Silent Spring: Where have the queer voices gone?


Posted on April 22nd, 2016 by Elizabeth Boylan

An Earth Day Blog Post


There was a strange stillness…. It was a spring without voices.  On the mornings that had once throbbed with the dawn chorus of robins, catbirds, doves, jays, wrens, and scores of other bird voices there was now no sound; only silence lay over the fields and wood and marsh….

….A grim specter has crept upon us almost unnoticed…What has already silenced the voices of spring in countless towns in America?[1]


When I was 17, I took the train in from Long Island to a gay pride parade in New York City, and it was like the rainforest: there was so much beauty, diversity, and richness in community and joy in difference that I could see.  People cried into megaphones, “We’re here, we’re queer, get used to it!” asserting the rights of LGBTQ people to exist, and to be acknowledged.  It was a call to action for queers to be present, and for recognition by non-queers: it spoke to the diversity inherent in humanity.

Diversity in society and in culture is analogous to biodiversity – the ways in which individual organisms relate with communities, their habitat, and their concentric and overlapping biotic systems is parallel to how humans interact with one another in an increasingly globalized world.

In 1962, Rachel Carson published Silent Spring.  Carson opens with a cautionary fable: she describes a world gone quiet, devoid of natural diversity, where people fall ill quickly and mysteriously, and towns and communities implode from the impact of death and loss.  Carson’s book was a thoughtful response and outcry against the ways in which the United States Department of Agriculture and Agribusiness’ uses of chemical pesticides for the purpose of controlling insect, fungal, and bacterial populations was having unintended consequences on myriad ecosystems in the United States.

The use of chemical pesticides had been touted as a ‘solution’ to dealing with pest populations of insects, fungi and bacteria by the United States Department of Agriculture.  These solutions, included substances such as dichlorodiphenyltrichloroethane (DDT), dichlorodiphenyldichloroethane (DDD), and benzene hexachloride (BHC).  As a solution, it is simple: spray chemicals, and the pests will die; however, this equation failed to recognize how complicated the algorithms of ecology are, and as such, was wholly unbalanced.

The unintended results of this solution were myriad: plants and animals produced for farms by human consumption were ultimately inedible and toxic to humans, due to biomagnification: the phenomena wherein contaminant concentrations increase in accumulation as it passes up the food chain through multiple trophic levels.[2]  Biomagnification also accounted for declines in bird populations, as the high concentrations of DDT in their bodies weakened the shells of their eggs, nullifying their viability. The presence of DDD and BHC in soil systems inhibited nitrogen-fixation by bacteria that have positive mutualistic relationships with plants. Upon using pesticides to eradicate fire-ants in the Southern U.S., farmers came to realize that the fire-ants had been consuming boll-weevils, which can decimate cotton crops[3]; The bacteria and fire-ant’s value were only conspicuous by their absence.

What was deemed to be the “problem” that the United States responded to with the widespread use of insecticides were the existence of pest insect, fungal and bacterial populations in certain agricultural sectors.  This maybe wasn’t so much a ‘problem’ but a symptom of a larger issue – – a system out of balance.  By attempting to selectively micromanage this facet – to “treat the symptom” as it were – the United States Department of Agriculture initiated a ripple effect that reverberated through the larger ecosystem.

By focusing on only one element of a system in seeking a solution, the Government lost the forest for the trees… or, the ecosystem for the insects. What was intended to help one small group, ultimately led to detrimental and lethal effects on multiple organisms and communities as a result of feedback loops not taken into account in the development of a solution.

In meditating on Carson’s parable, I’m thinking about the parallels that exist between the organisms harmed and silenced by agricultural interventions in the early and mid-20th century, and the queer communities and individuals threatened and silenced by recent court decisions and legislation in the United States.

On June 26th, 2012, the Supreme Court ruled in Obergefell v. Hodges “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State”.  This has been touted as a landmark decision, and people saw this as a “solution” to the issue of LGBTQ Rights in the United States.  A man could marry another man, and a woman could marry another woman, and their legal and contractual union had to be recognized by states.

The legitimizing and legalization of same-sex marriage by the federal government seems far too simple a solution to something that is not really a “problem,” but one element that is a symptom of a larger issue – a system out of balance.

The system out of balance is the way that federal and state laws and policies consistently value the rights and privileges of straight, heteronormative people over LGBTQ persons in the United States.  Homophobia, biphobia, transphobia, and queerphobia loom large, and oppress, marginalize and silence people in the LGBTQ community.  These forces flatten and oppress voices, and the violence that accompanies these forces – – especially transphobic violence – – is deadly.

There are no federal employment protections for persons based on sexuality or gender identity.  Only 24 out of 50 states have state-wide employment non-discrimination laws that prohibit employment discrimination on the basis of Sexual Orientation; only 21 of those also prohibit employment discrimination on the basis of Gender Identity.[4]  In the 3 months and 22 days of 2016 that have elapsed so far, 11 transgender people have been murdered[5][6].

While the Obergefell case was not poised to be a landmark decision for all LGBTQ Rights in the United States, many pundits and media outlets wanted to champion it as such – – as evidence that some solution had been rendered, and that some social progress had been achieved.  Winnowing issues of homophobia, biphobia, transphobia and queerphobia in American society to an issue of whether same-sex couples are afforded the right to legally marry is reductive and dangerous in its oversimplification.  The issue affords only a singular protection only for persons who do choose to marry.  It ignores the homophobic, transphobic, biphobic, and queerphobic ideas and attitudes that are rampant in the United States, and the ways in which the cultural embrace and acceptance of these attitudes enable violence and discrimination against LGBTQ people every day.

