The Road to Systemic Oppression is Paved with Good Intentions

Posted on October 11th, 2017 by Elizabeth Boylan

An Essay on National Coming Out Day

Cross-Posted on

Each year, on October 11th, my Facebook feed is populated with the personal stories of friends and others sharing their experiences of “coming out” – of publicly disclosing their sexuality or gender identity to friends, family, or colleagues.  National coming out day was founded in October 1988 to “celebrate individuals who publicly identify as lesbian, gay, bisexual, [queer,] and/or transgender.”[1]

National Coming Out Day was initiated in 1988 as a response both to direct action movements by LGBTQ activists, and the critical lack of public acknowledgment of LGBTQ persons by the general public in the United States. The crisis of HIV and the experiences of persons living with HIV and AIDS were diminished and ignored by government officials. News media, when confronted with having to report on the matter, frequently presented inaccurate or speculative information.  The lack of clear and accurate information regarding HIV and AIDS in popular media, and Public Health officials’ original designation of HIV/AIDS as “GRID”: “Gay Related Immune Deficiency” drew a false equivalency through association between a terrifying epidemic and homosexuality. As a result, serophobia[2] magnified the homophobia, biphobia, queerphobia and transphobia already present in society, leading to a lack of progress in the achievement of equality measures and public support for LGBTQ persons.

National Coming Out Day’s originators, Jean O’Leary and Rob Eichberg, saw that actions taken by LGBTQ activists at the time were often in reaction to anti-LGBTQ initiatives or actions; as such, it was easy for the media to stigmatize LGBTQ persons as defensive and reactionary: To counter the perceived stigma of this, “they came up with the idea to celebrate coming out and chose the anniversary of [a march held on Oct. 11, 1987 in Washington, DC] to mark it.”[3]

The “reactionary” element that is referenced in much of the literature and around National Coming Out Day – particularly as catalogued by neoliberal LGBTQ groups such as the Human Rights Campaign – alludes to the activism and advocacy of ACT UP, the “AIDS Coalition to Unleash Power” founded in New York in 1987. ACT UP, in its founding principles, notes “We are dedicated to empowering groups to take direct action to help end the AIDS Crisis. ACT UP is committed to a democratic inclusive activism.”[4]  The group sought to bring public attention to the public health crisis of HIV/AIDS and the impact it was having on the experiences of LGBTQ people in the United States.  ACT UP centered on engaging in direct action and empowering those individuals most stigmatized and at risk of institutional or personal violence as a result of their sexuality, gender, or serostatus to be at the forefront of demanding political and cultural change.  A press release from the prestigious Dance Theater Workshop accompanied an award for their work in 1988 “For meeting the challenge of the AIDS epidemic and its crisis of conscience with vigilant acts of political and cultural provocation – thereby giving voice to the essential creative will of our humanity.”[5],[6]

“The late 1980s then became a symbolic ode to the 1960s radicalism…. This mantra of immediate and fundamental change was very significant because achieving this singular vision ACT UP challenged many of the existing social, political, economical, and religious norms, making it inherently radical in its approach towards getting concrete results.”[7]

ACT UP’s radical tactics and confrontational methods of engaging with health-care providers, pharmaceutical companies, police, and community leaders had direct impacts on the provision of rights and healthcare for LGBTQ persons and spoke clearly to the rightful anger and discontent of LGBTQ persons at their maltreatment by social and political institutions.

National Coming Out Day sought to distance the ways that LGBTQ persons were perceived from the radical activism of ACT UP, and in doing so, they presented a palatable veneer for public consumption that ignored, denied, and silenced the rightful anger of the persons most vulnerable in the LGBTQ communities.  It also presented a false vision of what “LGBTQ Action” represented – – “Pride” rather than “Protest.”

Pride can exist in subjugated communities, and it must as a means of creating a positive organizing force.  In publicly identifying, people must be granted the dignity of pride: the privilege to be righteous in expressing that their unique experiences matter and have value.  However, when we address the need and organizing force of pride within subjugated communities, it must be utilized as a tool for demanding that peoples’ needs be met, and human injustice be addressed.

In seeking to re-cast the LGBTQ movement’s public persona from one of “Empowered Protest” (ACT UP) with an ethos of visibility or “Pride without Protest”, National Coming Out Day homogenized the LGBTQ movement, and distanced visible LGBTQ persons in the greater public eye from those activists whose work was having a direct impact on changing policy and obtaining rights for LGBTQ persons through direct actions and radical activism.

