Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, September 3, 2019

How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong

Jessica Clarke, How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong, Texas Law Review Online, Forthcoming

The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”

This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title

September 3, 2019 in Courts, Equal Employment, Gender, LGBT | Permalink | Comments (0)

Tuesday, July 16, 2019

Book Review Stone's Sex and the Constitution, Comparing Women's Rights & LGBT Movements

Rivka Weill, Women’s and LGBTQ Social Movements and Constitutional Change -- On Geoffrey Stone’s Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, Jerusalem Review of Legal Studies, Forthcoming

This essay reviews Geoffrey Stone’s “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.” Part I offers a synopsis of the treatise to make it accessible to the general public. Stone’s 600 pages book reviews the regulation of sex in the ancient cultures of the Greeks, Romans, and ancient Hebrews. It later discusses the evolution of the regulation of sex in Christianity and the English common law. Stone then focuses specifically on US regulation of obscenity, contraception, abortion, and same-sex marriage to portray a story of progress with a warning that much of this progress depends on the composition of the Supreme Court. Part II reveals the contribution of Sex and the Constitution to the literature with respect to the ways social movements may bring about constitutional change outside the formal process defined in the Constitution for amendment. Part III offers some critical reflections on the book. In particular, it argues that Stone’s book implicitly asserts great similarities between women’s and LGBTQ movements’ struggles for the recognition that their rights demand constitutional protection. Yet, Stone should have acknowledged more forcefully the major differences between the two struggles. They differ substantially in their opening positions, their agendas for social change, the length of the struggles, the pace of change, and their successes. Some possible explanations are offered for the rather meteoric success of the LGBTQ members in transforming law and society within a short period in comparison to the rather slow pace of change for women. Moreover, while women’s successes assisted the gay rights revolution, some of the advancement in gay rights came at the expense of advancement of women.

July 16, 2019 in Abortion, Books, Constitutional, Family, Legal History, LGBT | Permalink | Comments (0)

Thursday, July 11, 2019

How Marriage Continues to Be Gendered in Same-Sex Divorce

Suzanne Kim & Edward Stein, "Gender in the Context of Same-Sex Divorce and Relationship Dissolution" 

We suggest that marriage is likely to remain gendered in a variety of ways in the near term, although how it may continue to be gendered over time is not clear. We focus here on some ways in which gender may continue to play a role in the dissolution of the relationships of same-sex couples in the U.S., specifically with respect to (i) the grounds for divorce, dissolution, and annulment, (ii) the financial aspects of relationship dissolution, (iii) the custody of children, and (iv) the social experience of divorce and relationship dissolution more generally. We draw on existing social scientific and legal research, but because same-sex marriage has only been legal for just over a dozen years and in place across the country for just over two years, many of the questions about gender and
same-sex divorce cannot be answered without more research and the passage of time.

July 11, 2019 in Family, Gender, LGBT | Permalink | Comments (0)

Thursday, June 20, 2019

Framing Trans Rights

Marie-Amelie George, Framing Trans Rights, Northwestern U. L. Rev. (forthcoming)  


In the wake of marriage equality, opponents of LGBT rights refocused their attention and made transgender rights their main target. To persuade voters to maintain gender identity anti-discrimination protections, LGBT rights campaigns have presented trans identity in a specific but limited way, emphasizing gender-conforming transgender individuals and thereby implicitly reinforcing the gender binary. Although LGBT rights groups have succeeded in their efforts, their messaging may undermine the movement’s broader litigation strategy and render even more vulnerable the substantial portion the transgender community that identifies as non-binary.

The trans rights framing choices thus raise questions about how the LGBT movement’s advocacy decisions blur the lines between success and failure, advancement and retrenchment. To illustrate this tension, this Article details the history of marriage equality campaign strategies, identifying how and why LGBT rights groups applied those frames to trans rights. Using these events, this Article analyzes the factors that both motivate and circumscribe social movements’ framing decisions more generally to identify whether and how to alter trans rights advocacy.

