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Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation
LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, and jurisprudential integrity as a whole. This Article contributes to the bisexual erasure discourse through a unique examination of bisexual erasure through a survey of relevant terminology in LGBT-rights cases, including and beyond recent same-sex marriage litigation. The study documents an almost complete systemic erasure of bisexuals in briefings and opinions, including an absence of any mention of bisexuals by majority opinions in cases where the briefings have set a tone of bi erasure by arguing alternatively for “gay and lesbian” rights, “gay marriage,” or “same-sex marriage,” while completely omitting reference to bisexuals. In addition to documenting the absence of bisexuals in litigation documents (despite the actual presence of bisexuals as litigants), this Article compiles anecdotal evidence of bisexual erasure by attorneys, courts, and the media. The time is overdue for more widespread inclusion of bisexuality in LGBT-rights discourse and litigation. Increased bisexual inclusion can provide a bridge toward more meaningful, holistic, and accurate discourse on the rights of disenfranchised sexual minorities in this country. The tide may finally be turning toward increased bisexual inclusion, however, as some courts and LGBT organizations have employed more inclusive terminology, and one federal judge has explicitly recognized for the first time that bisexuals, like gays, are harmed by same-sex marriage bans. Bisexuality, the last sexual orientation that dare not speak its name, is finally claiming its seat at the table of equal liberty, dignity and respect under law and in the eyes of the LGBT-community itself. The legal community should join this move toward more honest and holistic discourse that acknowledges the equal validity of bisexuality along with other sexual orientations. This Article is one of many steps that must be taken for more meaningful and inclusive LGBT-rights discourse.Teen Pregnancy in Charter Schools: Pregnancy Discrimination Challenges Under the Equal Protection Clause and Title IX
Until three years ago, a policy at Delhi Charter School in Louisiana required that any pregnant student be effectively expelled. A pregnant sixteen-year-old student’s expulsion caught the attention of national media in 2012. The ACLU sued and the school quickly rescinded the policy. Although the policy was revoked, the un-adjudicated nature of the resolution leaves teen girls at the school and nationwide without any final court order to protect them against the (re)enactment of similar discriminatory policies. This Article analyzes the Delhi Charter School policy in order to make three related arguments. First, the Court should adopt a rebuttable presumption of state action when the plaintiff is a charter school student alleging the deprivation of a fundamental right. Second, any pregnancy expulsion policy enforced by a charter school violates both the Equal Protection doctrine and Title IX. The Equal Protection claim rests on the remedy left available under Geduldig v. Aiello, which otherwise crippled women’s access to remedies against pregnancy discrimination: if a facially neutral policy evidences discrimination, that policy is unconstitutional under the Equal Protection Clause. Due to the complete lack of rational justification for these policies, this Article argues that all pregnancy expulsion policies de facto evidence invidious discrimination. Third, while Title IX provides another source of remedies, it will not provide meaningful remedies without reform to its implementation. This Article concludes with suggested Title IX reforms.A Postcolonial Theory of Spousal Rape: The Carribean and Beyond
Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the common law spousal rape exemption. While much has been written on the topic of spousal rape in common law jurisdictions, this Article is unique in at least three respects. First, this Article is part of a larger project that seeks to trace the connections between colonial history and contemporary law in postcolonial states with the aim of developing a typology of the enduring effects of colonial laws and norms. Second, this Article uses postcolonial theory to provide a theoretical framework for critiquing the colonial roots of the modern-day spousal rape exemption in Commonwealth Countries. Third, this Article posits that postcolonial theory offers many insights regarding the history of colonialism and modern-day power dynamics and identities in Commonwealth Countries. The Article uses postcolonial theory to advocate for a norms-based approach to changing the structures that perpetuate inequality, and goes on to suggest the need for changes to negative norms regarding the role of women in marriage, with the aim of creating national and individual identities that value compliance with modern human rights norms. The Article recommends legal, social, legislative, and judicial internalization of human rights norms. While these solutions are not new, the Article uses postcolonial theory to assess which solution may be more viable, as well as to determine the best way to implement internalization of human rights norms given the colonial heritage and politics of postcolonial Commonwealth Countries.Centering the Teenage “Siren”: Adolescent Workers, Sexual Harassment, and the Legal Construction of Race and Gender
Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers. Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an adolescent-specific framework, and it produces the same result as the law governing adult workers—it functions to maintain historically subordinating racial and gender hierarchies embedded in sexual harassment law. This Article uses legal construction to evaluate the developing law of sexual harassment claims brought by adolescent workers. Absent a deconstruction framework, adolescent-specific sexual harassment law will continue to perpetuate the very racial and gender subordination Title VII was passed to remediate.Sexual Assault and Rape in the Military: The Invisible Victims of International Gender Crimes at the Front Lines