In the nearly 10 months’ wake since the Obergefell decision, states including Georgia, North Carolina, Tennessee, Louisiana, Missouri, and Mississippi have all considered legislation that would legalize discrimination against LGBTQ persons.  While many of these are disguised as State Religious Freedom Restoration Acts (RFRA) or Religious Exemptions[7], several are not, and are based purely in phobias surrounding LGBTQ persons.  We have seen increases in violence against transgender individuals.  There has been a swath of “Bathroom bill” legislation, wherein transgender or gender nonconforming people are denied the right to use a bathroom based on their gender or their perceived gender being perceived as a threat.  Hate is toxic, and it has been magnified and focused against the larger LGBTQ community in the wake of the Obergefell decision.

Just as the use of pesticides as a solution to a perceived agricultural problems in the early- and mid-20th century ignited a chain reaction of unintended consequences, looking to the courts to regulate a single aspect of same-sex couples’ relationships seems to be causing reactions in feedback loops that are larger than the Supreme Court may have conceived would be affected when this solution was rendered.

This is not to put the Supreme Court at fault for all of the negative backlash that has occurred in State Governments or in popular culture as a result of the Obergefell decision. However, it does call into question how short-sighted it was for some groups[8] to so vehemently pursue the right for same-sex marriage.  It also calls into question the ways in which the LGBTQ community rallies, and seeks to exist among a larger ecosystem comprising queers and non-queers in the United States.

In contrast with the raucous spring I experienced years ago in New York City, the call for marriage equality was tame, quiet, and almost insidious.  The call for marriage equality wasn’t one that said “we represent the diversity of humanity” – – it was a weak plea for mercy towards a small subset of LGBTQ people saying: “we’re just like you”.  Those voices from that pride parade, and their ilk – – that cacophony of strong voices that defied gender roles, and sang against heteronormativity – – Those are the voices that are now conspicuous in their absence. They are absent as a result of a flattening and homogenizing of LGBTQ experience; they are absent as a result of violence, and as a result of a larger social and cultural devaluation of the diversity and breadth of the LGBTQ community.


[1] Pages 2-3, in Carson, Rachel. Silent Spring. Boston, Houghton Mifflin, 1962

[2] Nowell, L.H., Capel, P.D., and Dileanis, P.D., 1999, Pesticides in stream sediment and aquatic biota–Distribution, trends, and governing factors: Boca Raton, Fla., Lewis Publishers, 1001 p.

[3] Carson, page 57.

[4] https://www.aclu.org/map/non-discrimination-laws-state-state-information-map

[5] https://en.wikipedia.org/wiki/List_of_unlawfully_killed_transgender_people

[6] This number is likely higher, due to a gross lack of reporting of transphobic violence

[7] For analysis of RFRA legislation by the Center for Gender & Sexuality Law’s Public Rights/Private Conscience Project, see: http://web.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project/policy

[8] http://www.hrc.org/

Link to Document/Text here:
http://bit.ly/1TOUnSu

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 12, 2016

Fifteen law professors, most from universities in Missouri, issued a memorandum today arguing that Missouri’s Senate Joint Resolution 39, which would amend the Missouri constitution to create new and very broad religious liberty rights, is unconstitutional. The Missouri House Committee on Emerging Issues has scheduled a hearing on SJR 39 for this afternoon.

SJR 39 would give many religious organizations, individuals, for-profit entities, and state workers the right to violate municipal antidiscrimination ordinances and contractual obligations that conflict with their “sincere religious belief concerning marriage between two persons of the same sex.”

The amendment would protect a wide range of discrimination in employment, housing, public accommodations, and government services against same-sex couples and supporters of marriage equality. For example, the amendment would allow:

  • A religious hospital to violate a “good cause” provision in a collective bargaining agreement and fire a nurse who expresses support for marriage equality;
  • An adoption agency that has a contract with the city of St. Louis to violate that city’s antidiscrimination ordinance and refuse to work with same-sex couples;
  • A private restaurant chain to break a contract to cater a wedding when it learns that the couple is of the same sex; and
  • A judge to ignore the U.S. Supreme Court and the Missouri Code of Judicial Conduct and refuse to marry a same-sex couple.

The memo, which was spearheaded by the Public Rights/Private Conscience Project at Columbia Law School, concludes that SJR 39 violates the Establishment Clause of the First Amendment by accommodating religion in a way that meaningfully harms other Missourians. It was signed by professors from Washington University in St. Louis, University of Missouri-Kansas City, and Saint Louis University School of Law.

“SJR 39 does not just disrupt the careful balance between religious and secular rights enshrined in the Constitution,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law, “it’s also unconstitutionally vague. It’s impossible to predict the range of otherwise prohibited behavior that would be given absolute immunity under this amendment.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said SJR 39 “is not about religious freedom, which is already very well-protected by the robust liberty of conscience provision of the Missouri Constitution. It merely codifies a right to discriminate.”

Read the memorandum here.

Read the Mississippi Memorandum here:
http://bit.ly/1SNYHiz

Read
 the Georgia Memorandum here:                             http://bit.ly/1pGlmmO

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 5, 2016—More than a dozen law professors with expertise in constitutional and civil rights law have signed memoranda published by the Public Rights/Private Conscience Project at Columbia Law School that analyze two so-called “religious liberty” bills recently passed in Mississippi and Georgia.

