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Giving in to Baby Markets: Regulation Without Prohibition
The commodification of reproductive material evokes different responses. Some argue that the sale of reproductive material should be prohibited. Others argue in favor of unfettered baby markets on principle or to achieve broad-scale access to reproductive technologies. In this Article, the author responds to the emergence of baby markets with great skepticism, but reluctant acceptance. Drawing on a relational conception of autonomy and self-definition, she argues that commodification of reproductive material is intrinsically harmful. Moreover, such commodification poses a number of consequential harms. Nevertheless, in spite of these concerns, the author "gives in" to baby markets, which is to say she does not argue for the prohibition of these markets, but instead for their regulation and oversight. The author gives in to baby markets in part because of the great impracticality of prohibiting markets given how well entrenched they are; people have been buying and selling reproductive material for some time. In addition, although there are risks of markets, the risk-benefit calculus calls for allowing markets to exist, provided there is careful and serious regulation of such markets. In other words, the author is not willing to accept completely free and unfettered markets.Of Sexual Bondage: The ‘Legitimate Penological Interest’ in Restricting Sexual Expression in Women’s Prisons
Despite its prevalence, sexual expression among inmates is currently prohibited in United States prisons. Recent scholarship, however, has advocated allowing certain types of sexual expression in women's prisons. The advocates of such a position differentiate between different types of sex within the correctional system: sexual expression that the system has no interest in prohibiting and should not bar, and sex acts that the system does have an interest in prohibiting and should continue to regulate. This position is based on the dual assumptions that, first, women in prison as a collective unit would benefit from some types of sexual expression, and second, that the government has a legitimate interest in prohibiting others. This paper will examine both assumptions with the intent to determine what intersection exists between these interests. Recognizing that much of the research in this area has focused on male prisoners, rape, and/or staff abuse, this paper will primarily examine women prisoners engaged in consensual sex with other female inmates. Overall, it will reject the argument that any type of sex should be officially permitted within prison, due to the destructive nature of both prison relationships and the prison itself and to the impossibility of consent to any prison relationship.Student Gladiators and Sexual Assault: A New Analysis of Liability for Injuries Inflicted by College Athletes
This Article will focus on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, including educational and sexual harms. The author’s theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and bad; that football worship by both men and women is weirdly and widely accepted in spite of the huge costs of football; and that football has a darkly gendered underside that deserves serious consideration.Pursuing the Perfect Mother: Why America’s Criminalization of Maternal Substance Abuse is Not the Answer- A Compartive Legal Analysis
In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in a wide variety of circumstances. The author will argue here that "fetal protection" prosecutions are part of a broader attack on women's rights, including the right to reproductive freedom as well as the right to control their economic and private lives generally. The Article will examine how American laws focus on the fetus as the sole "person" at risk, rather than on the maternal-fetal dyad, skews the legal and political arguments that take place. It will contrast the emphasis on the fetus with the failure of American government to provide adequate health care for women and children. Third, it will examine the laws of two other nations, Canada and France, for purposes of comparative legal, cultural, and economic analysis, and will offer some informed speculation about the reasons why the American obsession with "fetal protection" is not matched by other nations. Here the Article will address four factors: 1) America's frequent reliance on constitutional litigation as a means of achieving law change; 2) America's federal system of government, which provides the opportunity for different legal rules to operate concurrently within the same nation; 3) the United States' unique prosecution system, which involves government attorneys who are chosen locally by the electorate, as opposed to the Canadian and French systems in which prosecutors are appointed through a centralized national process; and 4) and the lack of a system of universal health care and other government-funded social and economic supports. The Author will conclude with recommendations for reforming American law to embrace the unity of interests of pregnant women and their fetuses and promote the health of both, by providing treatment, not punishment, for addicted women.Untold Stories: Gender-Related Persecution and Asylum in South Africa
