Monday, January 30, 2023

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.

January 30, 2023 in Constitutional, Gender, LGBT | Permalink | Comments (0)

FDA Draft Guidance Seeks to Lift Historic Gender-Based Exclusions on Blood Donations After Years of Advocacy

The FDA published a draft guidance proposing revisions to its blood donation requirements, materials, questionnaires, and procedures to eliminate categorical exclusions against men who have had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.  

January 30, 2023 in Healthcare, LGBT, Science | Permalink | Comments (0)

Friday, January 27, 2023

Masterpiece Cakeshop Baker Loses Suit on Cake for Gender Transition

CPR, Colorado Baker Loses Appeal over Birthday Cake for Gender Transition

The Colorado baker who won a partial U.S. Supreme Court victory after refusing to make a gay couple’s wedding cake because of his Christian faith lost an appeal Thursday in his latest legal fight, involving his rejection of a request for a birthday cake celebrating a gender transition.

The Colorado Court of Appeals ruled that that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech.

It also found that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners' right to practice or express their religion.

Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips' shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female.  ***

“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, which also rejected procedural arguments from Phillips.

Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal.

January 27, 2023 in Business, LGBT, Religion | Permalink | Comments (0)

Wednesday, January 25, 2023

Analyzing the Evolution of LGBTQ Rights Litigation in the European Court of Human Rights

Laurence R. Helfer & Clare Ryan, Contesting Sexual Orientation Rights Before the ECtHR,  International Sexual and Reproductive Rights Lawfare (Siri Gloppen & Malcolm Langford eds., 2023)

This chapter, a contribution to an edited volume on "International Sexual and Reproductive Rights Lawfare," analyzes the evolution of lesbian and gay rights litigation before the European Court of Human Rights (ECtHR). Between 2010 and 2020, the ECtHR issued fifty-seven merits judgments involving a broad array of sexual orientation issues—a sharp expansion from the number of such decisions in earlier periods. The growing number of cases reflects the fact that sexual orientation rights have become increasingly contested across Europe. We explain the reasons for this trend and predict that recent ECtHR judgments concerning same-sex partnerships and asylum are poised to further exacerbate these contestations.

In addition, we offer insights into the research questions identified in the Introduction to the edited volume. We emphasize the strategic decisions of actors who turn to the ECtHR as a sympathetic venue for expanding lesbian and gay rights across Europe and, separately, to provide a bulwark against repression by some states. We identify the political and social factors that push these cases to the Court and the doctrines it applies when adjudicating these disputes. We then discuss the nation-level protections that ECtHR litigation has historically engendered and how recent cases have increased the risk of noncompliance with ECtHR judgments concerning sexual orientation rights. Finally, we investigate whether the Court can maintain its legitimacy and avoid politicizing sexual orientation rights cases in light of the growing contestations over those rights across Europe.

January 25, 2023 in Courts, International, LGBT | Permalink | Comments (0)

Wednesday, January 4, 2023

Second Circuit Upholds Transgender Sports Policy Allowing Male Students who Identify as Female to Compete in Girls' Athletics

Female Track Athletes Lose Appeal Against Connecticut's Transgender Sports Policy

A federal appeals court has rejected a challenge to Connecticut’s policy allowing male students who identify as female to compete in girls’ athletics, a case with national implications for the debate over fairness and inclusion in competitive sports.
 
The Second Circuit Court of Appeals in New York affirmed on Tuesday the dismissal of a lawsuit filed by four female high school athletes against the Connecticut Interscholastic Athletic Conference’s transgender-participation policy after losing races to biological males.
 
The 29-page decision, written by senior U.S. District Court Judge Denny Chin, an Obama appointee, found that the girls lacked standing because they were still afforded the opportunity to compete in state track meets. The ruling affirmed a federal district court’s decision to dismiss the case in April 2021.