Mississippi’s bill, HB 1523, was signed into law today by Governor Phil Bryant. The Project’s analysis concludes that HB 1523 is among the broadest religious accommodation bills to be passed by any state legislature. It builds into state law unconstitutional exemptions for particular religious views on marriage, sexual relations, workplace sex equality, and gender identity. Under HB 1523, religious organizations, individuals, for-profit entities, and even government workers are granted the right to discriminate against a broad range of Mississippians in a variety of contexts including housing, employment, public services, education, and adoption.

Even worse, it prohibits the government from withdrawing grants or contracts from organizations that discriminate, and could therefore lead to the use of taxpayer funds to sponsor religiously-motivated discrimination.

The memoranda, which outline both bills’ constitutional and policy flaws, were signed by a total of 16 law professors from schools including the University of Mississippi School of Law, Mississippi College of Law, Emory University, Atlanta’s John Marshall School of Law, Mercer University School of Law.

“HB 1523 is a solution in search of a problem, as religious belief and practice already receive strong protection under state and federal law,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law. “Rather than strengthening religious liberty protections, the bill radically overreaches by favoring religious believers at the expense of other private citizens.  This amounts to a violation on the First Amendment’s Establishment Clause.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said that the bills “are representative of wave of legislation that has cloaked resistance to LGBT rights, and especially the Supreme Court’s Obergefell v. Hodges decision, as a movement for religious freedom.”

Like HB 1523, Georgia’s HB 757 would have condoned and encouraged both public and private discrimination. Governor Nathan Deal has promised to veto the bill.

While the memos’ signatories have a range of views on the appropriate balance between religious and secular rights, in the words of Governor Deal they “do not think we have to discriminate against anyone to protect the faith-based community.”

Antonin Scalia’s Legacy: The Jurisprudence of Death


Posted on February 26th, 2016 by Katherine Franke

Hdlns1-Scalia Assessing the legacy of a towering figure such as Associate Supreme Court Justice Antonin Scalia turns out to be a bit of a landmine. For some, he stood among the Court’s most brilliant, scholarly and thoughtful justices. While for others, he distinguished himself as a bombastic, small-minded, intolerant bully who disgraced the Court with a kind of behavior that presaged the legitimation of demagoguery we now see in the likes of Donald Trump. “If you want to understand how Donald Trump became the soul of the Republican Party, you need look no further than Antonin Scalia,” political scientist Corey Robin recently observed. “Scalia is the id, ego, and super-ego of modern conservatism.”

When Justice Scalia passed away unexpectedly on February 13th, Georgetown Law School Dean William Treanor issued a statement, in which he declared that “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia … [he] was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law.” These encomia went down poorly with some inhabiting the Georgetown law faculty’s more progressive precincts. Professor Gay Peller, a respected scholar of race and the law, took issue with the Dean speaking on his behalf: “I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.” Other faculty defended the Dean’s intentions, while both conservative groups of students and students of color expressed outrage, hurt and concern in response to the intramural eulogistic tennis match taking place at Georgetown law school.   More details here.

To complicate matters even further, many liberals stepped forward shortly after Justice Scalia’s passing to note a kind of ambivalent assessment of the Justice’s legacy: he may have been a conservative justice, to be sure, but he was, all would acknowledge, a very nice person. Cass Sunstein, a prominent liberal law professor at Harvard, wrote: The Scalia I Knew Will Be Greatly Missed.

For myself, I can’t say I care that Antonin Scalia was a nice person when not on the bench. When President Ronald Reagan forwarded Antonin Scalia’s name to the Senate in 1986, it was for Scalia to serve on the Supreme Court burdened with the august responsibility of interpreting the constitution, not to be our friend or dinner guest.   It is the robed justice, not the man behind the robe, that deserves our evaluation, to borrow a metaphor from Judge John Noonan’s book Persons and Masks of the Law.

Justice Scalia, like all the Supreme Court justices, did the rounds of visiting law schools on a regular basis, judging student moot court competitions and giving talks about his judicial philosophy and the like. In these contexts he often displayed behavior that was, well, cringe-worthy. Law students would stand before him, arguing a case while quivering with nervousness in their newly-pressed suits, and he would exploit the opportunity to “punch down” as some have described it. He’d insult the student, make belittling quips that would throw them off their game, or tease them. Don’t get me wrong, I don’t think our students need to be coddled. But I also don’t hold respect for a sitting Supreme Court justice who exploited these moments of grossly asymmetric power by bullying the weaker party standing before him.

His behavior with real lawyers and in real cases was not much different. When writing for the Supreme Court, Scalia was often vindictive and gratuitously cruel, taking school-yard aim at LGBT people, women and people of color. The snarkiness that characterized so many of his opinions, especially when he was in the minority, was injudicious and at times appalling.

While his friends may have included representatives of the groups he vilified in his opinions, that doesn’t in any way mitigate the damage he did to the idea that a constitution is a collective compact and a repository of shared values, not a warrant for the privileged to maintain their power. Being smart, or even nice, seems beside the point when great power is exercised in a manner that has the effect of – and often is intended to – humiliate. Great mind? Ok, whatever. Great jurist? Not at all.

In addition, Justice Scalia’s legacy will surely be distinguished by his tendency to be a particularly bad loser. As a member of a Court that has valued collegiality and the principle that nine jurists can reasonably disagree about some of the most difficult legal questions of the day, Justice Scalia chose instead to hurl ugly insults at his colleagues when he found himself in the Court’s minority. In Obergefell v. Hodges, the same-sex marriage case, he wrote that “I would hide my head in a bag,” if he ever joined an opinion as weak as Justice Kennedy’s. And if that didn’t leave enough scorched earth, he continued: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”   Some have described his opinions as “the jurisprudential equivalent of smashing a guitar on stage.”

