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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.Taking Safety Seriously: Using Liberalism to Fight Pornography
Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, the author proposes to illuminate what appears to be the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, the author argues that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.The Failure of Breast Cancer Informed Consent Statuses
Breast cancer informed consent legislation was introduced in response to breast cancer patient discontent with doctor-patient relationships. Physicians do not always believe that explaining treatment alternatives is important, and in this respect, legislation promoting the discussion of alternative treatment could be positive for breast cancer patients, many of whom do in fact have several viable medical options. Studies have found, however, that these statutes have no lasting impact on patient decision-making. Why aren't these patient-driven statutes affecting patient decision-making? And why is medical advice coming from the law at all? This Article argues that this legislation is a poor tool for creating positive change in the physician-patient realm of breast cancer treatment. Ideally, informed consent for breast cancer patients would be an individualistic process. It would be shaped by the specific context of the patient's life, as well as the gender inequities that still pervade medicine. The right kind of laws would see a "good" decision as one in which the patient is left physically and emotionally satisfied. To the contrary, these statutes imply that what women need is more naked information on treatment options, an idea divorced from what is known about patient decision-making.The Evolution of Same-Sex Marriage in Canada: Lessons the U.S. Can Learn from Their Northern Neighbor Regarding Same-Sex Marriage Rights
The broad differences between the United States and Canadian cases raise important questions about the social, political and legal factors that have promoted the extension of marriage rights in Canada while retarding similar efforts in the U.S. This article will compare the recent history of same-sex marriage laws in the United States and Canada. We argue that proponents of same-sex marriage as well as lawmakers could learn important lessons from the recent legalization of same-sex marriage in Canada. Section II develops a framework for comparing the U.S. and Canadian experience with same-sex marriage law. The next section traces Canada's recent history of marriage law amendments. Section IV provides a parallel legal history of same-sex marriage rights in the U.S., including the recent introduction of the Marriage Protection Act (MPA). Section V systematically compares the two cases to illuminate those factors that have supported the extension of same-sex marriage rights in Canada and hindered the extension of equivalent rights in the United States. The article concludes that the Canadian experience presents several important lessons the U.S. could learn in order to extend marriage rights to same-sex couples and therefore uphold the Constitutional right to equal protection.Refusal to Dispense Emergency Contraception in Washington State: An Act of Conscience or Unlawful Sex Discrimination?
This Article will demonstrate that a pharmacist's refusal to fill a valid prescription for emergency contraception constitutes sex discrimination and violates the WLAD. Part I explains the nature and function of emergency contraceptive pills (ECPs) as well as their role in basic health care for women and the importance of their accessibility. Part II addresses federal civil rights protections and the failure of these protections to provide relief for women facing refusals. Focusing on the WLAD, Part II also explains how state public accommodation statutes protect women from discrimination in places of public accommodation. It further sets forth the prima facie case of such a claim where a woman is refused access to emergency contraception. Part III presents arguments likely to be submitted by a pharmacist facing litigation under the WLAD. Finally, Part IV illustrates how Washington public policy supports women and the protection of reproductive freedom. The Article concludes with suggestions for judicial interpretation.Toward a Third-Wave Feminist Legal Theory: Young Women, Pornography and the Praxis of Pleasure
Part I of this Article explores the general themes of third-wave feminist writings. The Article begins with an overview of third-wave feminist literature and its predominant concerns. These concerns are (1) dissatisfaction with earlier feminists; (2) the multiple nature of personal identity; (3) the joy of embracing traditional feminine appearance and attributes; (4) the centrality of sexual pleasure and sexual self-awareness; (5) the obstacles to economic empowerment; and (6) the social and cultural impact of media and technology. Textual analysis reveals third-wave feminists' reliance on non-legal tools for remedying gender inequality. Although third-wave feminists acknowledge the law's role in women's historical advancement, they do not articulate a meaningful role for the law in achieving gender equality now or in the future. Their methods instead are (1) personal story-telling; (2) coalition building; and (3) harnessing and interpreting media.