Wednesday, May 1, 2024

Fourth Circuit Rules that State Health Care Insurance Plans Must Cover Gender-Affirming Care

Washington Post, Court Says State Health-Care Plans Can't Exclude Gender-Affirming Surgery

A federal appellate court in Richmond became the first in the country to rule that state health-care plans must pay for gender-affirming surgeries, a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation.

The decision came from a set of cases out of North Carolina and West Virginia, where state officials argued that their policies were based on cost concerns rather than bias. The U.S. Court of Appeals for the 4th Circuit rejected that argument, saying the plans were discriminating against trans people in need of treatment.

Judge Roger L. Gregory, an appointee of President Bill Clinton, wrote for the majority that the restrictions were “obviously discriminatory” based on both sex and gender.

“In this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex,” Gregory wrote, because “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it.”

The majority ruled that West Virginia’s policy also violated the Affordable Care Act’s anti-discrimination provision, a finding that has broad implications for other states’ Medicaid programs.

It’s the second ruling in favor of trans rights this month from the 4th Circuit, a once-conservative court that has become a trailblazer in the realm of transgender rights. The court was the first to say trans students had a right to use the bathrooms that align with their gender identity and the first to recognize gender dysphoria as a protected disability. Earlier this month, the court said a federally funded middle school could not ban a trans 13-year-old from playing on the girls’ track and field team.

May 1, 2024 in Constitutional, Healthcare, LGBT | Permalink | Comments (0)

Monday, April 22, 2024

Amended Title IX Regulations

The Department of Education published amended Title IX regulations. The agency summarized the key changes in the regulations as including: 

  • Define “sex-based harassment” * * *
  • Provide and clarify definitions of various terms related to a recipient’s obligations to address sex discrimination, including sex-based harassment;
  • Clarify a recipient’s required response to sex discrimination . . . in its education program or activity;
  • Strengthen a recipient’s obligations to provide prompt and equitable grievance procedures and to take other necessary steps when it receives a complaint * * *; and
  • Provide for additional requirements in grievance procedures at postsecondary institutions.
  • With regard to discrimination against individuals who are pregnant or parenting, the final
    • Define the terms “pregnancy or related conditions” and “parental status”;
    • Clarify the prohibition on discrimination against students and applicants for admission and employees or applicants for employment on the basis of current, potential, or past pregnancy or related conditions; and
    • Clarify a recipient’s obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.* *
  • Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and maintaining records;
  • Specify that a recipient must train a range of relevant persons on the recipient’s obligations under Title IX;
  • Clarify that, except as permitted by certain provisions of Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and
  • Clarify a recipient’s obligation to address retaliation.

The 19th News reported on LGBTQ+ advocates' call for President Biden to do more to protect transgender athletes. 

A coalition of equal rights supporters representing over 20 groups —  including LGBTQ+ advocacy groups the Human Rights Campaign, GLSEN and the Trevor Project — issued a joint statement on Friday arguing that the new regulations do too little to protect transgender athletes.


“This regulation does not go far enough in making the law’s protections clear for all student athletes,” the statement said. “Currently, 37 percent of transgender, nonbinary, and intersex youth live in states with laws that ban them from participating in sports consistent with their gender identity. As with all students, Title IX protects transgender, nonbinary and intersex student athletes from discriminatory policies, as the Biden administration has already argued in court and a federal appeals court upheld just this week.” 


The coalition called on the Biden administration to “finish the job” by leaving no doubt in the regulations that transgender, nonbinary and intersex student-athletes have protections under Title IX. 