Even worse, with respect to the substance, not only the tone, of Justice Scalia’s legacy, it could be fairly described as “a jurisprudence of death.” This necro-political valence of his legal philosophy animated an idiosyncratic commitment to reading the constitution as a text written by a dead hand. “The Constitution that I interpret and apply is not living but dead,” he frequently noted. Before Antonin Scalia was elevated to the Supreme Court by President Ronald Reagan, this version of interpretation was embraced only by a right-wing fringe, including Edwin Meese. Perhaps one of Scalia’s greatest accomplishments was mainstreaming an approach to textual interpretation that fixed the meaning of our founding document in the imagined minds of its now long-dead signatories, and aggressively rejecting the notion of a living constitution.

But Scalia’s jurisprudence of death was not limited merely to interpretive method. It also infiltrated the substance of so many of his opinions – particularly those in the criminal justice area. Robert Cover famously observed “legal interpretation takes place in a field of pain and death.” And this has never been more true than for the way Justice Scalia approached death penalty appeals that came before the Supreme Court. In the 1993 Herera v. Collins case, a case involving the question of whether newly discovered evidence that could exonerate a defendant convicted of murder and sentenced to death, Justice Scalia wrote: “Mere factual innocence is no reason not to carry out a death sentence properly reached.” He later reiterated this view in another death penalty appeal in 2009 brought by Troy Davis: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The taunting scare quotes Justice Scalia placed around the word “actually” loomed as a high-stakes taunt and a deadly provocation that collapsed any daylight between the notion of legality and justice: the state can kill an innocent man if the trial he received satisfied a minimal criterion of fairness. Surely a legal system has lost its soul if this is what criminal justice has been reduced to. How does a person who holds this view, and is blessed to hold the highest judicial office in the nation, sleep at night?

And so it is fitting that death found Antonin Scalia while he slept. In his sleep on a hunting trip of all adventures. Even more curiously, the last Supreme Court justice to die while in office was William Rehnquist and President Reagan appointed Antonin Scalia to fill his seat on the Court. Kinda makes one worry about the deadly endowment that awaits the next appointee to this seat.

 

We’re Hiring! Temporary Research Analyst – Racial Justice Program


Posted on February 18th, 2016 by Elizabeth Boylan

Research Analyst Position (full-time/part-time)
Contract – Temporary

The Racial Justice Program, part of Columbia Law School’s Public Rights/Private Conscience Project, produces original research on the impact of religious exemptions on communities of color and leverages that research into policy and advocacy interventions.

Columbia Law School’s Public Rights/Private Conscience Project is a unique law and policy think tank based at Columbia Law School. Its staff conceptualizes and operationalizes new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminates those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

The Program is seeking a Research Analyst to join our team. The Research Analyst will examine ways religious exemptions impact communities of color through health care restrictions, employment restrictions, and other means. This is a 2-month full-time contract position, with possibility of extension. Alternatively, for the right candidate in need of a more flexible work schedule, this can be a 4-month part-time position, with possibility of extension.

Key Tasks include:

• Determine analytical requirements for data processing, including the selection of appropriate data, tabulations and statistical methods

• Identify and interpret trends or patterns in complex data sets

• Interpret data and analyze results using statistical techniques and provide report(s)

• Assist with preparation of presentations describing project methods and results of analyses Requirements:

• A master’s degree from an accredited college in statistics, sociology, public policy, or a closely related field; with at least two (2) years of related work experience, or

• A baccalaureate degree from an accredited college, with at least four (4) years of related work experience

• Strong quantitative and problem-solving skills; experience with empirical methods and data analytics including working with large, complex data sets and conducting research

• Experience collecting and working with secondary data collection for social science research including data cleaning, analysis, and documenting procedures

• Knowledge in the use of one or more statistical research software packages (STATA, SPSS, SAS)

• Ability to think outside of the box and develop novel strategies for analysis

• Experience working effectively both independently and as part of a team

• Knowledge of health care policies and employment policies strongly preferred

• Knowledge of racial justice issues strongly preferred

To apply, please submit your resume and cover letter by e-mail to gender_sexuality_law@law.columbia.edu.

Law Professors Urge New York’s High Court to Protect Functional Parent-Child Relationships

Columbia Sexuality and Gender Law Clinic Submits Statewide Amicus Brief on Behalf of 45 Family Law Scholars from All 15 Law Schools

New York, February 9, 2016 – Professors from every one of New York’s 15 law schools are urging the state’s highest court to stop treating functional parents—those who have raised children with a former partner—as “legal strangers” to their children.

Columbia Law School’s Sexuality & Gender Law Clinic submitted an amicus brief on behalf of 45 professors in the case of Brooke S.B. vs. Elizabeth A. C.C. At issue is whether a woman who had decided to have and raise a child together with her former partner can be denied the right to seek custody and visitation because she is not the child’s biological or adoptive parent.

This case involves a couple who decided to have a child together and who shared in all aspects of raising their son after Elizabeth A. C.C., the biological mother, gave birth. The couple later separated and, initially, both parents shared custody. However, the biological mother has since refused to allow her former partner, Brooke S.B., to see or contact their son. The current state of the law leaves Brooke S.B. and the child without recourse, unable to continue the close parent-child bond.

“New York’s law harms children by cutting them off from the adult who has parented them,” said Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and director of the Sexuality & Gender Law Clinic. “The functional parent approach—endorsed overwhelmingly by family law scholars and an ever-growing number of courts—reflects the reality of family life today and promotes the best interests of New York’s children, as family law is supposed to do.”

