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.

Marriage Equality and the American Legal Tradition


Posted on June 26th, 2015 by SUZANNE GOLDBERG

By striking down state laws that shut same-sex couples out of marriage, the U.S. Supreme Court has put an end to a long and painful chapter in our country’s history and, at the same time, created an opening for a new wave of civil rights, safety, and justice advocacy.

For so many years, with heightened intensity in the past two decades, states have denied same-sex couples access to marriage and the rights, recognition, and responsibilities that go along with it.  The terrible consequences are familiar: longtime partners kept from each other at hospitals, children and parents torn apart, humiliation and cost to people like the man at the heart of today’s decision, James Obergefell, whose marriage Ohio treated as nonexistent after Obergefell’s spouse, John Arthur, died in 2013.

Familiar now, too, is the dramatic shift in the marriage equality landscape.  With increasing momentum, voters, legislatures, and courts around the country have reversed course on “defense of marriage” acts and rejected second-class citizenship for gay and lesbian couples.

Without Supreme Court action, the nation was destined to maintain a discriminatory patchwork of marriage laws for years to come. The Court’s decision, in other words, reinforced the American tradition that courts, legislatures, and the general public each have a role in securing justice.

Justice Kennedy’s opinion for the Court highlights the “substantial attention” and deliberation about marriage equality by governments, businesses, religious organizations, scholars and many others.  It supplies a list of state laws recognizing marriage rights for same-sex couples alongside scores of similar court rulings.  The opinion makes clear, too, that “the identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution,” sharply countering Chief Justice Roberts’ dissenting view that the Court overstepped its role.

As has been true in other civil rights movements, a judicial decision striking down formalized discrimination marks a crucial moment. The removal of outright barriers like marriage bans opens the door to fuller participation by lesbians and gay men in the life of the nation.

This fuller participation, in turn, creates more room for awareness that gender-role nonconformity – whether in one’s choice of partner, spouse, personal identity or style – likewise should not be the basis for discrimination or violence.  And there is still plenty of that.

Stories of gay and transgender people being fired – or not even being hired – abound, especially for those who don’t conform to gender stereotypes.  Notwithstanding the generally positive reception for Caitlin Jenner, LGBT people also continue to face serious risks of violence, even in neighborhoods known to be gay-friendly.

Some in our nation also vow, even in the face of the Court’s ruling, to restrict gay and lesbian couples’ access to marriage in the guise of “religious freedom” bills that authorize individuals, businesses, and even government officials to refuse to recognize same-sex couples’ right to marry.

So, what’s next?  More advocacy in all of the domains that matter – legislatures, courts, communities.  But first, we pause to recognize this profound change in our national landscape, to celebrate the advance of equality, and to honor the courage and stamina it took to get here.

 

“Dignity” Could Be Dangerous at the Supreme Court


Posted on June 26th, 2015 by Katherine Franke

Supreme Court watchers have their money on same-sex couples winning a right to marry when the court rules in Obergefell v. Hodges. But the harder question is: How will the court get there? What constitutional right, exactly, is violated when same-sex couples are denied the opportunity to marry? The answer to this question matters, especially for women and reproductive rights. The expansion of rights for one group might result in the contraction of rights for others, leaving an ignoble stain on an otherwise significant win for queer people.

If Justice Kennedy writes the opinion for the court we’re likely to see marriage rights won in the name of dignity. Although the word dignity appears nowhere in the U.S. Constitution, the concept has been found to underlie the spirit of the Bill of Rights. Justice Kennedy has leaned heavily on the intrinsic value of dignity when charting other pro-gay rulings: for Edie Windsor last year in striking down the Defense of Marriage Act and in decriminalizing sodomy in 2003. When the same-sex marriage cases were argued before the Supreme Court in April, Solicitor General Verilli took Justice Kennedy’s view, stating “the opportunity to marry is integral to human dignity.” Justice Kennedy echoed this approach when he remarked during the argument: “Marriage is dignity bestowing, and these parties say they want to have that—that same ennoblement.”

