Gender and the Law Blog

School Book Removals May Create Hostile Environment Violating Student Civil Rights

Wash Post, Book Removals May Have Violated Student Civil Rights, Education Dept. Says

In a move that could affect how schools handle book challenges, the federal government has concluded that a Georgia school district’s removal of titles with Black and LGBTQ characters may have created a “hostile environment” for students, potentially violating their civil rights.

The Education Department’s Office for Civil Rights released its findings in a letter Friday wrapping up its investigation into Forsyth County Schools’ 2022 decision to pull nearly a dozen books from shelves after parents complained of titles’ sexual and LGBTQ content. To resolve the investigation, the district north of Atlanta agreed to offer “supportive measures” to students affected by the book removals and to administer a school climate survey, per the letter. ***

The Education Department’s investigation into the Forsyth district — which involved the examination of school documents, interviews with top school personnel and a review of public board meeting records — was based on a complaint alleging that the January 2022 removal of books created a “racially and sexually hostile environment for students,” according to the department.

The district ultimately removed eight books indefinitely and two temporarily, according to the letter, and it limited four titles to high schools. Superintendent Jeff Bearden told the school board that the books being yanked “were obviously sexually explicit or pornographic,” according to the letter.

Of the books listed for removal, three center on characters of color and one on an LGBTQ protagonist, according to a Washington Post analysis. The nixed titles include “The Bluest Eye” by Nobel Prize-winning author Toni Morrison, the Forsyth County News reported and Caracciolo confirmed.

A study by the Washington Post found that the majority of all school book bans are being filed by a small number of people. See Objection to sexual, LGBTQ content propels spike in book challenges

A small number of people were responsible for most of the book challenges, The Post found. Individuals who filed 10 or more complaints were responsible for two-thirds of all challenges. In some cases, these serial filers relied on a network of volunteers gathered together under the aegis of conservative parents’ groups such as Moms for Liberty.

And the types of claims:

The Post analyzed the complaints to determine who was challenging the books, what kinds of books drew objections and why. Nearly half of filings — 43 percent — targeted titles with LGBTQ characters or themes, while 36 percent targeted titles featuring characters of color or dealing with issues of race and racism. The top reason people challenged books was “sexual” content; 61 percent of challenges referenced this concern.

In nearly 20 percent of the challenges, petitioners wrote that they wanted texts pulled from shelves because the titles depict lesbian, gay, queer, bisexual, homosexual, transgender or nonbinary lives. Many challengers wrote that reading books about LGBTQ people could cause children to alter their sexuality or gender.

 

Dismantling the Cage of Binary Sports

Tracy L. Turner, Dismantling the Cage of Binary Sports, 67 St. Louis U. L. J. 41 (Fall 2022)

This article responds to recent media coverage and legislative action regarding transgender athletes. For every step forward that organizations like the National Collegiate Athletic Association take to improve the wellbeing of transgender athletes, they are met with increasingly vehement objections. Often, these objections take the form of hurtful comments about the bodies, sexuality, and personality of individual athletes. Recently, several state legislatures have enacted “fairness” laws that categorically exclude transgender athletes from female programs. This article considers the relationship between two significant harms perpetuated by sex segregation in athletics: the relegation of female athletes to a second-tier status that caps their potential, and the trauma gender minority athletes experience while trying to fit into a heteronormative structure. Using Equal Protection doctrine, Title VII, and Title IX, the article argues against rigid sex and gender classifications in favor of individualized assessment of merit. The overall goal of the article is to advocate for a system of school athletics defined by inclusion rather than exclusion in which every athlete can find their ideal competitive fit and maximize their athletic excellence, a result that will strengthen the quality of American sport.

Introduction to Frontiers of Gender Equality--Transnational Legal Perspectives

Rebecca J. Cook, Introduction, "Many Paths to Gender Equality," in Frontiers of Gender Equality: Transnational Legal Perspectives (Rebecca J. Cook, ed. University of Pennsylvania Press, 2023)

In this Introduction to the book Frontiers of Gender Equality: Transnational Legal Perspectives (2023), editor Rebecca Cook shows how a chorus of voices introduces new and different discourses about the wrongs of gender discrimination and explains the multiple dimensions of gender equality. This volume demonstrates that the wrongs of discrimination can best be understood from the perspective of the discriminated, and that gender discrimination persists and grows in new and different contexts, widening the gap between the principle of gender equality and its realization, particularly for subgroups of women and LGBTQ+ peoples.