How trans rights are framed is a significant subject that extends far beyond whether a specific city or state maintains or eliminates its gender identity protections. Although political positioning in an electoral campaign may seem far removed from the work of courts, legislatures, and administrative advocacy, this Article demonstrates how porous the boundaries are, such that the frames of the former have a substantial impact on the latter. Drawing on the scholarly literatures on acoustic separation and popular constitutionalism, this Article identifies why it is that LGBT state and local ballot measure contests cannot be separated from the movement’s broader strategies. It consequently provides suggestions for reframing transgender ballot measures.

June 20, 2019 in Gender, LGBT | Permalink | Comments (0)

Wednesday, May 22, 2019

Pregnant People?

Jessica Clarke, Pregnant People?, 119 Colum. L. Rev. Online (Forthcoming)

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBT parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality.

May 22, 2019 in LGBT, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, April 22, 2019

Supreme Court Grants Cert to Resolve Circuit Split on Whether LGBTQ Bias is "Sex" Discrimination under Title VII

The US Supreme Court granted cert today in Altitude Express v. Zarda, RG & GR Harris Funeral Homes v. EEOC, and Bostock v. Clayton County on the question of "Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)."

Wash Post, Supreme Court to Decide if Anti-Harassment Employment Laws Protect on Basis of Sexual Orientation and Gender Identity

The Supreme Court on Monday added what could be landmark issues to its docket for the next term: whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.

 

The court accepted three cases for the term that begins in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.

 

The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.

Bloomberg, Supreme Court Can Settle Split on LGBT Bias in the Workplace

At least nine federal circuit courts ruled in decisions prior to 2007 that sexual orientation wasn’t covered by Title VII of the 1964 Civil Rights Act, which prohibits bias against workers and job applicants based on their “sex.” The tide began to shift in 2015, when the Equal Employment Opportunity Commission decided in a federal sector case that Title VII does apply to sexual orientation.

 

In a groundbreaking decision in 2017, the U.S. Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII covers sexual orientation when it said a lesbian job applicant could sue an Indiana community college for discrimination. While the Eleventh Circuit decided earlier that year that the law doesn’t apply to sexual orientation, the Second Circuit deepened the split in the courts with its 2018 ruling that it does.

The Supreme Court Just Took Up a Set of Very Big Cases on LGBTQ Rights

The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.***

 

The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).

April 22, 2019 in Equal Employment, LGBT, SCOTUS | Permalink | Comments (0)

Monday, April 15, 2019

Unsexing Pregnancy

David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 Columbia L. Rev. (2019)  

Because sex does not dictate the capacity to provide care in the home or work in the market, sex-equality law combats harmful sex stereotypes by eliminating statutes and regulations that assign these roles on the basis of sex. When it comes to pregnancy, though, courts and commentators alike chart a very different course. They assume that pregnancy is a biological event that is almost exclusively for women. Thus, equal protection jurisprudence accepts the legal assignment of carework during pregnancy to women, and a range of laws regulating pregnancy carework — from prenatal leave under the Family and Medical Leave Act to health benefits under the Affordable Care Act to employment protections under the Pregnancy Discrimination Act — apply only or mostly to women. Even though the sexed law of pregnancy stands in stark contrast to the unsexed law of parenting, the sexed pregnancy has avoided challenge and largely escaped notice.

This Article makes visible the law of the sexed pregnancy, identifies and evaluates the core tension it generates in the law of sex equality, and considers how to unravel this tension. Of course, typically only women can physically carry a child, and therefore some pregnancy regulations are appropriately sex specific. But the nine months of pregnancy encompass a range of carework, much of which has little or nothing to do with the physical fact of pregnancy. Expectant fathers can, for example, buy a carseat, quit smoking, take a childcare class, and choose a pediatrician or daycare center for the child. Given the ability to disaggregate sex from much of the carework of pregnancy, the law’s failure to do so marks women for caregiving and men for breadwinning in the same problematic way that sex-equality law has tried to combat after a child is born. And while pregnancy implicates real concerns about a woman’s constitutional right to bodily autonomy, this concern alone cannot justify the failure to scrutinize all sex-based pregnancy regulations, because much prebirth carework does not involve the woman’s body at all. After surfacing the law’s anomalous sexed treatment of pregnancy, this Article considers how to harmonize the law of sex equality. This effort can advance not only the goal of equality between the sexes, but also equality for lesbian, gay, and transgender parents, while at the same time enhancing women’s autonomy.