January 4, 2023 in Gender, LGBT, Sports | Permalink | Comments (0)

Wednesday, December 14, 2022

Cambridge Dictionary Updates Definition of Woman to Include Trans Woman

Cambridge Dictionary Updates Definition of "Woman" to Include Trans Woman

The Cambridge Dictionary recently updated its definitions for “woman” and “man” to include transgender people, becoming the latest dictionary to formally expand what it means to be a woman.

A Cambridge Dictionary spokeswoman told The Washington Post on Tuesday that its editors “made this addition to the entry for ‘woman’ in October,” but the change only gained attention this week after Britain’s Telegraph newspaper first reported the news.

“They carefully studied usage patterns of the word woman and concluded that this definition is one that learners of English should be aware of to support their understanding of how the language is used,” Sophie White, a spokeswoman with Cambridge University Press and Assessment, said of the editors’ decision in a statement to The Post.
 
In the Cambridge entry for “woman,” the longtime definition for the word — “An adult female human being” — is still there and “remains unchanged,” White said. But an additional definition of the word appears below.

“An adult who lives and identifies as female though they may have been said to have a different sex at birth,” it reads.

December 14, 2022 in Gender, LGBT, Pop Culture | Permalink | Comments (0)

Thursday, December 8, 2022

The Respect for Marriage Act Doesn't Codify the Fundamental Right of Same-Sex Marriage But Requires Interstate Recognition of Marriages

The 19th, Why The Respect for Marriage Act Doesn't Codify Same-Sex Marriage Rights

The U.S. House approved legislation Thursday to shore up marriage rights for LGBTQ+ couples. The Respect for Marriage Act has been hailed by lawmakers as a landmark law that will protect queer Americans for generations to come. 

The Senate advanced the bill last month, and President Joe Biden is expected to sign it. 

But the bill doesn’t codify the Supreme Court’s 2015 Obergefell v. Hodges decision that granted LGBTQ+ couples the right to marry. Instead, it forces states without marriage equality laws to recognize LGBTQ+ marriages from other states. 

It also declares all legal marriages in the United States must be recognized, even across state lines. That means if a marriage is recognized in Maine, it must be recognized in Texas. That part is seen as critical so that queer families can cross state lines to get married even if their home states don’t offer those rights. It also means that married couples can travel without having to worry that a hospital in another state won’t recognize their marriage in the event that one spouse has an emergency and another needs to visit or make medical decisions on their behalf. The same would be true for interracial couples, who the bill also protects — although the justices have not indicated that interracial marriage rights should be reconsidered.

Bill to Protect Same Sex Marriage Rights Clears Congress

The legislation repeals the Defense of Marriage Act, which defines marriage as between a man and a woman and allows states to refuse to honor same-sex marriages performed in other states. It prohibits states from denying the validity of an out-of-state marriage based on sex, race or ethnicity.

But in a condition that Republican backers insisted upon, it would guarantee that religious organizations would not be required to provide any goods or services for the celebration of any marriage, and could not lose tax-exempt status or other benefits for refusing to recognize same-sex unions.

December 8, 2022 in Constitutional, Family, Legislation, LGBT | Permalink | Comments (0)

Tuesday, December 6, 2022

Court Attempts to Combat Misgendering by Judges

Marcus Alan McGhee, Judicial Cognition of Gender Transition: One Court's Attempts at Combating Misgendering by Judges,  6 HOWARD HUMAN & CIVIL RIGHT L. REV. 1 (September 12, 2022).

Members of the transgender community—especially those that identify as transgender women of color—encounter more incivility in one day than most will in a year’s time. When they enter the court system, a beacon of integrity and impartiality, they should find refuge from disenfranchisement. Instead, many transgender individuals encounter judicial officers ensconced in their intransigence and unwilling to accept binding precedent that permits them to change their name and gender markers to align with their identity. Beyond this failure to follow the law, some jurists have even purposefully rejected a litigant’s requests to be identified by their preferred pronouns. Other judges have amplified the discourteousness by deliberately misgendering litigants or referring to them as “whichever” or “it.” This article posits that to curtail a court’s churlish behavior, such instances should be referred to judicial misconduct commissions to investigate whether the judge violated established ethical rules, and when appropriate, enter an official misconduct finding to hold that judicial officer accountable.