Frontiers of Gender Equality provides retrospective views of the struggles to eliminate gender discrimination in national courts and international human rights treaties. Focusing on gender equality enables comparisons and contrasts among these regimes to better understand how they reinforce gender equality norms. Different regional and international treaties are examined, those in the forefront of advancing gender equality, those that are promising but little known, and those whose focus includes economic, social, and cultural rights, to explore why some struggles were successful and others less so. The book illustrates how gender discrimination continues to be normalized and camouflaged, and how it intersects with other axes of subordination, such as indigeneity, religion, and poverty, to create new forms of intersectional discrimination.

With the benefit of hindsight, the book’s contributors reconstruct gender equalities in concrete situations. Given the increasingly porous exchanges between domestic and international law, various national, regional, and international decisions and texts are examined to determine how better to breathe life into equality from the perspectives, for instance, of Indigenous and Muslim women, those who were violated sexually and physically, and those needing access to necessary health care, including abortion. The conclusion suggests areas of future research, including how to translate the concept of intersectionality into normative and institutional settings, which will assist in promoting the goals of gender equality.

Dismantling the Myths of Gender-Critical, Trans-Exclusionary Feminism

Henry Fradella, The Imperative of Rejecting "Gender-Critical" Feminism in the Law, William & Mary Journal of Race, Gender, & Social Justice, Vol. 30, Issue 2 (2023)

Roughly a half-century ago at the height of the second-wave feminist movement, some feminist scholars and activists found themselves arguing with transgender people about who is a woman. While much of contemporary feminist thought has moved past biological essentialism’s outdated embrace of a sex binary to embrace trans-equality, a relatively small but vocal group of self-proclaimed “gender-critical feminists” (who are sometimes called trans-exclusionary radical feminists or “TERFs,” for short) eschew transgender legal rights that they perceive as potentially threatening to the rights of cisgender women. Most gender-critical arguments in that regard are fallacious; they are based on myths and false narratives that misconstrue or ignore empirical data from both the natural and social sciences. Worse yet, the gender-critical position not only threatens to undermine equality under law, but also fosters narratives that contribute to the criminal victimization of transgender persons. In an attempt to minimize the potential for such harmful outcomes, this Article seeks to dismantle some of the more common arguments that gender-critical feminists routinely offer so that judges and lawyers have a source of legal literature that corrects the misinformation gender-critical authors are spreading in this emerging field, thereby providing them with the evidence needed to craft accurate legal arguments and rulings.

The Supreme Court's Gaslight Docket and the Anti-Equality Effects

Kyle Velte, The Supreme Court's Gaslight Docket, Temple L. Rev. (forthcoming) 

The U.S. Supreme Court’s new conservative supermajority is gaslighting the American public. This article take a systematic look at key cases from the Court’s October Term 2021 through the lens of gaslighting. It describes these case as being part of what it dubs the Court’s “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court’s recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has become to subject of academic and theoretical inquiry. This article identifies gaslighting in the Court’s civil rights cases in both oral arguments and written decisions. It reveals that this gaslighting is trans-substantive, spanning cases involving voting rights, race discrimination/affirmative action, reproductive rights, LGBTQ rights, and the First Amendment’s religion clauses.

Because gaslighting has epistemic dimensions — knowledge production and gaslighting are connected — gaslighters instill epistemic doubt in their victims as a way to have the gaslighter’s production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower” — indeed, it is given the position of ultimate “knower” of the meaning and application of the U.S. Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and anti-democratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalism movement, declaring that those interests are not co-equal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalism ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

Lambda Law Publishes 2022 "Protected and Served?"

Lambda Law has published its 2022 edition of "Protected and Served?"  This survey examines the "experiences of lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ+) people and people living with HIV with the criminal legal system, to assess these communities’ levels of trust in government institutions, and to create a new resource for community members, advocates, policymakers, and researchers for LGBTQ+ and HIV liberation." This publication is intended to "support legal arguments; educate the public; train judges, attorneys, and others involved in the legal system; and in many other ways to help identify and uproot discrimination and bias and hold government actors accountable." The report recommends: 

