The Supreme Court's Bostock v. Clayton County opinion, affirming that Title VII's sex discrimination protections extend to "gay and transgender" employees, is an opinion emphatically grounded in a textualism-based analysis. It is also an opinion that does not once mention bisexuals in its text.
The bisexual erasure in the opinion is not unusual; in the nearly quarter century leading up to Bostock, the Supreme Court has repeatedly failed to explicitly acknowledge the existence or equal rights of bisexuals. While bi erasure in Supreme Court cases is not new, in the case of Bostock, the problematic nature of omitting bisexuals from the text of the opinion takes on an additional and ironic dimension: Those seeking to apply Bostock's holding to bisexuals must contend with a unique tension between the majority opinion's textualism emphasis and the need to read beyond the literal text of the holding's limited "gay and transgender" language to ensure that it applies to bisexuals as well.
Part I of this Essay draws on the trial transcripts and pretrial briefing in JONAH to argue that it is extraordinarily difficult-especially in a postJONAH world-to sell conversion therapy without simultaneously committing consumer fraud. Part II analyzes consumer protection laws in all fifty states to demonstrate the opportunities for and obstacles to deploying the JONAH model across the country. Part III discusses the merits of using litigation as a tool for curbing conversion therapy in the United States.
Zachary A. Kramer, Heterosexuality and Title VII, 103 NW. U. L. REV. 205 (2009).
This Article offers a critique of these "bootstrapping" cases from a perspective that has been overlooked in employment discrimination law and scholarship. The focus of that critique is heterosexuality. In contrast to homosexuality and, to a lesser extent, bisexuality -- both of which have been the subject of extensive scholarly attention-heterosexuality is largely absent from scholarly discussions about sexuality. Yet the absence of heterosexuality from the scholarly literature is not surprising because, in our culture, heterosexuals are typically thought of as not having a sexual orientation. Instead, heterosexuality is merely the normative baseline against which all other sexual orientations are tested." As such, heterosexuality tends to be missing altogether from discussions about sex and sexuality. This is especially true of legal discourse about sex and sexuality-courts rarely even acknowledge the existence of heterosexuality, let alone consider its legal implications.
The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free speech problem, but the Supreme Court has left the pertinent doctrine in a state of confusion. I offer a better account of free speech law, one that depends on some neglected free speech values—the protection of religious disagreement, the promotion of mutual transparency among persons, and the positive valuation of ethical confrontation. I conclude that, under familiar rules of constitutional avoidance, state antidiscrimination laws should be construed to allow this kind of speech.
Barry P. McDonald, If Obscenity Were to Discriminate, 103 NW. U. L. REV. 475 (2009)
In her thoughtful essay, When Obscenity Discriminates,' Professor Elizabeth Glazer argues that First Amendment obscenity doctrine, as it relates to portrayals of gay and lesbian sex ("gay sex"), violates the Equal Protection Clause of the U.S. Constitution, and, somewhat paradoxically, the First Amendment itself. This Essay develops these criticisms of Professor Glazer's essay. Part I discusses the lack of a sound legal or empirical basis for arguing that the obscenity doctrine is unconstitutional due to its claimed discriminatory collateral effects. Part II examines Glazer's argument as it might properly have been made: that if the discriminatory application of the obscenity doctrine against gay sex portrayals were to become an issue, the demands of a principled and coherent jurisprudence would require the Court to revisit that doctrine in light of Lawrence to clarify that the gay or lesbian nature of such portrayals is not a constitutional basis for deeming expression to be obscene. I conclude that Glazer would have a strong argument in this regard, but one that relies primarily on basic equal protection and First Amendment principles rather than on any changes wrought by Lawrence.
Elizabeth M. Glazer, When Obscenity Discriminates, 102 NW. U. L. REV. 1379 (2008)
This Essay argues that the First Amendment's obscenity doctrine has produced a discriminatory collateral effect against gays and lesbians. If expression or conduct qualifies as obscenity, it is excluded from the First Amendment's protective reach. Expression or conduct qualifies as obscenity if it satisfies a three-pronged test that essentially seeks to determine whether the expression or conduct's main purpose is to depict sex in a patently offensive way.