The professors argue that the best way to protect parents and children is for the Court to overturn its earlier ruling and embrace the functional parent standard that many other courts have also implemented. “This is a pressing issue for the Court to address, given the rising number of children in American society whose parents are not legally or biologically related to them,” Goldberg added.

The brief asks the Court to revisit its much-criticized 1991 opinion in Alison D. v. Virginia M., which the Court had affirmed in the 2010 case of Debra H. v. Janice R. In Alison D., the Court held that a woman had no legally recognizable relationship with her son, despite having planned the child’s conception and having raised the child since birth with her former partner.

“Fundamentally, a functional approach provides a practicable model for resolving disputes among the increasingly varied families of our society,” said Cynthia Luo, CLS ’17, a clinic student who worked on the brief. “It also corrects the harmful and widely condemned formalistic rule that is in place today that turns caring and devoted parents into legal strangers to their children, without any rights in their relationships with the children whom they’ve nurtured and loved.”

The Court of Appeals is expected to hear arguments in Brooke S.B. in late April or early May.

The brief can be read in full here.

To contact Professor Suzanne B. Goldberg: Call (212) 854-0411 or email suzanne.goldberg@law.columbia.edu.

Sexuality and Gender Law Clinic students who worked on the brief include:

Alex Finkelstein ’17; Sydney Gaylin ’17; Angela Kintominas ’16; Cynthia Luo ’17; Sarah Mac Dougall ’16; Jonathan Newmark ‘17; Anya Olsen ’17; and Hunter Vanaria ’16.

Columbia Law School’s Sexuality & Gender Law Clinic addresses cutting-edge issues in sexuality and gender law through litigation, legislation, public policy analysis and other forms of advocacy.

Decriminalization as a Path to Ending Violence Against Sex Workers


Posted on December 17th, 2015 by Elizabeth Boylan

Red UmbrellasToday, December 17th, is International Day to End Violence Against Sex Workers.  December 17th received this designation in 2003 in memoriam of the more than 49 known sex workers and other marginalized women who were murdered by serial murderer, Gary Ridgway.

The call to end violence is an important one, and one that we should all heed. It is especially imperative that we heed the call to end violence when the violence in question puts persons who are already marginalized at risk of sexual assault and rape, physical assault, abduction, stalking, and murder.

In this instance – the call to end violence against sex workers – we are compelled to ask why sex workers are marginalized and why they are stigmatized, and how this makes them subject to greater violence.  The criminalization of sex work creates an institutional paradigm that puts sex workers at greater risk of violence, and sets systems in place that make it difficult for sex workers to report violent crimes perpetrated against them as they are vulnerable to persecution, prosecution, and further violence.

Sex work enables people to have economic independence by levying a fee for their sexual autonomy.  It enables individuals, who may not want, or be able to perform other work, to be economically powerful, and to be validated through engaging in work that is valuable and desired in society to a consuming public.

When sex work is criminalized, power is removed from the sex worker, and put into the hands of a government’s criminal justice system; as persons who enter the criminal justice system in the United States are frequently subject to cycles of fear, bias and discrimination, this further perpetuates cycles of marginalization of sex workers.  Sex workers are less likely to report assault, violence, robbery, or rape to legal authorities who are supposed to uphold laws that condemn these actions, for fear that they will be subject to scrutiny and discrimination as a result of their chosen profession. If a sex worker reports a crime against themselves, and is found to be engaging in illegal activities, they may be subject to police harassment and arrest.  If arrested, charged, and convicted of a crime, they are then subject to prison or coercive reforms, which frequently do not work, and do greater harm than good.  Given, then, that the individual has a criminal record, depending on the city and state an individual lives in, they may be subject to employment discrimination in the future – – which puts them at risk for poverty and housing discrimination and insecurity.

Sex work, too, offers a venue for economic empowerment and independence for persons already marginalized and discriminated against by society and employers.  Many transgender and gender-non-conforming individuals may turn to sex work as a means of income if they are unable to find other work due to discrimination by employers, or as a result of economic insecurity because they are frequently paid less for work in non-sex-work fields due to wage disparity and discrimination.  These numbers increase at the intersections of multiple marginalized identities – – persons of color, femme and trans-feminine individuals, persons born outside of the United States, and persons with disabilities.  The criminalization of sex work puts these individuals at risk of further stigmatization and at risk for greater institutional and individual violence.

Across the United States, there are a variety of laws that allow law enforcement to use condoms as “evidence” of criminalized sex work.  Until 2014, in New York State, possession of condoms was grounds for arrest on suspicion of sex work.  While this law was removed in New York State, many laws throughout the country still allow law enforcement officials to arrest persons on suspicion of sex work based on possession of condoms.  This leads sex workers to be less likely to carry condoms, for fear that doing so could be used as evidence against them if they are apprehended or stopped-and-frisked by police.  With laws like this in place, sex workers are less likely to carry condoms and other barriers that may protect them from STIs, HIV, and pregnancy; this in turn, creates a public health risk, one that is entirely preventable.  With sex work decriminalized, sex workers would be free to protect their health and safety.

When sex work is criminalized, we see that individuals engaged in this work are marginalized, and less likely to be able to protect their health, and to report violent crimes against themselves for fear of prosecution.  By de-criminalizing sex work, we would shift the paradigm that marginalizes these individuals, giving them the security to report violent crimes against themselves without fear of discrimination, harassment, or arrest, and thereby protecting their right to not be victims of violent crimes – rights that all persons should be entitled to.