• "Lambda Legal supports the decriminalization of sex work by acknowledging that there is no constitutionally adequate basis to criminalize sex solely because one consenting adult pays another."  
• "Most laws that criminalize HIV are based on outdated science and directly interfere with public health goals. . . . Lambda Legal and Black and Pink National support the repeal of HIV criminalization laws."
• "[M]any strategies will be necessary to stop the government misconduct, harm, and violence experienced by system-impacted LGBTQ+ people and people living with HIV. It is for this reason that this report openly acknowledges the necessity of both reformist and abolitionist approaches to addressing the impacts of the criminal legal system."
• "[T]trust in the court system among survey participants is low. But the general public also lacks confidence in the courts, in part due to the U.S. Supreme Court’s erosion of our fundamental rights. Some current reform efforts that Lambda Legal supports in the federal judiciary include adding seats to the U.S. Supreme Court to match the number of federal Circuit Courts of Appeal and adopting an enforceable ethics code for Supreme Court Justices, as well as expanding the lower federal courts to accommodate the increasing demands on those courts."
• "Most state court systems and the federal judiciary do not explicitly prohibit discrimination in jury service based on sexual orientation or gender identity. This means that in many places, LGBTQ+ people can be dismissed from jury service simply because of their sexual orientation, gender identity, and/or gender expression. Advocates and policymakers at the state and federal levels must ensure that laws and court rules, such as the federal Equality Act and the Jury ACCESS Act, are enacted to prohibit this discriminatory treatment."
• "The Prison Litigation Reform Act (PLRA) makes it harder for people to seek legal recourse for harms experienced while in prison. . . . Congress should make changes to the PLRA that will permit people in prison to bring their claims to court sooner. In addition, the Prison Rape Elimination Act (PREA), despite its robust protections, does not provide a private right of action to survivors or assault. . . . Congress should amend the PREA to give survivors of abuse a private cause of action against prisons and jails, as well as officials."
• "Advocates and policymakers should work with school boards, administrators, and staff to create, adopt, and enforce anti-harassment policies for LGBTQ+ students, but also to greatly limit—or entirely prohibit—the use of disciplinary actions such as referrals to law enforcement, school-based arrests, and expulsions. All policies should be cognizant of actual and/or perceived sexual orientation, gender identity, and gender expression. For all students, and specifically LGBTQ+ students, schools should adopt policies that prohibit punishment as a means of policing gender expression. This includes prohibiting policies that dictate gender-based dress codes, bar students from using restrooms that align with their gender identity, or prevent students from utilizing a name that affirms their gender identity."

The full report is available here. 

Book, Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights

Valena Betty, Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights

When Valena Beety first became a federal prosecutor, her goal was to protect victims, especially women, from cycles of violence. What she discovered was that not only did prosecutions often fail to help victims, they frequently relied on false information, forensic fraud, and police and prosecutor misconduct.
 
Seeking change, Beety began working in the Innocence Movement, helping to free factually innocent people through DNA testing and criminal justice reform. Manifesting Justice focuses on the shocking story of Beety's client Leigh Stubbs—a young, queer woman in Mississippi, convicted of a horrific crime she did not commit because of her sexual orientation. Beety weaves Stubbs's harrowing narrative through the broader story of a broken criminal justice system where defendants—including disproportionate numbers of women of color and queer individuals—are convicted due to racism, prejudice, coerced confessions, and false identifications.
 
Drawing on interviews with both innocence advocates and wrongfully convicted women, along with Beety's own experiences as an expert litigator and a queer woman, Manifesting Justice provides a unique outsider/insider perspective. Beety expands our notion of justice to include not just people who are factually innocent, but those who are over-charged, pressured into bad plea deals, and over-sentenced. The result is a riveting and timely book that not only advocates for reforming the conviction process—it will transform our very ideas of crime and punishment, what innocence is, and who should be free.

 

Book Review: Queer Career--Sexuality and Work in Modern America

Guardian, "Work is About Belonging": LGBTQ+ People's History in the Workplace

In a new book, historian Margot Canaday studies the neglected history of queer people in American workplaces

There has been scant attention paid to queer people in the workplace, argues historian Margot Canaday in her fascinating new book Queer Career: Sexuality and Work in Modern America. “Queer people are one of the largest, but least studied, minority groups in the workforce,” Canaday said while speaking to the Guardian about her book.

According to her book, straight historians have tended to ignore the experiences of LGBTQ+ people in the workplace and queer researchers have focused on other aspects of community life, assuming that workplaces were uninteresting, because they weren’t places where LGBTQ+ were able to reveal their true identities. “There has been an assumption that the workplace has been a straight place that was not so revelatory for historians,” Canaday told me.

