Monday, June 27, 2022

What's Next, Now that the Choice of Abortion is no Longer a Federal Constitutional Right

Updated 6/28/22

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            Trigger Laws:

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

                        Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to Trigger Laws: 

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

            FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            Telemedicine

            Validity of State Travel Bans:

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Lauren Van Schilfgaarde, Aila Hoss, Sarah Deer, Ann Tweedy, Stacy Leeds, The Indian Country Abortion Safe Haven Fallacy

            Other Constitutional Liberties: contraception, marriage, LGBTQ

            State Constitutional Amendments: pro-choice and anti-abortion

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

           See generally:

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

            Fetal Personhood:

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Election issue

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            More Contraception:  layer contraception, stock up on Plan B

            Period Tracking Apps:

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Artificial Insemination:

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies paying travel expenses:

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Know Your Rights Education:  "The Pink Book"

            Rebecca Traister, The Necessity of Hope:

It means doing the thing that people have always done on the arduous path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity.

 

The prison abolitionist Mariame Kaba reminds us that “hope is a discipline.” It is also a political strategy and a survival mechanism. As Kaba has said, “It’s less about ‘how you feel’ and more about the practice of making a decision every day that you’re still gonna put one foot in front of the other, that you’re still going to get up in the morning. And you’re still going to struggle … It’s work to be hopeful.”

June 27, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 24, 2022

The SCOTUS Joint Dissent in Abortion Case Calls Out Women's Loss of Citizenship

A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion. 

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***

We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

***

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

The dissent finds it clear that other constitutional rights of liberty interests are now threatened:

And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.

June 24, 2022 in Abortion, Constitutional, Judges, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

US Supreme Court Overrules Constitutional Right to Choose an Abortion

The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.

The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett.  Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe.  The dissent is Breyer, Sotomayer, and Kagan.

In my first quick look, the majority opinion is not much different from the leaked draft opinion.

Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.

Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did.  He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required.  He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action.  He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different.  And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.

Roberts concurs only to uphold the judgment.  He overturns the viability standard from Roe, but does not overrule the right to abortion completely.

A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. 

See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship

June 24, 2022 in Abortion, Constitutional, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

President Biden's Proposes New Administrative Rules on Title IX for Campus Sexual Assault and LGBTQ Protections

Chronicle, Here's How Title IX Could Change Under Biden's Proposed Rule

The U.S. Education Department on Thursday released its proposed Title IX regulations, which would reverse many Trump-era policies and restore the pro-victim approach championed by the Obama administration.

 

Specifically, the rule would:

  • Enshrine protections for sexual orientation and gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions.”
  • Permit, but no longer require, live hearings and cross examination in Title IX investigations.
  • Expand the definition of sexual harassment.
  • Clarify the protections students, faculty, and staff have from retaliation by their institution.
  • Require colleges to confront off-campus conduct that “creates or contributes to a hostile environment.”
  • Require certain campus employees to notify the Title IX office of possible sex discrimination, a return to broader mandatory-reporting requirements. If an incident involves students, anyone with “teaching” or “advising” responsibilities — in other words, most faculty members — must report it. Some professors have criticized mandatory reporting, saying it harms the trust they’ve built with their students.
  • Require all other faculty and staff members to provide students with the contact information of the campus Title IX coordinator, unless they’re designated as confidential resources.

 

The changes would once again upend how colleges handle sexual-misconduct complaints. Experts who work with colleges say campus officials are exhausted by more than a decade of political Ping-Pong over Title IX, as the three most-recent presidential administrations have switched up rules and guidance, and colleges have rushed to comply.

Sweeping Title IX Would Shield Trans Students, Assault Survivors

On the 50th anniversary of Title IX, the Biden administration proposed sweeping changes to the landmark law that would bar schools, colleges and universities from discriminating against transgender students, as the battle over transgender rights moves to the front lines of the culture war.

 

The proposal would also amend the rules that govern how educational institutions investigate and resolve claims of sexual assault and sexual harassment. Over concerns that people were being wrongfully punished, President Donald Trump’s education secretary, Betsy DeVos, revised the rules to make them more accommodating to the accused. Critics assailed the changes, saying they would discourage sexual assault survivors from coming forward to report assaults or harassment.

 

Our goal is to give full effect to the law’s reach and to deliver on its promise to protect all students from sex-based harassment and discrimination,” Education Secretary Miguel Cardona said. “Every student deserves to learn free from discrimination and harassment, regardless of their sex, sexual orientation or gender identity.”

