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Prenatal Abandonment: ‘Horton Hatches the Egg’ In the Supreme Court and Thirty-Four States
This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; the high non-marital birth rate; the commonality of casual sexual relationships; the likelihood that non-marital children will live in poverty; and poverty’s deleterious effects upon children. The 2013 United States Supreme Court’s decision in Adoptive Couple v. Baby Girl endorsed prenatal abandonment theory and elevated the rights of pregnant women and fetuses while tying an unwed father’s rights to the responsibilities he assumes from the moment of conception. This Article analyzes relevant socio-demographics and comprehensively reviews existing case law to conclude with recommendations for the structure of prenatal abandonment theory as it now exists in various forms in thirty-four states.A Relational Feminist Approach to Conflict of Laws
Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century. In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism— specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements. Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging— to Conflict of Laws theory and methodology.Gender Discrimination and Statelessness in the Gulf Cooperation Council States
Using the Gulf Cooperation Council countries as a case study, this Article outlines the ways in which gender and birth status discrimination create new cases of statelessness. These occur when women are legally unable to convey their nationality to their children. This Article studies gender and birth status discrimination in nationality laws and in civil registration, family, and criminal law in each GCC state: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. Ending statelessness will require these states to end discrimination against women and non-marital children in all of its forms in law and practice.The Tax Definition of “Medical Care:” A Critique of the Startling IRS Arguments in O’Donnabhain V. Commissioner
This Article critiques the startling arguments made by the Internal Revenue Service (“IRS”) in O’Donnabhain v. Commissioner, a case in which the issue was whether a person diagnosed with gender identity disorder (“GID”) could take a federal tax deduction for the costs of male-to-female medical transition, including hormone treatment, genital surgery, and breast augmentation. Internal Revenue Code § 213 allows a deduction for the costs of “medical care,” which (1) includes costs incurred for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body,” but (2) generally excludes “cosmetic surgery” and “similar procedures.” Courts and the IRS interpreted the statutory definition of “medical care” consistently for decades until the IRS made a series of radical arguments in O’Donnabhain v. Commissioner. IRS opposition to O’Donnabhain’s medical expense deduction tracked the views of Dr. Paul McHugh, an outspoken opponent of medical transition for transgender persons and a member of President George W. Bush’s Council on Bioethics. In his writings, Dr. McHugh, a psychiatrist, asserts that (1) persons who “claim” to be transgender are delusional, (2) GID is deviant “behavior,” not a disease, and (3) gender confirmation surgery (“GCS”) should be prohibited as “collaborating with madness” and a moral “abomination.” Views expressed by Dr. McHugh in an article, Surgical Sex, appeared in a 2004 letter that the Traditional Values Coalition sent IRS Commissioner Everson, to demand that the IRS not allow O’Donnabhain a deduction, and in Chief Counsel Advice issued by the IRS Office of Chief Counsel. Dr. McHugh’s views also featured prominently in IRS arguments throughout the subsequent tax litigation. Incorporating excerpts from the extensive O’Donnabhain trial record (over 1,000 pages), this Article critiques the arguments made by the IRS in the case, and considers the implications of the case and the IRS’s arguments going forward—not just in the context of GCS, but also in the context of other types of medical care, including reproductive medical care. Part I analyzes the statutory definition of “medical care” and the “general well-being” and “cosmetic surgery or other similar procedures” limitations on the definition of “medical care.” Part II provides background on the facts of the case and the administrative tax controversy between O’Donnabhain and the IRS, reveals the significant influence of Dr. McHugh on the tax case, summarizes the arguments made by O’Donnabhain and the IRS in the United States Tax Court case, and discusses the Tax Court’s 2010 reviewed decision. Part III analyzes and critiques specific IRS arguments, some of which were radical departures from long-standing case law and IRS practices, and highlights similarities between (1) GCS and (2) breast reconstruction following mastectomy or lumpectomy, which the IRS acknowledges is medical care, not cosmetic surgery. Part III also considers the IRS’s arguments as a whole and concludes that the arguments the IRS made in the case are quite puzzling as a matter of tax law—but less puzzling when viewed as a covert attempt by the IRS to discourage GCS on moral grounds. In addition, Part III objects to the IRS’s negative stereotyping of O’Donnabhain, medical professionals who specialize in GID, and transgender persons in general. Part IV distills a series of rules for interpreting the § 213(d) definition of “medical care” and explores the implications of the O’Donnabhain case beyond its specific facts. Part IV also voices a concern that the IRS might deploy similar tax arguments in the future to deny deductions for other controversial medical care on covert moral grounds, particularly in the context of reproductive medical care.Towards Reasonable: The Rise of State Pregnancy Accommodation Laws
In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there are reasons that the seemingly minimal accommodations for pregnant workers have not been met with overwhelming support. Some fear the increased cost to employers. Others fear the stigma of equating pregnancy with a disability. Nevertheless, employers will have to grapple with increased state protections supplementing the already-existing scheme of Title VII. Young adds another complication by lessening the burden to prove an employer’s duty to accommodate. For multinational corporations, tailoring their pregnancy policies to each state might prove costlier than uniformly implementing the plan of the most generous state. Employers are already accommodating disabled employees in the same manner. And these accommodations are by definition “reasonable.” Employers might not only avoid needless liability by providing accommodations to pregnant workers—even when not required—but might also gain numerous benefits, such as: increased morale; lower attrition rates; more productive workers; and better reputations. Accommodating pregnant workers seems uncontroversial, but every federal bill introduced to do so has been strongly opposed and stopped. States may now be leading the way and, ultimately, pregnancy accommodation laws will create positive benefits for women.The Incest Horrible: Delimiting the Lawrence v. Texas Right to Sexual Autonomy
