Iranian President Mahmoud Ahmadinejad is back in New York for the annual fall gathering of heads of state at the U.N. General Assembly meeting.  As expected, his remarks to the body on Wednesday provoked outrage, walkouts, and general condemnation by various states and the media.  If all you did was read the press reports about it, you’d think that in his speech he once again denied the fact of the holocaust and threatened to wipe Israel off the map.  In fact, if you watch the speech, or read it, it’s much less inflammatory than the media reported, and in some respects merely echoes the condemnation of Israel’s invasion of Gaza contained in the report issued by the UN Human Rights Council Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone.  It’s interesting how any criticism of Israel is read as anti-semetic in this setting.

I mention Ahmadinejad’s speech because it’s hard to believe it’s been two years since he came to Columbia University as part of our World Leaders Forum.  As you may recall, Columbia University President Lee Bollinger “introduced” President Ahmadinejad with an anticipatory condemnation of what the Iranian President might say, calling him “a petty and cruel dictator,” and closed with the charge that “I doubt that you will have the intellectual courage to answer these questions.”  The tone and content of the introduction drove some members of the University faculty to bring to the full arts and sciences faculty a motion criticizing Bollinger for violating core principles of academic freedom.  See more here.

What garnered the greatest attention from President Ahmadinejad’s talk, however, were his remarks in response to a question about the mis-treatment of women and homosexuals in Iran.  He declared: “women in Iran enjoy the highest levels of freedom,” and then asserted that “In Iran we don’t have homosexuals like you do in your country.  We do not have this phenomenon. I don’t know who’s told you that we have it.”  The media frenzy in response included a New Yorker Magazine cover tying the Iranian President to Larry Craig.

Lesbian and gay human rights organizations the world over immediately condemned these remarks as ignorant and hateful.  “Of course there are gay people in Iran – we are everywhere!” they proclaimed.   But Ahmadinejad’s remarks and the responses they received demand much more complex thinking about the role of lesbian and gay human rights in global politics.  For this reason I’ve written a short paper trying to offer one such thicker reading of what happened when President Ahmadinejad came to Columbia.   I’m giving it as part of our Feminist Theory Workshop series next Tuesday, and you can read the draft here.  But it concludes:

Once we recognize that the normative homosexuality that undergirds human rights discourse is not merely a “fact” in the world, but more of complex value, it becomes easier to see how the state’s embrace of the sexual citizenship of these new human rights holders risks rendering more vulnerable a range of identities and policies that have refused to conform to state endorsed normative homo- or hetero- sexuality.  This is true both for queers whose desires refuse to orient themselves ineluctably toward marriage, or Muslims with sexual norms and practices of polyamory, homosociality, and modesty.  Under this scenario, newly patriotized gay subjects find themselves implicated, whether they want to or not, in the construction and identification of the “enemies of the state.”   Witness the ingenious strategy of StandWithUs and the Israeli Foreign Ministry to appeal to gay rights supporters in their efforts to shore up Israel’s foreign policy with respect to Palestine and Iran.

So does this discussion leave us helpless in the face of a critique that eschews both the epistemic violence of securing human rights for global gay subjects on the one hand, and state politics as cynical, manipulative, instrumental and tragic on the other?  To be sure, this is where some find themselves.  But we can do better than that.  Critical awareness of the state’s role as now-fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

The moral atrophy that has kept us from recognizing the tragedy of these strategies and outcomes is where more critical, and indeed discomfiting, work needs to be done.  By theorists and activists alike.  This means rethinking the horizon of success in this work.  “Victory” in the sense of gaining the state as a partner, rather than an adversary, in the struggle to recognize and defend LGBT rights ought to set off a trip wire that ignites a new set of strategies and politics.  This must necessarily include a deliberate effort to counteract, if not sabotage, the pull of the state to muster rights-based movements into its larger governance projects, accompanied by an affirmative resistence to conceptions of citizenship that figure nationality by and through the creation of a constitutive other who resides in the state’s and human right’s outside.

The White House just announced that it has nominated Georgetown Law Center’s Professor Chai Feldblum as a Commissioner to the Equal Employment Opportunity Commission.  This is huge not only because Feldblum would be the first out lesbian or gay person on the EEOC (which, as Nan Hunter points out will gain particular significance when/if ENDA is enacted), but more generally because Feldblum is among the smartest and most experienced lawyers working on the administrative interpretation and enforcement of anti-discrimination laws.

Chai was at the center of the policy team that aided Congress and the first Bush Administration in the drafting of the Americans with Disabilities Act and its accompanying regulations and implementation, played a crucial role in the writing of the Ryan White CARE Act, has developed legal and legislative strategies to expand anti-discrimination protections for transgendered people, and has been a key player in the many-year effort to gain passage of the Employment Non-Discrimination Act which could add sexual orientation and gender identity protections to federal non-discrimination laws.   Feldblum has fought efforts to remove the gender identity provisions from ENDA, a strategy urged by some, including Rep. Barney Frank, to gain broader support for the legislation.

Not incidentally, after serving as Legislative Counsel to the ACLU’s AIDS Project, Feldblum founded Georgetown’s Federal Legislation and Administrative Clinic, a program designed to train students to become legislative lawyers.  It is hard to imagine a more qualified appointment to the EEOC.