June 24, 2022 in Education, Legal History, LGBT | Permalink | Comments (0)

Thursday, June 9, 2022

Ohio House Passes "Save Women's Sports Act" Bill to Prohibit Transgender Female Athletes in School Sports and Includes Verification Process of Genital Inspection

Ohio GOP Passes Bill Aiming to Root Out "Suspected" Transgender Female Athletes Through Genital Inspection

House Republican lawmakers in Ohio passed a bill at 11:15 p.m. Wednesday night that would ban transgender girls and women from participating in high school and college athletics. It also comes with a "verification process" of checking the genitals of those "accused" of being trans.

 

The 'Save Women's Sports Act,' or House Bill 61, wasn't supposed to be on the schedule for legislators originally. However, at the last minute, Republican representatives added the language to a completely different bill.

 

H.B. 151 would revise Ohio’s Teacher Residency Program, trying to reduce state control in schools. The bill, sponsored by Republican state Rep. Don Jones, from Freeport, got a surprise addition.

Powell's Save Women's Sports Act Passed by Ohio House

State Rep. Jena Powell’s (R-Arcanum) Save Women’s Sports Act was approved by the Ohio House on Wednesday. The legislation would prohibit biological males from competing in female-only sports within the state. Powell spoke to the legislation’s passage on the House Floor.

 

“The Save Women’s Sports Act is a fairness issue for women. Across our country, female athletes are currently losing championships, scholarship opportunities, medals, education and training opportunities, and more to discriminatory policies that allow biological males to compete in girls’ sports,” said Powell.

 

Powell’s Save Women’s Sports Act, which passed as an amendment to House Bill 151, would ensure that no school, interscholastic conference, or organization that regulates interscholastic athletics can allow biological males to compete in women’s sports. 

 

“All these girls ask for is a fair shot, and to be given the chance to play and win by the rules in the sports that they love. The opportunity is being ripped from them by biological males,” Powell added

June 9, 2022 in Education, Legislation, LGBT, Sports | Permalink | Comments (0)

Thursday, May 19, 2022

Republicans Introduce "Women's Bill of Rights" to "Protect" Biological Sex Differences in Law

Republicans Introduce Women's Bill of Rights to Protect Accomplishments, Ensure Safety of Biological Females

Republicans are introducing a "Women's Bill of Rights" in order to enshrine into law protections for females based on their biological sex.

 

Rep. Debbie Lesko, R-Ariz., is leading lawmakers on the Republican Study Committee (RSC), the largest group of conservative lawmakers on the Hill, in formally introducing the legislation Thursday morning. 

 

"I am proud to introduce the Women’s Bill of Rights to affirm the importance of acknowledging women and their unique and distinguishing characteristics and contributions to our nation. As the Left continues to erase women, we must fight for women and their place in our society. Whether it’s keeping the word "mother" in written law, or ensuring women’s domestic violence shelters do not have to accept biological men, we must stand up for women," Lesko told Fox News Digital.

 

The bill states that the Women's Bill of Rights is necessary to establish in order to "reaffirm legal protections afforded to women under Federal law" due to that face that males and females have unique biological differences, which increases as they age.

 

The lawmakers' bill says that due to biological differences, only females are able to "get pregnant, give birth, breastfeed children." In addition, males are larger and possess greater strength than females due to biology. The text also states that females are subjected to more specific forms of violence, including sexual violence....

 

"This common-sense document will help codify our common understanding and the reality we all know of the words ‘female,’ ‘woman,’ and ‘sex’, and I am proud to support it," Rep. Miller added.

 

The legislation clarifies, "for purposes of Federal law, a person’s ‘sex’ means his or her biological sex (either male or female) at birth" and the term "mother" means "parents of female sex and ‘father’ is defined as parent of the male sex." It continues: "there are important reasons to distinguish between the sexes with respect to athletics, prisons, domestic violence shelters, restrooms, and other areas, particularly where biology, safety, and privacy are implicated."

May 19, 2022 in Gender, Legislation, LGBT | Permalink | Comments (0)

Thursday, April 7, 2022

New Title IX Rules Proposed to Include Transgender Students

New Title IX Rules Set to Assert Rights of Transgender Students

Discrimination against transgender students would be a violation of federal civil rights law under proposed regulations the Education Department is expected to finalize in the coming weeks.

 

Title IX bars discrimination on the basis of sex in education, and the new rules would make clear this includes discrimination based on sexual orientation and gender identity, among other things, according to two people familiar with a draft of the proposed regulation who spoke on the condition of anonymity because they were not authorized to publicly comment on the subject.

 

Regulations carry the power of law. The rules, if finalized, would set up a clash with state laws that bar transgender women from competing in women’s sports. Those statutes are already being challenged in the courts.