The problem with dignity-based arguments is that they don’t come free—someone else pays the price. Dignity does its work by shifting stigma from one group to another, in this case from same-sex couples to other groups who, by contrast, are not deserving of similar ennoblement. These others include “less-deserving” groups like unmarried mothers, the sexually “promiscuous,” or those whose relationships don’t fit the respectable form of marriage. In the same-sex marriage case brought in California by David Bois and Ted Olsen, two gay men testified that they put off having children until they could marry because they didn’t want to be unwed parents.

Fortunately we have alternatives less likely to harm the case for reproductive rights. First, the Supreme Court could find that the case is really about sexual orientation or sex discrimination. Just as the court ruled in 1967 in Loving v. Virginia that a ban on interracial marriage embodied white supremacy, the court could now find that a ban on same-sex marriage embodies hetero-supremacy. A strong equality argument would have utility in the reproductive rights context since, as Justice Ruth Bader Ginsburg has argued for her entire legal career, women’s equality in the home, in the wage labor market, and as citizens is dependent upon our ability to control our reproductive lives and bodies. Were the court to take an equality approach in Obergefell it would ratify the Constitution’s commitment to fundamental equality, which could be put to good use by women, people of color, and other groups that continue to suffer systematic discrimination.

Even better, the court could see the problem of same-sex marriage as a matter of liberty—the liberty to choose a sexual partner, a spouse, a lifestyle, a good life. This approach is most consonant with the spirit of the gay rights movement’s origins. Gay Liberation was all about sexual liberty. This might include marriage, but also a broader range of attachments, kinship, and loving that far exceeds the marital form. Winning a liberty-based right to marry plants seeds that support, rather than undermine, reproductive rights. The capacity to control the meaning and consequences of reproductive sexuality is a fundamental question of liberty and the freedom to make reproductive and sexual decisions for one’s self rather than being governed by others’ values or judgment.

It’s hard to come out as an opponent of dignity, but in this case I must. In this political and legal climate the cost of dignifying same-sex relationships risks shaming women exercising reproductive rights. I’m not willing to win marriage rights for same-sex couples in a way that might contract the noble promises of our Constitution. We should have more expansive expectations of what it means to win. Justice Kennedy (right) is fond of the dignity argument.

Katherine Franke is the Sulzbacher Professor at Columbia Law School and author of the forthcoming book Wed-locked: The Perils of Marriage Equality.

Reposted from Slate.com

Behind the Scenes at the Marriage Arguments


Posted on April 29th, 2015 by Katherine Franke

By: Suzanne Goldberg

It was cold but clear this morning just after dawn outside the Supreme Court. If you have seen any of the photos circulating in social media, you can feel the optimistic mood of nearly everyone there – from the cheery dark-suited lawyers on the Supreme Court bar line to those on the line designated for the general public, some of whom had traveled across the country and slept out for several nights, with rainbow flags aloft, waiting for this morning to arrive.

Both lines wound from in front of the sunrise-reflected courthouse to a point well around the corner, hundreds of people in all. Also in the mix were loads of media – more than at any previous gay rights argument that I can remember, with reporters standing tall so they could be filmed with the Court as backdrop as they explained to nation what is at issue in the marriage cases about to be argued.

It was hugs aplenty among old friends who have worked together for so many years on lgbt rights cases. If totaled, the collective experience of movement lawyers, academics and law firm cooperating attorneys might have included as many years as the millennia some of the justices later invoked inside the courtroom when they talked about the lengthy history of “traditional” marriage.

Sprinkled into the bar line was a handful of lawyers who spend their time opposing marriage equality. One, who wound up sitting behind me in court, made a special point of saying hello. Shaking my hand, he recounted that he wasn’t doing so well these days given that their side was losing so many cases. As I told him, I really couldn’t bring myself to say that I was sorry for his experience, given that these losses were important victories for equality and rejections of laws that have caused substantial harm to lesbians and gay men, among others.