Canaday’s belief is that the conventional wisdom is wrong – in fact, the history of queer identities in the workplace has been much more complex and fascinating than previously assumed. “I think for all of us – queer or straight – work is about belonging and identity,” Canaday said. “But there are also things that are unique about work for queer people. For instance, it was a way gay people found other gay people. Or for folks who are gender non-conforming, there’s a way that work affirms that isn’t available anywhere else.”

Working off her hunch, as well as a desire to write a queer history that did not marginalize women, Canaday got to work interviewing queer-identified people who had participated in the labor force as far back as the 1950s.

Using Recent Developments in LGBTQ Equality Law to Unsettle Sex Equality's Enduring Commitment to Biology as a Basis for Sex Discrimination

Courtney Megan Cahill, Sex Equality's Irreconcilable Differences, 132 Yale L.J. (2023)

This Feature uses recent developments in LGBTQ-equality law to unsettle sex equality’s enduring commitment to biology as a basis for sex discrimination. Sex equality rejects sex discrimination when it is based on sex stereotypes, defined as gross generalizations about women and men, but not when it is based on biological differences between the sexes, like pregnancy, anatomy, and strength. Biological justifications for race discrimination—once common—have been relegated to the trash heap of history. But biological justifications for sex discrimination persist. This is so because sex equality insists that biology alone is neither a stereotype nor an expression of bigotry. Biological rationales for sex discrimination remain attractive to lower federal and state courts, and have received the Supreme Court’s blessing, most recently in Dobbs v. Jackson Women’s Health Organization. The result is a broad swath of laws across substantive areas—including family law, tort, immigration law, criminal law, property, and abortion law—that sustain sex inequality courtesy of biology and despite a fairly robust anti-stereotyping principle.

This Feature argues that sex equality’s continued embrace of real differences should not survive what LGBTQ equality shows: that biologically rationalized sex discrimination is an illegal sex stereotype. It uses recent developments in LGBTQ equality surrounding sex, the body, procreation, and parenthood to unsettle sex equality’s beliefs in the reality of biological differences between the sexes and in the legality of laws based on those differences. It urges sex equality to grapple with what LGBTQ equality has to say about biology and its role in lawmaking and imagines what the American law of sex might look like when it does. Biologically rationalized sex distinctions have always been sex stereotypes. It is just that now, LGBTQ equality makes those stereotypes easier to see, harder to ignore, and impossible to justify.

Book Review, The Visibility Trap, Reviewing Anna Lvovsky's "Vice Patrol"

Kate Redburn, The Visibility Trap, 89 University of Chicago Law Review 1515 (2022)

Transgender people in the United States are under attack. From municipal policing to state legislation and federal administrative law, trans people face well-organized efforts to regulate non-normative gender identities out of existence. Within the transgender movement - and the broader LGBT legal movement of which it is a part - much of the debate over how to respond to apparent backlash turns on visibility politics. Some advocates herald visibility as the path to social justice, arguing that cultural representation that accurately portrays transgender lives will sway public opinion in favor of inclusion. A growing chorus responds that visibility without protection invites surveillance and backlash.

In her brilliant work of legal history, Vice Patrol, Anna Lvovsky disentangles the forms of cultural salience, stereotype, and self-representation that often fly under the banner of “visibility.” Lvovsky takes moments of mid-century gay visibility as her starting point, showing how media attention hardened stereotypes about gay culture. Those stereotypes had a curious afterlife in the legal system, leading to “epistemic gaps” between enforcement institutions. On her account, courts did more than showcase public debates over the nature of homosexuality: they established “binding truths” about queer life.

This essay reads contemporary anti-transgender policing and transgender civil rights struggles through Vice Patrol to explore possible escape routes from the visibility trap. Through a deeper understanding of the way criminal enforcement metabolizes popular representation, it encourages contemporary transgender advocates to develop a kind of strategic intelligibility, by distinguishing circumstances and situations where visibility to the state is more or less necessary and desirable.

