because misogyny, homophobia, and transphobia are inextricable from one another.
Thursday, September 16, 2021
In the case of personal identity, I am drawn to default pronouns that don’t assume others’ gender. Instead of assuming someone’s gender identity based on how they look or dress or act, it is more appropriate to refer to them as “they” until I know better. And whenever possible, it is important to create early opportunities to learn their chosen pronouns, which has become standard practice in academic and other settings.
Starting with the inclusive default “they” is less likely to cause offense than using harmful stereotypes to guess at someone’s pronouns. In grade school, one of my children was advised to adopt a similar strategy to address female teachers as “Ms.” until the teacher said that they prefer “Miss” or “Mrs.” Non-identification is a much less costly default than misidentification.
Some people harp on how difficult it is to make this kind of linguistic change. But broadly adopting the singular “they” can actually reduce a speaker’s cognitive load. Years ago, my parents told me they liked “Ms.” because they no longer had to presume whether a woman was married or not. Calling people “they” by default similarly relieves the speaker of having to guess at someone’s gender. More importantly, it has the advantage of reducing gender-related assumptions that listeners might make. And it has the crucial benefit of more respectfully addressing people with nonbinary identities. Just as all-gender bathrooms make life easier for transgender people, using the singular “they” default, until told otherwise, affirms linguistic space in the classroom for people who do not exclusively identify as men or women.
Thursday, September 2, 2021
Laura Lane-Steele, Adjudicating Identity
Legal actors examine identity claims with varying degrees of intensity. For instance, to be considered “female” for the Census, self-identification alone is sufficient and no additional evidence is necessary. To change a sex marker on a birth certificate to “female,” however, self-identification is not enough; some states require people to show that they do not have a penis to be considered “female.” Similar examples of discrepancies in the type and amount of evidence considered for identity claims abound across identities and areas of law. Yet, legal actors rarely acknowledge that they are adjudicating identity in the first place, much less explain or justify the varying levels of scrutiny exacted upon identity claims. This Article attempts to make sense of identity adjudication by providing a taxonomy that explains why some identity claims are interrogated more than others. Taking a broad view of identity adjudication, it examines three types of laws (data-collection laws, anti-discrimination laws, and benefit laws) as well as four identity categories (religion, sexual orientation, sex, and race), and concludes that both the type of law at issue and the identity category affect how an identity claim is adjudicated. It then argues that across identities and types of laws, legal actors are adjudicating identity without proper attention to the particular legal context and can require more (or the wrong type of) identity evidence than necessary to achieve the function of the specific law at issue. This context-blind approach to identity adjudication produces inconsistent and incoherent results. This Article calls for a context-informed approach to identity adjudication, where the question of identity is linked to the function of the specific law rather than treated as an independent and stable “truth” about an individual.
Wednesday, September 1, 2021
Court Upholds Temporary Injunction Prohibiting School from Suspending Teacher Who Refuses to Use Students' Preferred Pronouns
The Supreme Court of Virginia has upheld a lower court ruling that ordered the reinstatement of a northern Virginia gym teacher who said he won't refer to transgender students by their pronouns.
Loudoun County Public Schools appealed to the state Supreme Court after a judge ruled that the school system violated the free speech rights of teacher Tanner Cross by suspending him after he spoke up at a school board meeting.
Cross, a teacher at Leesburg Elementary, cited his religious convictions at a May board meeting in which the school board debated proposed changes to its policies in treatment of transgender students. Cross said he would not use transgender students' pronouns....
The school system said it suspended Cross in part because his comments caused a disruption at the school. But the lower court judge, James Plowman, and the state Supreme Court agreed that the handful of calls fielded by school administrators did not cause the type of disruption that warranted a suspension.
Tuesday's ruling leaves in place a temporary injunction that bars the school system from suspending Cross. A trial is scheduled for next week in Loudoun County to settle the issue permanently.
Since Cross filed his lawsuit in May, two additional teachers in Loudoun County have joined him as plaintiffs.