While it is clear that we need to protect sex workers from violence, and make people aware of the fact that violence against sex workers is an institutional problem, ending this violence is only treating a symptom of the larger dysfunction caused by the criminalization of sex work.  By decriminalizing sex work, we can create a path to ending violence against sex workers, and enabling healthier, safer existences, and greater autonomy and economic opportunities for individuals who engage in sex work.

The Legacy of Rape: Unspeakability and Representation


Posted on December 4th, 2015 by Katherine Franke

the-legacy-of-rape-exhibitIn early December, the Institute for Research on Women, Gender and Sexuality (IRWGS) at Columbia University, in conjunction with Proof: Media for Social Justice, installed a photographic exhibit entitled The Legacy of Rape.  In connection with this exhibit, IRWGS held a panel titled, Art, Law, and Social Justice, moderated by Marianne Hirsch. I participated as a panelist alongside Patricia Cronin, Leora Kahn, and Anna Di Lellio.  These were my remarks at that panel:

This exhibit suggests, if not insists, that rape has a legacy.  Rape is surely many things, and acts of rape do many things. But what might it mean to claim that “rape has a legacy”? I take the notion of “legacy” to implicate a temporal, usually intergenerational, transfer of meaning or value. A kind of “paying it forward,” if you will. So, what would it mean to document that legacy and to do so with photographs?

Well, one way to think this complex problem would be to posit that rape produces conditions of unspeakability. That is to say, for many people rape accomplishes an undoing, a disassembly of the subject, an “unmaking” as Elaine Scarry describes it, that resists verbal objectification. In this sense, portraying rape’s legacy of unspeakability through photographs might well make much sense.  The project offers the body as witness to trauma, violence, and disassembly by reassembling the subject in the camera’s frame.

Yet I’m not quite sure that is either what the exhibition aims to do or what it actually does. The written material accompanying the exhibit explains: “The Legacy of Rape gives voice to those who have survived rape or sexual violence in armed conflicts.” Yet, in what way does it “give voice” to something beyond language? Should we treat these photographs as a kind of utterance, one that subjectifies the subject through radical acts of translation that overcome a resistance to verbal objectification?

Of course the photographs are accompanied by text, testimony really, describing the sexual violence suffered by women in connection with armed conflict. But I am left wondering: In the panels related to Congo and Nepal the testimony is not associated with any particular photograph. Whereas for the women from Columbia and Bosnia-Herzegovina, the text is clearly associated with particular images. What are we to make of this presence and absence of association? In the panels from Nepal and Congo where we are unable to link the testimony to a particular image should we infer that the testimony could be associated with any of them? With any of us? Given that the Nepalese and Congolese women’s faces are hidden either by taking the photographs from the back or by veiling the subject’s faces, might we be invited to associate the text with any woman or all women?

But more than this, how should we understand the testimony to bear a relation to the images? If “breaking the silence” may be one of the aims of this exhibit, are there ways that the images do something that points to the inadequacy of language, that compensates for that inadequacy, or that picks up where language leaves off? Is what they portray “outside language” in any way? If so, then why the text? What does it add, what does it risk denying to the power of the images?

When I began thinking about this exhibit I was drawn back to Lorna Simpson’s work.  She too photographed many of her subjects from behind, shielding their faces from view.  Simpson’s powerful photographs of African American women, facing away from the camera, offer gestures of refusal that have been interpreted as acts of rescue that transform African American women from objects to subjects.

Do the photographs in The Legacy of Rape exhibit do something similar?  Do they propose forms of rescue and empowerment for the women they portray?  Of course it mattered to Simpson’s work that she too was an African American woman, self-consciously implicating herself in the work.  The act of looking was informed by the identity of the artist and the work.  Not so with The Legacy of Rape where the photographers’ identity is a marginal fact about the exhibit. Or is it? Of course exhibits of the sort always risk re-objectifying their subjects by instrumentalizing them for a larger political purpose, or as the next important project of a documentary photographer.

So if any rescue is to occur with this exhibit it may be up to the viewer to pull it off. Yet, what do these images ask or expect of the viewer? Do they anticipate or evoke a particular critical response? Does their form suggest a mode of interpretation for the viewer? Might the form suggest or signal a way of metabolizing their substantive content – particularly given the different contexts of Congo, Nepal, Bosnia-Herzegovina and Colombia? It’s worth noting that a different photographer was used for each panel, and as a result the photographs of the women from each country are very different. Consider the images of the Colombian women, more conventional portraits in form, close up, eyes directly addressing the viewer, expressive, and at once vulnerable and fierce. What relationship do these images bear to traditional portraiture? And how are we to understand the atrocities suffered by the women of Colombia when contrasted with the women in the Nepalese panel who are facing away from the camera? Do these differences offer insight into the characters they capture at the same time that they communicate something political in nature?

I must confess that overall it’s not clear to me what kind of interpretative stance we are urged to take in viewing the photographs in The Legacy of Rape.

But then, I’m just a law professor, and have no training in interpreting art.

So let me gravitate to more comfortable terrain say a little about the relationship of this exhibit to law by returning to the notion of legacy. Does rape have a legacy in law? Does any of that legacy relate unspeakability? I think it can. And I think it can in a couple of ways.

The exhibit’s curators tell us that “justice is … a collateral damage of rape and sexual violence.  And so silence sets in.” “By lifting the voice of survivors of sexual violence,” they tell us, “this exhibit aims to propel accountability and response from the international community.”   So we are to understand that silence is a kind of legacy or perhaps symptom of injustice, particularly in the context of sexual violence.

In writing on this subject, Martha Minow observes something rather similar, justice amounts to replacing “violence with words and terror with fairness,” and steering a “path between too much memory and too much forgetting.”