December 6, 2022 in Courts, Gender, LGBT | Permalink | Comments (0)

Monday, December 5, 2022

NPR Article on Increasingly Common Bills Targeting Trans Youth

NPR published an article covering how Bills targeting trans youth are growing more common -- and radically reshaping lives

An NPR analysis of this fast-changing landscape found that over the past two years, state lawmakers introduced at least 306 bills targeting trans people, more than in any previous period. A majority of this legislation, 86%, focuses on trans youth.

While not every proposal has succeeded — about 15% of the bills have become law — the surge of legislative activity reflects what many advocates see as an increasingly hostile environment for LGBTQ rights in statehouses across the country and even some corners of Congress.

Some of the new laws have been temporarily blocked by the courts. But legal challenges have done little to slow the pace of new proposals, according to Katie Eyer, a professor at Rutgers Law School. It's an echo, she says, of the period after Brown v. Board of Education, when the U.S. Supreme Court struck down segregation in schools, but many states kept trying to pass laws to obstruct the ruling.

In four states — Alabama, Arkansas, Arizona and Tennessee — lawmakers have enacted either a partial or total ban on access to gender-affirming care, though in Alabama and Arkansas the laws are not currently in effect due to court injunctions. At least 20 others have tried.

Many of these proposals have sought to restrict anyone under the age of 18 from care that includes puberty blockers, hormone replacement therapy or transition-related surgery. In some of those states, health care providers now face the threat of jail time for offering gender-affirming care.

* * * 

Advocates fear the overall fallout could be dramatic. An estimated 300,000 American youth ages 13 to 17 identify as transgender, and according to a March study by the Williams Institute at the UCLA School of Law, at least 53,800 were at risk of losing gender-affirming medical care.

The article includes useful visual maps depicting the states that have passed laws restricting health care access for trans youth and the state that have enacted anti-trans laws centered on schooling. 

December 5, 2022 in Gender, Legislation, LGBT | Permalink | Comments (0)

Tuesday, November 22, 2022

Queering the Reasonable Person of Tort

Haim Abraham, Queering the Reasonable Person, Chapter in Diverse Voices in Tort Law (Kirsty Horsey Ed., 2023 Forthcoming)

Critical lenses, such as feminist and critical race theories, have been employed extensively to analyze the reasonable person standard theoretically and doctrinally, noting that courts and scholars personify the standards as a middle-class, white, heterosexual man. Consequently, these critical lenses have indicated that real individuals, who do not share the qualities of the personified reasonable man, become vulnerable. They are unlikely to be able to succeed in bringing claims against the people who the reasonable man represents, while they are more likely to be held to a higher standard and as such more likely to be liable.

These critiques are illuminating, but they are not particularly queer, nor do they exhaust all that queer theory can reveal about the reasonable man, and existing scholarship has yet to offer a comprehensive queer theory analysis of the reasonable person. This chapter fills this gap in literature, arguing that despite existing critiques, the reasonable person – as a legal standard – is essentially a queer standard. Yet, it is the very queer character of the reasonable person that places LGBTQ+ individuals at risk. First, past (and current) applications and personifications of the reasonable person into a white middle-class, cisgender, heteronormative individual, raises others’ standard of care while limiting the ability to hold ‘reasonable men’ liable. Second, the move from reasonable man to reasonable person, even if it signals a commitment to inclusivity, does not mean that this objective standard now has a fixed meaning. One of its core features is its ability to take on a wide-range of meanings, thus creating constant uncertainty and flux as there is a risk that that at any given moment the reasonable person will turn back to the reasonable man. The chapter concludes by examining several possible resolutions to the challenge posed by the reasonable man: changing his personification to a more inclusive one; eliminating the personification altogether; or diversifying the judicial composition, arguing that emphasis should be placed on the latter.