April 22, 2024 in Education, Gender, LGBT | Permalink | Comments (0)

Wednesday, March 13, 2024

Solidifying Students' Rights to Gender Expression, A Response to Dara Purvis, Transgender Students and the First Amendment

Scott Skinner-Thompson, Solidifying Students' Right to Gender Expression, 104 Boston U. L. Rev.  (2024)

The genders and sexualities of students are regulated, shaped, and oppressed by formal school policies and informal educational norms. Some of these policies are quite obvious; others subtler. Such regulation includes rigid binary-based dress codes, ad hoc policing of gender non-normative clothing, sex-segregated spaces and activities, regulation of student pronoun use, and literal gender identity committees for determining students’ eligibility for athletic participation. Against this backdrop of social control, students routinely seek freedom—the freedom to explore, understand, develop, and express their genders and sexualities. Indeed, expression of one’s gender and sexuality—through clothing, nomenclature, pronouns, association, use of sex-segregated spaces, and more—is at the heart of being and becoming one’s gender and sexuality. For those reasons, the First Amendment’s protections for free speech—for free expression—have served as a cornerstone of queer liberation for over a half-century, protecting queer people’s ability to gather together, develop their identities, and share their experiences. And to the extent the First Amendment provides special solicitude to speech that runs against cultural grains, renewed emphasis on the expressive components of gender identity could provide significant protection for beautifully nonconforming gender identities. Notwithstanding the First Amendment’s queer pedigree and emancipatory potential, the operationalization of free speech rights for transgender and gender-nonconforming students remains underdeveloped. That lack of precise development leaves queer students’ right to expression (and right to their identities) vulnerable to erosion or, worse still, weaponization against them.Thankfully, Dara Purvis’s new article, Transgender Students and the First Amendment, provides a great service by refining the governing tests for determining whether schools are impermissibly infringing students’ gender expression. Building on her tremendous prior scholarship in this area, Professor Purvis underscores how students’ gender expression is potentially vulnerable to regulation pursuant to two principal doctrinal arguments that may help such regulation elide the First Amendment. The first riposte Purvis addresses is that students’ non-normative expression is “disruptive” to the educational environment and therefore permissibly silenced pursuant to the governing test first articulated in Tinker v. Des Moines. The second is that students’ gender expression might be characterized as lewd and therefore subject to constitutionally tolerable restriction pursuant to Bethel v. Fraser. With regard to each, Purvis confronts these potential doctrinal vulnerabilities by taking account of the broader social ecosystem of both the school house and the state house. In other words, she flips the scripts and explains how the schools and legislatures themselves are disrupting transgender students’ expression and sexualizing nonnormative gender identities.

March 13, 2024 in Constitutional, Education, LGBT | Permalink | Comments (0)

Wednesday, February 21, 2024

SCOTUS Denies Cert in Case About Whether Jurors Can Be Excluded for Religious Beliefs Against Lesbian Plaintiff

Lawrence Hurley, NBC News, Supreme Court Declines to Weigh Whether Jurors Can Be Excluded for Religious Beliefs in Case Involving Lesbian Plaintiff

The Supreme Court on Tuesday declined to consider whether potential jurors in an employment dispute involving a lesbian worker could be excluded because of their religious views on homosexuality.

The court rejected an appeal brought by Missouri Attorney General Andrew Bailey, a Republican, in a case involving allegations of employment discrimination against the state’s Department of Corrections.

Conservative Justice Samuel Alito wrote a statement saying he agreed with the decision not to take up the case for technical legal reasons, but said that it raises important issues.

Jean Finney, an employee, sued the department, saying she was retaliated against by a colleague after she began a same-sex relationship with his former spouse.

During the jury selection process, Finney's lawyer asked potential jurors if they had traditional religious beliefs or had been brought up to believe that "people that are homosexuals shouldn't have the same rights as everyone else."

Based on previous Supreme Court decisions, lawyers are allowed to exclude potential jurors without stating a reason but are barred from doing so on the basis of race and gender.

The case largely focuses on two jurors who said they believed that homosexual activity was a sin. But, the state argues, the jurors also said they believed that homosexuals should have the same rights as everyone else. The judge ultimately excluded three jurors who said they had conservative Christian beliefs.