The trial, the truth and reconciliation commission, and the human rights report, as examples of fora where “justice gets taken up”, are the institutional contexts where the violated subject, the subject undone, the subject unmade by acts of sexual terror, is asked to offer a narrative of unmaking, to testify to the “truth of the matter”. But of course in these contexts, giving voice to pain and violence is called up in the service of interests that are largely institutional in nature, such as holding perpetrators criminally accountable, transitioning a society from a period of injustice and violence to one of greater justice and fairness, or assembling a critical mass of moving stories that together evidence the systematic nature of human rights abuses in particular political contexts. None of these sites that are charged with addressing the problem of injustice consider their project to include healing the wounded subject. Rather, testimony is extracted and human suffering is instrumentalized for a larger legal or political goal. Law demands the witness to reassemble herself, if only long enough to testify, in such a way that she can narrate a particular kind of annihilation, and in doing so becomes a witness to her own undoing. As Giorgio Agamben has described it, the subject “becomes witness to its own disorder, its own oblivion as a subject.”

So the legacy of rape in the legal context is one that often perpetuates, or worse amplifies the unmaking of the subject. By “setting the record straight” about what happened, law calls up a subject undone, but undone in a way that law expects and needs to hear – the greater the disassembly of the self the better, the less resilient the self the better.

In viewing The Legacy of Rape exhibit, particularly its text, the testimony from its subjects, I worried that it risked something similar. In what way are these images and the testimony that accompany them “bearing witness” in more complex ways than what law demands? Does the exhibit seek to open up a new way of knowing, or does it rather “set the record straight” in a juridical sort of way? In this sense, does the text move the images toward a legal kind of witnessing where the truth is sought and the image stands as a freeze-frame of annihilation? Or on the other hand, does it power as image rather than text offer something that escapes the trap of legalism?

My second, and last, observation about the legacy of rape in law may be found in today’s call to reform sexual assault laws, such that they require affirmative consent from both parties for every step in a sexual encounter. This change in the law is a legacy of the bad old days of rape law that imagined a stranger in the bushes who jumps out with a knife and violently assaults a virtuous woman who resists but cannot overcome his unwelcome advances.

Columbia’s new Gender-Based Misconduct Policy mandates that to avoid disciplinary action, sex between students must be a knowing, willful and mutual decision, revocable at any time. This policy, along with California’s and now Governor Cuomo’s revision of state law on campus-based sexual assault, conjures a rational, choosing subject who has full access to her own desires, capacities and interests and is able to articulate them and negotiate in their name as a kind of enabling condition for a sexual encounter. This sexual subject is a bit of an oxymoron, insofar as it posits the liberal self-interest maximizing agent maintaining a bounded rationality in a context that is essentially devoid of rationality and, at its best, accomplishes a kind of undoing of the self. An undoing, to be sure, different from the body in pain or in terror, but an undoing nevertheless. In this context, human experience resists verbal objectification – but it is precisely verbal objectification – indeed certain speech acts indicating affirmative consent – that the law demands to distinguish sex from violence or assault.

In this conundrum we see a refusal of the legacy of rape in law. These new campus rules can be understood as a repudiation of an intergenerational transfer – a gift as it is often called in law – of the meaning of rape, as unspeakable, as shameful, and as ignored as a real harm. Repudiating rape’s earlier reputation as an excess of passion, the new meaning of rape figures it as a failed negotiation or the absence of a mutual decision. Sex, as a result, becomes a transaction, discursive in nature.

Returning to The Legacy of Rape exhibit, I would ask in what ways it is able to avoid the pitfalls of law’s approach to this subject?  To the extent that the exhibit seems to be making an argument, what work can the images do that offers both justice and healing, that bears witness to the unmaking of the subject while not freezing the subject in her unmade self, and that allows the body to become a narrator of the long history of injustice without being overwhelmed by the text that accompanies it.

We share with you here a number of tweets with embedded video from the panel discussion regarding the exhibition.  You may also review tweets and media from the event on social media by searching #TheLegacyOfRape.

#TransgenderAwarenessWeek: Transgender lawyers that inspire us


Posted on November 16th, 2015 by Elizabeth Boylan

In honor of #TransgenderAwarenessWeek, each day this week we will be posting a blog about a group of persons in the transgender community to highlight the diversity of transgender individuals’ experiences, and to honor transgender individuals who are advocating for changes in law and policy that will support the transgender and other marginalized communities in the United States and around the world.  On Friday, November 20th, in honor of #TransgenderDayofRemembrance/#TDOR, we will honor the individuals we have lost this year to violence.

As we are the Center for Gender and Sexuality Law, we thought it would be fitting if we start off our week of tribute by honoring lawyers and legal professionals in the transgender community who inspire us.

Dean Spade

“Dean Spade is an Associate Professor at Seattle University School of Law. He teaches Administrative Law, Poverty Law, and Law and Social Movements.  Prior to joining the faculty of Seattle University, Dean was a Williams Institute Law Teaching Fellow at UCLA Law School and Harvard Law School, teaching classes related to sexual orientation and gender identity law and law and social movements.

In 2002, Dean founded the Sylvia Rivera Law Project, a non-profit law collective that provides free legal services to transgender, intersex and gender non-conforming people who are low-income and/or people of color. SRLP also engages in litigation, policy reform and public education on issues affecting these communities and operates on a collective governance model, prioritizing the governance and leadership of trans, intersex, and gender non-conforming people of color….From 2012 to 2014 Dean was a fellow in the “Engaging Tradition” project at Columbia Law School.  His book, Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law was published in 2011.”