November 22, 2022 in LGBT, Theory | Permalink | Comments (0)

Same Sex Marriage Bill Clears Critical Hurdle in Congress

NYT, Same-Sex Marriage Rights Bill Clears a Crucial Senate Hurdle

The Senate on Wednesday took a crucial step toward passing landmark legislation to provide federal protections for same-sex marriages, as 12 Republicans joined Democrats to advance the Respect for Marriage Act, putting it on track to become law in the twilight of the Democratic-held Congress.

The 62-to-37 vote, which came only days after the midterm elections in which Democrats retained control of the Senate but lost the House to Republicans, was a rare and notable last gasp of bipartisanship by a lame duck Congress as lawmakers looked toward an era of political gridlock.

It also signaled a remarkable shift in American politics and culture, demonstrating how same-sex marriage, once a divisive issue, has been so widely accepted that a law to protect the rights of same-sex couples across the country could gain decisive, bipartisan majorities in both the Senate and the House. Last summer, 47 House Republicans joined Democrats to pass a version of the bill.

November 22, 2022 in Constitutional, Family, Legislation, LGBT | Permalink | Comments (0)

Monday, November 21, 2022

J.S. Welsh Publishes Article on the Pro-Trans Legal Movement in the California Law Review

J.S. Welsh has published "Assimilation, Expansion, and Ambivalence: Strategic Fault Lines in the Pro-Trans Legal Movement" in Volume 110 of the California Law Review. The abstract previews:  

For the past five decades, lawyers advocating on behalf of trans people have used arguments based in a binary understanding of gender to win critical legal battles in the fight for gender justice. These binary arguments clearly serve a strategic purpose: achieving major legal victories. Judges from state trial courts to the U.S. Supreme Court seem determined to reify traditional notions of gender identity. But this assimilationist strategy has its costs. The lived experiences of many queer, trans, and gender-nonconforming people is not necessarily consistent with the political goals implicit in the assimilationist approach. As the trans rights movement enters the law reform mainstream, this rift is increasingly exposed. This Article explores the conflicts that arise between groups within the pro-trans legal movement over who “counts” as trans for purposes of organizing and litigating, what compromises are necessary to push the movement forward, and who is included and excluded from political benefits.

November 21, 2022 in Courts, Gender, LGBT, Theory | Permalink | Comments (0)

Wednesday, November 9, 2022

Nevada Set to Pass Most Comprehensive State Equal Rights Amendment to Include Gender Identity and Expression

Voters to Decide Nevada Version of Equal Rights Amendment

Nevada voters on Tuesday will decide to adopt or reject what is widely considered the most comprehensive state version of the Equal Rights Amendment, a sweeping update that would put protections in place for people who have historically been marginalized in the state Constitution.

Nevada’s ERA would amend the state Constitution to ensure equal rights for all, “regardless of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” It is a more wide-ranging amendment than the federal ERA that Nevada adopted in 2017, which outlaws discrimination based on sex, though the push to ratify it in the U.S. Constitution remains gridlocked.

With 90% of the vote counted, the new ERA is winning 57% to 42%.  See NYT, Nevada Question 1 Election Results (may take several days for full count).

November 9, 2022 in Constitutional, Legislation, LGBT | Permalink | Comments (0)

Thursday, October 27, 2022

New Arguments Against Transgender Equality Based on SCOTUS 1974 Case Geduldig Are Inconsistent with Equal Protection Doctrine

Katie Eyer, Transgender Equality and Geduldig 2.0 

In 1974, Geduldig v. Aiello held that pregnancy discrimination is not facially sex discrimination. Now, close to five decades later, opponents of transgender equality are trying to give the decision new life. Faced with the prospect of defending government laws and policies targeting “sex changes,” “gender dysphoria,” and more, such opponents have relied on Geduldig to argue that such policies are not facially discriminatory on the basis of sex or transgender status.

