Category Archives: Equality
May 3, 2023 Doron DorfmanEquality
Andrew Gilden,
The Queer Limits of Revenge Porn, 64
B.C. L. Rev. __ (forthcoming, 2023), available at
SSRN (Sept. 21, 2022 draft).
The law has a strange relationship with gay sex. Courts and legislators often manage simultaneously to ignore the realities of gay sexual expression, on the one hand, yet treat it differently from heterosexual sex on the other. Even when striking down the Texas sodomy law and expanding constitutional protection to same-sex, nonmarital sexual relations in Lawrence v. Texas, the Supreme Court constructed a narrative of a deep emotional bond between the couple at the heart of the case when in reality, the couple was not in a longstanding romantic relationship. As a few scholars pointed out, the Court seems to ignore the possibility that it was simply a hook-up, which nevertheless deserves as much protection as consensual sex in a committed relationship does. When presenting the court with the marriage equality cases, United States v. Windsor and Obergefell v. Hodges, lawyers went to great lengths to desexualize same sex relationships, making them easier for the court to swallow. And as I have recently showed empirically, in both the law and the public’s eye, gay sex with preventive measures against HIV is still deemed more dangerous than unprotected heterosexual sex is.
In his fabulously queer and highly significant article The Queer Limits of Revenge Porn, Andrew Gilden provides yet another example of such gay sex exceptionalism in the legal realm. Gilden exposes how even the feminist project to legally protect sexual privacy misses the mark when it comes to sexual norms in the LGBTQ community. Revenge porn, referring to the nonconsensual distribution of sexual images, has become a household term in the age of social media. Twenty-nine states now have criminal legislation prohibiting revenge porn. These laws, however, explicitly exclude images of voluntary nudity or sexual expression in “public” and “commercial” settings. (P. 21.) Continue reading "Revenge Porn Laws and Gay Sex Exceptionalism"
Mar 29, 2023 Ezra YoungEquality
Before I stepped behind the podium for the first time in Fall 2021, I made a conscious decision that I would not hide that I pray from my students. My particular combination of anxiety and devoutness more often than not means that I pray for the strength, wisdom, clarity, and patience to reach each and every one of my students before I dive into any given day’s materials. As a cradle Catholic, ending a private prayer even in public with the sign of the cross is a highly visible reflex. That first time I prayed in front of my class, I hesitated. Not because I’m ashamed of my faith. But because I worried what my students might think I was praying for, given the significant and enduring problems with American Catholicism and the institutional Church.
In time, as I’ve gotten my sea legs as a law professor, many of the things about the job have become easier. But it is only quite recently that I’ve seen fully that my lifelong commitment to a faith and Church that promises everything but regularly falls woefully short is compatible with teaching Constitutional law day-in and day-out. Some days, the only thing that keeps me going in a broken and flawed Church and country is faith. Faith that, despite all the failures, self-inflicted injuries, horrific and at-times seemingly unspeakable truths, redemption and salvation is just around the corner.
This is precisely why Christians put so much emphasis upon Jesus’ liberatory teaching in John 8:32, “You will know the truth, and the truth will set you free.” Truth and freedom are inextricably intertwined. The same can be said about the United States. As Frederick Douglass so astutely observed in his speech, What To the Slave Is the Fourth of July, true American liberation was impossible without reckoning with Black slavery. To wit, he urged “The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.”
This brings me to Professor Anthony Paul Farley’s latest article, Critical Race Theory & the Gospels, which hits home for me for at least one obvious reason as a devout Catholic. Farley’s stunning prose beautifully illustrates and elevates the parallels between how enslaved Black folks who were Christian came to understand slavery, liberation, and emancipation as an ordeal that mapped directly onto the suffering, sacrifice, death, and resurrection of Christ. Farley’s at-times masterfully lyrical writing is, to be sure, reason enough to read this article and share it widely. As one example, “Slavery is death, death only, and that continually. This death, far from being an escape ‘devoutly to be wish’d’, is a perpetual calamity…Slavery is crucifixion. Death, calamitous death, is forever” (P. 724). And yet, that is not why I picked this piece to feature in this Jot. Continue reading "CRT Tells It on the Mountain"
Jan 23, 2023 Sheila Vélez MartinezEquality
Despite our long historical presence, there is a general sociolegal invisibility of Latina/os in the United States. As with other traditionally subordinated communities within this country, the combination of longstanding occupancy and persistent marginality has fueled an increasing number of contemporary Latina/o legal scholars to engage with and try to define the contours of what it means to be Latino in the United States, as well as questions of what is our place/space now and in the future of this nation, which, as the author highlights, “thinks of itself as the conscience of the world.”