 
A spokeswoman for the Education Department declined to comment on what will be in the proposed regulation, which the administration has said it expects to publish in April.
 

The draft text of the regulation included this key sentence, according to the people familiar with it: “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”

 

The regulations would also rewrite, for the third time in three administrations, complex rules for universities and K-12 schools in adjudicating allegations of sexual harassment and assault. The Trump administration’s version included more due process rights for the accused, and the new version is expected to be friendlier to those leveling the accusations.

April 7, 2022 in Education, LGBT | Permalink | Comments (0)

Wednesday, March 30, 2022

Gender Identity - The New Legal Sex

Noa Ben-Asher, Gender Identity, The New Legal Sex, 

The American legal system is in the final stages of a legal sex change. This Article reveals, names, and assesses a new legal landscape in which gender-identity is gradually becoming the new legal sex. That is, across different areas of policy, law, and regulation, legal sex is now defined in a different way than it was even two decades ago. From legal sex located somewhere in the real or imagined physical body, it is now, for a growing number of purposes, located in the gendered mind. The Article will show that while at the turn of the twenty-first century legal sex was strictly defined as sex designated at birth, usually based on the appearance of genitals, today the trend is towards defining legal sex as gender-identity. For a process that has taken only two decades this is shocking. It is thus no surprise that conservative think tanks appear panicked and are fighting back. It is also no surprise that the target is children and youth– they are the future transgender or non-binary adults. The article examines both the gains of this legal and cultural shift, but also its costs, including (1) medicalization (2) an imposition of a notion of an immutable, inner-true self; (3) vulnerability to epistemic critique of legal and social conservatives; and (4) a commitment to a binary sex system.

March 30, 2022 in LGBT, Theory | Permalink | Comments (0)

Wednesday, March 9, 2022

Florida Passes "Don't Say Gay" Law Limiting Teachers in Elementary Schools from Instructing on Sexual Orientation and Gender Identity Topics

The text of the Florida so-called "Don't Say Gay" law is here.

Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.

 

It authorizes a parent to: "Bring an action against the school district to obtain a declaratory judgment that the school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief."

Discussion of the new law is here:

Wash Post, Florida Legislature Passes Bill to Restrict LGBTQ Topics in Elementary School 

 

Florida Approves Controversial "Don't Say Gay" Law in Political Win for DeSantis

March 9, 2022 in Education, Legislation, LGBT | Permalink | Comments (0)

Wednesday, February 9, 2022

Understanding the Term "Terf" (Trans-Exclusionary Radical Feminist) and its Theoretical Origins

JK Rowling Comes Out as a Terf, Forbes

A tweet may be limited to only 280 characters, but it can convey so much more. In the case of celebrated author J.K. Rowling, who rose to fame with her best-selling Harry Potter series of wizardry and other fantastic tales, a single tweet she sent Thursday confirmed suspicions that she is a TERF.

 

“TERF” is an acronym for transgender exclusionary radical feminist, a term reportedly coined more than a decade ago by a cisgender heterosexual woman who works as a writer in Sydney, Australia. To some, TERF is a slur; to others, a descriptive. Viv Smythe wrote in The Guardian last year that the term she invented has “been weaponized at times by both those who advocate trans-inclusion in feminist/female spaces, and those who push for trans-exclusion from female-only spaces.”

How to Spot Terf Ideology

‘TERF’ stands for ‘trans-exclusionary radical feminism’. Terf ideology is a specific form of transphobia, and more specifically transmisogyny, as terfs mostly target trans women and transfeminine people. According to terf ideology, trans women are excluded from womanhood and should accordingly be excluded from women-only spaces. Womanhood is supposedly defined exclusively by “sex-based” oppression, aka oppression as a result of being what terf ideology terms “biologically female”. This idea weaponises a reductive understanding of "biology" to argue that 'women' - or those assigned female at birth - all experience gendered oppression in the same way, which erases our diverse experiences of gender as it intersects with race, class, sexuality, disability, and many other structural factors.

Terfs often dub themselves “gender critical”, which on the surface of it seems very reasonable - however, the problem arises in the failure of terf ideology to be similarly “sex critical”. While the gender binary is obviously a societal construction that is important to criticise and denaturalise, the same is equally true of the sex binary (the
assumption that everyone can be split into two discrete biological sexes, “male” and “female”).

Vox, TERFs: The Rise of "Trans Exclusionary Radical Feminists" Explained

Online roots of the term TERF originated in the late 2000s but grew out of 1970s radical feminist circles after it became apparent that there needed to be a term to separate radical feminists who support trans women and those who don’t. Many anti-trans feminists today claim it’s a slur, despite what many see as an accurate description of their beliefs. They now prefer to call themselves “gender critical,” a euphemism akin to white supremacists calling themselves “race realists.”