These new Geduldig arguments are inconsistent with the Supreme Court’s broader Equal Protection doctrine, and with Geduldig itself. Nevertheless, at least one court has credited them, and they are being made with increasing frequency in transgender rights cases. This Essay takes up the Geduldig arguments being made in contemporary transgender rights cases, and explains why such arguments must be rejected by the courts.

October 27, 2022 in Constitutional, LGBT, Pregnancy | Permalink | Comments (0)

Friday, October 21, 2022

Social Security Administration will Now Allow People to Self Select Their Gender in Records

Social Security Will Now Allow People to Select Their Gender in Records

The Social Security Administration announced on Wednesday that people will now be allowed to select the sex that best aligns with their gender identity in records, a policy change intended to be more inclusive of transgender Americans.

The agency said it would now accept people’s self-identified gender identity of male or female, even if their identity documents show otherwise, and it is exploring a future policy that would allow for an “X” sex designation for people who do not identify as either male or female. The Social Security Administration had promised in March that the new policy would be in effect by fall.

The acting commissioner of the agency, Kilolo Kijakazi, said in a news release that the new policy demonstrated a “commitment to decrease administrative burdens and ensure people who identify as gender diverse or transgender have options in the Social Security Number card application process.”

 

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October 21, 2022 in Gender, LGBT | Permalink | Comments (0)

Thursday, October 6, 2022

Can Title IX Be Used to Exclude Trans Athletes

WP, A Battle Over Title IX: Can it be Used to Exclude Trans Athletes?

On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.

But unlike most other legal challenges of this kind, the plaintiffs aren’t trans people suing to have their rights recognized.

Instead, a group of young cisgender women, represented by the Christian conservative legal organization Alliance Defending Freedom, is arguing that allowing trans athletes to compete on teams that align with their gender identity violates the rights of cis women.
 
The case, Soule et al v. Connecticut Association of Schools et al, was dismissed by a federal district judge last year, but it has proved to be consequential.

On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.

But unlike most other legal challenges of this kind, the plaintiffs aren’t trans people suing to have their rights recognized.

Instead, a group of young cisgender women, represented by the Christian conservative legal organization Alliance Defending Freedom, is arguing that allowing trans athletes to compete on teams that align with their gender identity violates the rights of cis women.
 

The case, Soule et al v. Connecticut Association of Schools et al, was dismissed by a federal district judge last year, but it has proved to be consequential.

 

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October 6, 2022 in Education, LGBT, Sports | Permalink | Comments (0)

Tuesday, September 20, 2022

Montana Adopts New Administrative Rule that Restricts Changes to Birth Certificates for Transgender People

Montana Restricts Changes to Birth Certificates for Transgender People

Transgender people born in Montana will no longer be able to change the sex listed on their birth certificate to accurately reflect their identity under a new state rule that is among the most restrictive in the country, according to transgender rights groups.

Under the rule, which took effect on Saturday, transgender people may change the sex listed on their birth certificate only if it was recorded incorrectly as a result of a clerical error or if the person’s sex was “misidentified” on the original certificate and they can prove it through DNA or other scientific testing.

“This has made it virtually impossible for trans folks to amend the gender marker on their birth certificate,” said Alex Rate, legal director of the American Civil Liberties Union of Montana.

 

Tennessee, Oklahoma and West Virginia are the only other states that do not currently issue corrected birth certificates for transgender people, according to the National Center for Transgender Equality.

September 20, 2022 in LGBT | Permalink | Comments (0)

Thursday, September 8, 2022

A RESOURCE LIST of the NEW LEGAL, POLITICAL, and PRACTICAL ISSUES of ABORTION POST-ROE

Updated 9/28/22

Most recent news posted at top of each category.