But while we were still outside, the adversaries of marriage equality made themselves known by marching around with a bullhorn and signs and t-shirts declaring the sinfulness of homosexuality. In one of their go-rounds, a longtime marriage equality advocate jumped into the middle of their lineup with her Freedom to Marry sign and a big smile, to the cheers of the rest of us.

Strikingly, though, the anti-equality protesters were very small in number – not even 10 in their contingent. That, in itself, seemed symbolic to me, as though opposition to marriage equality was now squarely on the fringes of society where it had, not terribly long ago, been part of the mainstream.

Around 8:30 a.m., just as everyone was almost starting to warm up with the sun, the marshals directed us into the courthouse. Through a metal detector, we moved onto another line where staff confirmed that we were all members of the Supreme Court bar.

I took a peek at my listing, which reminded me that I had first joined the Court’s bar exactly 20 years and two days earlier when I was sworn in by my father on the day of oral arguments in a case challenging the Boston St. Patrick’s Day Parade’s ban on gay people’s participation. In that case, the Court ultimately ruled unanimously against the gay plaintiffs. But its opinion offered a distinct shift in tone from Bowers v. Hardwick, with its vitriolic embrace of moral disapproval of gay people, to a respectful reinforcement that civil rights laws could indeed prohibit sexual orientation discrimination.

With our court admission cards in hand, we proceeded up the marble staircase, received instructions from another marshal – who reminded us, yet again, to be quiet in the working courthouse. Then a dash to the lockers to stash our electronic devices, through another metal detector, and into the still-empty courtroom.

During the next 45 minutes, waves of people filled the seats. First lawyers, then those from the public line, followed by row upon row of guests who had gotten tickets from a member of the Court or an elected official. The journalists and plaintiffs were among the last to enter the room as the large clock above the justices’ chairs inched toward 10 a.m. and the marshal’s sharp instruction to rise because the Court is now in session.

Following the brief swearing-in ceremony for new bar members, Chief Justice Roberts invited Mary Bonauto, the long-time lead lawyer of Gay and Lesbian Advocates and Defenders and a widely acknowledged architect of the marriage cases’ legal strategy, to begin. A few lines into her argument, Justice Ginsburg posed the first question, and for the next two-and-a-half hours, the justices took mostly rapid-fire turns posing their questions to the lawyers on both sides of the two questions for the day – first, whether the Constitution requires states to allow same-sex couples to marry, and second, whether the Constitution requires states to recognize the marriages entered by same-sex couples in other states.

The media is full of discussion about the argument, so for this post, I’ll skip ahead to the courthouse steps after it was all over. Now brilliantly sunny and warm, the sidewalk in front of the Court was filled with marriage equality supporters whose cheers for the large group of plaintiffs overwhelmed the few sign-bearing dissenters in their midst.

The lawyers and plaintiffs from the cases took turns sharing their comments in front of the media pool, which was even larger than earlier, while many others of us milled around to debrief, hug, and take even more photos against the backdrop of the courthouse’s gleaming marble.

As I left the courthouse toward lunch and more debriefing with friends, I was struck, again, by how much has changed in the nearly 25 years I’ve been involved with LGBT advocacy. Front of mind, too, was how grateful I am to be a part of this work and to know, first-hand, the deep dedication of colleagues, including those no longer with us. It is these colleagues and so many others who, in ways both public and private, have helped move this nation to the point where we find ourselves now – as one that not only hears but also increasingly and forthrightly embraces gay people’s claim to dignity and equality under law.

Anticipating the Supreme Court Marriage Arguments – End of an Era


Posted on April 27th, 2015 by Katherine Franke

by Suzanne Goldberg

Hurtling down to DC in the Acela’s quiet car for the Supreme Court oral argument in the marriage cases tomorrow, I am overcome with the sense that this is an end-of-an-era trip of sorts.

By this, I am not suggesting that all of the serious legal issues and real-world harms experienced by lesbians, gay men, bisexuals, and transgender people will be resolved by the Court’s ruling.  Those continue in force, as we know from media coverage of hate crimes, school bullying, and workplace discrimination, among other issues.