This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment Bill, is not a solution to the hardships faced by female asylum seekers and survivors of gender-related persecution navigating the South African system.A Quest for Acceptance: The Real ID Act and the Need for Comprehensive Gender Recognition Legislation in the United States
This Article maintains that the Real ID Act highlights the need for U.S. federal gender recognition legislation in the mold of the GRA. Part II offers background into the psychology of transgender people, explaining how the medical community views and treats this "condition." Part III illustrates the fundamental value of gender recognition rights and examines the inadequacy of U.S. statutory and case law. This discussion then traces the evolution of the GRA in the United Kingdom as the culmination of a mandate from the European Court of Human Rights (ECHR). Part IV argues that the United States should adopt a modified GRA, highlighting problems in that Act and offering suggestions to improve protection of transgender people.“Please Write ‘E’ in This Box” Toward Self-Identification and Recognition of a Third Gender: Approaches in the United States and India
Part I of this Article defines intersexuality and highlights the legal and societal complications that occur when the concept of the fixed male-female gender binary is challenged. Part II describes the unique role of the hijras in India, who are both revered and discriminated against, and suggests that India is beginning to legally recognize a third gender through the grassroots advocacy of the hijras. Part III contrasts the experience of intersexed individuals in the United States by describing the current protocol to deal with the "medical emergency" of the birth of an intersexed child. This section forecasts legal issues facing intersexed individuals who choose to exist as a third gender in nonconformance to the male-female binary through an examination of case law on transsexuals in the marriage and employment context. The conclusion advocates the necessity of statutory reform to ensure that intersexed individuals receive the benefit of their Constitutionally protected right to equal treatment.The Lactating Angel or Activist? Public Breatsfeeding as Symbolic Speech
The only way to combat this stigma against public breastfeeding is through the act of breastfeeding in public. The author proposes that breastfeeding is a powerful act of symbolic speech vital for discarding one of the lingering shackles of women's inequality that triggers first amendment protection. Breastfeeding in public addresses this stigma by treating two ills at once: 1) greater public exposure to the practice decreases the severity of society's reactions, and 2) the less stares and confrontation that publicly nursing mothers receive, the more likely they will be to breastfeed, whenever or wherever their baby is hungry. This will have an impact not only on the number of mothers that even attempt to breastfeed, but also, on the number of mothers that are able to make it to the American Pediatrics Association's recommended 1 year.Unusual Suspects: Recognizing and Responding to Female Staff Perpetrators of Sexual Misconduct in U.S. Prisons
Despite the general public's ignorance of this issue of sexual misconduct perpetrated by female prison staff against male inmates, such stories are remarkably familiar to those who study or work in the world of prisons. The Prison Rape Elimination Act ("PREA") of 2003 mandated that the Bureau of Justice Statistics ("the Bureau") undertake new studies of sexual violence in prisons. Accordingly, the Bureau released a report in July 2006 revealing some groundbreaking data. Of the 344 substantiated allegations of staff-on-inmate sexual violence made in federal, state, and private prisons in 2005, 67% of the overall victims were male inmates and 62% of the overall perpetrators were female staff. The data contradicts the deeply entrenched perception that, in cross-gender interactions between prison staff and inmates, men are the perpetrators of sexual violence and women are the victims. This gender stereotype has influenced not only the minds of average Americans but has also permeated the legal response to prison rape.Chaos, Law, and God: The Religious Meanings of Homosexuality
This Article argues that the religious meaning of homosexuality cannot be explained merely in terms of homophobia, "church and state," or traditional values versus progressive ones. Rather, the regulation of sexuality has a particular religious meaning: sexuality is a primary site in which religious law is engendered, where the lawfulness of religion meets the chaos beyond it. Whether in Biblical times or today, changing the way sexuality is regulated is a threat to the notion of order itself, as construed by Jewish and Christian religion. Arguments about gay rights, same-sex marriage, and related issues are not merely arguments informed by religious values; they are arguments about the nature of religion itself, which is still important to a vast majority of Americans.