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Tango or More – From California’s Lesson 9 to the Constitutionality of a Gay-Friendly Curriculum in Public Elementary Schools
In August 2009, a group of parents in California filed a lawsuit, Balde v. Alameda Unified School District, in the Superior Court of California, County of Alameda. They alleged that the Alameda Unified School District refused them the right to excuse their children from a new curriculum, Lesson 9, that would teach public elementary school children about gay, lesbian, bisexual and transgender (GLBT) families. The proposed curriculum included short sessions about GLBT people, incorporated into more general lessons about family and health, once a year from kindergarten through fifth grade. Kindergarteners would learn the harms of teasing, while fifth graders would study sexual orientation stereotypes. One parent alleged that, although an overwhelming majority of parents spoke out against CLBT instruction at numerous school board meetings, the board chairman repeatedly told the public that the curriculum was evenly supported and opposed. Parents suspected the board had a preconceived political agenda behind the proposal. Other parents expressed their full support for the proposed curriculum because, noting that the school is a reflection of the community and the world, children from a very early age should see what the world is like. The parents' petition for a writ of mandamus to require the school district to excuse their children from Lesson 9 was denied by the Court on December 1, 2009, and the pleadings filed do not claim any violation of the children's rights under the Constitution. This Article studies the constitutionality of Lesson 9 in California public elementary schools.Removing Categorical Constraints on Equal Employment Opportunities and Anti-Discrimination Protections
It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's failures to the transgender community as exhibited by case precedents. Then, this Article refutes the categorical approach and proposes a de-categorized reformulation of Title VII, a concept that, to the Author's knowledge, has never before been proposed. This new category-less approach would replace relevant parts of Title VII's text with language focusing on an individual's objective qualifications for employment. Under this new proposal, the determination of whether that individual is the "most qualified" for the job is the key question, and employment decisions based on factors other than job qualifications are strictly prohibited. The culmination is the "Employment Qualifications Approach" ("EQA"). Penultimately, this Article addresses the possible benefits and drawbacks that might attend implementation of the EQA. Finally, this Article asserts that the EQA is the best hope and means by which to afford currently unprotected employees, including transgender persons, equal employment opportunities and non-discrimination protections through the law.When Sixteen ain’t So Sweet: Rethinking the Regulation of Adolescent Sexuality
Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female's right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female's abortion right is pitted against personal autonomy via parental rights. Ultimately, this Article argues that sexually active minors, their children, and their parents all suffer in this reproductive catch-22. This Article contends that the conflict between age of consent laws and minor abortion restrictions is just one illustration of state legislatures' struggles within the greater protecnionist-versus-enablement paradigm. Specifically, this Article argues that laws regulating adolescent sexuality can generally be categorized into one of two types: (1) protectionist, enacting restrictions and protections designed to compensate for minors' categorical immaturity; or (2) enabling, recognizing adult-like capacity and rights in minors as they progress in their overall development. The result of this polarized statutory landscape can only adequately be described as "legislative schizophrenia"-although devoid of invidious intent, these statutes ultimately hurt minors because they are premised on a flawed paradigm that is unable to coordinate the different political and social goals of state legislatures. This Article argues that by recognizing consensual maturity for intercourse and pregnancy but then rescinding that presumptive maturity only for abortion, states both violate the Constitution and create dangerous public policy. Specifically, states violate legally-consenting minors' substantive due process rights by imposing undue burdens on their abortion access without any legitimate, countervailing immaturity interest. While parental notification and consent laws have been upheld on the grounds of minor immaturity, this Article argues that the recognition of sexual maturity through age of consent laws should also trigger a presumption of maturity for minor abortion rights. This Article further highlights five key policy concerns created by the inconsistent regulation of adolescent sexuality: (1) the encouragement of impulsive adolescent sexual behaviors; (2) the binding of decisional autonomy to pregnancy outcome; (3) the reinforcement of paternalistic gender stereotypes; (4) the punitive, rather than protective, natre of parental involvement and judicial bypass; and (5) the continued hystericization of adolescent sexuality.Confrontation and Domestic Violence Post-Davis: Is There and Should There Be a Doctrinal Exception
Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal defendant to confront his accusers, beginning with the historic decision Crawford v. Washington in 2004, through Davis v. Washington two years later, and then Giles v. California two years after that. This Article will evaluate the Sixth Amendment right of confrontation in the context of domestic violence cases, both to assess certain consequences of this major constitutional shift and to suggest a change to confrontation doctrine in order to address some of the negative consequences that have apparently resulted. This Article engages in this consideration by way of an assessment of all state domestic violence cases that have examined the Confrontation Clause after Davis v. Washington.Parenting and Pregnant Students: An Evaluation of the Implementation of the Other Title IX
Title IX of the Education Amendments of 1972 prohibits gender discrimination. Although pregnancy has been described as the "quintessential sex difference," Title IX's prohibition of gender discrimination in the context of parenting and pregnant students has often been left out of the discussion, and therefore the understanding, of the implementation of Title IX Regulations. The scholarship discussing the topic shows general agreement that the language and spirit of Title IX has not been given effect thus far by our schools or by some courts. This Article begins by looking to the Title IX regulations themselves and then to the research indicating that this aspect of Title IX has yet to be fulfilled. With that understanding, it turns to the litigation landscape to identify trends in the case law, including strengths, weaknesses, and gaps. Next, this Article looks to societal impacts, specifically lack of awareness, discourses and legal mobilization, in order to garner an understanding of why the Title IX Regulations for pregnant and parenting teens have not been more strongly implemented in schools or litigated in courts.Women, Vulnerability, and Humanitarian Emergencies
The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from the devastating consequences of humanitarian emergencies. There is also recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are overrepresented in the refugee and internally displaced communities that typically result from many humanitarian crises. Women bear acute care responsibilities in most societies and also disproportionately bear familial and communal care responsibilities in communities affected by disaster, war and natural emergencies. Given their disparate social and legal status in many jurisdictions, women may have less access to capital, social goods, and other legal means to protect themselves when crises arise. Across jurisdictions, women possess differential legal capacity to contract, face systematic discrimination in their access to employment, receive differential payment once employed, and cannot own or transfer property. These myriad and interlocking discriminations and the need to combat them are articulated in the International Convention on the Elimination of All Forms of Discrimination Against Women. While tacit acknowledgement of this reality increasingly permeates academic and political discourses, the depth of the descriptive often fails to capture and fully grasp the extent of gender harms and gender insecurity. Moreover, as experts and policymakers calculate how best national and international communities should respond to such emergencies, women are frequently substantively and procedurally sidelined. This follows from the dual effects of a dearth of women decision makers in the relevant high-level fora and the failure of these bodies to meaningfully imagine and include solutions to the particular issues affecting women in communities and societies emerging from emergencies. As other scholars have noted, disaster-related research suffers from considerable prejudices, revealing an asymmetrical distribution of gender themes, an absence of data on women's lives and a male bias in identifying the channels from which information is sought. With that background, this Article offers some preliminary assessment of the intersection of women's experiences with situations of humanitarian crisis, probing the causality and patterns that have been identified across a range of interdisciplinary scholarly research and policy-oriented analyses. It advances understanding by a survey of three important but frequently marginalized issues, namely vulnerability, masculinities, and security in situations of crisis. The goal is, in part, to give greater traction to a feminist analysis of women's experiences in situations of extreme crisis. Some preliminary observations are made to help frame the way in which legal and policy solutions are articulated in such crisis contexts.Setting the Stage: A Quick Glance Back at the Journal’s History