 

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

            New State Laws:

WV Lawmakers Pass Bill That Restricts Abortion With Narrow Exceptions (9/13/22)  

The First Abortion Ban Passed After Roe Takes Effect This Thursday in Indiana (9/20/22)

Joanna Grossman, The Trigger Has Been Pulled. Texas Law Takes Effect (8/25/22)

1 in 3 American Women Have Already Lost Abortion Access. More Restrictive Laws are Coming (8/23/22)

IN Becomes First State to Pass an Abortion Ban (8/10/22)

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

           Mary Ziegler, Why Exceptions for the Life of the Mother have Disappeared (8/2/22)    

           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 State Abortion Bans:

IN Judge Blocks Enforcement of Abortion Ban (9/23/22)

OH Judge Blocks Six-Week Abortion Ban for 14 Days (9/20/22)

A MI Law Criminalizing Abortion is Struck Down (9/8/22)

Judge Blocks Part of ID Abortion Law from Taking Effect (9/8/22)

Judge: Prosecutors Cannot Enforce MI's Abortion Ban (8/23/22)

ID Lawmakers Walk Back Abortion Crackdown to Assuage Judge (8/23/22)

Justice Dept Sues ID Over Abortion Ban (8/10/22)

MT Abortion Laws Remain Blocked During Legal Challenge (8/10/22)

Courts Deliver Mixed Rulings on Pro-Life Laws After Roe (8/2/22)

Sistersong Women of Color Reproductive Justice Collective v. Georgia (11th Cir. July 20, 2022)

State Judge Strikes Down Many of MN's Abortion Restrictions (7/11/22) 

LA Judge Allows Abortion Ban to Take Effect (7/8/22)

TX, OH Top Courts Allow Abortion Bans to Take Effect (7/6/22)

FLA Judge will Temporarily Block 15 Week Abortion Ban (7/3/22)

TX SCt Lifts Freeze on Abortion Ban (7/2/22)

OH SCt Rejects Request to Suspend State's 6 Week Abortion Ban (7/1/22)

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        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:22

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

                        First Amendment Religion arguments:

                                    Clergy Sue to Halt Fla Abortion Law, Cite Religious Freedom (9/7/22)

Clergy Members Contend FLA Abortion Law Violates Their Religious Freedom (8/10/22)

KY Court Holds that Abortion Ban May Violate State Establishment Clause (7/25/22)

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

A Federal Abortion Ban May Violate 5th A Due Process (9/23/22)

Graham Proposes 15 Week Abortion Ban, Seeking to Unite Republicans (9/13/22)

House Passes Bill to Codify Abortion Rights and Ensure Access (7/15/22)

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

The VA Says it Will Provide Abortions in Some States Even in States Where Banned (9/7/22)

TX Fed District Court Invalidates Federal Guidance on Emergency Treatment of Abortion (8/24/22)

Biden Issues [Second] Executive Order on Abortion (8/10/22)

Biden Signs Executive Order to Support Abortion Rights (7/11/22)

Under Pressure, Biden Signs Executive Order on Abortion

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

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

           Prosecutors:

Warren: DeSantis [FLA] Sacked me for Doing my Job as a Prosecutor (8/23/22)

Local Prosecutors Who Refuse to Prosecute Ohio's Abortion May be in the Clear (7/11/22)

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Ban (6/30/22) 

Liability for Pregnant Women:

NB Teen and Mother Facing Charges in Abortion Related Case (8/10/22)

Abortion Abolitionists Want to Punish Women (7/1/22)

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

            First Amendment Rights of Speech and Advising

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Out of State Travel: 

Dobbs and the Civil Dimension of Extraterritorial Abortion Regulation (9/23/22)

The Risk of Mandatory Reporting Laws to Out-of-State Abortion (8/2/22)

The Right to Travel in a Post-Roe World (7/15/22)

MT Clinics Preemptively Restrict Out of State Patients Access to Abortion Pills (7/11/22)

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        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:

Tribal Nations and Abortion Access: A Path Forward (8/23/22)

