Gender and Sexual Orientation
Piety Police
This Note uncovers the history of how the Brigham Young University Police Department blurred the boundaries between criminal law and church doctrine. These practices included sting operations that used students as undercover agents to target morals offenses. Such tactics illustrate the risks of religiously affiliated policing as it spreads nationwide.
Intersex, Trans, and the Irrationality of Gender-Affirming-Care Bans
This Article provides a comprehensive legal analysis of gender-affirming-care bans, concluding that their internally inconsistent treatment of trans-affirming care and coercive intersex-normalizing interventions renders them irrational and thus unconstitutional under even rational-basis review. We further provide a normative vision for bodily self-determination to support both trans and intersex interests.
The Church’s Treaties: How the Holy See Makes and Shapes International Law
The Catholic Church has concluded close to two hundred treaties in the last sixty years with nations across the globe. Many of these agreements integrate Church doctrine into state legal systems at the expense of LGBTQ rights. This Note unearths this vast treaty regime—and suggests ways to challenge it.
Against the Work-Study Boundary: Synthesizing Title VII and Title IX Protections for Student-Employees
Courts routinely deny student-employees facing sex discrimination the expansive Title VII protections they deserve, and student-employees often fail to bring Title IX claims that more fulsomely capture this discrimination. Looking forward, courts should synthesize Title VII’s protections with Title IX’s coverage by considering education-based evidence when evaluating Title VII claims.
“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.
Protecting Transgender Youth After Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection
This Note argues that Bostock v. Clayton County’s holding under Title VII—anti-LGBT discrimination is sex discrimination—applies under equal-protection analysis. It then combines Bostock with sex-stereotype reasoning to argue that recent laws and policies targeting transgender minors unconstitutionally rely on sex-based stereotypes—including that transgender minors are merely confused.
Sex Equality’s Irreconcilable Differences
Sex equality assures us that laws based on real biological differences between the sexes are not sex stereotypes about the sexes. This Feature uses LGBTQ equality to show why sex equality is wrong: laws based on real differences are sex stereotypes, all the way down.
Weaponizing Fear
Governor Abbott’s directive that the Texas Department of Family and Protective Services should investigate so-called “abusive sex change procedures” fits within a broader project of weaponizing fear to control marginalized families. The issue is not primarily the directive’s misuse of the family regulation system but the system itself.
The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.
Sex as a Pedagogical Failure
This Feature offers an account of what is wrong with consensual professor-student sex. Such sex constitutes a failure, on the professor’s part, to satisfy the duties that arise from the practice of teaching. It often also feeds on and reinforces women students’ second-class standing in the university.
Sex in Public
This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to signify equal access, freedom from sexual norms, and institutional transformation.
Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism
This Essay discusses the inclusion of gender-identity protections in the Trump Administration’s “new NAFTA,” hypothesizing that these provisions were initially included without consulting important executive-branch stakeholders. Intriguingly, these protections demonstrate that trade agreements can lead even powerful governments to make value-laden commitments at odds with their own domestic agendas.
While They Waited: Pre-Obergefell Lives and the Law of Nonmarriage
This Essay looks at married same-sex couples who, pre-Obergefell, spent time in nonmarital relationships while awaiting the right to wed. In discussing how courts now count those pre-equality years toward the length of couples’ relationships—a decision relevant to adjudicating many benefits—the Essay illuminates weaknesses in current nonmarriage law.
The Claims of Official Reason: Administrative Guidance on Social Inclusion
Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally relevant reliance interests.
Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn
A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood, marriage, or adoption.
Sexual Privacy
New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy that relies on laws and markets.
Ending the Incarceration of Women and Girls
Drawing on the author’s experience as a formerly incarcerated mother and advocate, this Essay challenges the reader to consider whether incarceration generally—and incarceration of women and girls specifically—is a fundamentally misguided response to violence and poverty that we must retire.
Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop
Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial and legislative actors going forward.
Of Power and Process: Handling Harassers in an At-Will World
Pressure is mounting on companies to take swift disciplinary action regarding alleged sexual harassment. But our employment law incentivizes employers to tolerate high-ranking harassers while cracking down on inappropriate behavior by the rank-and-file. This Essay suggests a better path forward.
Queering Sexual Harassment Law
Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.