It’s also a delight to see a White House Press Release that uses the words lesbian, gay, bisexual and transgender as something other than an epithet.

As many will recall, the gold medal performance in the 800 meter track competition by Caster Semenya, a South African athlete, last month at the Berlin World Championships, sparked a “sex panic” when some observers questioned Semenya’s “real” sex.  Well, things have turned a troubling corner in this matter this week.  An Australian newspaper reported today that Semenya’s “gender verification” test results revealed that she failed the female sex test.   That is to say, the results are reported to show that her body does not fall within the prescribed definition of a woman for competitive international sports.

I put the issue this way for a reason – failed the female sex test - because the International Association of Athletics Federations’s (IAAF) gender verification policy applies only to women’s events.   Their testing is not designed to determine an athlete’s “real” sex, but rather seeks to discover whether a competitor such as Semenya is “enjoying the benefits of natural testosterone predominance normally seen in a male.”   In essence, to pass the test the competitor must show “female levels of testosterone” (my term).

Mind you, not all athletes in women’s track meets have their testosterone levels tested.  The IAAF ceased routine gender verification testing in its events in 1991, and now  forces a competitor to undergo such testing only when a challenge is brought by another competitor or a “‘suspicion’ is raised as to an athletes’ gender“.  In this case, Semenya looked “too masculine” and a suspicion was raised.  She tried to fix this problem last week when she underwent a makeover to “feminize” her look and posed as a covergirl for South Africa’s You Magazine.  But this performance came too late.  Suspicions had already been raised.

In the end, the nub of the matter, really, was that she didn’t run like a girl – she ran too fast to be a real female.   It would have been highly unlikely that “gender verification testing” would have been ordered if she’d finished with the back of the pack.  In this sense, Semenya shares something with Oscar Pistorius who, aided by two prosthetic legs, runs too fast to be human and was disqualified by the IAAF from competing in the Olympics.

Castor Semenya has reportedly gone into hiding now that the results of her “gender verification test” have been made public.  Her athletic career has likely ended (unless she is willing to undergo transgender surgery, in which case, ironically, the IAAF will allow her to compete) and the public humiliation and ridicule she may suffer for being an “hermaphrodite” and not a “real woman” are likely to be crushing.  Recall that when Santhi Soundarajan underwent a similar public inquisition several years ago she attempted suicide.

We would be all well advised to pull Donna Haraway’s Cyborg Manifesto off the shelf for a re-read.  Haraway’s groundbreaking deployment of the “cyborg” challenged naturalist and essentialist notions of “real” women and “real” men by exposing the ways that things considered natural, like human bodies, are not, but are constructed by our ideas about them.  These legally and culturally enforced notions of normality are enforced even in a case such as Semenya’s whose body and capacities are absolutely part of the natural variation of the species, but who is rendered unnatural and abnormal by virtue of a test that arbitrarily locates her outside the domain of “real women”.

To those of you who say: “I don’t think it’s fair that someone with such high testosterone levels be allowed to compete in the women’s track events.  What’s to stop men from competing in these events and winning all of them?”  I have the following answer: Then don’t call them women’s and men’s events, define the events by testosterone levels – those with levels up to some ceiling run in one event, those with higher levels run in another event.  Collapsing “female” and “male” into testosterone levels is both bad science and bad social policy.  Sexual categories are, after all, social and cultural categories, not biological ones.

We all have a stake in Caster Semenya’s ongoing treatment.  That suspicions about how she looks can lead to having her identity as a “real” woman publically revoked communicates a clear message to all of us who consider ourselves female:  Don’t talk too loud, don’t throw a ball too well, and don’t look too comportable in pants or walk with a “masculine gate.”   And whatever you do, don’t look too triumphant when you run really fast.  The gender police are out there looking for you.

One last thing: for accurate information on the definitions of, incidence of, and “treatments” for a range of intersex conditions, go to the Intersex Society of North America.

The last several weeks have been busy ones in the battle for marriage equality.  The governors of Maine and New Hampshire signed laws that allowed same sex couples to marry.  California’s Supreme Court upheld the constitutionality of Proposition 8, and we expected the New York State legislature to have a darn good chance of passing a marriage equality bill this session since the measure had already passed the Assembly and was working its way through the Senate – but then things all went haywire in Albany.  All of these efforts were plotted, led, coordinated and largely controlled by lesbian and gay litigation and policy organizations.  GLAD ran the plays in New England, and Lambda Legal, the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, and the National Center for Lesbian Rights all played key roles in picking the plaintiffs, picking the state courts, and picking the state houses where the battles would be fought from Iowa to California to New York.  Almost without exception, the struggle and the strategy to secure marriage rights for same sex couples have been orchestrated by organizations that “belong to” the lesbian and gay community. These groups have held the view that it was best to take a state-by-state approach, working through state courts and state legislatures and staying clear of any federal court or congressional effort to secure marriage rights.

