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Brief for the Plaintiff-Appellant Lucas Rosa in the United States Court of Appeals for the First Circuit Lucas Rosa V. Park West Bank and Trust Company on appeal from the United States District Court for the District of Massachusetts
The District Court fundamentally misconceived the law as applicable to the Plaintiffs claim by concluding that there may be no relationship, as a matter of law, between telling a bank customer what to wear and sex discrimination. It also misapplied Rule 12(b)(6) to the extent that it resolved any factual questions beyond the allegations of the Complaint regarding the basis of the Bank's different treatment of the Plaintiff. Finally, because the District Court incorrectly dismissed the single federal claim in Plaintiffs Complaint, it improperly dismissed Plaintiffs pendant state claims for want of federal court jurisdiction.Androgenius
A Poem.Law as a Tool for a Sexual Revolution: Israel’s Prevention of Sexual Harassment Law- 1998
Discussion of the newly enacted law will outline the theoretical underpinnings and their effect on the resultant version (Part III), followed by the legislative history, including the Knesset and the public debate surrounding the bill (Part IV), and the impact of that debate on the final outcome of the law (Part V). Part VI will pay particular attention to the innovative approach of the law as a whole and some of the revolutionary specific provisions within. In particular, the legislative framework will be considered in the context of a nation founded and conducted on traditional religious tenets of Judaism. Finally, an analysis of the implementation and implication of the law will encompass sociocultural factors, feasibility, and potential impact (Part VII).Reconsidering the Abuse That Dare Not Speak Its Name: A Criticism of Recent Legal Scholarship Regarding Same-Gender Domestic Violence
This article argues that while recent legal scholarship effectively disputes the applicability of a gendered model of domestic violence to same-gender abuse, it goes too far in embracing a completely gender-neutral model. Part I explains the theoretical problems with the non-gendered model of domestic violence by examining in detail the research which is most often cited in legal writings in support of this model. Part II briefly explores the pragmatic implications for lesbian and gay male victims of domestic violence when law enforcement policies such as mandatory arrest are based on a model of domestic violence which ignores contexts such as gender. Finally, Part III recommends initially abandoning any single model of domestic violence that assumes a priori gender neutrality, and instead constructing multiple models limited to specific contexts and dynamics. Once these multiple models have been adequately assessed and tested, their common threads can be identified and woven into an integrated meta-model.Law, Self-Pollution, and the Management of Social Anxiety
This article considers the anxieties about masturbation and spermatorrhoea from the standpoint of cultural-legal analysis. Seen from this perspective, the worries about masturbation provided an object onto which social anxieties could be displaced and thereby managed. Norm entrepreneurs who played on public fears manipulated basic cultural polarities in order to present masturbation and spermatorrhoea as objects of horror and disgust-things that needed to be expelled, if possible, from the body social.United Nations Convention Documents in Light of Feminist Theory
This article proposes that language identifying human rights of women in U.N. Conference documents has its origin in several different feminist theories. An understanding of these theories can help to clarify meaning, resolve inconsistencies, and predict the future direction of language in U.N. documents. Part I examines three prominent feminist theories and their relation to international law. Part II examines the history of women's rights in U.N. documents and examines the influence of feminist theory on the document language. Using the Women and the Economy section of the Fourth World Conference on Women, Platform for Action (Platform for Action), Part III shows how feminist theories can aid observers in understanding the documents and in making predictions about future trends. Comparison of the Platform for Action with a recent U.N. document titled Further Actions and Initiatives to Implement the Beijing Declaration and the Platform for Action supports predictions made based on the use of certain theories. Although language in U.N. documents still shows the influence of each of the three major theories, this article concludes that Dominance Feminist theory has the greatest impact.Faith in Justice: Fiduciaries, Malpractice & Sexual Abuse by Clergy
This article argues that perpetrators of sexual misconduct should not be granted refuge from the potential consequences of their actions by mere affiliation with a religious institution. Part I of this article examines the theories of malpractice and breach of fiduciary duty, and determines the appropriate cause of action for sexual misconduct and ascertains their capacities to withstand First Amendment scrutiny. Determining the cause of action is essential to the evaluation of the potential constitutional challenges. Part II demonstrates that sexual misconduct by clergy is well outside First Amendment constraints. It examines both the Free Exercise and Establishment Clauses, and evaluates the approaches of courts to the situation of clergy sexual misconduct. Part II then compares the judicial treatment of sexual harassment by clergy under Title VII as guidance for treatment of sexual misconduct by clergy. This Part also discusses a general theory of state intervention in the affairs of religious organizations. This article concludes with an application of the appropriate cause of action under tort law within First Amendment constraints.Lucas Rosa V. Park West Bank and Trust Company
In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application on that ground.Epilogue
The First Circuit reversed the district court's order dismissing Lucas Rosa's claim against Park West Bank. The appeals court's reversal seems to be part of an emerging nationwide rejection of cases from the 1970s and 1980s in which courts summarily dismissed sex discrimination claims brought by transgender plaintiffs, no matter how squarely the facts appeared to present a clear-cut case of discrimination based on sex. Creating what appeared to be a "transgender" exception to sex discrimination law, those earlier courts ignored what the First Circuit recognized here-that a bank officer who tells an applicant to go home, change, and return presenting a more masculine appearance may very well have engaged in sex discrimination, even where the applicant may fairly be characterized as transgender or "cross-dressing."Amicus Curiae Brief of Now Legal Defense and Education Fund and Equal Rights Advocates in Support of Plaintiff-Appellant and in Support of Reversal In the United States Court of Appeals for the First Curcuit Lucas Rosa V. Park West Bank and Trust Company on Appeal from the United States District Court for the District of Massachusetts
By dismissing the plaintiffs complaint under the Equal Credit Opportunity Act ("ECOA") on the ground that "the issue in this case is not [Rosa's] sex, but rather how he chose to dress when applying for a loan" (Bench Order at 1), the lower court erroneously established that there are no set of facts in which clothing-based sex stereotyping can form the basis of a legitimate claim of sex discrimination in access to credit. This view of the meaning and scope of the ECOA runs contrary to well-established Supreme Court precedent which prohibits, inter alia, the adverse treatment of a man or a woman for his or her failure to conform to traditional sex stereotypes- whether it be the expectation that men should be breadwinners, or that women should be feminine. Further, to rule, as did the lower court, that stereotypes associated with proper "men's" and "women's" clothing is a matter separate and apart from sex discrimination, is to ignore the significant role that dress reform has played in efforts to achieve gender equality for women from rejecting the wearing of corsets to demands to be permitted to wear trousers in the workplace. Further, the lower court's ruling denies a large body of psychological research that demonstrates the cognitive role that clothing plays in the use of sex stereotypes in the workplace and other market settings. Thus, the lower court erred in holding, as a matter of law, that there can be no relation between clothing-based sex stereotypes and sex discrimination under the ECOA.