Sexual Orientation & Gender Identity

Harvard Law Review, April 2014 | Go to article overview

Sexual Orientation & Gender Identity


INTRODUCTION CHAPTER ONE: PRO-GAY AND ANTI-GAY SPEECH IN SCHOOLS   A. Introduction   B. Speech in Schools Before the Supreme Court   C. Regulating Pro- and Anti-Gay Expression: Statutes      and Lower Court Decisions      1. The Rise of Antibullying Legislation      2. Recent Cases Regarding Anti-Gay Expression         (a) Harper v. Poway Unified School District         (b) Nuxoll v. Indian Prairie School District No. 204      3. Recent Cases Regarding Pro-Gay Expression         (a) Gillman ex rel. Gillman v. School Board.--Gillman         (b) McMillen v. Itawamba County School District   D. Looking Forward: The Constitutionality of Restricting      Anti-Gay Speech      1. Applying Supreme Court Precedent      2. Defending the Right to Express Anti-Gay Views   E. Conclusion CHAPTER TWO: TRANSGENDER YOUTH AND ACCESS TO GENDERED SPACES IN     EDUCATION   A. The Rise and Trials of Transgender Youth   B. The Goals of Public Education   C. Access to Gendered Spaces at School      1. Restrooms      2. Athletics   D. Critiques of Transgender Inclusion in Gendered Spaces   E. Broader Implications for Sex Segregation CHAPTER THREE: CLASSIFICATION AND HOUSING OF TRANSGENDER INMATES     IN AMERICAN PRISONS   A. Introduction   B. Prevailing Practices and Their Effects   C. Constitutional Challenges to Transgender Inmates' Conditions      of Confinement .. 1751   D. Recent Policy-Based Reforms      1. Washington, D.C., Reforms      2. Denver , Colorado, Reforms      3. Federal Reforms      4. Evaluating These Reforms   E. Conclusion CHAPTER FOUR: ANIMUS AND SEXUAL REGULATION   A. Invoking Animus: Lessons from Existing Jurisprudence   B. Applying Animus: Overbroad HIV Criminalization as      Constitutional Harm      1. HIV Crimes in the United States      2. Public Policy Objections and Legislative Reform      3. Unique Disadvantages and Unequal Burdens: Toward a         Constitutional Critique   C. Conclusion CHAPTER FIVE: PROGRESS WHERE YOU MIGHT LEAST EXPECT IT: THE MILITARY'S   REPEAL OF "DON'T ASK, DON'T TELL"   A. A Brief History of LGB Military Service      1. The Outright Ban      2. Don't Ask, Don't Tell      3. The Repeal of DADT   B. Looking Forward   C. Lessons from DADT Repeal      1. The Value of Impact Litigation      2. Limits of an Evidence-Based Approach      3. Benefits of a Collaborative Approach   D. Conclusion 

INTRODUCTION

Twenty-five years ago, the Harvard Law Review published its annual Developments in the Law on the topic of "Sexual Orientation and the Law." (1) The impetus for that choice was clear. The Introduction described the "[s]harply conflicting attitudes toward homosexuality [that] share[d] an uneasy existence in ... society" at the time. (2) There were four "competing conceptions": a "sin" conception that "homosexual acts [are] immoral and wrong," a "sickness" conception that sees homosexuality "negatively ... albeit [as] a potentially curable component" of one's personality, a "neutral difference" conception that sexual orientation is a part of identity that "should not be a basis for discriminatory treatment," and a "social construct" conception that rejects any categorization on the basis of sexual orientation. (3) According to the editors of that volume, those four conceptions "inform[ed] much of the law and policy concerning gays and lesbians," (4) and the purpose of that edition was to "examine[] the legal problems faced by gay men and lesbians" as a result. (5)

In many ways, that year's Developments in the Law edition was ahead of its time, making creative legal and political arguments that would foreshadow debates regarding sexual orientation law for years to come. One Part argued that classifications based on sexual orientation should be scrutinized under heightened review (6)--a conclusion that the Supreme Court has yet to reach twenty-five years later. (7) In another Part, after analyzing private employment law and concluding that "the existing legal framework does not adequately protect the rights of gay and lesbian employees," the editors suggested that "Congress . …

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