 

In the early ’70s, groups of what would now be called “gender critical” feminists threatened violence against many trans women who dared exist in women’s and lesbian spaces. For example, trans woman Beth Elliott, who was at the 1973 West Coast Lesbian Feminist Conference to perform with her lesbian band, was ridiculed onstage and had her existence protested. In 1979, radical feminist Janice Raymond, a professor at the University of Massachusetts, wrote the defining work of the TERF movement, “Transsexual Empire: The Making of the Shemale,” in which she argued that “transsexualism” should be “morally mandating it out of existence” mainly by restricting access to transition care (a political position shared by the Trump administration). Soon after she wrote another paper — this one published for the government-funded, Health and Human Services-linked National Center for Healthcare Technology — the Reagan administration cut off Medicare and private health insurance coverage for transition-related care.

 

After those early flashpoints, the dispute between trans people and gender-critical folks simmered for the next 20 years. One exception is the high-profile conflicts at the Michigan Womyn’s Folk Festival, or MichFest, which caught plenty of attention. In the 1990s and early aughts, pro-trans festival attendees organized “Camp Trans,” a space specifically welcoming to trans women who were otherwise banned from attending the event. The two groups clashed for a number of years, until more artists and organizations boycotted MichFest and organizers chose to end the event in 2015.

 

However, in the past several years, TERFism has found new life and fostered fertile recruiting ground in many online spaces. Though trans people experienced a dramatic increase in visibility with the rise of trans actress Laverne Cox and Caitlyn Jenner’s headline-grabbing transition, that visibility has resulted in a growing cultural backlash. While the majority of that backlash is simply a continuation of the conservative-driven culture war, some extremist “feminists” have decided that trans rights go too far.

From one of the original sources of the terf idea, Janice Redmond: The Transsexual Empire: The Making of the She-Male (1979)

From the publisher:  [W]hen it was first published, "The Transsexual Empire" challenged the medical psychiatric definition of transsexualism as a disease and sex conversion hormones and surgery as the cure. It exposed the antifeminist stereotyping that requires candidates for transsexual surgery to prove themselves by conforming to subjective, outdated and questionable feminine roles and "passing" as women. Then as now, defining and treating transsexualism as a medical problem prevents the person experiencing so-called gender dissatisfaction from seeing it in a gender-challenging or feminist framework. Transsexualism goes to the question of what gender is, how to challenge it, and what reinforces gender stereotyping in a role-defined society. In the new introduction to this feminist work, Raymond discusses how these same issues are now debated in the context of transgender. Transgenderism reduces gender resistance to wardrobes, hormones, surgery and posturing - anything but real sexual equality. It assimilates the roles and definitions of masculinity and femininity, often mixing and matching, but never really moving beyond both. In a similar way, transsexualism is thought to be a radical challenge to gender roles, breaking the boundaries of gender and transgressing its rigid lines. But if the transsexual merely exchanges one gender role for another, and if the outcome of such a sex reassignment is to endorse a femininity which, in many transsexuals, becomes a caricature of much that feminists have rejected about many-made femininity, then where is the challenge, the transgression, and the breaking of any real boundaries? 

February 9, 2022 in Gender, LGBT, Theory | Permalink | Comments (0)

Tuesday, January 11, 2022

Biden’s LGBTQ Health Bias Bans Face Rash of Legal Roadblocks

Biden’s LGBTQ Health Bias Bans Face Rash of Legal Roadblocks

A Biden administration proposal to stop qualified health insurance plans from discriminating against gay and transgender people is the latest regulatory step in an ongoing fight over enacting broader health-care protections for LGBTQ people.

A batch of legal challenges is already in play, including two court orders that could block the Department of Health and Human Services from enforcing a more sweeping rule against certain medical providers before it’s even been formally proposed.

In the more expansive proposed rule, due in April, the HHS is expected to ban health-care providers and health programs that receive federal funding from discriminating against people based on their sexual orientation or gender identity under Section 1557 of the Affordable Care Act.

It’s the latest version of a rule that has ping-ponged back and forth in scope from one administration to another and been subject to several legal challenges since the Obama administration first expanded the definition of “sex” under the ACA in 2016 to include gender identity, sex stereotypes, and termination of a pregnancy.

The Trump administration issued a rule of its own in 2020 erasing those protections, but several of those changes were blocked by federal courts, and the protections for transgender people were reinstated.

The Biden administration’s interpretation has prompted legal action even though the formal rule proposal is months away.