April 15, 2019 in Family, LGBT, Pregnancy | Permalink | Comments (0)

Wednesday, April 10, 2019

Fitting LGBTQ Discrimination into the Larger Framework of Sexism

Anthony Michael Kreis, Policing the Painted and Powdered, 41 Cardozo L. Rev. (forthcoming)  

Is homophobia also sexism?

This question was the focus of pioneering scholarship nearly three decades ago and has been the subject of reignited controversy because of litigation over marriage rights, employment discrimination, educational opportunities, fair housing, religious exemptions, and military service. Even though some courts, federal agencies, and state employment commissions have recognized that sexual orientation and gender identity discrimination are subsets of sex discrimination, including the landmark Title VII decisions Hively v. Ivy Tech and Zarda v. Altitude Express, academics, judges, and public administrators have been unable to articulate a plain theory of sexual orientation discrimination as sexism. Without a straightforward theory to operationalize into law, some judges are unpersuaded that sexism and homophobia are linked. Appellate judges have struggled to find consensus even when they agree that sexual orientation discrimination is sex discrimination.

This Article’s objective is to reconsider the relationship between sexism and homophobia, by reexamining prior scholarship with new historical evidence and an exploration of recent LGBTQ rights jurisprudence to provide a more complete, easily digestible analytical framework that explains how homophobia fits in in the larger puzzle of American sexism. The Article argues that American law’s historical and more contemporary maltreatment of sexual minorities is a product of a particular brand of sexism — ambivalent sexism — which utilizes a carrot and stick approach to subjugate both women and sexual minorities simultaneously. Ambivalent sexism punitively targets visible gender non-conformity while patronizingly rewarding individuals compliant with traditional gender expectations at the expense of women.

The Article contends that the path-dependent consequences of actions taken by Progressive Era lawmakers and the early administrative state in response to the LGBTQ community’s amplified visibility in the nineteenth-century and the reappropriation of paternalistic legal theories initially used to restrict women’s rights, constitute the crux of homophobia in the law. The Article proffers how ambivalent sexism animates the homophobic state and urges courts and administrative actors to recognize that homophobia is a type of sexism.

April 10, 2019 in Gender, LGBT, Theory | Permalink | Comments (0)

Monday, April 1, 2019

Private Actor Regulation of Sexual Norms

Melissa Murray, Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Northwestern L. Rev. 825 (2019)

The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses are substantively different, both evince a sense of the state’s failure. For conservatives, the changes wrought by the decriminalization of “deviant” sexual behavior, the shift to no-fault divorce regimes, and the recognition of constitutional protections for sex and sexuality suggest that the state has abdicated its historic role in imposing consequences on those who do not comply with traditional sexual mores. For progressives (and especially feminists), state efforts to properly regulate rape, sexual assault, and sexual harassment are, at best, anemic and, at worst, utterly ineffectual. As they see it, the state has failed to impose consequences for harassment, assault, and other offensive sexual conduct.

But it is not just that these two constituencies believe that the state has failed to properly regulate sex and sexuality; they have also responded in uncannily similar ways to these lapses. Specifically, in response to the state’s failure to regulate, private actors on both sides of the ideological spectrum have stepped into the regulatory void, challenging extant sexual norms and articulating new visions of appropriate sex and sexuality. These private regulatory efforts are evident in the rise and proliferation of conscience objections or exemptions, as exemplified in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as well as in the emergence of the #MeToo movement. As this Article maintains, conscience objections allow private actors to reject the extant normative regime and instead articulate and enforce their own views of appropriate sex and sexuality through the denial of goods and services. The #MeToo movement has similarly sought to advance an alternative vision of appropriate sex and sexuality through private action. Using social media and the press, the #MeToo movement has identified recidivist harassers and workplaces where sexual harassment and sexual assault are rife, advocated for increased workplace harassment training, and, ultimately, called for the expulsion from the workplace of many high-profile men who, for years, engaged in objectionable conduct.