The Indian Country Abortion Safe Haven Fallacy

            Municipal Regulation    

Abortion Localism and Preemption in a Post-Roe Era (9/23/22)

            Other Constitutional Liberties: contraception, marriage, LGBTQ

Marc Spindelman, Dobbs' Other Dangers: Dobbs & Women's Constitutional Sex Equality Rights (8/2/22)

Thirteenth Amendment:

The Amendment Ending Slavery Could be the Key to Securing Abortion Rights (7/7/22)

State Legislation:

Most Voters Want a Chance to Support Abortion on a Ballot (8/10/22)

Where Abortion is on the Ballot (8/2/22)

Voters in as Many as Eight States Will Vote on Abortion This Year (7/7/22)

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

Michiganders Will Vote on Abortion Rights in November (9/13/22)

Reproductive Freedom for All v. Board of Canvassers (Mich. Ballot Case) 

Richardson, The Originalist Case for Why the FLA Constitution's Right to Privacy Protects the Right to Abortion 

Kansans Resoundingly Reject Amendment Aimed at Restricting Abortion Rights (8/10/22)

Want to Protect Abortion? Look to KS (8/2/22)

NY Moves to Enshrine Abortion Rights in State Constitution (7/6/22)

                        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 Paul Lipford, Abortion Under States Constitutions (3d ed. 2020) (Carolina Press)

Cities

How One Progressive City is Fighting to Decriminalize Abortion (8/23/22)

  See generally Legal Scholarship:

New Legal Frontiers on the Constitutional Right to Abortion (8/25/22) (Cohen, Murray, Gostin)

Strict Scrutiny Podcast, Roe is Dead; Now What?

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

Politically

           Voters and Elections:

The Erroneous Claim that SCOTUS has Returned the Question of Abortion Access to the People (9/8/22)

After Roe's End, Women Surged in Signing Up to Vote in Some States (9/28/22)

Op ed, Women are So Fired Up to Vote! I've Never Seen Anything Like It (9/7/22)

Ohio Sees Surge in Women Registering to Vote After Abortion Access Denied (9/7/22)

Rethinking Strategy Post-Roe (7/25/22)

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

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

GA Abortion Restrictions Spark New Debate Over Claims to Fetal Personhood (9/8/22)

GA Abortion Law Says a Fetus is Tax Deductible (8/10/22)

New OH Personhood Bill Would Declare All Individuals are Human from Moment of Conception (7/15/22)

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

            Protests and Activism:

The Green Wave in Latin America

How Green Bandanas Became the International Color of Abortion Rights

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

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            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

Abortion Pill Providers Experiment with Ways to Broaden Access (9/7/22)

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

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

            Contraception: double layer contraception, increase in vasectomies

Is Male Birth Control Finally Here?

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

           Minors

FLA Court Rules 16-Year-Old not Sufficiently Mature for Abortion (8/23/22)

Digital Privacy & Period Tracking Apps:

Facebook Gave NB Cops a Teen's DMs. They Used Them to Prosecute an Abortion. (8/10.22)

SC Bill Would Ban Internet Information on Abortion; Tech Companies May Face Competing Laws (8/2/22)

HHS Issued Guidance to Protect Private Medical Info (inc Period Tracking Apps) (7/6/22)

Scholars Explain How Femtech Products Poised to Fill Gap as States Try & Limit Birth Control and Abortion 

Google Will Delete User Location History for Abortion Clinic Visits (7/6/22)

Period Tracker App Flo Develops Anonymous Mode (6/30/22)

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

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

Doctors and Women's Medical Care:

Republican Abortion Bans Restrict Access to Other Essential Medications

Telemedicine Just Got More Complicated (9/28/22)

What Will Happen if Doctors Defy the Law to Provide Medical Care? (9/12/22) 

Dr Proposes Floating Abortion Clinic in Gulf of Mexico to Avoid Bans (7/15/22)

Can Pharmacists Refuse to Fill Prescriptions for Drugs Used in Abortion? (7/15/22)