The whole thing took an odd turn the other day however when a newly formed group innocuously called the American Foundation for Equal Rights announced that it had filed a complaint in federal court in northern California challenging the constitutionality of California’s law restricting marriage to different sex couples.   AFER held a press conference on May 27th in which it produced two couples – one lesbian, the other gay – and two high powered and famous lawyers, Ted Olson and David Boies – both straight – who had filed a lawsuit in federal court the week before alleging that the California law violated the U.S. Constitution’s rights to Equal Protection and Substantive Due Process.  The complaint in the case is available here, other papers here.  It appears that AFER was formed exclusively or at least largely for the purpose of bringing this lawsuit.  It’s board, which it revealed in a press release issued several days after the announcement of the lawsuit, is made up, in part, of prominent Los Angeles movie business types/good guys -some of them straight, such as Rob Reiner and his wife Michelle Singer Reiner.

At the AFER press conference Olson and Boies stated emphatically that the California marriage/domestic partnership system established a separate and unequal regime that discriminated against lesbian and gay couples and denied them “the most fundamental of rights,” the right to marry the person you love.  They noted how they had been on the opposite sides of important litigation – most notably Bush v. Gore – and while Olson was a conservative and Boies a liberal, they both agreed that the U.S. Constitution secures same sex couples the right to marry, and analogized the constitutional harm here to that recognized by the Supreme Court in Loving v. Virginia.

The “mainstream” gay groups were outraged at the filing of this lawsuit, and immediately issued a statement of their own warning that this was not the right time to bring a marriage equality suit in federal court with the aim of taking it all the way to the Supreme Court.  Instead, they argued, the California problem should be resolved at the ballot box next November, and the federal marriage issues should be addressed carefully in GLAD’s “thoughtfully constructed” lawsuit challenging the federal Defense of Marriage Act.

Matt Coles, director of the ACLU’s LGBT Project, commented sarcastically in the New York Times : “It’s not something that didn’t occur to us. Federal court? Wow. Never thought of that.”

So what should we make of this new organization and its celebrity lawyers jumping into this issue with a risky strategy all Johnny Come Lately?  It’s not like straight people can’t understand the issue – after all, the lead lawyer at Lambda Legal handling the marriage litigation is heterosexual, and so was the lawyer Lambda hired to argue the issue before the Iowa Supreme Court.  Surely having two VERY prominent and gifted lawyers representing both ends of the political spectrum arguing the AFER case will impress the federal judge to whom the case was assigned, not to mention the Justices of the Supreme Court, who know them well (see below).

So often the lgbt litigation team worries about a case being filed by some inexperienced solo-practitioner who happened to have clients walk in the door and naively filed a case making all the wrong arguments and being way over their heads.  That’s not the issue here.  Olson and Boies aren’t naive, they just came to a different strategic judgment about the wisdom of going into federal court on this issue.

On the other hand, it’s hard to miss the odor of hubris that emanated from the AFER press conference and the dynamic duo’s subsequent discussion of the case in the press.  It’s almost like they’ve taken the view that the lgbt community’s lawyers got the issue started and now it’s time for the serious lawyers to get involved.  Whatever you might say about the arguments made by the movement lawyers – and I’ve been plenty critical of their decisions – you cannot deny that we’ve got very smart and effective lawyers and lawyering at Lambda, the ACLU, GLAD and NCLR.   Boies and Olson’s decision to get in now, and to get in in a way that not only ignores the work of movement lawyers, but flies in the face of their collective judgment, leaves me with a very bad taste.  Their comments betray little sensitivity to the fact that these cases are not only about the two couples they conjured up who want to marry, and are not only about the rightness of their analysis of the rights secured by the Constitution.

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.  “I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back.  But this issue isn’t about the Boies-Olson love-o-meter, it’s about a moment that has grown out of a political movement and that has  a critical ethical relationship to that movement.

What gets me about this lawsuit and the Boies/Olson part of it is the way in which it’s a win/win for them, possibly at the lgbt community’s expense.   Yea, they might win – and then they look like the big straight daddies coming in to save the lgbt community from the ill- advised judgment of it’s own less experienced lawyers.  And if they lose, well, they look all the better for taking on a difficult cause.

Ted and Lady Olson's Wedding

There is no downside for them.  Instead of showing up all Dudley Do-Right to save the day, grandstanding before the cameras about how righteous they are, they could work behind the scenes to persuade their peers, left and right, on this issue.  What I’d really like to see them do is “suspend” their own marriages and urge straight people to go on matrimonial strike until same sex couples gain full equality.  Indeed, both of them seem to LOVE getting married. Olson has been married four times.  His third wife Barbara, as most of us know, was a conservative commentator who was killed when she was a passenger on the hijacked American Airlines Flight 77 that crashed into the Pentagon on September 11, 2001.  He married his fourth wife, Lady Booth, a tax attorney who donated to the Obama campaign, on October 21, 2006 in the presence of many Washington luminaries, including Justices Sandra Day O’Connor and Anthony Kennedy.

Boies has been married three times.  He married his high school sweetheart in college. While studying law at Northwestern after they had divorced, he fell in love with a fellow law student,  Judith Daynard Fillman, who happened to be the wife of one of the law faculty, and both of them transferred to east coast law schools, Judith to Columbia (’65) and David to Yale (’66) and they married three years later.  They later divorced, but Judith Boies remains a partner in the Bois law firm.  He married his third wife, Mary McInnis, in 1982.