In the past several years in particular, intra-military sexual assault and rape in the U.S. armed forces have been the focus of frequent media attention and intense congressional debate. Despite reforms, the rate of intra-military sexual crimes continues to remain high, as does soldiers’ wariness to report instances of sexual violence to military commanders. These problems and others have invigorated the position taken by some that outside judicial review of intra- military sexual crimes is necessary to provide justice to victims and lower the rate of intra-military sexual assault and rape. This Note argues that one of the primary contributors to intra-military sexual assault and rape is the gendered nature of the military itself. Given the nature of these acts, intra-military sexual assault and rape can be properly qualified as “gender crimes.” This Note also points out that this problem is not unique to the United States, as other militaries around the world struggle with intra-military sexual violence. Due to this widespread occurrence and international human rights laws prohibiting rape and gender-based violence more generally, this Note argues that intra-military sexual assault and rape should be viewed as international gender crimes in violation of international customary law. It is theorized that recognizing intramilitary sexual assault and rape in this manner can bring greater attention to these crimes and help push for independent judicial review of intra-military sexual crimes on the domestic level worldwide.Liberating Sexual Harassment Law
Sexual harassment law and the proposed solutions to that paradigm’s deficiencies teach a disheartening and peculiar lesson to women and gender performance minorities: “You may be disadvantaged at work because of your gender or your gender performance nonconformity. Discrimination against you is okay.” This albatross has inexplicably burdened sexual harassment law for the more than thirty-five years since it emerged as a redressable form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. This Article coherently explains the reason for it. It makes a simple claim: Sexual harassment law has failed to eradicate workplace gender discrimination, not because that goal is beyond its capacity, as is frequently claimed, but because it is beyond its scope. Sexual harassment law might have changed workplace relations (for the better), but it has not made sexual harassment an anomaly because it was not meant to do so. To accomplish its task, the Article reframes the intractability of problems within the sexual harassment paradigm by viewing the law as an educative process structured by a clear curriculum. Drawing together educational literature and sexual harassment discourse, it (1) maps how sexual harassment law conforms to the essential elements of the dominant curriculum model; (2) shows how existing critiques function within that model; and (3) proposes an alternative critique of sexual harassment law that pinpoints the main deficiency of sexual harassment in its conformity to a educational model that serves to maintain the status quo and inhibit, rather than promote, liberatory social change. On this foundation, the Article argues that the challenge is to create a “dialogical” method for law in which the beneficiaries of sexual harassment law are empowered to determine what behaviors serve to entrench their marginalization and, thereby, define their world and the change they want to see in it. Through its reframing of sexual harassment law, this Article liberates sexual harassment law from its reified limitations, creating space for a legal revolution that will liberate workers.DeBoer v. Snyder: A Case Study In Litigation and Social Reform
On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.Title IX and Social Media: Going Beyond the Law
The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a law, it has prompted an unprecedented shift in the cultural landscape. In this Note, I will examine the evolution of Title IX as a means to combat sexual harassment and sexual assault on college campuses.A Joyful Heart Is Good Medicine: Sexuality Conversion Bans in the Courts
Led by California and New Jersey, states have begun to ban Sexual Orientation Change Efforts (SOCE) for minors. States have targeted SOCE, also called ‘gay conversion therapy,’ by regulating state licensure requirements for mental health professionals. Conservative legal groups have challenged these bans in federal court, alleging a variety of constitutional violations sounding in the First and Fourteenth Amendments. More specifically, these legal groups propose theories claiming that the bans infringe upon individuals’ freedom of speech, free exercise, and parental rights. In this Note, I survey the history of these bans, as well as court decisions that have rejected constitutional challenges to the laws. This Note then proposes and rejects another potential theory challenging the bans under the Due Process Clause’s right to privacy. Finally, this Note proposes that this new wave of state legislation reflects a wider shift in the LGBT community’s priorities, tactics, and messages.How Feminist Theory Became (Criminal) Law: Tracing the Path to Mandatory Criminal Intervention in Domestic Violence Cases
Our popular understanding of domestic violence has shifted significantly over the past forty years, and with it, our legal response. We have moved from an interpretation of domestic violence as a private relationship problem managed through counseling techniques to an approach that configures domestic violence first and foremost as a public crime. Mandatory criminal intervention policies reflect and reinforce this interpretation. How we arrived at this point, and which understanding of domestic violence facilitated this shift, is the focus of this Article. I argue that the move to intense criminalization has been driven by a distinctly feminist interpretation of domestic violence, what I call the feminist understanding of domestic violence as patriarchal force. I demonstrate how this understanding grew out of a feminist rejection of alternative theories of domestic violence, specifically psychological and “family violence” theories, and was informed by earlier radical feminist theorizing on rape. I offer this account as a contribution to the ongoing feminist debate over mandatory policies, suggesting that for feminists looking to reform the current system, a different interpretation of domestic violence may be a necessary starting point