February 21, 2024 in Constitutional, Gender, LGBT, Religion, SCOTUS | Permalink | Comments (0)

Friday, February 9, 2024

Why State Laws Banning Transgender Athletes are Unconstitutional

Deborah L. Brake,  Symposium: Gender, Health, and the Constitution--The New Gender Panic in Sport: Why State Laws Banning Transgender Athletes are Unconstitutional, 15 ConLawNOW 35 (2024).

This essay considers the role of sport in the new gender panic of legislative activity targeting transgender individuals, which now extends into health and family governance. Sport was one of the first settings—the gateway—to ignite the current culture war on transgender youth. This analysis examines how Title IX of the Education Act of 1972, the popular law responsible for the growth of opportunities for girls and women in sports, has been mobilized in service of a broader gender agenda. Far from providing a persuasive justification for the state laws banning transgender girls from girls’ sports, Title IX, properly understood, supports the case for transgender inclusion, not exclusion. Lacking a genuinely substantial connection to the preservation of girls’ and women’s athletic opportunities, state laws excluding transgender girls and women from sports violate the Equal Protection Clause. And these laws also have implications to health more generally and to other constitutional controversies.

February 9, 2024 in LGBT, Sports | Permalink | Comments (0)

Monday, December 18, 2023

Legal Scholar Amicus Brief Argues to Sustain or Increase Scrutiny Level for Transgender Inmate

Kyle Velte, Ezra Young, Jeremiah Ho, M. Dru Levasseur, Nancy Marcus, Dara Purvis, Eliot Traez, Ann Tweedy, Brief Amici Curiae Legal Scholars of Sex and Gender In Support of Plaintiff-Appellant

This amicus brief was filed in Griffith v. El Paso County, Colorado, case no. 23-1135 (10th Circuit) in support of appellant Darlene Griffith. Amici curiae are legal scholars of sex and gender. They offer expertise in their personal capacities to assist the Court of Appeals for the Tenth Circuit in assessing whether the El Paso County Sheriff officials violated Ms. Griffith’s Fourteenth Amendment right to equal protection when they refused to house Ms. Griffith, a transgender woman, in the women's unit of the El Paso County Jail as a pretrial detainee.

December 18, 2023 in Constitutional, Courts, Gender, LGBT | Permalink | Comments (0)

Tuesday, November 21, 2023

Reviewing Clarke's Sex Discrimination Formalism

Leah Litman, Toggle Boggle, JOTWELL, reviewing Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023).

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).

Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.

These differences are not just academic. They help clarify some of what is happening in recent decisions

November 21, 2023 in Constitutional, Gender, LGBT, SCOTUS, Theory | Permalink | Comments (0)

Monday, November 20, 2023

Legal Challenge to Tennessee's Aggravated Prostitution Law

OUTMemphis sued Tennessee challenging its existing aggravated prostitution law on statutory and constitutional grounds. Read the full complaint here. The preliminary statement is excerpted here.

2.Unlike Prostitution, which is a misdemeanor, Aggravated Prostitution is a felony that requires lifetime registration as a “violent sex offender” pursuant to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (“TN-SORA”). This drastic difference in treatment turns solely on HIV status and is so unmoored from medical facts as to punish sexual encounters that pose no risk of HIV transmission.


3.While Aggravated Prostitution and its related registration requirements completely fail to protect public health, the laws immeasurably harm those they target. Jane Does 1–4 are transgender and cisgender women living with HIV, who were convicted of Aggravated Prostitution and must register as “sexual offenders” or “violent sexual offenders” for the rest of their lives under TN-SORA. They are joined as Plaintiffs in this matter by OUTMemphis, a non-profit organization that provides the LGBTQ+ community, including people convicted of Aggravated Prostitution or at risk of being charged with Aggravated Prostitution, with support with housing, employment, healthcare, and other needs. Together, Plaintiffs sue to end Tennessee’s irrational, discriminatory, and cruel and unusual treatment of people living with HIV.