For another case from the Sixth Circuit, see https://lawprofessorSixth Circuit Allows Professors' First Amendment Suit to Proceed Challenging Discipline for Refusal to Use Transgender Student's Preferred Pronouns
Friday, August 27, 2021
Building Bridges: How Law Schools Can Better Prepare Students from Historically Underserved Communities to Excel in Law School
Amy H. Soled and Barbara Hoffman, Building Bridges: How Law Schools Can Better Prepare Students from Historically Underserved Communities to Excel in Law School, AALS Journal of Legal Education, Volume 69, Issue 2 (Winter 2020).
“As a poor, first-generation student, I constantly fear the judgment of my peers. . . . For me, the challenge of law school is not only overcoming the rigorous coursework. I must also overcome the social and financial barriers seeking to steer me away.” This reflection of a current Rugers Law School student, captured by Professors Amy Soled and Barabra Hoffman, is unfortunately an all-too-common sentiment for a number of students in your law school classrooms. Students who are members of historically underserved communities, those whose circumstances “disadvantage them in relation to their classmates whose privileged environment better prepare them for law school,” often find the law school challenging in more ways than just academic rigor. These students, who are historically underserved based on circumstances including but not limited to “economic status, race, nationality, sexual orientation, gender identity, and/or education background,” encounter “social and cultural isolation” in an environment that unconsciously or otherwise has “an invisible and assumed perspective that is largely white, male, heterosexual, economically advantaged, and able-bodied.” This isolation can lead to significant barriers to academic success in law school and ultimately passing the bar.
So what can we as legal educators do to address the needs of our students of different backgrounds and bridge this gap? Professors Soled and Hoffman suggest “[b]uilding bridges to enable students from historically underserved communities to thrive in law school requires law school professors and administrators to implement a multiyear plan from orientation through graduation.” This plan can include academic success programs starting in the summer before law school and extending through the entirety of the 1L year; creating mentoring programs of faculty, staff, and local practitioners; and fostering a sense of community in the classroom and beyond.
For example, professors can create community and inclusion by holding mandatory individual conferences once a semester, which creates a space for students to engage with the professor in a low-stakes one-on-one environment. “The more contact students have with their teachers, the better the students do and the more connected the students feel to their school.” Professors can also address the pervasive and insidious “imposter phenomenon” which describes students who are “unable to internalize [their] accomplishments [and have] chronic feelings of self-doubt and fear of being discovered” as a fraud. Students of historically underserved communities disproportionately experience this phenomenon. That is “[w]omen suffer from the imposter syndrome more commonly than do men, first-generation college students experience it more often than do multigeneration college students” etc. Professor can help by discussing this, and other common challenges, openly in their classrooms and student conferences.
These and many other concrete suggestions for building these bridges of success for historically underserved students are addressed in this article.
Thursday, August 26, 2021
Viewing Justice Gorsuch's Opinion in the LGBT Decision in Bostock as Support for--not Against--Abortion Rights in the Upcoming Dobbs Case
Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).
Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling with rule of law concerns involving legal and social stability. In both of these respects, Bostock aligns with the controlling opinion in Planned Parenthood v. Casey, a decision that Justice Gorsuch, like other justices in Dobbs, might yet in principle reaffirm. After exploring some of Casey’s doctrinal implications and its example of judicial moderation, discussion turns to Casey’s often overlooked spiritual dimensions. Not only does Casey’s spiritual pluralism on the abortion right and its limits converge with important features of Bostock, but it also actively counsels a decision in Dobbs giving Casey and what it preserves of Roe a new lease on life as part of a larger effort to preserve the American public’s shared faith in a constitutional republic that everyone in Dobbs wishes to keep.
CFP Center for Constitutional Law -- Sexual Orientation, Gender Identity, and the Constitution: How LGBTQ Rights are Defined, Protected, and Preempted
CONSTITUTIONAL LAW VIRTUAL COLLOQUIUM, CENTER FOR CONSTITUTIONAL LAW
Friday, Feb. 4, 2022
Sexual Orientation, Gender Identity, and the Constitution: How LGBTQ Rights are Defined, Protected, and Preempted
The Center for Constitutional Law at Akron seeks proposals for its annual Colloquium. The Center is one of four national centers established by Congress in 1986 on the bicentennial of the Constitution for legal research and public education on the Constitution. Past programs have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Professor Reva Siegel, Professor Lawrence Solum, Professor Ernest Young, Professor Julie Suk, and Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit.