Physicians Face Confusion and Fear in Post-Roe World

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

            Disparate Effect Race and Poor Women:

Overturning Roe will Exacerbate the Black Maternal Mortality Crisis (8/25/22)

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

            Companies and cities paying travel expenses:

St Louis Will Help Women Get Out of State Abortions; Cleveland, Cincinnati Also Take Measures (7/25/22)

How St Louis Tapped Federal Funds to Help People Travel Who Need Abortion (7/25/22)

TX Lawmakers Target Law Firms Aiding Abortion Access (7/11/22)

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

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Google Maps Will Now Label Clinics that Provide Abortions

ID University Says It Can Give Birth Control, "Promote" Abortion (9/28/22)

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            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."

September 8, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, August 26, 2022

CFP AALS Sexual Orientation and Gender Identity Issues Section, "New Voices"

AALS SEXUAL ORIENTATION AND GENDER IDENTITY ISSUES SECTION

Call for Papers on “New Voices on Sexual Orientation and Gender Identity Issues”

AALS Annual Meeting, January 4-7, 2023, San Diego, CA

The AALS Sexual Orientation and Gender Identity Issues Section is soliciting papers and works in-progress on any sexual orientation and/or gender identity related legal issue by faculty members who have never presented a paper at the AALS Annual Meeting or are junior scholars in the legal academy (less than 5 years and pre-tenure, if applicable). We are open to receiving papers that explore these topics from alternative perspectives and disciplines.

The New Voices session will be held on Wednesday, January 4, 2023 from 8:00 am – 9:40 am. If you are interested in presenting, please submit an up to 500-word abstract (and paper draft, if available) along with a CV to Section Chair Kyle Velte at kvelte@ku.edu. Your proposal can involve one or two presenters. Please list all presenters in the abstract. The deadline for such proposals to be received for consideration is Friday, September 9, 2022, at 11:59 p.m. CDT.

The authors of the selected paper(s) will be notified by September 16, 2022. Selected presenters will be responsible for paying their registration fee, hotel and travel expenses. The AALS Section on Sexual Orientation and Gender Identity Issues supports and nurtures the careers of law professors at every stage, but we also seek diversity from members of underrepresented demographics.

August 26, 2022 in Call for Papers, Law schools, LGBT | Permalink | Comments (0)

Tuesday, August 2, 2022

Transgender Constitutional Law

Katie Eyer, Transgender Constitutional Law

Litigation addressing the constitutional rights of the transgender community has exploded in the last decade. This litigation revolution has fundamentally reshaped the constitutional landscape with respect to the equality and liberty rights of transgender litigants, recognizing the transgender community as constitutionally protected subjects entitled to meaningful rights. And yet—because this litigation revolution has occurred in the lower and state courts—it has remained comparatively invisible from the perspective of the legal literature.

This Article provides the first systematic account of this constitutional law revolution in transgender rights. Based on an analysis of the last five years (2017-2021) of transgender constitutional rights litigation, it offers a comprehensive descriptive account of contemporary constitutional transgender rights litigation in the Equal Protection and Due Process contexts. As that analysis reveals, recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts. Indeed, recent constitutional decisions are close to unanimous in their treatment of the transgender community as warranting meaningful constitutional protections.

This revolution in transgender constitutional rights is important in its own right—indeed it is likely to be critical at a time when a wave of anti-transgender legislation is currently sweeping the country. But it is also important for the ways it calls into question the conventional wisdom of constitutional law as a field. As this Article elaborates, contemporary transgender constitutionalism challenges many of the assumptions of constitutional law scholars, including assumptions regarding the death of suspect class analysis under Equal Protection doctrine, the impossibility of new fundamental rights under the Due Process clause, and the weakness and futility of rational basis review. It thus highlights the importance of attending to the constitutional law of the lower federal and state courts—not only that of the United States Supreme Court.

August 2, 2022 in Constitutional, Courts, LGBT | Permalink | Comments (0)