January 11, 2022 in Healthcare, LGBT | Permalink | Comments (0)

Monday, January 10, 2022

Health Insurance Rights and Access to Health Care for Trans People

Anna Kirkland, Shauhin Talesh, and Angela K. Perone have published Health insurance rights and access to health care for trans people: The social construction of medical necessity in Volume 55 of the Law & Society Review. 

Health care rights for transgender and/or nonbinary people have dramatically expanded in recent years, including in insurance coverage for the treatments and procedures they need. Yet, trans people themselves still identify health insurance problems as a top priority for research and policy change because of significant difficulties gaining and using coverage. Wrangling over coverage determinations happens through multiple types of interactions, bureaucratic, interpersonal, and medical. When these interactions become difficult, it is because key terms such as medical necessity are both powerful and indeterminate. This study examines how trans people and health care intermediaries navigate the health insurance process and contest the meaning of medical necessity in coverage determinations. These disputes constitute the ground-level reality for instantiating health care rights to gender affirming care. Relying on analysis of contract language and 32 interviews with people who sought gender-affirming care and allied professionals, we find that health insurance policy language, interpretation, and implementation often create disadvantages and barriers for trans people who attempt to access care. Our study highlights how the contested life of insurance policy terminology produces a reality for rights but also details the mechanisms through which insurance-mediated care is a socially contested and negotiated process

January 10, 2022 in Healthcare, LGBT | Permalink | Comments (0)

Monday, December 27, 2021

Improving State Data Collection About Sex and Gender

Ben Collier and Sharon Cowan of the University of Edinburgh have posted a recent article on SSRN titled Queer Conflicts, Concept Capture and Category Co-Option: The Importance of Context in the State Collection and Recording of Sex/Gender DataThe abstract summarizes: 

Queer, trans and non-binary lives, bodies, relationships, and communities often complicate the taken-for-granted processes through which the state manages those under its power. In this article, we explore the forms of power and harm at play in attempts to quantify people through administrative processes of state data collection about sex and gender, and, in the current UK and Scottish context, examine some of the sites for wider conflicts over constructions of sex and gender in public life. We emphasise the need to collect sex / gender data in way that reflects the intersectional lives of data ‘subjects’. We also suggest that governments and public bodies should not adopt a unitary definition of sex or gender in data collection exercises such as the census, or other administrative categories such as criminal justice records, and argue that those who lobby to record ‘sex not gender’ in data collection are engaging in a strategy of concept capture, i.e. replicating a binary, biological model of sex, that excludes trans and non-binary people, through the co-option of number of administrative and legal categories across a wide range of social and political life. We conclude by recommending that public bodies asking about sex and gender should: co-produce questions with the community that is being surveyed; ensure that the wording of each question, and its rubric, is sensitive to the context in which it is asked and the purpose for which it is intended; and avoid attempting to offer any overarching standard definition of sex or gender that would be applicable in all circumstances. To engage in meaningful sex / gender data collection and recording that does not cause harm, governments and public bodies should avoid relying on reductive, over-simplistic and generalistic categories that are designed to fit the standardised norm. In being attentive to individual contexts needs and interests when formulating categories and records, they can make space for more intersectional experiences rather than generalised category-type data to be made visible.

December 27, 2021 in Gender, International, LGBT | Permalink | Comments (0)

Wednesday, December 22, 2021

New Book: Intimate States--Gender, Sexuality, and Governance in Modern US History

From Larry Solum, at the Legal Theory Blog:

The Legal Theory Bookworm recommends Intimate States: Gender, Sexuality, and Governance in Modern US History, edited by by Margot Canaday, Nancy F. Cott, & Robert O. Self.  Here is a description:

Fourteen essays examine the unexpected relationships between government power and intimate life in the last 150 years of United States history.
 
The last few decades have seen a surge of historical scholarship that analyzes state power and expands our understanding of governmental authority and the ways we experience it. At the same time, studies of the history of intimate life—marriage, sexuality, child-rearing, and family—also have blossomed. Yet these two literatures have not been considered together in a sustained way. This book, edited and introduced by three preeminent American historians, aims to close this gap, offering powerful analyses of the relationship between state power and intimate experience in the United States from the Civil War to the present.

The fourteen essays that make up Intimate States argue that “intimate governance”—the binding of private daily experience to the apparatus of the state—should be central to our understanding of modern American history. Our personal experiences have been controlled and arranged by the state in ways we often don’t even see, the authors and editors argue; correspondingly, contemporary government has been profoundly shaped by its approaches and responses to the contours of intimate life, and its power has become so deeply embedded into daily social life that it is largely indistinguishable from society itself. Intimate States makes a persuasive case that the state is always with us, even in our most seemingly private moments.