4.HIV has long been recognized as a disability under the Americans with Disabilities Act of 1990 (“ADA”). The ADA prohibits discrimination by state government entities by reason of a person’s disability. Defendants are explicitly violating this guarantee by subjecting people living with HIV who are convicted of engaging in sex work to dramatically increased criminal liability and lifetime registration as “violent” sex offenders—solely by virtue of their disability. This discrimination is imposed without any case-by-case, individualized assessment of any threat to public health. The Aggravated Prostitution law does not specifically target sexual behavior that can transmit HIV. Nor does it account for the fact that either partner to a sexual interaction can mitigate or entirely eliminate the risk of transmission of HIV. Given the actual science of HIV, Jane Does 1–4 and others convicted of Aggravated Prostitution need not and did not pose a threat to anyone’s health or safety.


5.As Congress recognized in passing the ADA, “society tend[s] to isolate and segregate individuals with disabilities.” For this reason, the very purpose of the ADA is to address ongoing discrimination against individuals with disabilities in critical areas like employment and housing. Subjecting people to lifetime sex offender registration because of their HIV status directly frustrates these goals. Under TN-SORA, Plaintiffs are effectively barred from many employment opportunities, housing options, and public spaces as well as family and community life: they are, for example, forbidden from working, living, or even spending short amounts of time within 1,000 feet of a school, playground, park, or other area where children gather. For Jane Does 1–4, who live in large cities like Memphis, finding work and housing outside these vast and ever-changing registry “Exclusion Zones” is nearly impossible.


6.The restrictions are particularly disruptive of family relationships, even though such relationships are critical to successful community reintegration and are known to reduce recidivism. Jane Does 1–4 cannot be alone with their nieces, nephews, or grandchildren, and are forbidden, for example, from watching their grandchildren perform in a school play or sporting event. This is so even though their convictions have nothing to do with the abuse of children.


7.Along with being unlawful, Tennessee’s criminalization of disability status is counterproductive as a means of addressing HIV. The scientific consensus is that HIV-criminalization laws do not reduce the prevalence of HIV. Rather, by criminalizing knowledge of one’s HIV status, Tennessee disincentivizes at-risk individuals from seeking testing and erodes the trust in medical professionals that is needed to successfully access treatment and limit transmission.


8.There are many other chronic and manageable infectious conditions prevalent in Tennessee, but none are subject to such draconian and counterproductive punishment. That individuals living with HIV are treated so differently can only be understood as a remnant of the profoundly prejudiced early response to the AIDS epidemic, and the continuing marginalization of the Black cisgender and transgender women who have borne the brunt of the Aggravated Prostitution and related registry requirements. Indeed, in 2022, a Black woman in Tennessee was 290 times more likely to be on the sex offender registry for an HIV-related conviction than a white man. 


9.While many states across the country have reformed their discriminatory and scientifically unsound HIV-specific criminal laws in recent years, Tennessee has continuously increased the penalties for Aggravated Prostitution through amendments to its registry scheme retroactively applied to Plaintiffs. Today, Tennessee’s Aggravated Prostitution statute is the only law in the nation that treats people living with HIV who engage in any sex work, even risk-free encounters, as “violent sex offenders” subjected to lifetime registration. 10.Counterproductive and harmful, Aggravated Prostitution and its related requirements under TN-SORA violate the ADA, equal protection, substantive due process, the Eighth Amendment, and the prohibition against ex post facto laws, and must be struck down.