From: http://www.deanspade.net/about/

Zoe Dolan

“Zoe Dolan is a writer and trial lawyer known for handling high-profile criminal cases, including the 2014 trial of Suleiman Abu Ghayth, a son-in-law of Osama bin Laden and the allegedly highest-ranked al-Qaeda suspect to be tried in a civilian court in the United States. Her writing includes the book There Is Room for You: Tales from a Transgender Defender’s Heart (this excerpt in The Guardian two months ago generated over 5,200 likes and almost 800 heated comments), and a blog on The Huffington Post. Earlier this year, as part of her Being Transgender – Naked project, Upworthy presented this video that has received over 500,000 views across various platforms. Profiles of Zoe and her work have appeared in The New York Times, Al Jazeera, and The Advocate.”

From Zoe Dolan, personal correspondence.
Read more about Zoe at her webpage, here: http://www.zoedolan.com/

Phyllis Randolph Frye

“Phyllis Randolph Frye is known as the Grandmother of Transgender Law and is a graduate of the University of Houston College of Law.

Phyllis Randolph Frye is an Eagle Scout, a former member of the Texas A&M Corps of Cadets, a US Army veteran (1LT-RA 1970-72), a licensed engineer, [and] a licensed attorney…. She is the first, out, transgender judge in the nation… Phyllis remains on the cutting edge of LGBTI and especially transgender legal and political issues. When the ‘gay’ community was still ignoring or marginalizing the transgender community in the early 1990’s, Phyllis began the national transgender legal and political movement (thus she is known as being the TG movement’s ‘Grandmother’) with the six annual transgender law conferences (ICTLEP) and their grassroots training.

Attorney Frye is one of the Task Force’s 1995 ‘Creator of Change’ award winners. In 1999 she was given the International Foundation for Gender Education’s ‘Virginia Prince Lifetime Achievement’ award. In 2001 she was given the National LGBT Bar Association’s (a.k.a. Lavender Law’s) highest honor, the “Dan Bradley Award.” She was honored beginning in 2009 by Texas A&M University with an annual “Advocacy Award” given in her name. In 2013 the Houston Transgender Unity Committee gave her its ‘Lifetime Achievement Award.’

In 2010 Phyllis was sworn-in as the first, out, transgender judge in the nation, as a City of Houston Associate Municipal Judge. She retains her senior partnership with Frye, Oaks and Benavidez, PLLC, (at www.liberatinglaw.com) which is an out LGBTI-and-straight-allies law firm. While the members of the firm practice law in a variety of areas, Phyllis devotes her practice exclusively to taking transgender clients — both adults and minors — through the Texas courts to change the clients’ names and genders on their legal documents.

In 2015 she was given the National Center For Transgender Equality’s ‘Julie Johnson Founders Award.'”

From Phyllis Randolph Frye’s biography page at LiberatingLaw.com: http://www.liberatinglaw.com/index.php/about/team/48-phyllis-frye.

Marriage Equality, the Supreme Court, and American Civil Rights Advocacy


Posted on June 26th, 2015 by SUZANNE GOLDBERG

Today’s marriage equality decision from the U.S. Supreme Court is powerful, transformative, and deeply gratifying.  Lesbian and gay couples are entitled to get married, if they choose, and to have their marriages recognized.

We have reached this point, as we often do in the American civil rights tradition, thanks first to individuals who took great personal risks, facing down hostility and daring to demand fair treatment and basic rights.  For same-sex couples, this meant individuals who could envision and claim their humanity far beyond what the law or surrounding communities would tolerate.

This was the work of gay couples in the 1970s and 80s who first applied for marriage licenses. Of Edie Windsor who sought recognition of her marriage at the U.S. Supreme Court two years ago. Of James Obergefell and the others whose marriages were recognized today by our nation’s highest court. Of so many couples who struggled to be recognized by their extended families, their employers, their faith communities, and their states.  And of their lawyers and advocates who, especially in the early days, found allies hard to come by.

But creating enduring change in this country also requires others who are not directly affected by the challenged discrimination and violence to take up the charge as their own.  For marriage equality, communities, including those with few openly gay leaders, were needed to support the then-deeply unpopular position that excluding same-sex couples from marriage was wrong.

And they did.  Faith-based groups, civil rights organizations, professional societies, and others wrestled, debated, and ultimately took up the marriage equality call. So too did family and friends, many of whom struggled with feelings of discomfort at first but became, over time, among the most vocal marriage equality advocates.

Elected officials came along as well – including those who once worked fervently to keep gay couples out of marriage but have, more recently, worked to make marriage equality a reality.  Artists and athletes also joined in, with some of the earliest supporters losing fans and sponsors as they committed themselves to justice on this issue.

These profound, hard-fought victories in our communities made it possible, in turn, for judges to see why it was constitutionally impermissible to deny marriage equality.  As Justice Kennedy wrote, “[t]he nature of injustice is that we may not always see it in our own times.”  Without change on the ground, the injustice of states shutting gay couples out of marriage would have remained as it was until today, unremedied.

Put another way, after decades of conversation, demonstration, writings, and more, the friction between foreclosing marriage to gay couples and basic constitutional guarantees of liberty and equality became intolerable.  This was Justice Kennedy’s point as well:  “When new insight reveals discord between the Constitution’s central protections and a received legal structure, a claim to liberty must be addressed.”

So here we are.  Nationwide marriage equality is now embedded in American constitutional jurisprudence.  And this constitutional embrace of equality is, in turn, now embedded in the fabric of American society.

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