As this Article explains, the fact that private actors are stepping in to regulate in the state’s stead is not necessarily novel. Private actors have often played a regulatory role—particularly in contexts where norms are in flux or contested. Nevertheless, the private regulation seen in Masterpiece Cakeshop and #MeToo evinces a new turn in the regulation of sex and sexuality. In the absence of appropriate state regulation of sex and sexuality, private actors are coming to the fore to take on a more visible role in regulating sex and sexuality, and in doing so, have claimed and recast parts of the public sphere as private space suitable for the imposition of their own norms and values.

April 1, 2019 in Gender, LGBT, Theory, Workplace | Permalink | Comments (0)

Tuesday, January 29, 2019

19th Women and Law Conference: The Way Forward-Gender, LGBTQIA Rights, and Religious Liberties

Thomas Jefferson School of Law, 19th Women and the Law Conference: The Way Forward: Gender, LGBTQIA Rights, and Religious Liberties, Feb. 1, 2019

Thomas Jefferson School of Law’s 19 th  Annual Women and the Law Conference, The Way Forward: Gender, LGBTQIA Rights, and Religious Liberties, will be held on Friday, February 1, 2019 at Thomas Jefferson School of Law. This conference brings together leading experts and practitioners to discuss critical federal and state legislative, executive, and judicial developments affecting women, the LGBTQIA community, and people concerned about religious liberties.  At a time when public discourse about these issues seems irreconcilably polarized, this event will focus on means to resolve these opposing views.

 

Former EEOC Commissioner Chai Feldblum will deliver the Ruth Bader Ginsburg Lecture. Before her appointment, Commissioner Feldblum was a law professor at Georgetown University Law Center.  Feldblum continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson School of Law in 2003.

 

Other speakers include:  Alan Brownstein, Emeritus Professor of Law at UC Davis School of Law; Julie Greenberg, Emeritus Professor of Law at Thomas Jefferson School of Law; Pamuela Halliwell, therapist at the San Diego LGBT Community Center; Shannon Minter, Legal Director at the National Center for Lesbian Rights; Jocelyn Samuels, Executive Director at the Williams Center UCLA School of Law; Maimon Schwarzchild, Law Professor at the University of San Diego School of Law; and Mattheus Stephens, Founding Partner of the Progressive Law Group.

January 29, 2019 in Conferences, Gender, LGBT | Permalink | Comments (0)

Tuesday, January 22, 2019

Supreme Court Stays Injunctions, Allowing Transgender Military Ban to Go into Effect Temporarily while Lawsuit Continues

Supreme Court Allows Trump Restrictions on Transgender Troops in Military to go Into Effect as Legal into Effect a Legal Battle Continues

The Supreme Court on Tuesday allowed President Trump’s broad restrictions on transgender people serving in the military to go into effect while the legal battle continues in lower courts.

 

The justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.

 

It reversed an Obama-administration rule that would have opened the military to transgender men and women, and instead barred those who identify with a gender different from the one assigned at birth and who are seeking to transition.

See also Supreme Court Allows Transgender Military Ban to be Enforced

 

The court’s five conservatives--Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh--allowed the restrictions to go into effect while the court decides to whether to consider the merits of the case.

 

The liberal justices--Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan--would have kept the injunctions in place.

 

Trump surprised even his own military advisers in July 2017 when he announced a sweeping ban on transgender people’s military service via Twitter. He cited what he viewed as the “tremendous medical costs and disruption.” The administration’s order reversed President Barack Obama’s policy of allowing transgender men and women to serve openly and receive funding for sex-reassignment surgery.

 

Attorneys for active-duty service members went to court to block the policy shift, which could subject current transgender service members to discharge and deny them certain medical care.

January 22, 2019 in Gender, LGBT, SCOTUS | Permalink | Comments (0)

Monday, January 14, 2019

Harvard Study Shows Bias Drops Dramatically for Sexual Orientation and Race Since 2007

Study: Bias Drops Dramatically for Sexual Orientation and Race since 2007

New research from Harvard University finds that Americans' unconscious bias on the basis of sexual orientation and race dropped dramatically over a decade.

 

The study in the journal Psychological Science looks at more than 4 million online tests for implicit bias — bias people aren't aware of — taken from 2007 to the end of 2016.