I’m the last person to throw stones at people who have fallen in love and committed to more than one person in their adult lives, as these two men have.  But I have little tolerance for straight people who refuse to see or distance themselves from the financial, social and personal value they have gotten out of the institution of marriage as an exclusive club only they can join.

Sure, get involved in the marriage equality movement.  Lend us your expertise, your legal wisdom and your firm and professional resources.  But you can’t have it both ways – marrying early and often and professing a principled objection to the exclusion the institution represents.

Kinda makes you wonder what other clubs they belong to.

Both during and after the City Bar Association panel I participated in a few weeks ago on the future of same sex marriage, I’ve gotten some push back for suggesting that we consider and evaluate the merits and risks of various constitutional arguments that have been made in the cases challenging the exclusion of same sex couples from the legal institution of marriage. At the panel, I commented that simply because a legal argument is available to us doesn’t mean we should make it. The availability of the argument merely inaugurates, rather than concludes the political discussion about why and how we should win the right to marry.

What does it mean to have an argument available and what arguments were available in the same sex marriage cases? Availability means that it has some level of plausibility – that there is some body of case law to which the advocates in the case can turn that can form a non-specious basis of having the marriage laws overturned. In the Hawaii case in 1993, for instance, the case was won on a sex discrimination argument – that barring same sex couples from marrying amounted to a form of sex discrimination in so far as the state’s marriage law allowed you to marry one, but not another, sex (men can only marry women, women can only marry men). Professor Andrew Koppelman¹ has been making this argument for years, and Professor Edward Stein², among others, has offered a sustained critique of Koppelman’s sex discrimination argument.

Most of the cases since then have stressed other arguments – Fundamental Right to Marry, Dignity and Equal Protection. The Fundamental Right argument asserts that there is a fundamental right for all people to marriage, and that the state better have a compelling, non-discriminatory reason for denying access to marriage licenses to same sex couples. I’ve blogged previously on my problems with this argument. The Dignity argument maintains that refusing to confer the blessings of civil marriage upon same sex couples confers a dignity harm upon them, by refusing to acknowledge that same sex unions are entitled to the same dignity and respect as different sex unions. I’ve blogged previously about my concerns with this argument as well. The Equal Protection argument, which won the day in Iowa, claims that an equality norm has been violated when the state discriminates on the basis of sexual orientation in access to marriage licenses. Read here for why I liked the Iowa Supreme Court’s equality argument.

Reasonable minds on the same side of an issue can disagree about the relative merits or dangers of pursuing any or all of these approaches to gaining marriage rights for same sex couples. Yet, as one audience member at the City Bar panel asked: “if we might win with the dignity argument, why shouldn’t we make it?”

Law reform litigation is not about winning at any cost. These cases are part of a larger set of political strategies that play a key role in a political movement. Each of these arguments, if successful, enable or extinguish subsequent political action in complex ways. The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community. The equality argument makes no claim about the virtues of the institution of marriage, but merely states that if the state is going to be in the marriage business it must be so fairly.

I find it odd that the lot of us who have sought to have a critical discussion about how to argue these cases are being branded as traitors and are met with hostility from some of the lawyers and activists in the marriage equality movement. This debate is healthy and politically necessary. In the early 1970s there was no unanimity as to whether reproductive rights in general, and abortion rights in particular, should be argued as a matter of sex equality, liberty, privacy, bodily integrity, decisional autonomy or dignity. Harry Blackmun was able to get 4 other votes for privacy in Roe v. Wade, but most agree today that privacy provided a fragile and unsatisfactory hook upon which to hang this important issue. Poor women have not been helped by privacy, and over time the privacy right for all women secured in Roe has been pretty porous.

Similarly, should we have won the Lawrence v. Texas sodomy law case on privacy, equal protection, liberty or fundamental rights grounds? What about a notion of sexual citizenship? Wouldn’t finding that sodomy laws violate a notion of sexual citizenship be a victory not only for sexually non-normative people such as lesbians and gay men, but also potentially shore up reproductive rights as well?

These are important arguments to keep having among all of us on the same team.

1. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994)
2. Edward Stein, Evaluating the Sex-Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001)

We learned late last week that David Souter plans to step down from the Supreme Court at the end of this term. Nominated by President George H. W. Bush in July of 1990 on the expectation that he would be a dependable conservative vote on the Court, Justice Souter has instead marked his time on the Supreme Court as a reliable member of the Court’s left. Not only has his judicial ideology departed from that which was expected of him, but the Court’s center has shifted markedly to the right, making his rather moderate views seem “left-ish” in comparison. Rumors of Justice Souter’s resignation set off the usual parlor games among bloggers and law professors alike. Rather than weigh in on who I think is likely to replace Justice Souter, a little back story on his nomination in 1990 may put the current nominatory climate into some perspective. In the intervening almost 20 years since David Souter was nominated to the U.S. Supreme Court by President Bush the First, much has changed. Let’s hope that the issue of the nominee’s personal life is one of them.

In July of 1990, President Bush nominated David Souter to fill William Brennan’s seat on the U.S. Supreme Court. At the time, I was the Executive Director of the National Lawyers Guild – the national association of progressive lawyers and legal workers. It fell to us and the rest of the “critical left” to formulate an opinion about the Souter nomination and, most likely, to oppose it – he was, after all, being nominated by a republican President.