Instead, what I mean is that exclusions of same-sex couples from marriage are the last vestige of old-school antigay laws.  These laws emerged in a different time, when disapproval of gay people was seen by many as part of the natural order rather than in tension with American commitments to equality.

Through a decades-long process of social and legal change, we are no longer in that place.  Instead, laws that impose extra burdens on gay people are now increasingly understood as aberrant and impermissible.

As a very recent example, consider the widespread outrage against Indiana’s recent law designed to allow discrimination against married same-sex couples.  Even a handful of years ago, that would have been difficult to imagine. Yet earlier this month, major corporations, the National College Athletic Association (NCAA), and civil rights and faith leaders around the state of Indiana and nationally came together to object – very publicly – to what they characterized as a “license to discriminate.”

So, when I think back to my trip to DC in 1995 for the oral arguments about a Colorado measure that forbid governments from protecting gay people against discrimination, or my trip in 2003 for the Texas “homosexual conduct” law arguments, or even two years ago for the arguments regarding the federal Defense of Marriage Act, it does feel like a very different time.

In each of those cases, the Supreme Court struck down a law that imposed a special burden on gay people and no others.  And each time, the Court rejected not only the governments’ proffered reasons for the discrimination but also the underlying idea that states could legally burden gay people based on popular dislike or disapproval.

The state laws that will be argued about on Tuesday morning – refusals to allow same-sex couples to marry and to recognize those couples’ valid marriages – are of a piece with those older laws by their singling out gay people, categorically, for legal harm.

For this reason, and because these laws are such outliers in a country where the majority of states – and people – oppose this type of blatant antigay discrimination, we are, as we should be, reaching the end of a time when governments can treat their gay constituents as strangers to the law.

This is the point the Supreme Court made when it struck down Colorado’s antigay law in 1996.  It is a point whose time has come for the remaining vestigial marriage bans nearly twenty years later.

It will be interesting to hear how the oral arguments engage this history.   And when the Court issues what is likely to be a favorable decision sometime before the end of June, it will be even more interesting,- and gratifying – to be part of a nation where these damaging laws will no longer be with us.

Suzanne Goldberg filed an amicus brief in the marriage cases, together with Henry Monaghan, on behalf of the Columbia Law School Sexuality and Gender Law Clinic.

3 Takeaways For Covering Sexual Assaults On Campus


Posted on April 6th, 2015 by Cindy Gao
 1 comment  

Originally published in the Columbia Journalism Review on April 6th, 2015.

