Sexuality and the Law

Syllabus created by Kevin A. Henderson Course Description This course explores legal constructions of gender by introducing case law, federal legislation, historical analysis, primary source documents, news stories, scholarly essays, podcasts, and films concerning gender and sexual inequality in the United States. Special attention will be paid to social movements for equality and justice-particularly those surrounding reproduction and health, sexual activity, and marriage-and to the feminist legal theories born out of these movements. One goal is to introduce students to (and asks students to think critically about) key (and competing) legal concepts and legal philosophies. We will also especially consider how struggles for equality and justice have varied across race, sexual identity, class, and other categories of difference. How do the power relations structured by gender, class, race, and sexuality pose challenges to freedom and equality? How has the law worked to co-constitutively create the categories of gender, race, and sexuality? And, how have people from different social locations differently contested and challenged the law? This class does not treat feminism as a single theory or a unified social movement but looks historically at multiple and competing visions and versions of feminism. Finally, this class looks at how the law (as a form of power) produces, ascribes, and gives shape to gender rather than simply treating gender as a pre-political category that the law either protects or ignores.

In Joslin v. New Zealand (2002), the UN Human Rights Committee rejected the claim that marriage equality could be grounded in the International Covenant on Civil and Political Rights (ICCPR). Some scholars have argued that emerging state practice and a proper understanding of the drafting of the convention now justify the argument for marriage equality. Instead, this paper argues that a project of human rights integration reveals, paradoxically, additional legal challenges. Taking a departure point in relevant regional and national judgments, the chapter sets out a three-tiered cumulative argument for a right to same-sex marriage in Article 23(2) of the ICCPR. The crux of the argument is that the Committee will be able to recognise marriage equality when the ordinary meaning of 'marriage' becomes ambiguous as to the gender identity of spouses.

Advierto que este es un texto experimental. Comenzaré contándoles cuatro historias acerca de las vivencias cotidianas de quienes somos LGBTI en el Perú. En la siguiente sección, entraré a describir a fondo cómo creo que debe aplicarse el enfoque cuir (queer) (cuy-r) al Derecho, a partir de una propuesta metodológica en cuatro categorías. Cierro con algunas reflexiones muy preliminares –pero, creo, necesarias– en torno al panorama jurídico de lo LGBTI en nuestro país. Mi deseo es que usted, querido lector, al llegar al final de estos párrafos pueda -como yo- imaginar un futuro en el que el destino común sea el de la solidaridad y el respeto y no solo el de la mera tolerancia.

In the present article, the authors propose a novel methodology for the identification and analysis of the speeches made by plaintiffs and judges in cases involving the recognition of trans* identities. Both conclude that these actors converge from rigid binary, pathologising and genitalising discourses, making very few references to the most recent contributions that the law and social sciences have made to the understanding of gender identity.

In this article we describe pornography’s harms in Japan, which are known about from surveys and research, and from the outreach and consulting activities of Japanese feminist-abolitionist groups. Among these are the Anti-Pornography and Prostitution Research Group (APP) and People Against Pornography and Sexual Violence (PAPS). We then propose a renewed classification scheme for pornography’s harms that centrally considers the experiences of victims in Japan. Lastly, we consider various legal approaches to addressing the myriad harms we describe and suggest possibilities for a new legal strategy. The article’s research comes from Japanese-language materials produced by the above-mentioned activist groups, as well as media reports of pornography-related crimes and court cases. Our aim in this article is to isolate each category of pornography’s harms so that individually tailored legal and public policy solutions might be tactically proposed and campaigned for, so that gains against...

Despite the importance of judicial diversity for litigants and the broader public, no previous study has examined this issue within the French judiciary. This article begins to fill this gap by using original, qualitative data that shed light on judges', prosecutors', and other legal actors' discourses on racial, ethnic, and sexual diversity. Its main contribution is to show that these legal professionals deploy three strategies-linguistic, institutional, and geographic-to dodge or downplay the relevance of race, ethnicity, and sexual orientation. The first, linguistic, form of avoidance lies in refusing to name and discuss race and ethnicity explicitly; the second, institutional, in denying that the judiciary has a diversity problem or that the problem lies within its power; and the third, geographic, consists in relegating the issue of diversity to distant places-the United States and overseas France. The article concludes by discussing key directions for future research.

A comparison between the Kansas Court of Appeals' treatment of transsexual identity in In re Gardiner and a Texas appellate court's treatment of the same issue in Littleton v. Prange.  This article appeared in the University of Missouri-Kansas City Law Review, 70:257 (2001).

The work locates unauthorized immigration in the context of U.S. history, including legislative history and demo- graphic trends. It explores laws, policies, reforms, media narratives, and public opinion concerning national security, voting, amnesty, gender, and border control at community, state, national, and international levels. At a macrolevel, contributors explore the impact of globalization on immigration to the United States, international migration regimes, and theories of immigration. At a more personal level, the dangerous journeys faced by many migrants, the impact of state laws on the daily lives of undocumented immi- grants in Arizona, and difficult family planning decisions faced by Mexican immigrant women as they are sexualized, similar to immigrant women before them, are described.

In the wake of several positive developments for transgender communities in Karnataka came 36A, a startling amendment to the state Police Act aimed at controlling the ‘objectionable activities’ of ‘eunuchs’. The new rule relegates hijras to second-class citizens, vulnerable to police harassment and surveillance

The Supreme Court in Suresh Kumar Koushal v. Naz Foundation has missed an opportunity to build on the earlier Delhi High Court decision and shape rights jurisprudence in a creative and rights enhancing manner. Instead it has reverted to a restrictive reading of the law that is full of logical and analytical inconsistencies and the incorrect use of precedent. This demon- strates an unwillingness to appreciate and assess the compelling evidence that was placed before it. In this piece, I will focus on the mass of material that the court did not take into account while arriving at its decision. These include the Attorney General’s submissions, affidavits of parents of Lesbian Gay Bisexual and Transgender persons, and scientific material placed be- fore the Court. I will also examine the arguments in the judgment related to presumption of constitutionality, vagueness of law and the dichotomy between the sexual act and homosexual identity. NUJS Law Review, Vol. 6, Issue 4, May 2015

The outlook of Supreme Court of India, as an institution, has unquestionably and at times disturbingly, hinged on the perspectives of the individual judges and the same is all the more visible in its decisions involving socio-moral questions. This reflects in its two recent decisions i.e., Suresh Koushal v. Naz Foundation and NALSA v. Union of India. While the former judgment stuck down a widely hailed decision of Delhi High Court reading down Section 377 of Indian Penal Code, the latter judgement conferred equal status and right of self-identification to the members of the transgender communities.
The present paper makes a critical analysis of the Court’s contrasting stands on sexual orientation and gender identity to decipher the underlying factors which shaped them in the language of Lewis Coser. It would also make an endeavour to trace the politics environing these contentious issues using the theoretical works of Bruce Ackerman.