The NLG played a key role in the meetings that were immediately convened in Washington to discuss strategy. Of the national organizations that attended these gatherings – the ACLU, the Alliance for Justice, People for the American Way, the Center for Constitutional Rights, NOW, etc. – the Guild was the only membership organization that had lawyers in New Hampshire who knew Souter and his reputation. Everyone else was, “who?” We worked up a briefing paper for the first meeting, and the only “dirt” we could find on him was his aggressive prosecution when he was the New Hampshire Attorney General of a couple of hippies who had covered up with tape the “Live Free Or Die” slogan on the license plates on their van because they disagreed with the state’s motto. Otherwise, our New Hampshire members told us that he was a very quiet, ascetic man who had never married and preferred books to people.

When we began to discuss possible strategies for derailing the nomination – of course we had to since Bush had nominated him – the Executive Director of one of the aforementioned organizations declared: “Maybe he’s gay, we can use that on him.” The confirmation fight of Robert Bork was still fresh in our minds – having occurred only 3 years earlier – so why not “Bork him” with homosexuality?

Pat Maher, who was then the Executive Director of the Center for Constitutional Rights, looked over at me and we exchanged the “are you going to take this one, or should I?”-look. I stood up and made clear that “queer-baiting” the nominee was not an acceptable strategy. There was some “why not?” kind of push back we got from several people at the meeting – “maybe we could just float the suggestion informally, and let it circulate for others to pick up and run with?” suggested one person. “We have so little to work with.” After all, “outing” as a political tactic used by gay people against closeted gay people had just started to get public attention. Six months earlier, gay activists had “outed” Mark Hatfield, a Republican United States Senator from Oregon, because he supported legislation initiated by Jesse Helms. In March of 1990, recently deceased Malcolm Forbes was outed by Michelangelo Signorile. Why not David Souter too?

Pat and I took turns answering the homophobic suggestions that we exploit the suggestion of Souter’s presumed gay-ness, turning back the creative ways we could “out him” as a way to undermine his viability as a member of the Supreme Court. We had no actual evidence that Souter was gay, rather he was an unmarried adult man who at the time still lived with his mother. He had not taken public positions that were anti-gay or was otherwise duplicitous in his public and private life – as was Hatfield and today’s Larry Craig. Merely outing him, or suggesting that he might be gay, was capitalizing on the homophobia otherwise circulating in society and Washington. Not acceptable.

Pat and I won the day – we didn’t go with the “outing” strategy – instead we opted for the “stealth nominee” idea (we coined the term).

Obama’s short list, or at least the one circulating in the parlors of law schools and Washington, contains several candidates with private lives like Souter’s: neither Elena Kagen nor Janet Napolitano have been married. But get this: Kathleen Sullivan, former dean of the Stanford Law School and Pam Karlan a law professor also at Stanford, both often mentioned for the Court, are actually out lesbians. You can be sure that the republican members of Congress and the advocacy groups lining up to oppose any Obama appointee are strategizing how to raise the “gay” issue with Kagen, Napolitano and Sullivan (the conservative blogosphere is already well down that road). 2009 isn’t 1990 – and the mere suggestion of homosexuality doesn’t have the same unseemly undermining effect that it did back then. But it ain’t nothing – like not paying your taxes seems to be now. (Remember Zoe Baird?).

So when queer-baiting these nominees is inevitably suggested let’s hope there’s someone in the room who stands up and urges a different tactic. Just as some Republicans have come to appreciate how their opposition to same sex marriage may be hurting the party, or so says the New York Times, queer-baiting Supreme Court nominees may be counterproductive for them as well – more so today than it was 20 years ago when David Souter’s name, and life, came before the Senate Judiciary Committee.

by Shilpi Agarwal:

On April 10, the Columbia Journal of Gender and Law held its third triennial symposium entitled: “Gender on the Frontiers: Confronting Intersectionalities.” The goal for the symposium was to explore some of the many and varied points of intersection between gender and sexuality on one hand, and other characteristics that could have a marginalizing effect on the other. What emerged through the day’s interdisciplinary presentations and discussions was a picture of a far more a complex landscape, in which gender and sexuality evolve and collide with other formative internal and external forces. The day’s presentations illuminated many of the ways that gender and sexuality are inextricably tied to one another, and also to the roles we play in our families, ethnic enclaves, communities, activist groups, and other categories that outside observers might place any of us into, and that the law is often a frustratingly blunt tool that often fails to address these nuances and complexities that define our life experiences.

In our first panel, Women Crossing Borders, the panelists explored how a woman’s familial relationships may be impacted by her immigration status and her interaction with immigration laws. It became clear from the discussion that in an increasingly globalized system, outdated immigration rules should perhaps be updated or reformulated to better accommodate evolving structural and normative concepts of the family. Our next set of presentations, Traditional Institutions through a Non-Traditional Lens, addressed some of the dilemmas that arise when institutions such as juvenile and family court, the juvenile detention system, and the Swedish social benefits system are slow to adapt to progress in norms about sexuality and changes in family structures. Presenters incorporated extensive social science research as well as practical legal solutions. The third discussion, “Real Queer Advocacy,” highlighted some of the concrete limitations of rights-based advocacy and litigation, exploring how the strategies used by the gay rights movement have been a less than ideal way of capturing unique transgender rights struggles and ineffective in reaching out to communities of color. The fourth panel, a particularly interdisciplinary set of presentations, touched upon the idea of bodies as they are envisioned by law: as a unique point of interest in abortion law, as a way to make particular women more visible to the state through public healthcare regulation, and as a manifestation of Islamic fatwa’s particularly harsh treatment of gay men. And finally, our last panel dealt with unique and varied situations in which women find themselves on the wrong side of the law, whether through social forces that pushed them there or because the laws themselves are unjust.