On June 11, 2018, then-Attorney General Jeff Sessions released his decision in a case called Matter of A‑B‑, purporting to eliminate domestic violence and gang violence as grounds for asylum. The decision also cast doubt on the continued viability of asylum claims predicated on non-state actor violence, which alarmed LGBTQ advocates, whose asylum claims often involve non-state actor persecutors. In making this change, Sessions used a previously rarely used feature of the asylum system, the Attorney General’s self-certification power. This Note analyzes the potential impact of Matter of A‑B‑ on LGBTQ asylum seekers. Based on the text of the decision, Matter of A‑B‑ should have a less extreme impact on LGBTQ and other asylum seekers than advocates initially feared. But the actual impact of the decision is nonetheless alarming. Statistical and anecdotal evidence indicates that Matter of A‑B‑ contributed to record high denial rates in 2018, and some asylum seekers denied as a result identified as LGBTQ. This discrepancy between the text of the decision and its practical impact highlights several deeply troubling features of the U.S. asylum system, including the broad discretion afforded to adjudicators and lack of judicial independence. Because of these factors, when the Attorney General uses his self-certification power in the asylum context, one person has vast power to make sweeping changes to a process with life and death stakes, a level of power that is contrary to the norms of checks and balances that underpin our democratic system. This Note argues that the case study of Matter of A‑B‑ and its impact on LGBTQ asylum claims reveals serious problems with the rule of law in the U.S. asylum system.
In 2013, the Supreme Court changed the lives of thousands of same-sex couples in America by declaring the Defense of Marriage Act (DOMA) unconstitutional in United States v. Windsor. This decision allowed same-sex spouses to receive the same marriage-based immigration benefits under federal law that “traditional marriages” had long received. Although this holding is a victory for binational same-sex couples, bias still exists in the practices U.S. Customs and Immigration Services (USCIS) uses to evaluate the legitimacy of marriages. This bias manifests itself in the proof USCIS requires to show a relationship is bona fide, proof that often assumes couples conform to a traditional American family archetype. Although theoretically same-sex couples should now have equal immigration rights, this bias may disadvantage same-sex couples in achieving the same federal benefits that the Windsor Court expressly allowed. This Note will examine the USCIS’s current spousal visa requirements and marriage fraud review process in light of the practical realities many same-sex couples face. Specifically, this Note will argue that these requirements should be amended to recognize that historic, systemic barriers and global prejudice may hinder same-sex couples from showing that their relationships are bona fide.
This Comment argues that the law, when properly construed, provides employment protections for intersex persons whose anatomy occupies the middle ground, differing only somewhat from the anatomy expected to accompany their gender. Just as the law protects individuals whose gender expression does not conform to the behaviors that society expects of persons of their biological sex, it also protects those whose sexual anatomy does not conform to what society expects of persons of their gender.
This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue that the Court’s “fear of too much justice” links race and sexual orientation cases and helps to explain victories as well as losses. Even when advocates win in a case like Obergefell v. Hodges or Grutter v. Bollinger, the Court carefully cabins its opinion so as not to destabilize the social hierarchy. We illustrate this claim through a close examination of the use of social science in Obergefell. The Court disregarded evidence suggesting that same-sex couples and parents experience positive differences, as compared to heterosexuals, such as instilling greater respect for gender and sexual orientation equality in their children. The Court also asserted the innocence of opponents of same-sex marriage, ignoring evidence linking the denial of access to marriage to homophobia. In short, a movement to upend homophobic marriage laws was itself confined by homophobia, which influenced which arguments lawyers and Justices could articulate.
During winter and spring 2015, with Obergefell looming, Alabama state officials and the Supreme Court of Alabama took an increasingly firm stand against marriage equality and against multiple decisions of a lower federal court invalidating the state's constitutional and statutory' bans on same-sex marriage.
This Essay suggests that political process theory provides the most democratically legitimate justification for the Supreme Court to step in and resolve the question of same-sex marriage for the whole country, as it seems increasingly likely to do, at a time when a majority of states still outlaw the practice.
In the abstract, invalidating DOMA and its unequal treatment of married couples based on their gender and sexual orientation is appealing. Like the moon, it draws us in with its own romanticized sort of beauty. But when we come face to face with legal equality, we may find that it is not so bright, shiny, and attractive. What we will learn is that federal tax equality is pocked and scarred by the impact of past legal battles that make it less promising and attractive. Indeed, we will find that “equality” is decidedly not equal, and that the federal tax situation post-Windsor may be markedly worse than pre-Windsor.