 
It finds that attitudes about sexual orientation changed the fastest, says lead author Tessa Charlesworth: "The most striking finding is that sexuality attitudes have changed toward neutrality, toward less bias, by as much as 33 percent on implicit measures," and by 49 percent on explicit measures — people's reports about their own attitudes.

The study also found a big drop in racial bias — but a rise in bias against people based on body weight.

And it showed that implicit biases, initially thought to be so deep-seated that they were immutable, can change over time, and toward multiple groups of people.

 

January 14, 2019 in Gender, LGBT, Pop Culture, Race | Permalink | Comments (0)

Tuesday, December 4, 2018

Extending Voluntary Acknowledgements of Parentage to Female Same-Sex Partners

Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgments of Parentage to Female Same-Sex Couples, 30 Yale J. Law & Feminism 97 (2018)  

Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has extremely harmful consequences for these couples and their children, and legal reform to address the unfair treatment of same-sex parents is long overdue. The hesitation to extend to same-sex couples the simple, efficient methods of establishing legal parent status available to different-sex couples likely stems from the longstanding tie between genetic connections and the establishment of legal parentage. While the law’s historical privileging of genetic connections in parentage determinations poses some challenges for same-sex couples in obtaining access to the simple, efficient methods of establishing legal parentage in existence today, these challenges are far from insurmountable. This Article sets forth a comprehensive proposal for the federal government to require states to extend voluntary acknowledgments of parentage, which currently allow a birth mother’s different-sex partner to establish paternity through the execution of a document at the time of the child’s birth, to female same-sex couples who conceive children using sperm provided in compliance with state donor non-paternity laws. The proposal represents a logical, modest step in the right direction for ameliorating the difficulties faced by same-sex parents in obtaining legal parentage without requiring significant upheaval to state laws governing the rights of genetic parents or federal laws governing voluntary acknowledgments of parentage.

December 4, 2018 in Family, LGBT | Permalink | Comments (0)

Wednesday, November 7, 2018

"They, Them and Theirs": Taking Nonbinary Gender Seriously

Jessica Clarke, They, Them, and Theirs, 132 Harvard Law Rev. (2019)  

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts.

November 7, 2018 in Gender, LGBT, Theory | Permalink | Comments (0)

Friday, August 24, 2018

Rural Resentment and LGBTQ Equality

Luke Boso, Rural Resentment and LGBTQ Equality, 70 Florida L. Rev. (forthcoming) 

In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage.  Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills.  Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide.  Many rural Americans feel that they are under attack.  Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms.  This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people.  In several respects, the conflict is merely perceived and not real.  It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces. 

This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism.  Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel.  Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige.  They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them.  Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity.  It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.

August 24, 2018 in Gender, LGBT, Poverty, Same-sex marriage | Permalink | Comments (0)

Thursday, September 28, 2017

It was the Government v. the Government on Whether Sexual Orientation Discrimination is Gender Discrimination

In the recent Second Circuit case, it was the Government - the Equal Employment Opportunity Commission v. the Government - the Department of Justice.  The government bizarrely found itself on opposite sides of the issue.

Erin Mulvaney, US Agencies to Clash in Appeal Over Sexual Orientation Bias

The U.S. Court of Appeals for the Second Circuit will hear arguments in a high-profile case next week that could telegraph what’s to come in the ongoing legal battle over whether sexual orientation should be protected under federal civil rights law. Zarda v. Altitude Express is also notable in that it pits two government agencies—the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission—against each other in the courtroom.

After a three-judge panel of the Second Circuit ruled back in April that Title VII of the Civil Rights Act of 1964 does not protect LGBTQ workers, the full appeals court agreed to revisit the decision en banc. Arguments are scheduled for Sept. 26 in New York.

 

The ultimate answer to the question of whether Title VII should be expanded in scope to include workers from discrimination based on their sexual orientation will have widespread effects on companies across the country. So far, rulings on the issue have varied, and eventually the Supreme Court will almost certainly provide its own view. Lower court arguments will be crucial in setting the stage for a possible circuit split and an eventual high court showdown.

Department of Wackadoodle: The DOJ's New Anti-Gay Legal Position Just Got Shut Down in Federal Court

The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.