The 2022 Colloquium explores the questions of sexual orientation and gender identity under the Constitution. These rights are at the intersection of many recent decisions of the U.S. Supreme Court and other courts. On one hand, the Court has interpreted “sex” to include sexual orientation and transgender in the context of federal statutory law. Yet under the Constitution, it has refused to identify sexual orientation or identity as a suspect class, even as it strikes down law that socially discriminate on this basis. Another recent line of cases seems to preempt these equality rights by counter-balancing the religious and speech rights of those seeking to discriminate against LGBTQ people by denying services, disrespecting preferred pronouns, or restricting students.
This Colloquium brings together scholars exploring what the Constitution does or should say about sexual orientation and gender identity. Topics may include, but are not limited to: the rise of religious liberty preemptions in business and/or education, counter-balances of free speech, the meaningful use of rational basis scrutiny, interpretative methods of constitutional and statutory law, the legal history of LGBTQ rights, meanings of privacy and self-determination, the importance of language and pronouns, or comparisons with international norms and laws.
The Virtual Colloquium will be held on Friday, February 4, 2022. This virtual format allows for expanded access to scholars by reducing costs, balancing work/life/health demands, and reaching widely across geographic bounds. Papers will then be published in a spring symposium edition of the Center’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein). Papers are typically shorter, essay style and we expedite publication within four weeks of final paper submission. Those interested in participating should send an abstract and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law, at email@example.com by October 20, 2021.
Friday, August 13, 2021
Robert L. Nelson, Ioana Sendroiu, Ronit Dinovitzer, and Meghan Dawe, Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, Law and Social Inquiry, Volume 44, Issue 4 (2019).
In this article, the authors discuss workplace inequities based on race, gender, and sexual orientation. To do so, they combine quantitative and qualitative data to go beyond “analyzing unequal outcomes” and delve further into “the mechanisms that produce and maintain workplace hierarchies of race, gender, and sexual orientation.” The qualitative component uses perception as a measure, that is, the authors “examine[d] whether lawyers perceive that they have been the target of workplace discrimination.”
Although some might be hesitant to consider perceptions as a reliable measure, consider that “[p]erceptions of discrimination by marginalized groups are significant in their own right as a matter of workplace equality, but will also likely affect their health and well-being, their job satisfaction, and their willingness to continue working for a given employer.” Additionally, these perceptions, with a few exceptions examined by the authors, tend to be supported by the quantitative data regarding measurable inequitable outcomes on the basis of race, gender, and sexual orientation.
This qualitative data is also important in determining “how inequality is created and maintained, rather than merely its extent.” By analyzing this data, the authors necessarily highlight areas and circumstances of perceived discrimination from which employers in the legal profession can derive solutions for combatting such inequities, or perception of inequities. Examples could include instituting efforts or programs that foster community and belonging; formalized personnel structures and policies that produce consistency and transparency in employment law processes like hiring, promotion, and complaint procedures; and generally having sound hiring practices that lead to increased diversity in the workplace, which will in turn lend itself to greater emotional and informational support to members of traditionally underincluded groups.
The inequities and perceived inequities that this article illustrates poses a challenge to us all as legal professionals to understand the scope of the problem and implement strategies to remove these barriers. Indeed, as the authors point out, “[t]o the extent that lawyers of different races, genders, and sexual orientations are exposed to discrimination that limits their career development, it will erode the capacity of the legal profession to provide equal representation to all groups in society. . . . The fate of equal justice may be tied to the fate of equal opportunity in lawyer careers.”
Thursday, August 12, 2021
Now, the American Medical Association, the country’s largest association of physicians, has taken a significant step in easing that burden. In a June report, the AMA’s LGBTQ advisory committee advised the organization to push for removing sex labels from the public part of the birth certificate.
Assigning either a “male” or “female” sex at birth, the authors wrote, “fails to recognize the medical spectrum of gender identity.”
“Participation by the medical profession and the government in assigning sex is often used as evidence supporting this binary view” of gender, the report continued. Not only does that stifle a person’s ability to express and identify themselves, it can lead to “marginalization and minoritization.”
For nearly two months, the recommendation went largely unrecognized by supporters and detractors alike, but it resurfaced recently after the popular medical website WebMD shared an article about the decision on its social media accounts.