Andrew Koppelman, Why Scalia Should Have Voted to Overturn DOMA, 108 Nw. U. L. Rev. Colloquy (2013).
Scalia’s own methods of statutory interpretation support what the Court did in Windsor. If one infers the statute’s purpose from its language and interaction with other statutes, with no attention to the legislative history or the subjective intentions of the law’s authors, the result the Court reached is inescapable. The statute may not precisely reflect a bare desire to harm, but it reflects an extreme indifference to the welfare of gay citizens that violates equal protection.
In determining whether to defend a statute, the President and his advisers should reject categorical positions about his constitutional authority in this area and instead pursue a context-driven approach that looks at several different factors. In this Essay, I identify four factors that should be taken into account: whether (1) there are binding judicial precedents on the relevant constitutional issues; (2) those issues raise significant normative and policy questions; (3) Congress considered the constitutional issues during the enactment process; and (4) it is likely that the President‘s decision will preclude judicial review.
The Obama Administration‘s decisions not to defend the constitutionality of DOMA—but at the same time, to enforce it—raise significant constitutional questions.
This Note analyzes the Seventh Circuit's landmark decision of Nabozny v. Podlesny and concludes that the case was rightly decided. Nabozny is significant because it was the first time that a court held a school district and its employees liable for discriminating against a gay student. Moreover, Nabozny is the only recorded federal case addressing the Fourteenth Amendment's Equal Protection Clause as it pertains to gay or lesbian students in public schools. In Nabozny, the Seventh Circuit stated, "We are unable to garner any rational basis for permitting one student to assault another based on the victim's sexual orientation." Part II recounts the facts in detail. Part III describes the Seventh Circuit's reasoning, highlighting the Seventh Circuit's interpretation of the district court's decision to grant summary judgment to the defendants. This Part also shows how the Seventh Circuit handled the district court's granting of qualified immunity to the individual defendants. Part IV critiques the opinion, paying special attention to Nabozny's gender and sexual orientation claims as they relate to the Equal Protection Clause of the Fourteenth Amendment. Finally, Part V analyzes the impact that Nabozny will have on the future of gay and lesbian rights under the Fourteenth Amendment.
This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in reports or court documents proof of its claims that transgender service members undermine combat readiness and thus pose a risk to the military.
Marie-Amélie George, Framing Trans Rights, 114 Nw. U. L. Rev. 555 (2019).
In the wake of marriage equality, opponents of LGBT rights refocused their attention, making transgender rights their main target. To persuade voters to maintain gender identity antidiscrimination protections, LGBT rights campaigns presented trans identity in a specific, but limited, way. These campaigns emphasized gender-conforming transgender individuals—those who adhere to male and female stereotypes—and thereby implicitly reinforced the gender binary. Although LGBT advocates have largely succeeded in their efforts to preserve LGBT rights, their messaging may undermine the movement’s broader litigation strategy and subject nonbinary members of the transgender community to greater discrimination and persecution.
Conventional interpretations of building codes are among the greatest barriers to building the gender-neutral bathrooms of the future. Focusing on the example of schools, this Essay argues for a reinterpretation of the International Building Code in light of its policy goals: safe, private, and equitable access to public bathrooms. Under this reinterpretation, the Code allows all public bathrooms to be gender-neutral.
This Comment proposes that courts should import these criteria from Title VII religious discrimination doctrine into the sex discrimination context for the purposes of "authenticating" transgender identity. The result would be a legal landscape that better balances the needs of employers for certainty and predictability with the lived experiences of most transgender people.
This Essay proposes a revision of ENDA that would leave the door open to gender identity claims. Instead of enacting ENDA as currently drafted, the next Congress should amend the "because of sex" provision of Title VII to prohibit discrimination "because of gender," defined to include sexual orientation and gender identity. "Sex" refers to an anatomical classification as male or female, while "gender" refers to socially constructed norms associated with sex.
Megan Bell, Transsexuals and the Law, 98 NW. U. L. REV. 1709 (2004).
In light of the importance of legal definition and trans people, this Comment will attempt to formulate a critique of change and a map for reform. The Comment primarily focuses on trans people, but the message is salient for all groups and individuals seeking to change and reform the legal system's construction of their identities.