Inventing Latinos by Professor Laura Gomez is an invaluable contribution to the growing literature on Latino studies because it not only tackles the question of how Latinos came to be in the context of the United States but also looks forward and asks: “What is at stake?” and “What is to be done?” This book is important because it looks for the answers to these questions by interrogating the complicity of colonialism, imperialism, and white supremacy in inventing and maintaining hierarchies of ethnicity and race as a central part of the American project. Continue reading "How Latinos Came to Be, What Is at Stake, and What Is to Be Done"
Dec 16, 2022 Chao-Ju ChenEquality
Racial justice in education and LGBTQ equality are on the chopping block as the Court is reviewing two affirmative action cases against Harvard University and the University of North Carolina on the ground of racial discrimination and a LGBTQ rights case challenging Colorado’s anti-discrimination statute on the ground of free speech at the intersection of religious liberty. Conventional wisdom places the blame for the regression of equality and civil rights on the Court’s conservative super-majority. This is the same super-majority that infamously wielded its power to roll back abortion rights in Dobbs v. Jackson Women’s Health Organization. Indeed, the Court’s taste for hot-button issues is a testament to the conservative super-majority’s willingness to align itself with the conservative movement’s legal/constitutional agenda. Liberals’ and equality movements’ resentment of the Court’s ambitious conservativism is well-founded.
For Osamudia James, more is to blame for the current constitutional threats to legal equality. The equality gains that many celebrate and endeavor to protect – racial desegregation in Brown v. Board of Education and the recognition of same-sex marriage in Obergefell v. Hodges – came with a built-in weakness that led to the entrenchment, rather than disruption, of inequality. Through her elaboration on the “relational obstacles” on the road to racial justice and LGBTQ equality, James identifies the paradox situation: due to the failure to address the superordinate status of white people and straight men and heterosexual couples, equality movements and courts have produced “equality-promoting” doctrines that not only undercut the wins but also preserve “paths for the status-threatened to reinstate or reaffirm superordinate positioning” (P, 202) that would, finally, leave their old hierarchies in place. Consequently, equality’s drag is the unfortunate and unintended byproduct of equality wins. The increasing racial segregation of public schools and retrenchment of LGBTQ rights can only be attributed partly to the conservative movement because equality movements’ litigation strategies and advocacy also have a role to play. Continue reading "Preservation through Transformation: How and Why Equality Litigation and Movements Have Failed to Dismantle Status Hierarchies"
Nov 9, 2022 Erez AloniEquality
Ido Katri,
Transitions in Sex Reclassification Law, 70
UCLA L. Rev. __ (forthcoming), available in draft at
SSRN.
Our legal identity is formed in the immediate aftermath of our birth. Markers are given to us that denote our names, our hometown, and, crucially, our sex. On the basis of our genitalia at birth, we are assigned an M or F and launched into the world with a slew of expectations as to gender identity and expression.
Clashing with this weight of normative expectations forces transgender people (including non-binary and all other people whose gender identity or expression does not conform to their assigned-at-birth sex) into a public admission that they inhabit the wrong bodies. That is, that the identity that they have come to understand and nurtured does not correlate to the one assigned to them at birth. Aligning the two is the work of sex reclassification, the process through which a non-cisgender person applies to change their legal sex in their official state documents (e.g., IDs, birth certificate). This is an area of rapid doctrinal change in the US and the world at large, with an increasing embrace of self-identification: a legal framework for reclassification that is grounded in the applicant’s self-experience of gender and in the autonomous right to determine gender identity.
Into this explosion of legislative change, steps in Ido Katri, whose forthcoming article, Transitions in Sex Reclassification Law, accomplishes two important goals. First, it tracks the doctrinal and normative shifts in US approaches to sex reclassification and organizes an ambitious review of fifty states’ legislation into an easy-to-follow taxonomy. Second, it challenges the basic assumption underpinning reclassification laws and questions why we assign sex at birth at all. What if there were no “wrong bodies”? Continue reading "Calling Off Classification"
Oct 11, 2022 Kali MurrayEquality
Renee Nicole Allen’s From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy is an important law review article. From Academic Freedom performs three valuable functions.
First, Allen outlines how legal institutions seek “to cancel” black women law professors by failing to legitimize them as public figures within the law school. Allen identifies what she terms “tools of cancellation” including dysfunctional benevolence and intentional microaggressions, as well as the responses of self-silencing and sidelining that black women law professors employ to navigate these tools of cancellation. Allen consolidates existing scholarship on these subjects. What makes From Academic Freedom powerful is the ways she employs these novel frames together to describe how these actions work together to silence black women law professors.
As Allen describes this process of cancellation, she then introduces her second innovation, her claim that law school functions as a white space that enforces white norms. Here, I want to place Allen’s work squarely within the burgeoning field of property, race and the law. Recent property theory has engaged a broad, multi-disciplinary theory in legal geography, sociology, history, psychology, with space, which can broadly be described as an abstract way to describe the physical dimension or characteristics of a location, and place, by contrast, consists of those spaces imbued with social meaning built through site-specific engagement and memory. Continue reading "All of Us Are Brave"
Sep 13, 2022 Ann E. TweedyEquality
Cree author Billy-Ray Belcourt’s A History of My Brief Body is a visceral and devastating account of the effects of colonialism and anti-queer animus on one’s body and psyche. A memoir in the form of a series of essays, the book engagingly sets forth vignettes from the author’s life interspersed with a meta-analysis of how instances of oppression—both personally experienced and witnessed—spring from colonialism and anti-queer animus, which operate as a combined axis of oppression or separately depending on the circumstances.