A particular highlight of the day’s events was the lunchtime keynote by Professor Dean Spade. Dean challenged the traditional strategies of progressive lawyers and activists, arguing that efforts that result in only superficial changes to an often overwhelmingly marginalizing system do no more than create “window dressing” that, more than anything, serve to reinforce the status quo. This was, I think, a point of particular interest to those of us who are embarking on our careers with aspirations of becoming advocates for those who continue to be overlooked or underrepresented within traditional state and community institutions, and often even within the communities of progressive lawyers and academics that we’ve gained access to at Columbia. Dean’s admonishment to radicalize our legal practice was provocative and a reminder to be critical even of progressive movements and to question whether we are excluding those who may need the most help. We must be cognizant of whether our efforts are truly making things better, or if instead we are actually contributing to the legitimization of the very system that we are trying to challenge.

As a student in an environment where it feels almost stiflingly necessary to get good grades and the right clerkship, fellowship, or job, I felt compelled by this speech to question the choices I am making and the extent to which they will actually contribute to my ultimate goals. It is important for all of us to reflect and evaluate how we have used the opportunities that we have worked for and have been privileged enough to receive, and to ask ourselves whether we can truly say that we are making progress towards finding workable solutions to the complex problems and challenges presented in this conference.

Ultimately, I think the symposium was a huge success, and I am very proud of the work that my fellow editors (David Fisher, Nell Beekman, and Rosalie Fazio) and I did. However, as worthwhile as having these discussions is, my hope is that those who were a part of part of that day will go forward with a new understanding of how nuanced gender and sexuality identities can be, and how we, as advocates, must feel responsible in taking these complexities into account in everything we do. Hopefully, we can all have the courage to be as boldly inclusive, and perhaps at times revolutionary, in our words and actions as these situations call upon us to become.

Shilpi Agarwal is a 3rd-year law student and the outgoing Symposium Editor on the Columbia Journal of Gender and Law. After graduation, she will be clerking for a federal district court judge in her hometown of Houston, Texas.

Khiara Bridges, the Center for Reproductive Rights – Columbia Law School Fellow, presented her paper for our last colloquium of the semester entitled “Capturing the Judiciary: Carhart and the Undue Burden Standard.”  Bridges explains the problematic assumptions and questionable logic behind the “undue burden” standard as promulgated by the U.S. Supreme Court in Carhart.  While the overarching question remained whether the state legislation “unduly burdened” the abortion right as located by Roe v. Wade, the Court in Carhart found both that the state had a legitimate interest in “protecting the life of the fetus that may become a child,” and that the state had not unduly burdened the abortion right because the law “express[ed] respect for the dignity of human life.”  Thus, the state’s action would have to pose a substantial obstacle to the abortion right for it to be considered unconstitutional.    

Bridges questioned the specific meaning of “human life” as articulated, implicitly, by the Court, and delineated two definitions: a biological, protozaic “life,” or a “life” that “demands an emotional response” and “our profound respect,” and upon termination, “invokes grief, anguish, [and] sorrow.”  The Court adheres to the latter understanding of “life.”  Bridges calls this the morally weighted life, and she shows how this notion of “life” has been embedded by the Court into the standard, perverting the task it was supposed to do, and in a sense, stacking the deck for future courts who must make a decision using the undue burden standard. 

Bridges advocates for a morally agnostic undue burden standard, one in which the moral status of the fetus is not known and not definitively answered for the woman contemplating abortion.  The standard should not be committed to a particular view of the fetus; the state should foster a moral pluralism which allows for any number of answers to the question whether a fetus constitutes a “life.”  Courts would then ask whether the state’s action refrains from imposing upon a woman the state’s conception of fetal life, or whether it clears a space for contemplation of the moral status of the fetus.  She outlines a methodology for exercising the morally agnostic undue burden standard, looking at both the purpose and effect of the state’s regulation, and ultimately asking whether the legislation has succeeded in maintaining a morally pluralistic space. 

Professor Ariela Dubler gave great feedback, emphasizing the strengths of the paper, especially in Bridges’ intuitive ability to anticipate counterarguments and grapple with the weakness of the Carhart standard, and asked both methodological and political/doctrinal questions, searching for ways that the morally agnostic undue burden standard could move the discussion away from a stark pro-choice vs. pro-life perspective.  Bridges responded by clarifying that the morally agnostic undue burden standard should provide a liminal space between these two extremes, so long as the state refrains from giving one message (usually a pro-life message), but instead allows for a plurality of messages; one gets to this point through an understanding of the “undue burden” standard as morally agnostic, or neutral.   