The Trans Threat Narrative in Title IX

Deborah L. Brake, Title IX's Trans Panic, 29 William & Mary Journal of Race, Gender, and Social Justice 41 (2023)

Sport is an agent of social change, but that change does not always track in a progressive direction. Sport can be a site for contesting and reversing the gains of progressive social movements as much as furthering the values of equality and justice for historically marginalized groups. This dynamic of contestation and reversal is now playing out in a new wave of anti-transgender backlash that has gained adherents among some proponents of equal athletic opportunities for girls and women. In this latest twist in the debate over who deserves the opportunity to compete, the sex-separate athletic programming permitted by Title IX has been the vehicle for depicting trans athletes – and especially trans girls – as unwelcome intruders poised to take away Title IX’s gains for female athletes. The trans threat narrative relies on and reinforces a dichotomy between trans girls and cisgender girls, with the latter positioned in this narrative as the “real” girls, and the former depicted as suspect subjects – and even, absurdly, as boys posing as girls for opportunistic reasons. Despite the lack of empirical evidence that trans athletes pose any threat to girls in sports, the threat narrative has been an effective strategy for reinscribing traditional understandings of sex and gender roles precisely because it trades on the popularity of Title IX across the political spectrum. The trans threat narrative has even gained adherents among some advocates for girls in sports who otherwise align with liberal supporters of transgender rights. The threat narrative has also succeeded in gaining support among state legislators, school boards, and parents, under the banner of protecting sports opportunities for “girls.” The issue has divided the women’s sports community, which has historically functioned as a unified front for advancing gender equality in athletics. This article examines the threat narrative in relation to the theories and justifications for Title IX’s baseline of sex-separation in school sports programs. It contends that the narrative embraces the most problematic of the justifications for sex-separation of sports, thereby reinforcing stereotypes of gender difference that have long thwarted girls’ and women’s efforts to achieve equal athletic opportunity. Equality for girls and women in sport is best achieved by embracing trans inclusion and rejecting efforts to exclude trans athletes from competition.

The Evolving Right of Public School Teachers to Refuse to Use a Student's Preferred Name or Pronoun

Suzanne Eckes, Public School Teachers Who Refuse to Use Preferred Names and Pronouns: A Brief Exploration of the First Amendment Limitations in K-12 Classrooms,  14 ConLawNOW 159 (2023)

This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.

The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963-86

Kate Redburn, Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86, Law & History Review, 1-45 (2023).

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

Full text: https://www.doi.org/10.1017/S0738248022000384

Transforming Legal Determinations of Sex from Biology to Gender Identity

Noa Ben-Asher, Transforming Legal Sex, NC L. Rev (forthcoming)

Legal Sex in the U.S. is in the final stages of a dramatic transformation. This Article begins by charting this transformation. By “legal sex” this Article refers to various instances in which legal authorities engage in defining an individual’s sex, either directly or indirectly. Until around mid-twentieth century, legal sex was mostly understood as immutable sexual difference between males and females that is biologically determined prior to birth. Groundbreaking scientific and medical theories in the 1950s introduced gender identity as a new way to describe an internal sense of being male or female. Since then, in slow steps, this concept has been integrated into various areas of law and policy. Today, the overwhelming trend in U.S. law is toward defining legal sex as gender identity, defined as “an individual’s own internal sense of whether they are a man, a woman, or nonbinary.” While there is not one coherent definition of sex across all areas of law, this Article observes that the trend across these legal domains, including sex reclassification laws, antidiscrimination laws, and family laws, is clear: the legal system is shifting towards gender identity as the primary indicator of legal sex.

This Article demonstrates why it is urgent to name and evaluate this phenomenon. As of 2023, lawmakers and politicians, as part of the ongoing “culture wars,” have introduced and passed hundreds of bills and policies that target transgender children and adults by undermining the centrality of gender identity as a core characteristic of legal sex. These laws and policies limit access of transgender individuals to locker rooms, restrooms, sports, gender affirming care, and antidiscrimination protections. They all reject the primacy of gender identity and call instead for narrow notions of immutable “biological sex” that is fixed at birth. This Article situates the current backlash against transgender people as an attempt to roll back laws, policies, and societal norms that view gender identity as the primary indicator of sex. The Article proposes that feminists, advocates on behalf of transgender people, and allies engage current debates about gender identity and transgender rights not only through the lens of medical science and the liberal principles of equality, liberty, and autonomy, but in addition, by insisting on the moral desirability of future generations of transgender people.  

Transgender Students and the First Amendment

Dara Purvis, Transgender Students and the First Amendment, Boston U. Law Review (forthcoming)

Suppose that a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally consistent with the sex they were assigned at birth. The student’s parents protest, arguing that their child’s clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene.