November 20, 2023 in Healthcare, Legislation, LGBT | Permalink | Comments (0)

Wednesday, October 25, 2023

Gender, Health and the Constitution Conference at the Center for Con Law at Akron



Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas GenetinMike GentithesDr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

October 25, 2023 in Abortion, Conferences, Constitutional, Family, Gender, Healthcare, Law schools, LGBT, Pregnancy, Race, Reproductive Rights, Science, SCOTUS, Sports | Permalink | Comments (0)

Friday, October 6, 2023

Sex Discrimination Formalism

Jessica Clarke, Sex Discrimination Formalism, Virginia L. Rev. (forthcoming 2023)

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court’s interpretations of race discrimination law. The Court’s most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII’s sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that “formal equality” is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary, to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment, to enforce sex-specific dress codes, to exclude transgender people from restrooms consistent with their gender identities, to ban gender-affirming health care, or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism.

October 6, 2023 in LGBT, SCOTUS, Theory | Permalink | Comments (0)

Trans Sex Equality Rights After Dobbs

Marc Spindelman, Trans Sex Equality Rights After Dobbs, 172 U. Pa. L. Rev. Online 1 (2023).

In L.W. v. Skrmetti, a divided Sixth Circuit panel gave Tennessee the green light to start enforcing its ban on gender-affirming care for transgender youth. Central to that decision, since extended to cover a companion case, was the panel’s distinctive vision of what Dobbs v. Jackson Women’s Health Organization means for trans people’s constitutional sex equality rights. This brief essay examines that vision and explains why it’s deficient in the face of Dobbs’ insistent promises that it’s a ruling limited to abortion rights. By its own terms, Dobbs announces no authoritative deviation from established legal protections for other constitutional rights, including LGBTQIA+ peoples’ rights, and, more specifically, trans people’s sex equality rights. Beyond being duty-bound to follow Dobbs’ promises—emphasizing abortion’s uniqueness as key to Dobbs’ self-limitations—lower courts should affirm Dobbs’ line-drawing as an exercise seeking to preserve the Court’s institutional legitimacy and the American public’s faith in the rule of law. Dobbs effectively instructs it’s up to the Supreme Court—not lower courts—to decide whether to honor or abandon Dobbs’ promises, including in the Fourteenth Amendment sex equality setting involving trans sex equality rights.

October 6, 2023 in Abortion, Constitutional, LGBT | Permalink | Comments (0)

Tuesday, September 19, 2023

Trans Animus Under an Equal Protection Analysis

Scott Skinner-Thompson, Trans Animus, Boston College L.Rev. (forthcoming)  

Anti-transgender legislation is sweeping the nation with devastating consequences for trans lives. Each piece of legislation is generally challenged in isolation and conceptualized under the Equal Protection Clause as involving either impermissible sex classifications or classifications against transgender people. These frames are accurate but insufficient to fully capture the scope and harm of the laws on trans lives. These all-encompassing laws must be unequivocally identified for what they are: a product of animus violating the Equal Protection Clause. Through its detailed analysis of these laws and their legislative history, this Article demonstrates that animus is evident from the laws’ overbreadth, underinclusiveness, fabricated or pretextual government interests, and direct legislative statements of animus. As this Article contends as its central thesis, framing the anti-trans legislation as rooted in animus toward transgender people may help lead to greater—and more efficient—litigation success, but will also avoid the pitfalls of Equal Protection suspect classification doctrine which essentializes and forces identities into rigid, exclusionary boxes. Drawing from principles of restorative and transitional justice, the animus framing also has the potential, perhaps counterintuitively, to lead to greater social healing of the fissures being created by the culture war aimed at transgender people.

September 19, 2023 in Constitutional, Legislation, LGBT | Permalink | Comments (0)

Wednesday, August 30, 2023

Defining "Woman"

Camille Hebert, Defining Women, J. Gender, Race & Justice (forthcoming) 

The current debate about the meaning of the term “woman” has become a proxy for the culture wars over the rights of sexual and gender minorities, with social conservatives claiming that “sex” has traditionally meant “biological sex” and that the determination of one’s sex can easily be resolved by resort to biology. Progressives, on the other hand, argue for a broader definition of “sex,” to include gender identity. It has sometimes been assumed that the social conservatives have history on their side, but this article demonstrates that the courts, including the United States Supreme Court, have not traditionally defined “sex” in such a way as to protect only “biological sex”—better understood to mean sex assigned at birth. Instead, the courts have long interpreted statutory and constitutional prohibitions against sex discrimination to apply to a range of gender-related and sex-related characteristics, including compliance with traditional gender norms and gender roles. This article also demonstrates that the social conservatives do not have science on their side, because current understandings of biology do not support a strict male and female binary. In addition, gender identity itself is believed by scientists to have a biological basis, such that gender identity is a component of sex as defined by biology.