Thursday, June 3, 2021
Caroline Mala Corbin, Public School Teachers & Transgender Students & Pronouns, Balkinization, March 19, 2020
This is a short review essay of Helen Norton’s book, The Government’s Speech and the Constitution. It applies Professor Norton’s framework to the question of a public school teacher who refuses on religious grounds to use the proper pronouns of transgender students in their classroom. It concludes that public school teachers do not have a free speech right to misgender students. To start, how teachers address students is likely government speech, and therefore outside the scope of Free Speech Clause protection. Even if not, it fails the Pickering-Connick balancing test. First, while the topic of gender identity is without doubt a matter of public concern, at issue is not a discussion of it but a private interaction. Second, a teacher’s refusal to abide by anti-discrimination rules is highly disruptive of the school's mission given the negative impact on the education of transgender students. Finally, for a public school to accommodate the teacher may violate the Equal Protection Clause.
See also Washington Post, Loudon Teacher Files Lawsuit After Saying Won't Use Transgender Student's Pronouns
Wednesday, May 12, 2021
Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)
Veterans’ preference law grants military veterans decisive advantages when applying for government positions. While rewarding veterans and assisting their transition back to civilian life may be worthy goals, veterans’ preference has at least two major defects. First, veterans’ preference disparately affects women, LGBT persons, disabled persons, and others because of the military’s traditional exclusion of these groups. Second, veterans’ preference unnecessarily reduces the quality of the federal workforce because it prioritizes military service over merit and competition. Potential statutory and constitutional solutions have been precluded by the courts, and so these problems persist. This Note recommends that Congress modify veterans’ preference by imposing limitations on its duration and usage; in the alternative, it suggests other ways in which veterans’ preference law might be improved.
Friday, April 2, 2021
Sixth Circuit Allows Professor's First Amendment Suit to Proceed, Challenging Discipline for Refusal to use Transgender Student's Preferred Pronouns
The Cincinnati-based 6th U.S. Circuit Court of Appeals has reinstated a First Amendment lawsuit by a public college professor in Ohio who violated school policy by refusing to use a transgender student’s preferred pronouns.
The 6th Circuit ruled for Shawnee State University philosophy professor Nicholas Meriwether in a March 26 opinion by Judge Amul Thapar, an appeals court appointee of President Donald Trump. Thapar was viewed as a potential U.S. Supreme Court nominee during Trump’s presidency.
Meriwether, a devout Christian, believed God created humans as male or female, and said using preferred pronouns to refer to a student in his class violated his religious beliefs.
The student had protested after Meriwether referred to her as “sir.” University policy required professors to use students’ preferred pronouns, and Meriwether received a written warning.
Meriwether proposed a compromise where he would refer to the student only by her last name. At first it was accepted, but was later rejected. The university said Meriwether should either stop using all sex-based pronounds in his classroom, or he should refer to the transgender student as a female.
Meriwether sued for free speech and free exercise violations under the First Amendment, and due process and equal protection violations of the 14th Amendment. A federal judge tossed the claims, but the 6th Circuit reversed as to the First Amendment claims.
Thursday, April 1, 2021
Kyle Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, Minnesota L. Rev. (forthcoming)
In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity (“SOGI”) discrimination is sex discrimination under Title VII. Yet, LGBT people continue to face discrimination in many contexts, a prominent example of which is the national campaign by Christian business owners to obtain religious exemptions from state public accommodation laws. What does women’s suffrage have to do with today’s religious exemption debates? This Article contends that there is a through-line from a radical, antisubordination strand of the history of the Nineteenth Amendment to today’s fight over religious exemptions from SOGI antidiscrimination laws.
The antisubordination strand of Nineteenth Amendment history envisioned women’s suffrage as about more than just the right to cast a ballot. This capacious view of the Nineteenth Amendment—as a means of dismantling sex-based hierarchies and ensuring full citizenship rights regardless of sex—would allow women to engage in all aspects of life, both political and civic. Between the ratification of the Nineteenth Amendment and today’s battles over SOGI religious exemptions stands 100 years of sex discrimination law. That era saw state legislatures enact public accommodation laws prohibiting sex discrimination in the public square; these laws extended to women the right of civic engagement and thus full citizenship. This body of sex discrimination law included the Court’s 1984 decision in Roberts v. United States Jaycees, which involved a challenge to one such law. The Jaycees Court upheld a public accommodation law against a claim that enforcement of the law—which would compel the Jaycees organization to admit women as full members—would violate the Jaycees’ First Amendment free speech rights. The Court reasoned that states have a compelling interest in eradicating sex discrimination in public. Jaycees expands the reach of the equality-enhancing aspect of the suffrage movement. It embodies the antisubordination strand of the women’s suffrage movement and stiches it into the fabric of the legal doctrine governing sex discrimination.