This Article is the first analysis to map out and counter both obscenity and material disruption as justifications to limit gender identity speech. Although not all clothing choices by students are symbolic speech, gender presentation is the type of intentional and cognizable message that is protected under the First Amendment. Comprehensive examination of student speech cases demonstrates that current attempts to define gender identity as an inappropriately sexualized topic for children are inconsistent with existing law. Finally, the Article illustrates for the first time how schools can create a heckler’s veto by teaching students that the speech of transgender students is abnormal. The Article proposes an analytical revision that takes the schools’ role into account, reconciles the conflict between the heckler’s veto doctrine and Tinker’s material disruption test, and strengthens protection of all controversial student speech.

Swethaa Ballakrishnen on "Law School as Straight Space"

Swethaa S. Ballakrishnen has published Law School as Straight Space in volume 91 of the Fordham Law Review. This is a symposium volume giving tribute to the life of Professor Deborah L. Rhode. Ballakrishnen draws upon the framework of Professor Bennett Capers’s framework of The Law School as White Space.

Ballakrishnen's abstract provides: 

*  *  * [A]lthough categories like race and gender have received increasing attention in diversity research, less is known about other nonnormative actors in the legal profession whose voices remain peripheral because of their minority status and/or historic representation. This means that we have little aggregate data about categories like generational capital, sexual orientation, and disability, and when we do know about them, their narratives do not highlight nonnormative subpopulations within these identities. In honoring Rhode’s commitment to making space for the marginal in legal education and clarifying the “no-problem” problems in our midst, this Essay focuses on one strain of nonnormative experience—that of genderqueer persons—to clarify the ways in which law schools, despite their intention and posturing (and sometimes, in spite of such posturing), reinforce linear hierarchies of identity and performance. Although just a small number of lawyers—less than 1 percent—identify as genderqueer, their experiences of isolation within professional spaces highlight important ways in which the legal profession reinforces and expects normativity.

 

Part I offers an overview of queer marginality in the legal profession by outlining the demographic trends of LGBTQIA+ individuals and the ways in which these data leave out nuances and intersections that might be relevant. Particularly, by using direction from Rhode’s early article, Whistling Vivaldi: Legal Education and the Politics of Progress, this Essay suggests that understanding genderqueer individuals’ experiences in legal education might be crucial to building sustainable equity and responding to new demographic shifts.

 

Part II uses ethnographic interview data to highlight the perspectives of genderqueer law students. It demonstrates the ways in which “normal” professional practices in law school reinforce the rigidity of the gender binary and call for a performance of propriety that necessarily alienates students who do not fall into strict categories of identity. The gendered nature of law school has the dual (and somewhat paradoxical) implication of making students both want to establish their gender nonnormative identities more actively and feel like those boundaries of representation are not respected. It is this denial of queer inequality—a form of “blasé discrimination”—that offers new operationalization to Rhode’s theorizing about the “no-problem” problem.

 

Part III uses these perspectives from the periphery as central tools for unpacking the structures of the law school. * * *  I offer that the heteronormative assumptions that are baked into law school form “straight” expectations that are inherent in its institutional framework and that it is, in plain sight, without ever being called out, a “straight space.” Navigation by those who do not fit these categorical frameworks of normativity is always at a cost, which leads students to actively push back against them, even if such expression comes at the behest of new costs. Using accounts from students about name calling and pedagogy in classrooms, as well as the dress, professionalization, and affect expectations seen as inherent to becoming a “good lawyer,” I suggest the ways in which these prefigurations of structural exclusion might impact a range of nonnormative subjects. I then conclude in Part IV by suggesting that paying attention to these subpopulations of students (of whom nonbinary and trans students are inexhaustive examples) is crucial for those committed to reforming legal education beyond platitudes of equality. Rhode’s interest in justice was not just about precise analysis and theory; it was committed to unveiling the structures of inequality that were not yet named. It is the spirit of that endeavor that buoys this Essay’s main contribution. 

OK Judge Denies Lesbian Partner Martial Presumption of Parenthood

OK Judge Transferred a Lesbian Mom's Parental Rights to her Son's Sperm Donor

Kris Williams is a lesbian, and that means she won’t be seeing her son anytime soon. That is the official ruling of an Oklahoma court. On Monday, Oklahoma County District Judge Lynne McGuire ruled that Williams had failed to adopt her son and had forfeited her parenting rights to his sperm donor. 