As state and federal legislators and some courts seek to define “sex” narrowly to mean sex assigned at birth, these efforts pose real and significant threats to the rights of transgender individuals to obtain appropriate identification documents, to use public spaces, to obtain healthcare, and to engage in other activities that cisgender individuals take for granted, including the right to participate in sports. And although these efforts are often said to be motivated by a desire to protect women, if “sex” is defined narrowly to mean sex assigned at birth, the protections that cisgender women and men are afforded by the anti-discrimination and other laws are likely to be narrowed as well. These efforts should be seen as what they are—an effort to impose a narrow and limiting definition of the meaning of “sex” in order to restrict protections for the sex-based and gender-based characteristics of all individuals and to impose their own notion of what it means to be “a woman.”

August 30, 2023 in LGBT, Science, Theory | Permalink | Comments (0)

Wednesday, August 23, 2023

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

Friday, August 18, 2023

Ninth Circuit Says Law Banning Transgender Students is Likely Unconstitutional

ABA J, Law Banning Transgender Students from Female Sports Likely Unconstitutional, Ninth Circuit Says

A federal appeals court on Thursday ruled for a transgender college student who challenged an Idaho law that bars transgender athletes from participating in women’s and girls' student sports in public schools.

The 9th U.S. Circuit Court of Appeals at San Francisco upheld a finding that the law likely violates the equal protection clause, according to an Aug. 17 press release by the American Civil Liberties Union.

Bloomberg Law has coverage.

The appeals court ruled for Lindsay Hecox, a student at Boise State University who wanted to try out for the cross-country team and play club soccer.

The 9th Circuit upheld an injunction banning enforcement of the Idaho law, the Fairness in Women’s Sports Act. The law bars all transgender women and girls from participating in or trying out for public school female sports teams at every age—from intramural to elite teams.

The law provides for a verification process that can be invoked by a person who wants to dispute another person’s sex. The process requires “intrusive medical procedures,” the appeals court said in an Aug. 17 opinion by Judge Kim McLane Wardlaw.

The American Civil Liberties Union had filed the lawsuit, along with the ACLU of Idaho, Legal Voice and Cooley.

The case is Hecox v. Little.

August 18, 2023 in Constitutional, Education, LGBT, Sports | Permalink | Comments (0)

Tuesday, July 11, 2023

Sixth Circuit Decision Upholding Ban on Gender Affirming Care for Minors is a Monumental LGBTQ Rights Case Headed to SCOTUS

A Monumental LGBTQ Rights Case is Barreling Toward the Supreme Court

In recent months, Republican lawmakers in many states enacted laws targeting LGBTQ Americans, attempting to shut down their right to free expression and even deny them medical care, among other things. Until Saturday, however, civil rights lawyers challenging these laws fared surprisingly well in federal court, convincing even many Republican judges.

The United States Court of Appeals for the Sixth Circuit’s decision in L.W. v. Skrmetti, threatens to upend all of that. Before L.W. was handed down this past weekend, there was a consensus among federal courts that the Constitution prohibits states from banning gender-affirming medical care.

L.W. destroys that consensus. It reinstated a Tennessee law, previously blocked by a federal trial court, that prohibits gender-affirming care for transgender patients under the age of 18. And the Sixth Circuit’s opinion was written by Chief Judge Jeffrey Sutton, a widely respected judge, especially among the Supreme Court’s GOP-appointed majority.