And from the reviews:

Intimate States is a stunning achievement, challenging conventional thinking that sharply divides public from private; sex and gender from politics; identity from material concerns. In its breadth and depth, originality, and cohesiveness, Intimate States also manages to avoid the usual pitfalls of edited volumes; while far-ranging, it offers a single and coherent argument of profound importance.”― Deborah Dinner, Emory University
 
 
The Table of Contents:
 
1: Reconstructing Belonging: The Thirteenth Amendment at Work in the World, Stephanie McCurry
2: The Comstock Apparatus, Jeffrey Escoffier, Whitney Strub, and Jeffrey Patrick Colgan
3: Morals, Sex, Crime, and the Legal Origins of Modern American Social Police, William J. Novak
4: The Commerce (Clause) in Sex in the Life of Lucille de Saint-André, Grace Peña Delgado
5: “Facts Which Might Be Embarrassing”: Illegitimacy, Vital Registration, and State Knowledge, Susan J. Pearson
6: Race, the Construction of Dangerous Sexualities, and Juvenile Justice, Tera Eva Agyepong
7: Eugenic Sterilization as a Welfare Policy, Molly Ladd-Taylor
8: “Land of the White Hunter”: Legal Liberalism and the Shifting Racial Ground of Morals Enforcement, Anne Gray Fischer
9: Sex Panic, Psychiatry, and the Expansion of the Carceral State, Regina Kunzel
10: The Fall of Walter Jenkins and the Hidden History of the Lavender Scare, Timothy Stewart-Winter
11: The State of Illegitimacy after the Rights Revolution, Serena Mayeri
12: What Happened to the Functional Family? Defining and Defending Alternative Households Before and Beyond Same-Sex Marriage, Stephen Vider
13: Abortion and the State after Roe, Johanna Schoen
14: The Work That Sex Does, Paisley Currah

 

December 22, 2021 in Books, Constitutional, Legal History, LGBT | Permalink | Comments (0)

Thursday, December 16, 2021

A Reassessment of the Use and Gender Politics of the Singular "They"

A Little Word That Means a Lot: A Reassessment of Singular "They" in a New Era of Gender Politics, Gender & Society (Nov. 20, 2021)

In 2019, Merriam-Webster named they its Word of the Year in recognition of the “surprising fact” that lookups had risen a remarkable 313% over the previous year. This surge of interest in singular they attests to the rising visibility of genderqueer, nonbinary, and trans activism in the United States. A 2018 survey found that a majority of Americans have heard about gender-neutral pronouns and that nearly twenty percent of Americans know someone who uses nonbinary personal pronouns. In recent years, gender-inclusive pronoun practices—including pronoun “go-rounds” and adding pronouns to email signatures—have been widely adopted on campuses and in workplaces, and new legal protections have been created to prevent misgendering with pronouns.

 

Skeptics dismiss these practices as a fad, but English speakers have been using the singular they in situations when a person’s gender was nonspecific or unknown for at least 600 years. Esteemed authors including William Shakespeare and Jane Austen used it unapologetically as an indefinite pronoun. Today, it likely would go unnoticed to hear someone exclaim, “That car just cut me off! They should learn to drive.”

 

In fact, the idea that singular they is ungrammatical was produced by a political campaign that began in the late eighteenth century. At that time, scholarly authorities insisted that singular he be used instead of singular they on the grounds that “the Masculine gender is more worthy than the Feminine, and the Feminine more worthy than the Neuter.” In promoting usage of he as a generic pronoun, grammarians sought to discredit competing options. They dismissed the paired binary term he or she as cumbersome and argued that singular they creates ambiguity about whether we are discussing one person or many. Of course, the generic he creates a parallel ambiguity with respect to gender, but they pushed this concern aside.***

 

Meanwhile, since the early 2010s, a new generation of language reformers, led by lesbian, gay, bisexual, transgender, queer/questioning and more (LGBTQ+) activists, has taken up the cause of singular they. These activists promote language practices that recognize people with nonbinary gender identities, incuding singular they used as a nonbinary personal pronoun. Using singular they as a nonbinary personal pronoun resists biological essentialism and affirms everyone’s right to determine their own gender identity.

 

Concomitantly, some people have advocated that singular they be used for everyone as a universal pronoun on the grounds that it is “inclusive and flexible” and protects people’s privacy, among other reasons. Yet, some transgender advocates  have objected to this proposal  arguing that denying gender recognition by avoiding gendering can be experienced as a form of violence. Finally, some people now use singular they as a default indefinite pronoun to refer to a person who is known but whose self-defined gender identity is not.