By Suzanne Goldberg

In this time of media self-reflection about coverage of sexual assaults, it is worth remembering the consensus amidst the controversy over the Rolling Stone campus rape piece. Three points, in particular, come to mind in the wake of discussion. First, no one can credibly suggest today that concern about sexual assault and other gender-based misconduct on college campuses is unwarranted. Indeed, the issue until recently might best have been characterized as a dramatic case of underreporting, where serious problems existed but could not break into the national, or even the local, news. Second, the combination of media coverage, student activism, and a new generation of leadership in higher education and in politics has prompted an important increase in resources. Schools have expanded counseling and crisis center staff, strengthened their enforcement efforts, and enhanced prevention training. And finally, a new frame focused on creating a culture of prevention has enhanced traditional debates about who bears responsibility for preventing sexual assault. Even the name of the White House public awareness campaign – “It’s On Us” – powerfully makes the point, as do bystander intervention programs at colleges around the country. In a related dimension of culture change, more college administrators are speaking forthrightly about the issue than ever before. Take Back the Night marches and other events that have been a staple on many campuses dating back to the 1980s now receive high-level attention and promotion as part of Sexual Assault Awareness Month activities each April. The message of intolerance for sexual violence embraced by pockets of professional sports leagues is also starting to reverberate in some college sports. The N.C.A.A. and several other athletic conferences became partners in the It’s On Us campaign along with a growing number of athletics departments nationwide. These developments, along with new federal guidelines, have substantially transformed the environment from what it was years ago, when there were fewer resources dedicated to prevention or to investigation and discipline. In fact, considerable changes have continued even since the beginning of this academic year. To be sure, the rapid-fire growth in attention, resources, and pro-prevention messaging does not mean that the “story” is over. But taking meaningful account of these changes while also investigating ongoing problems will be important for media coverage going forward. Indeed, an important next question will be how higher education institutions continue to strengthen and refine their resources and disciplinary processes in light of implementation experience and new research. For prevention, especially, more needs to be known not only about the prevalence of sexual assault but also about how best to structure and strengthen campus-wide efforts. Here, we are not in a world of known solutions. While some research is underway and much more data will be forthcoming, the existing research is hardly definitive. Even the White House’s extended analysis of the academic literature reveals that much more can be done to determine which types of prevention interventions will be effective in higher education environments. And given the diversity of student bodies and campus cultures, this, too, will vary at institutions throughout the country. And while enhancing policies and qualifications for disciplinary proceeding participants is unquestionably important – for students on both sides of these cases – the issues in individual cases can be complex. Insuring fairness amidst this complexity remains among schools’ paramount responsibilities and among the subjects that will continue to attract media review. Yet one feature relevant to media coverage of campus discipline will remain relatively fixed. College and university administrations will not typically speak about individual cases, whether they’re asked about the evidence presented in the adjudication process or the factors that led to a particular disciplinary determination. This commitment not to comment remains even when students or others share their competing accounts of what occurred and whether a college or university handled a given case well or poorly. Why? One might reasonably think that higher education institutions, whose mission is to educate and to “produce knowledge,” would want to add their insights to these public conversations. The oft-cited reason is FERPA, the Federal Educational Records Privacy Act, which places constraints on information that schools can share about their students, including facts related to disciplinary charges and proceedings. But there is another important reason for schools not to discuss individual cases. Students who need help are less likely to seek out campus resources if they think their college or university might one day comment on them in public forums or to reporters. Students already face many unofficial barriers to seeking out a campus rape crisis center or deciding to file a disciplinary complaint. Fears that their classmates or professors will find out what happened, or worry that information about their experience will “go public” on social media, are stoked by the stubborn persistence of stigma associated with sexual violence.

VAWA@20: Reflecting, Re-imagining & Looking Forward


Posted on January 5th, 2015 by Cindy Gao
 3 comments  

goldscheidBy Julie Goldscheid

The year 2014 marked the 20th anniversary of the federal Violence Against Women Act (VAWA).  That milestone presents an opportunity to critically reflect on current gender-violence policy, and to build on shared critiques to flesh out an alternative agenda.  In that spirit, two new resources offer inspiration for mobilization and advocacy.  First, the City University of New York (CUNY) Law Review’s Footnote Forum has published an online collection of 15 short essays “re-imagining” VAWA in service of progressive reform.  The essays are based in an intersectional understanding of the ways in which various forms of inequality create and sustain violence.  They draw on critiques grounded in the movement against mass criminalization and intrusive state intervention in the lives of poor people, as well as in work for immigrant rights, economic rights, LGBTQ equality, disability rights, racial justice, and human rights.  The multi-disciplinary essays, plus an introduction that summarizes the works and draws out themes, can be found here: http://www.cunylawreview.org/category/vawa/.

Similarly, the conversation held at CUNY Law School on November 13, 2014, “VAWA@20:  Reflecting, Re-imagining & Looking Forward,” with Professor Kimberlé Crenshaw, Sharon Stapel and Sujata Warrier, and moderated by Professor Julie Goldscheid, is now available on line for those who missed the event: https://www.youtube.com/watch?v=lJ60BSodHaA.  The conversation explored similar themes to those elaborated in the essay collection.  Speakers reflected on how lessons from the last 20 years can inform policies and programs that promote gender, racial and other forms of equality, while working to end intimate partner and other forms of violence.

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