In today’s religious exemption cases, the Christian business owners argue that although the state has a compelling interest in eradicating race discrimination in the public square, it does not have a compelling interest in eradicating SOGI discrimination. This distinction, they argue, dictates that an exemption be granted vis-à-vis SOGI discrimination, even though such an exemption would be rejected vis-à-vis race discrimination. Bostock is the contemporary bridge that connects Jaycees to the SOGI religious exemption cases. Jaycees, in turn is the bridge back to the radical strand of the Nineteenth Amendment’s history: The Nineteenth Amendment was generative not simply of the right to vote, but of a commitment to full citizenship rights regardless of sex. That equality was formalized in state public accommodation laws, which Jaycees teaches serve a compelling state interest. Bostock, when coupled with Jaycees, directs the same conclusion for public accommodation laws that prohibit SOGI discrimination, namely that such laws serve a compelling state interest that defeats claims for religious exemptions.
Friday, March 19, 2021
Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)
From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.
A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.
Hat tip Lisa Tetrault
Monday, November 2, 2020
Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett
I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court. Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court. The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.
Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court
Friday, October 2, 2020
Chan Tov McNamarah, Misgendering, 109 California L. Rev. (forthcoming)
Pronouns are en vogue. Not long ago, introductions were limited exchanges of names. Today, however, they are increasingly enhanced with a recitation of the speaker’s appropriate gendered forms of address: he/him/his, she/her/hers, they/them/theirs, or perhaps even less common neopronouns like zie/zir/zirs, xe/xem/xir, or sie/hir/hirs. This development — like every other dimension of progress for LGBTQ+ people — has been met with fierce resistance. In particular, three prominent objections have surfaced:
(1) calls for pronoun respect are a fraught demand for “special rights” from a vocal queer minority;
(2) semantically, gendered pronouns, honorifics, and titles cannot constitute slurs or epithets; and
(3) that these gendered labels are “just words,” and the consequences of their misuse, if any, are trivial and legally in-cognizable.
This Article explains why these arguments fail without exception. The first two, it counters by placing mis-gendering in its historical context. Recovering the history of verbal practices meant to express social inferiority, exclusion, and caste, this Article demonstrates that mis-gendering is simply the latest link in a concatenation of disparaging modes of reference and address. From addressing Black persons by only their first names, the intentional omission of women’s professional titles, and the deliberate butchering of the ethnically-marked names of minorities, these verbal slights have long been used to symbolize the subordination of societally disfavored groups.
Next, the Article articulates the injuries of mis-gendering to the legal academy, the judiciary and, ultimately, to the law. Until now, scholarship has largely overlooked mis-gendering as a pernicious socio-linguistic practice. To fill this gap, the Article identifies and examines the injuries of mis-gendering by looking to the stories of those who experience it. Drawing on a range of sources, including first-hand accounts, the Article presents, for the first time, a layered account of the harms caused by the mis-attribution of gender. It then closes by exploring the implications of these harms for law and legal practice, and laying the groundwork for potential reforms.
All told, the Article makes at least four contributions. First, contextually, it places mis-gendering in its historical milieu; along a continuum of verbal practices designed and deployed to harm the socially subordinated. Second, descriptively, by consulting original interviews, collected accounts, case law, philosophical scholarship, medical literature, and social science research, the Article offers a sustained discussion of mis-gendering’s injuries to gender minorities’ autonomy, dignity, privacy, and self-identity. Even while making the latter two contributions, the Article makes a third, corrective one, as well: It takes up the necessary work of challenging and dispelling mistaken narratives on the wrongfulness and harmfulness of gender mis-attributions, and replaces them with ones that center the lived realities of gender diverse persons. Fourth, prescriptively, the Article ends by outlining concrete illustrations of how the law must adapt to respond to and recognize the discriminatory harms it identifies.