Bridges paper is extremely creative and provocative.  It pushed me to consider whether morality has a place at all in the law, and if so, where it does and why.  Courts are often confounded when confronted with a clash between rights and values – should values be taken into consideration, should they be given legitimacy, even if they directly contradict one another? Scholars and advocates alike have struggled to find a system or methodology that can lead courts to decisions that reconcile these clashes.  Bridges has provided us with one insightful way to think about this within the context of reproductive rights and the undue burden standard.    

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.  

The arguments before the California Supreme Court raised many hard questions, but one that particularly intrigued me was one to which the Justices frequently returned: What did Proposition 8 really do, after all?  Did it overturn the Marriage Cases – the California Supreme Court case that found it unconstitutional for the State of California to limit the institution of marriage to one man and one woman, and in so doing held that sexual orientation was a suspect classification?  All the parties agree that it didn’t – at least not entirely.   But what did Prop 8 do, and how did it impact the rights of same sex couples that were secured in the Marriage Cases?

The formal question presented in the Prop 8 case was whether Proposition 8 amended or revised the California Constitution, but the question that interested the Court most was whether, and if so how, Proposition 8 diluted or diminished the rights of same sex couples in so far as California provided formal legal equality to same sex couples when it created Civil Unions, and Prop 8 did not alter the suspect class status granted to lgbt people in the Marriage Cases.

Chief Justice Ronald George started off the questioning on this very issue.  He asked Shannon Minter why he maintained that all or most of the holdings of the Marriage Cases were superseded by Prop 8.  The Chief Justice returned to this question almost 3 hours later when Minter was arguing in rebuttal to Kenneth Starr’s argument.  The Chief Justice put to Minter:  “I find it remarkable that you are conceding far greater impact and effect of Proposition 8 in removing rights extended to same-sex couples than did Mr. Starr [who gave] it a far more limited interpretation … eliminating the designation, eliminating the nomenclature but not disturbing the Court’s recognition of very important rights [for same sex couples].”   Justice Joyce Kennard pressed the same issue to Minter:  “What Prop 8 did was take away the label of marriage and its applicability to same sex couples.  But left in tact the Court’s holding in the Marriage Cases … and the majority constitutionalized the [civil union] aspect of the case.  Is it still your view that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

These are the hard questions for the challengers of the constitutionality of Proposition 8:  If same sex couples have all of the same formal rights and benefits of marriage when they become civilly union’ed – did Proposition 8 merely deny them the “nomenclature,” the “designation,” the “name,” the form of marriage?  If so, what kind of constitutional harm is that?  And let’s be clear, the answer to the question is as much a political/ethical one as it is a formal/legal one.  By that I mean, we’re in the domain of symbolism and cultural meaning here in demarking the salience and weight of the injury that is Prop 8.

So is marriage more than a word?  Did the justices of the California Supreme Court simply not “get it” when they asked why Prop 8 didn’t just deny same sex couples a word, a label, the nomenclature of marriage?  The plaintiffs in the Prop 8 case insisted that the fight is not simply over a word.  It is a fight for dignity and respect.  They claim and indeed insist that denying the label marriage to the unions of same sex couples is an insult, a degradation, and a dignity harm.  Yet to do so is to take for granted that marriage is something sacred, something to be honored and something that dignifies those who earn its blessings.  It is to argue from within a normative universe whose values you take for granted and embrace.  And it is to base your legal arguments on the legitimacy of those values – the recognition of the harm alleged in the Prop 8 case depends on it.

Two alternatives to this position are possible.  One more legal, the other more political.  The first is, as Nan Hunter pointed out in her blog, that the Marriage Cases could require that the Court deny the nomenclature of marriage altogether since it is no longer available as a Constitutional matter to same sex couples after the passage of Prop 8.  As Hunter notes, the Court held in the Marriage Cases:

“Whether or not the name ‘marriage,’ in the abstract, is considered a core element” of the right to marry, “one of the core elements … is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature” of the family relationships of heterosexual partners. By reserving the traditional, well-understood term “marriage” only for straight couples, the court said, it violated the equal protection rights of same-sex couples.

Now that California’s voters apparently have taken the word “marriage” off the table as an option for both kinds of relationship categories, the court has the opening to do something bolder and certainly more interesting than ruling that same-sex couples must be allowed to marry. The court could rule that California has to come up with some other label and treat both heterosexual and same-sex couples the same.  In other words, the official label for the legal status must be the same for everyone, whatever that label is.

On this reading, Justices George and Kennard’s focus on the “mere nomenclature” of marriage as a label or a name was presaging a decision in which the mere label would be denied all couples, not just same sex couples.  If, as their questions implied, it’s not such a big deal to be civil union’ed instead of married since the rights are the same, that should hold true for straight and gay couples.   The gay community would be blamed (along with the California Supreme Court) for having destroyed the institution of marriage, when in fact it was the proponents of Prop 8 who accomplished this mean feat.  That sort of outcome would be legally sound, but politically explosive, surely.