 

Our Gender & Society article, “A Little Word That Means A Lot: A Reassessment of Singular They in a New Era of Gender Politics,” considers how singular they can be used to resist and redo aspects of the prevailing gender structure. We identify three distinct usages of singular they: 1) as a nonbinary personal pronoun; 2) as a universal gender-neutral pronoun; and 3) as an indefinite pronoun when a person’s self-identified gender is unknown. While previous research has focused primarily on singular they as a nonbinary personal pronoun, our paper points to the importance of all three usages. We offer new insight into how nonbinary they challenges dominant gender norms and practices beyond incorporating additional gender categories. We propose further investigation of how using gender-neutral pronouns for everyone in specific contexts can advance progressive activists’ goals. Finally, we argue that the longstanding usage of singular they as an indefinite pronoun has new importance today in affirming gender as a self-determined identity.

 

Our analysis demonstrates that using singular they advances gender justice. Buying into the depoliticized grammar argument is not merely ahistorical but politically costly in the struggle for gender justice.

December 16, 2021 in Gender, Law schools, LGBT, Pop Culture | Permalink | Comments (0)

Monday, November 29, 2021

Anti-Trans Legislation Refusing To Say "Transgender"

The 19th reports in its article The word missing from the vast majority of anti-trans legislation? Transgender on both the spike in anti-trans legislation and also the trends in language usage: 

Over three special legislative sessions this year, Texas legislators introduced 47 proposed bills that aimed to restrict transgender kids’ access to sports or gender-affirming care, plus three bills that would block birth certificate updates for minors. The word “transgender” didn’t appear in any of them. * * * 

More anti-trans bills were introduced in state legislatures in 2021 than in any previous year on record. The 19th reviewed the text of 102 bills in seven states that were primarily designed to restrict access to sports or gender-affirming care for trans youth, like hormones and puberty blockers, and only seven bills mentioned the word “transgender.” Only eight passed, primarily those focused on sports, although legal battles in several states have barred most from going into effect.

The article describes how this strategy is not new, but it is evolving. It is also "intentional and strategic." The harms are searing. 

I think it’s a lot more simple than we want to admit,” said Emmett Schelling, executive director for the Transgender Education Network of Texas. “If we refuse to name, or even recognize the existence of something, then … understanding is negated.” 

 

By not acknowledging transgender people’s existence in legislation or rhetoric that affects them, Schelling said, proponents of these bills make it impossible for them to also acknowledge potential harms.

 

“Like, ‘I’m not saying that they’re not happening, I’m actually going a step further and I’m saying, ‘You don’t exist, so it can’t happen.’ There is something deeply disturbing about that,” he said. 

November 29, 2021 in Gender, Legislation, LGBT | Permalink | Comments (0)

Wednesday, November 24, 2021

Navigating Transgender Obstacles in a Gender-Binary World: The TSA Example

Karissa Kang & John Kang, Anomalous Anatomies: How the TSA Should Screen for Transgender People, 21 Nevada L.J. (2021),  

A transgender person faces obstacles trying to negotiate a gender-binary world. Going through a TSA checkpoint is no different. A substantial number of transgender persons have reported that they were detained and examined because they were transgender. Why this situation persists, constitutional concerns, and what policy reforms should be implemented to alleviate it are the subjects of this Essay. 

 

 

November 24, 2021 in LGBT | Permalink | Comments (0)

Friday, November 12, 2021

Dusting Off the Law Books: Recognizing Gender Persecution in Conflicts and Atrocities

Lisa Davis, Dusting Off the Law Books: Recognizing Gender Persecution in Conflicts and Atrocities, 20 Nw. J. Hum. Rts. 1 (2021).

In this article Professor Davis illuminates the prevalence of, and lack of recognition and response to, gender-based crimes designed to reinforce oppressive and discriminatory gender narratives in times of armed conflict. The abstract for this article is below.