Sutton, a George W. Bush appointee, is one of the federal judiciary’s leading “feeder” judges, meaning that his law clerks are frequently hired to clerk for the Supreme Court justices — a sign that the justices are likely to pay careful attention to Sutton’s views when deciding how to resolve a case like L.W.

July 11, 2023 in Courts, Healthcare, LGBT | Permalink | Comments (0)

Friday, June 30, 2023

Federal Court in TN Issues Preliminary Injunction Blocking Ban on Gender-Affirming Care

CNN, Federal Judge Blocks Part of TN Ban on Gender Affirming Care

A federal judge on Wednesday temporarily halted the enforcement of part of Tennessee’s ban on gender-affirming care for minors in the state.

Senate Bill 1, which was signed into law by Republican Gov. Bill Lee in March and set to take effect July 1, prohibited health care providers “from performing on a minor or administering to a minor a medical procedure if the performance or administration of the procedure is for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” ***

In Wednesday’s ruling, US District Judge Eli Richardson issued a preliminary injunction blocking the state’s enforcement of a ban on such gender-affirming treatments as hormone therapies and puberty blockers. The ruling, however, allowed Tennessee to ban gender transition surgical procedures.

“The Court realizes that today’s decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society on the one hand, and the countervailing power of states to control certain activities within their borders and to use that power to protect minors,” Richardson said in his ruling.

“If Tennessee wishes to regulate access to certain medical procedures, it must do so in a manner that does not infringe on the rights conferred by the United States Constitution, which is of course supreme to all other laws of the land,” the judge added. “With regard to SB1, Tennessee has likely failed to do just this.”

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

Friday, June 23, 2023

New Book A Queer History of the Woman's Suffrage Movement

Book Talk, The Hidden Queer History of Boston Suffragettes

Author Wendy Rouse unearthed the stories of queer suffragettes in her book, "Public Spaces, Secret Lives: A Queer History of the Suffrage Movement," including some who lived in Massachusetts.

She joined WBUR's Morning Edition host Rupa Shenoy to talk about the local examples of queer people in the struggle for women's voting rights.***

"People are trying to erase the existence of gay and trans people in our present. But I think it's important that history reminds us that there have always been LGBTQ people and they will always exist."

June 23, 2023 in Books, Constitutional, Legal History, LGBT | Permalink | Comments (0)

Thursday, June 15, 2023

CFP 2024 AALS Annual Meeting The Challenges of Teaching in a Time of Rising LGBTQ Hostility

Call for Proposals for 2024 AALS Sexual Orientation and Gender Identity Issues Pedagogy Program:  "The Challenges of Teaching in a Time of Rising LGBTQ Hostility"

Over the past couple of years, states throughout the country have passed a series of increasingly extreme restrictions on LGBTQ people, from prohibiting gender-affirming care for transgender people to attempting to prohibit discussion of sexual orientation and gender identity in public schools. Institutions of higher education are also the subject of legislation claiming to eliminate critical race theory, queer theory, and other points of view demonized as "woke" or harmful.

Many AALS schools are located in states passing such laws, and professors at those schools are called upon to teach about issues relating to discrimination facing the LGBTQ community when that community is directly under attack. Professors may feel personally threatened or professionally threatened by limits on their academic freedom. The Section on Sexual Orientation and Gender Identity Issues of the Association of American Law Schools will hold a program on pedagogy, "The Challenges of Teaching in a Time of Rising LGBTQ Hostility," to provide space to discuss the challenges arising from these current political changes.

We welcome submissions from law faculty, staff, and administrators at all stages of their careers. Submissions of abstracts of not more than 500 words are due on or before Monday August 7, 2023, and should be sent to Michael Higdon at [email protected]. For more information, please do not hesitate to contact Michael Higdon

June 15, 2023 in Call for Papers, Conferences, Law schools, LGBT, Theory | Permalink | Comments (0)