Advocates say Williams’ case may test the bounds of equal marriage laws in Oklahoma and beyond. According to Williams, she and her ex-partner Rebekah Wilson planned to have their son and found sperm donor Harlan Vaughn on a paternity website together. The two married while Wilson was pregnant. 

In most states, married couples are presumed parents of children born within those unions. Williams said she and Wilson raised W. (whose name has been excluded to protect his identity) for two years. But the couple split bitterly in 2021, and Wilson moved in with Vaughn, taking W. with her. She argued that Williams was not W.’s mom. 

McGuire agreed and retroactively removed Williams from W.’s birth certificate last May. 

“I don’t feel like we should have to adopt our own children,” Williams told the 19th. “If I was a man, then nobody could come back and you know, question whether that child was mine or not, after they’re the age of two.” 

McGuire reinstated Williams on the birth certificate in June, and Williams’ name remains. But the issue of Williams’ parental rights was still undecided until February 13, when McGuire ruled that Oklahoma’s parentage act predated marriage equality and therefore didn’t apply to Williams and Wilson.***

Legal experts warn that the case could have substantial implications for marriage equality nationwide. Advocates battled a number of cases to enshrine same-sex marriage protections after the Supreme Court granted those rights nationwide in 2015. Among those fights was the right of parentage. The 2015 Supreme Court case Pavan v. Smith found that it was unconstitutional to treat queer couples differently than heterosexual couples when it came to presuming parentage. If married heterosexual couples were presumed to be parents of children born during their marriage, the same must be true for LGBTQ+ couples. 

However, laws vary state to state. 

 

Misunderstanding the Meriwether Case Seeming to Uphold a Professor's Right to Misgender Students

Brian Soucek & Ryan Chen, Misunderstanding Meriwether

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech, or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what nearly everyone believes, given the case’s procedural posture. Meriwether has been misunderstood, and this Article aims to put a halt to the false narrative that has emerged around Meriwether before its consequences continue to spread.

Where previous work has explained why Meriwether’s holding is wrong, this Article delves into the complicated intersection of civil procedure and government employee speech claims to show why Meriwether’s holding is different, and far less important, than its foes and friends alike seem to think. In doing so, the Article also shows how a false legal narrative can develop, spreading from an opinion that encourages the mistake, to advocates and press who eagerly report it, to commentators, legislators, and courts each with reasons of their own for inflating the opinion’s importance, eroding gender identity protections along the way. This Article, finally, situates the widespread misunderstanding of Meriwether alongside other precedential mistakes and offers insight into how they might be counteracted before further distorting the law and threatening important equality rights.

Kate Redburn on "Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement"

Kate Redburn has published Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1962-86, Law & History Rev. 1 (2023). The abstract provides: 

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

FDA Draft Guidance Seeks to Lift Historic Gender-Based Exclusions on Blood Donations After Years of Advocacy

The FDA published a draft guidance proposing revisions to its blood donation requirements, materials, questionnaires, and procedures to eliminate categorical exclusions against men who have had sex with men in the past three months, instead moving to gender-neutral individual assessments.

NPR reported on the history of this prohibition.  

The restrictions on donating blood date back to the early days of the AIDS epidemic and were designed to protect the blood supply from HIV. Originally, gay and bisexual men were completely prohibited from donating blood. Over time, the FDA relaxed the lifetime ban, but still kept in place some limits.

* * *   

The new proposed policy would eliminate the time-based restrictions on men who have sex with men (and their female partners) and instead screen potential donors' eligibility based on a series of questions that assess their HIV risk, regardless of gender. Anyone taking medications to treat or prevent HIV, including PrEP, would not be eligible.

The FDA stated the following: 

We, FDA, are issuing this draft guidance to receive comments on revised recommendations for evaluating donor eligibility using individual risk-based questions.  This draft guidance, when finalized will provide you, blood establishments that collect blood or blood components, including Source Plasma, with FDA’s revised donor deferral recommendations for individuals with increased risk for transmitting human immunodeficiency virus (HIV) infection.  We are also recommending that you make corresponding revisions to your donor educational materials, donor history questionnaires and accompanying materials, along with revisions to your donor requalification and product management procedures.  This guidance, when finalized, will supersede the guidance entitled, “Revised Recommendations for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products” dated April 2020, updated August 2020 (April 2020 guidance).  The recommendations contained in this draft guidance, when finalized, will apply to the collection of blood and blood components, including Source Plasma.

Comments may be submitted online regarding the draft guidance.