The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.

 

It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination doesprotect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.

 

Regardless, the DOJ’s decision to weigh in on Zarda ensured that oral arguments would include the weird spectacle of one federal agency opposing another in court. That doesn’t happen often—and really shouldn’thappen—because the executive branch is expected to speak with one voice on legal affairs.

September 28, 2017 in Courts, Equal Employment, LGBT | Permalink | Comments (0)

Tuesday, April 25, 2017

Challenging the Idea that Feminism Occurred in Waves

The Future is Feminist: The new book Finding Feminism embraces queer women and argues that feminism does not occur in waves.

In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.

 

Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”

 

Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***

 

 

Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.

April 25, 2017 in Gender, Legal History, LGBT, Theory | Permalink | Comments (0)

Monday, March 13, 2017

11th Circuit Decision Misunderstands Why Sex Discrimination is Discrimination

Slate, 11th Circuit Rules Title VII Does Not Prohibit Anti-Gay Discrimination

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11thCircuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

 

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII.*

 

That left it up to Judge Robin S. Rosenbaum to explain, in dissent, all the ways that Pryor and the majority went terribly wrong. As Rosenbaum succinctly explained:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of … sex.”

Rosenbaum pointed out that the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination encompasses sex stereotyping. This decision, she explained, clearly abrogated the 1979 decision relied upon by the majority. As the law stands today, employers are indisputably barred from mistreating workers on the basis of sex-based stereotypes. Anti-gay discrimination is motivated by precisely such a stereotype: the conviction that men and women must only be attracted to individuals of the opposite sex. Therefore, sexual orientation discrimination must fall under the scope of sex discrimination.

 

In a lengthy retort, Rosenbaum also took a satisfying swipe at Pryor’s “irrelevant journey through some of the different ways in which a gay person may express—or suppress—her sexual attraction.” And she rebutted the notion that because Title VII was not designed to protect gay people, it cannot be read to do so now. The Supreme Court unanimously rejected a similar argument in 1998’s Oncale v. Sundowner, when a discriminatory employer argued that the law wasn’t passed to stop male-on-male sexual harassment. This form of harassment, Justice Antonin Scalia wrote for the majority, was “assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But, he noted:

Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Given this principle, Rosenbaum wrote, “the mere fact that we may believe that Congress may not have specifically intended the meaning of what a statute actually says is not a basis for failing to apply the textual language.”

March 13, 2017 in Equal Employment, LGBT | Permalink | Comments (0)

Wednesday, November 18, 2015

Obama supports altering Civil Rights Act to ban LGBT discrimination

From WaPo: 

The White House endorsed legislation Tuesday that would amend the 1964 Civil Rights Act to ban discrimination on the basis of sexual orientation or gender identity.

White House press secretary Josh Earnest said the Obama administration had been reviewing the bill “for several weeks.”

“Upon that review it is now clear that the administration strongly supports the Equality Act,” he said. “That bill is historic legislation that would advance the cause of equality for millions of Americans.

“We look forward to working with Congress to ensure that the legislative process produces a result that balances both the bedrock principles of civil rights . . . with the religious liberty that we hold dear in this country,” Earnest added.

November 18, 2015 in LGBT | Permalink | Comments (0)

Sunday, November 15, 2015

Utah Judge Drops Order on Lesbians’ Foster Child

From the NYT: 

Under fire from critics including gay rights activists and the state’s Republican governor, a judge in Utah on Friday reversed, at least temporarily, his order that a foster child be taken away from a lesbian couple because it was “not in the best interest of children to be raised by same-sex couples.”

While the child may remain with the couple for the moment, Judge Scott N. Johansen signaled that the matter might not be settled. He continued to question the placement of children with same-sex parents, a matter that will be taken up at a Dec. 4 hearing on what is in the best interests of this child, a 9-month-old girl.

The judge’s actions, coming after the Supreme Court this year established a right to same-sex marriage, put him at the center of another front in the nation’s legal and culture wars: the question of whether gay men and women can get, and keep, custody of children under various circumstances.

November 15, 2015 in Family, LGBT | Permalink | Comments (0)