Is the criminalization of consensual sex between close relatives constitutional in the wake of Lawrence v. Texas and Obergefell v. Hodges? Justice Scalia thought not. The substantive due process landscape has changed dramatically in response to the LGBTQ movement. Yet, when a girl in a sexual relationship with her father recently revealed in an anonymous interview with New York Magazine that they were planning to move to New Jersey, one of the only two states where incest was legal, the New Jersey legislature introduced with unprecedented speed a bill criminalizing incest. But who has the couple harmed? The very mention of incest conjures fears of deformed babies, yet when people think about sex in most other contexts, procreation is the last thing on their minds. Steeped in a nearuniversal incest taboo, judges are unlikely to strike down incest legislation any time soon. But they must still respond to any constitutional challenge in the language of the law. This Article evaluates the constitutionality of criminalizing sexual relationships between first-degree relatives. First, the Article situates incest statutes within the sociological incest taboo and the biological mechanism known as the Westermarck Effect. It asserts that incest laws are counter-natural exercises in socio-biological engineering. Second, it argues that incest cannot be excluded from the fundamental rights to sexual intimacy and reproduction. Third, it questions the constitutional sufficiency of a range of possible government interests, and the tailoring of existing laws to those interests. Fourth, it proposes revised statutory language that would prohibit certain incestuous relationships without violating the constitution. The Article concludes by suggesting that norms against incest, like norms against same-sex relationships, can change and may already be changing.Prosecuting Rape Victims While Rapists Run Free: The Consequences of Police Failure to Investigate Sex Crimes in Britain and the United States
Imagine that a close friend is raped, and you encourage her to report it to the police. At first, she thinks that the police are taking her report seriously, but the investigation does not seem to move forward. The next thing she knows, they accuse her of lying and ultimately file charges against her. You and your friend are in shock; this outcome never entered your minds. This nightmare may seem inconceivable, but it has in fact occurred repeatedly in both the United States and Britain—countries that are typically lauded for their high levels of gender equality. In Britain, where perverting the course of justice is a serious crime with a potential term of life in prison, many rape complainants have been sent to prison for two and three year terms. This five-part Article analyzes this problem and sets out recommendations for legal reform.Gender and Non-Normative Sex in Sub-Saharan Africa
This Article argues for the adoption of a gender-based framework to supplement rights promotion strategies and campaigns based on LGBTI identity. The Article draws upon feminist, queer, and trans theory to develop an expansive understanding of gender within international human rights law. An analysis incorporating such theory will catalyze more systematic promotion of LGBTI rights. Although the approach is applicable across a variety of geographic contexts, this Article uses sub-Saharan Africa as an illustrative case study. A focus on gender rights as supplementary to and interrelated with LGBTI rights offers both conceptual and pragmatic benefits in the struggle to promote LGBTI rights in the region. Specifically, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW Committee) has failed to meaningfully and systematically address discrimination and violence directed at LGBTI communities in this region. An expansion of the CEDAW Committee’s interpretation of gender would encourage the Committee to consider rights violations perpetrated against those who do not conform to gender norms, including normative expressions of masculinity and femininity. First, a focus on non-normative gender expression and sexuality expands our understanding of affected individuals from only self-identified gays and lesbians to include those who do not necessarily identify as gay or lesbian but who, nevertheless, do not conform to traditional norms of sexuality and gender expression. Second, a gender framework facilitates intersectional analysis. If adopted, this analysis would allow the CEDAW Committee to more fully explore how race, ethnicity, and nationhood construct sexuality in the post-colonial period. Intersectional analysis would also allow the Committee to capitalize on its success in raising awareness about and combating gender-based violence. Finally, a gender framework offers the CEDAW Committee and U.N. treaty bodies a discursive wedge to open conversations about sexuality, even in places with wide-spread homophobia.Constitutionalizing Fetal Rights: A Salutary Tale from Ireland
In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. More than thirty years after the 8th Amendment, it has become clear that Ireland now has an abortion law regime that is essentially “unliveable.” Not only that, but it has a body of jurisprudence so deeply determined by a constitutionalized fetal-rights orientation that law, politics, and medical practice are deeply impacted and strikingly constrained. This is notwithstanding the clear hardship women in Ireland experience as a result of constitutionalized fetal rights and the resultant almost-total prohibition on accessing abortion in Ireland. This Article argues that, wherever one stands on the question of whether legal abortion ought to be broadly available in a particular jurisdiction, constitutionalizing fetal rights leaves no meaningful space for judgment at either political or personal levels. Furthermore, constitutionalizing fetal rights can have unforeseen implications across jurisprudence and medical practice, creating a situation in which there is essentially no space for more liberal interpretations that respect women’s reproductive autonomy. While this may be desirable from an ideological perspective for those who hold a firm anti-abortion position, it is distinctively problematic for women and for politics.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.