The more likely outcome of the case is that a majority of the Court (a larger majority than in the Marriage Cases) will hold that Prop 8 merely amended, not revised, the California Constitution, because the equality rights of the plaintiffs were not substantially diluted by the language of the proposition, rather they were merely denied the label, a word.  This outcome would present us with a political challenge that some, though I’m afraid not most, of the lgbt community might seize – taking a step outside the universe that reveres marriage.   In this scenario, the disestablishment of marriage would not be the consolation prize, but rather the affirmative goal of our political and legal projects.  I’ve blogged before about the virtues of disestablishmentarianism when it comes to marriage.  On this view, “marriage equality” is a thin conception of justice, indeed.

Here’s my worry: we lose the Prop 8 case and then the lgbt community raises and spends $50 million to pass a proposition repealing Prop 8 next November.  As Richard Kim groaned at a forum at which we both spoke in December, “$50 million for a word!”  In these times, that’s an awful lot of money spent to gain the jurisdiction of a word that leaves out many, many people in our community who are in need of health insurance and other forms of security.  Lisa Duggan put it well at the same forum: “When you get laid off, marriage won’t help you.”

As always, events on the ground are outpacing any of the strategists’ ability to control them: Last week two college students  out in California were given the green light by the California Secretary of State to begin the process of placing on the November 2009 ballot a proposition that would repeal Prop 8 but also repeal the marriage laws, leaving domestic partnerships (whether between same or different sex couples) as the only unions recognized by the state.  Marriage would become a ceremony recognized only by religious and other non-governmental entities.

I’d rather the California legislature did this, not the people of California though the ballot initiative process – but the new proposition – let’s call it Prop 9 – will surely garner opposition from marriage fundamentalists both within and outside the lgbt community.

Too bad, it’s actually a great idea.

- Katherine Franke

This week, Amy Adler presented her paper entitled “Medusa: A Glimpse of the Woman in First Amendment Law,” at the Gender and Sexuality Law Program Spring Colloquium.  The following is a summary and reaction to the presentation.  (The painting below is entitled Nude Dancing by Anthony Armstrong)

Imagine you’re a shrink.  After deciding the Barnes v. Glen’s Theatre, Inc. and City of Erie v. Pap’s A.M. cases, the U.S. Supreme Court walks into your office and plops itself on your couch.  It, nor anyone else, doesn’t understand how it got to the illogical, irrational conclusion that, while live nude dance is not protected under the First Amendment, non-obscene pornographic film, which is often far more sexually explicit, is.  Somehow, the Court finds consolation in pornographic film, and in comparison, finds itself extremely uncomfortable with live nude dance.  How do you figure out what is going on here, when the court’s doctrinal explanations simply don’t make sense?  

Amy Adler, Professor of Law at New York University, seeks to do just this in her fascinating work in progress, “Medusa: A Glimpse of the Woman in First Amendment Law,” which builds on her previous work entitled, “Girls! Girls! Girls! The Supreme Court Confronts the G-String.”  In “Medusa,” Adler considers the Medusa myth, so integral to Freud’s theory of castration anxiety and fetishism (read “Girls!” for more on that), and uses it as a diagnostic tool to understand why the Court is so terrified by the “threat posed by the live, powerful female body” (to use Adler’s description) such that, to blunt this threat, it draws doctrinal distinctions between the naked woman in pornographic film and in live erotic dance. 

Here’s the Medusa myth redux: Medusa, a once-mortal-now-turned monster with snakes for hair and a stare that turns men into stone, is ultimately slain by Perseus, through his use of Medusa’s reflection on his shield.  Analogously, pornographic film tames the female body through rendering the woman as the object, not the subject, of the gaze.  Adler expands this myth to consider the relationship between Medusa and speech; Medusa strikes men dumb by her stare, and she expresses herself by arranging a sculpture garden of all the men she has turned into stone.  When Perseus slays her, he steals back the power to make Medusa the object of his gaze.  As Adler puts it, “Perseus is now free to look at her without her looking back at him.”  And, as feminist film theorists have noted, the same can be said of the role of women in film (certainly pornographic film).

Commentator Professor Philip Hamburger offered up three thought-provoking questions:  Why not attack the First Amendment doctrine itself instead of its application?  Also, what’s the concern with the marginal speech idea, since foregoing that may constitute a world in which every action is conceivably “speech”?  And would the cases (and the theory) come out similarly with a fact pattern involving a nude male dancer?  Indeed, Adler made us all think: Is the female body actually speech, and can there be a marginal space between what is “speech” and “non-speech”?  Also, what else besides castration anxiety might be so discomforting about the spectacle of live nude dance – does it have something to do with gender instability embodied by the live nude female dancer, the queering of the strip club, or the temporal nature of the live erotic dance show, that does not exist when the same conduct is relegated to a moving picture?  And where is the discomfort – does it lie with the spectacle of the live naked dancing woman, or the act of sex itself that the spectacle may insinuate?     

When a court, especially the Supreme Court, gives legally doctrinal reasons for its decisions that are simply unsatisfying, it’s often hard to know where else to turn for explanation.  Adler gives us a great example of how other methodologies, namely feminist and psychoanalytic theory, can play such an illuminating role in deepening our understanding of why courts come to their conclusions, especially in their often assumption-ridden decisions on gender, sexuality, and sexual expression.  What I find so wonderful about all of our colloquia is the opportunity that this kind of legal scholarship provides us with: a chance to bring in other disciplines to take us where legal doctrine leaves us short.   

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.