This symposium, organized by the Michigan Journal of Gender & Law, explored several cutting-edge topics related to its over-arching theme, "Rhetoric & Relevance: An Investigation into the Present and Future of Feminist Legal Theory." When the journal editors invited me to provide a few opening remarks, they informed me that: the goal of this symposium is to have a series of discussions about current happenings in the field of feminist legal scholarship, so that we may start to answer the question, "What's next?" These discussions will take place in the form of panels that focus on particular areas of the law. The hope is that as the symposium progresses, the focused panels can shed light on larger patterns of development in feminist legal theory. The organizers of the event did a marvelous job in putting together exceptional panels of experts to discuss three distinct and ground-breaking areas within current feminist legal theory: cyber-privacy, intersex and transgender jurisprudence, and meanings of consent. "Rhetoric & Relevance: An Investigation into the Present and Future of Feminist Legal Theory" That is an incredibly broad and profound topic. I must admit that I was initially at a loss about how even to begin to scratch its surface with a few brief introductory remarks let alone come up with a crystal ball through which to divine the future. Thankfully, one of the conference organizers subsequently clarified that they would like me to lay the foundation for the symposium through the story of the founding of the Michigan Journal of Gender & Law itself. Therefore, I will reflect upon the creation of the journal and its subsequent contributions in order to help set the stage for the scholarship generated by the symposium's panelists. This background is especially pertinent to the topic of the symposium-investigating the present and future of feminist legal theory-in light of the adage that in order to understand where you are and to know where you are going, you must also know where you have been and understand the past.Past as Prologue: Old and New Feminisms
Each "stage" of feminist legal theory-and each brand or strand of feminism- stays alive and is never completely replaced by newer approaches. When I first attempted to synthesize the field of Feminist Legal Theory for a treatise I was writing at the end of the twentieth century, I thought it would be useful to think chronologically and to analyze the major developments of the 1970s, 1980s, and 1990s. I crudely divided feminist legal theory into three stages roughly corresponding to the preceding decades: the equality stage of the 1970s, the difference stage of the 1980s, and the diversity stage of the 1990s. It is much more difficult to describe feminist legal theory in this century. For this essay, I have borrowed from Rosalind Dixon's terrific 2008 article in which she canvasses the last four decades and divides legal feminism into "older" femninisms and "newer" feminisms. The older feminisms-which I will call the "Big Three"-are liberal, dominance, and cultural feminism. The newer femninisms also come in threes: partial agency (or sex-positive) feminism, intersectional (or anti-essentialist) feminism, and postmodern/poststrucrural feminism. I will call them the "New Three." The major difference between Dixon's taxonomy and my three stages of feminist legal theory is Dixon's astute positioning of the Big Three feminisms as foundational theories that have been taken up by mainstream scholars beyond feminist circles. Dixon also presents a more refined description of contemporary legal feminist thought, going beyond intersectional feminism to add two new strands of feminist theory, sex-positive feminism and postmodern feminism, that have come into their own in this century. I use Dixon's taxonomy as a map to locate the scholarly contributions of todays panelists and to theorize a bit about the present state of feminist legal theory. At the end of this essay, I will briefly glimpse into the future of feminist legal theory and mention two promising lines of emerging scholarship, masculinities theories and social justice feminism, that demonstrate the capacity of feminist legal theory to generate new insights for a new generation.Situations, Frames, and Stereotypes: Cognitive Barriers on the Road to Nondiscrimination
A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain's intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality.Sex Education and Rape
In the law of rape, consent has been and remains a gendered concept. Consent presumes female acquiescence to male sexual initiation. It presumes a man desires to penetrate a woman sexually. It presumes the woman willingly yields to the man's desires. It does not presume, and of course does not require, female sexual desire. Consent is what the law calls it when he advances and she does not put up a fight. I have argued elsewhere that the kind of thin consent that the law focuses on is not enough ethically and it should not be enough legally to justify sexual penetration. I advocate sexual negotiation, where individuals discuss sexual desires and boundaries and agree to engage in penetration before it occurs, except under circumstances in which the partners have a reasonable basis to assess one another's nonverbal behavior. I argue that not only is verbal consultation about desire ordinarily ethically necessary before most acts of sexual penetration, it should be legally required. Consultation to ascertain sexual desires and boundaries assures that both parties desire penetration. One challenge often posed by those who object to a legal requirement of negotiation before penetration is that people do not know how to engage in the required consultation. This Article attempts to address that challenge. Although teens and young adults increasingly do communicate about desires and boundaries, mainstream media offers few examples of sexual negotiation and sex education in schools rarely teaches it.