War-time abuses against women, girls, lesbian, gay, bisexual, transgender, intersex, queer (LGBTIQ), non-binary and gender non-conforming persons are not new. They are as old as human history, appearing in modern international criminal law records as far back as World War II (WWII). In conflicts across the globe, from Iraq to Colombia, armed actors have perpetrated gender-based crimes amounting to persecution in an effort to reinforce oppressive, discriminatory gender narratives. Rarely documented when they happen, perpetrators are hardly ever held accountable for these crimes. As a result, the crimes are often excluded from consideration by international and domestic tribunals, and in effect, are left out of history. International criminal jurisprudence is silent on gender persecution, despite international law’s decades-long recognition of it as a crime. This silence derives from a lack of recognition and understanding of the intent to discriminate against a group based on their gender. The inclusion of gender persecution as a crime against humanity in the Rome Statute, which governs the International Criminal Court (ICC), provides a pathway forward for the international community to meaningfully challenge this type of harm. Such recognition would demonstrate to the world that targeting women, girls, LGBTIQ, non-binary and gender non-conforming persons because of their gender is a crime against humanity. This article contains three sections: (1) Understanding Gender Persecution; (2) Applying a Gender Persecution Lens, and (3) Recognizing Gender Persecution Survivors’ Rights to Participation. The article concludes with practical recommendations for the international community and local communities to increase recognition, prevention and redress for gender persecution and promote a survivor-centered approach for peace and transitional justice processes.

November 12, 2021 in Gender, International, LGBT, Violence Against Women | Permalink | Comments (0)

Friday, November 5, 2021

LGBTQ+ Protections: Bostock's Implication for Public Schools

John Dayton and Micah Barry, LGBTQ+ Employment Protections: the U.S. Supreme Court’s Decision in Bostock v. Clayton County, Georgia and the Implications for Public Schools, 35 Wis. J. L. Gender & Soc’y 115 (2020).

In this article Professors Dayton and Barry provide a history of LGBTQ+ discrimination and its impact in U.S. communities and schools, examine in depth the U.S. Supreme Court’s decision in Bostock v. Clayton County, and discuss the opinion’s implications for public educational institutions.  The article begins by recognizing “the central role employment plays in people’s lives . . . and the history of using employment discrimination to marginalize and harm vulnerable groups.”  It points out that “LGBTQ+ persons have been an especially vulnerable group, with laws in many states treating their LGBTQ+ status as a lawful basis for dismissal from employment” and that “the impacts of dismissal on their lives could be devastating.”

As is well known, the Bostock decision made clear that such discrimination in employment is illegal pursuant to Title VII.  Further, Professors Dayton and Barry argue, the decision “is likely to reach further than employment law and likely impact interpretations of Title IX.”  Thus, it has significant legal implications for public educational institutions.  As the article states:

Legal rights mean little, however, unless they are effectively translated from theory into practice.  Assuring non-discrimination for all LGBTQ+ persons in schools will require educational and cultural changes in schools, changes that are long overdue.  Public school officials would be wise to implement appropriate training and education programs for employees and students concerning LGBTQ+ rights and inclusion to assure legal compliance and that public schools are safe and welcoming places for everyone.

. . . [E]vidence suggests that awareness of protective workplace legislation decreases interpersonal discrimination against LGBTQ+ persons.  School officials must assure legal compliance, but school officials may also improve school culture by promoting equal rights and equal respect for all people.

In short public educational institutions, “must ensure that legally compliant polices are established, administered, and respected in their schools.”

November 5, 2021 in Education, Equal Employment, Gender, Law schools, LGBT, Workplace | Permalink | Comments (0)

Wednesday, November 3, 2021

Senate Confirms First Openly LGBTQ Women to a Federal Appeals Court

ABA J, Senate Confirms First Openly LGBTQ Woman to a Federal Appeals Court

The U.S. Senate confirmed Vermont Supreme Court Justice Beth Robinson to the 2nd U.S. Circuit Court of Appeals at New York on Monday, making her the first openly LGBTQ woman to serve on a federal appeals court.

 

Robinson was one of two nominees confirmed to federal appeals courts, Law.com reports. The other is Toby Heytens, former Virginia solicitor general, confirmed to the 4th Circuit at Richmond, Virginia.

 

Robinson is a 1989 graduate of the University of Chicago Law School. She has served as an associate justice on Vermont’s top court since 2011. Before that, she was counsel to Vermont’s governor, a civil litigator at Langrock Sperry & Wool and an associate at Skadden, Arps, Slate, Meagher & Flom.

It is possible that the first gay woman federal appellate judge was actually Judge Florence Allen. Allen was the first woman appointed to a federal appellate court, nominated by FDR to the Sixth Circuit (Ohio) in 1932. The jury is still out on whether Allen was gay, with scholars and biographers split.  If so, Allen was not open about it.  The strongest evidence is that she lived in committed cohabitation partnerships (so-called Boston marriages) with one woman, Susan, and then after her early death, with another woman, Mary for the rest of her life. For more on Allen, see Tracy Thomas, The Jurisprudence of the First Woman Judge: Challenging the Myth of Women Judging Differently, 27 William & Mary J. Race, Gender & Social Justice 293 (2020).

November 3, 2021 in Courts, Judges, LGBT, Women lawyers | Permalink | Comments (0)