As a poet and as a non-Native scholar of tribal law and federal Indian law, I am constantly trying to better understand the effects of colonialism. Belcourt’s analysis is unique in the way that it melds personal experiences with discourses of philosophy and literary criticism and in its unflinchingness and insistence on truth and accountability. I highly recommend this book for anyone that wants to understand the effects of colonialism or anti-queer animus in the Americas. While Belcourt is Canadian, I found that the work very much resonated with my understandings of colonialism and anti-queer animus in the United States as well. Continue reading "Colonialism and Anti-Queer Animus in Fisheye and Macro Focus"
Jul 27, 2022 Doron DorfmanEquality
One of the most significant questions of recent years is who gets (rather than who should get) a seat at the table, meaning who is allowed to partake in formal decision-making processes on law and policies, specifically when those pertain to minority groups. A recent example of these discussions was the appointment of Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court. Although supporters of this nomination emphasized why “representation matters,” others opposed President Biden’s January 2020 statement that he would nominate a Black woman to the bench to replace Justice Stephen Breyer.
Anna Offit’s recent article, Benevolent Exclusion, discusses the question of representation in decision-making in a context in which lay participation is most often used in the legal realm, that is, trial by jury. The article shines a light on income- and wealth-based juror exclusion describing how “the process by which ordinary people are empaneled as jurors is one that is stacked, at every turn, against the poor.” (P. 625.) With an eye toward intersectionality, Offit points out how despite the elimination of property ownership as a condition to serve on the jury in the 1960s, a policy put in place as a tool to exclude Black people and women, along with legislative efforts such as the Jury Selection and Service Act of 1968, juries today still have a representation problem. Blanket exemptions for caregivers, for example, can result in gender imbalanced venires. And economic biases have been shown to constitute the greatest remaining impediment to Black peoples’ participation on juries. (P. 624.) Continue reading "A Seat at the Table: The Case of Indigent Jurors"
Jul 4, 2022 Natsu Taylor SaitoEquality
As teachers and scholars, we think a lot about how the world really works, what can be done to make it more equitable, and how to articulate coherent analyses that will be put to good use by others. For those of us who’ve been at it a while, it’s wonderful to hear from young scholars excited by something we wrote long ago—but it can be disheartening as well. After that initial relief that the piece hasn’t been swallowed by a black hole, the worry sets in. Why does decades-old work appear as fresh insight? Are we still circling the same old rock? Shouldn’t this intellectual project have evolved much further by now?
Then, along comes a gem like Raymond Magsaysay’s Asian Americans and Pacific Islanders and the Prison Industrial Complex. This somewhat prosaic title masks a beautifully written and artfully constructed exposé of the conceptual disappearance of Asian Americans and Pacific Islanders (“AAPIs”) in the criminal “justice” system. It is not, however, a “we, too, are oppressed” story. Rather, the brilliance of Magsaysay’s article lies in his use of critical race theory, Asian American jurisprudence, and the work of anti-colonial and indigenist scholars as well as prison abolitionists to highlight how the narratives of criminalized AAPI youth can undermine anti-Black racism and help us envision a future unconstrained by mass incarceration. Continue reading "Erasure: The Conceptual Disappearance of Criminalized Asian Americans and Pacific Islanders"
Jun 20, 2022 Marc SpindelmanEquality
On June 17, 2017, a small group of queer Black trans protesters and allies blocked my hometown’s pride parade. The plan was to “silently block[] the [Stonewall Columbus Pride] parade for seven minutes to hold space for Black and brown queer and trans people.” The seven minutes corresponded to the seven bullets police officer Jeronimo Yanez fired at Philando Castile at close range, killing him, an act Yanez was charged for, but acquitted of the day before Columbus Pride. Nothing like those seven bullet minutes passed before Columbus police swiftly and forcefully stopped the protest, arresting “four Black queer and trans folks” on various charges. Those arrested became famous as the “Black Pride 4.”
Five years later, the Black Pride 4’s protest—along with pride-timed and other protests elsewhere, and marches, conversations, and community work in their wake—has precipitated a reckoning in Columbus’s and other LGBTQ communities across the nation. LGBTQ individuals and leaders—not themselves queer, Black, or trans—and many LGBTQ organizations are finally grappling with the violent realities and material privations queer Black trans people regularly suffer, along with whether and how to center queer Black trans people and their liberation as key to LGBTQ politics.
Despite the path the Black Pride 4’s 2017 Columbus Pride protest has forged inside LGBTQ communities, it has not generated widespread academic engagement—yet. Zane McNeill and Kyra Smith’s Whose Pride Is This Anyway? The Quare Performance of the #Black Pride 4 promises to help change that. Continue reading "LGBTQIA+ Pride, 2022: The Story of the Columbus, Ohio #BlackPride4, Five Years On"