In Ties that Bind: Familial Homophobia and Its Consequences, Sarah Schulman addresses this issue: “Visibility was a construct that the gay and lesbian movement invented to explain and excuse the cruelty we were experiencing. We denied that it was intentional. Instead we invented the idea that it was an inadvertent consequence of heterosexuals having a lack of information about what we are really like. If they would discover how we truly are, they would not want to hurt us….Looking back at the way we created the issue of ‘visibility’ as a strategy for change is a painful confrontation with the realization that it was an engagement with magical thinking.”[8]

Nearly 30 years later, looking on the founding of National Coming Out Day, there are parallels in discourse regarding LGBTQ rights and activism to those in the late 1980s – there is of course the contingent of persons and groups, namely the Human Rights Campaign, who sought equality in marriage rights as a primary issue for same sex couples in the United States, and experienced success upon the decision in Obergefell v. Hodges.

Marriage equality, while hailed as a cultural victory, is a “privilege” that was pushed to the forefront of public discourse around LGBTQ issues in the United States at the expense of furthering fights to change policy in regards to critical rights, such as employment protection, and the inclusion of sexuality, gender identity, and gender expression as protected classes under hate crime statutes at the State level:

* Only 20 states and the District of Columbia have statewide protection in place for persons from employment discrimination based on gender identity

* 22 States and the District of Columbia have statewide protection regarding employment discrimination on the basis of sexuality.

* Gender identity and expression are only protected in 17 states and the District of Columbia under hate crime statutes.

* Sexuality is only acknowledged as a protected class under hate crime statutes in 30 states and the District of Columbia.

* 20 States do not offer any protection for LGBTQ persons under their current hate crime statutes.[9]

In the wake of the Obergefell decision of 2015, we have seen a marked increase in right-wing affiliated religious groups in the United States mobilizing Religious Freedom Restoration Act legislation and “Religious Liberty” exemptions so as to deny services and equal access to LGBTQ persons on the alleged basis of their sincerely held religious beliefs.  This movement fundamentally undermines the rights that LGBTQ persons are entitled to as human beings in the United States.

In 2014, a Columbia Law School press release noted, “With increasing frequency, opponents of same-sex marriage, reproductive rights, and gender equality have sought a safe harbor in religion to justify otherwise illegal employment and business practices.”[10]  In a blog post addressing this issue, Professor Katherine Franke noted, “With greater and greater frequency, respecting equality rights is seen as optional while respecting religious liberty is mandatory,” speaking to the disturbing trend that was developing as marriage equality gained traction in state legislatures throughout the United States, and which has continued to develop at the Federal and State level in the wake of the Supreme Court decision in Obergefell v. Hodges.

The presence of highly visible cultural phenomena that frequently center the narratives of white, professional, upper-middle class LGBTQ persons seem to push forward this narrative of “coming out” as being a positive experience.  In activism and in allegory, this hinges on “spectacularly brave gays and lesbians” as Schulman calls them, to be leaders in creating a visible queer population, who face social stigmatization and rejection to pave the way for a less treacherous path of living openly for other queers. Such pride without protest can only occur when the first persons coming out do not face substantial risks to their personhood, livelihood, economic resources, housing, or well-being due to publicly disclosing their sexuality and/or gender identity.  By placing the onus on LGBTQ people to come out, it privileges those who already have social capital based on race, economic status, or social standing.  This ultimately, too, puts the person who is “out” in a precarious position of being publicly exposed to greater scrutiny, and leads to a paradigm enabling and favoring a “model minority” stereotype, which further burdens and invisibilizes persons in the LGBTQ community who are multiply marginalized and at risk for experiencing greater systemic and individual violence on the basis of their identity.

The idea of “visibility” in media is hailed as an achievement for LGBTQ people, but it is a false notion that such increased visible representation is an indicator of substantial change in the pursuit of rights or equality for LGBTQ people.  In November of 2016, the Guardian featured an article with the headline, “LGBT characters on TV will make up larger percentage than ever, study finds.” And in 2012, Vice President Joe Biden talked around the issues of advances for LGBTQ rights and equality by equating cultural zeitgeist with success in stating, “when things really began to change, is when the social culture changes. I think “Will & Grace ” probably did more to educate the American public than almost anything anybody’s ever done so far.”[11]

The “study” mentioned in The Guardian is GLAAD’s 2016-2017 media report.  While the data of the report indicates the highest percentage yet of LGBT characters on television in the 2016-2017 season in the 21 years of the organization’s monitoring (4.8%), it also addressed serious issues about falsely equivocating or endowing this increased quantity with value. In the Report’s introduction, Sarah Kate Ellis, President & CEO, GLAAD states: “…the numbers remain only part of the story. For all the advancement made, many LGBTQ characters still fall into outdated stereotypes or harmful tropes.” Ellis addressed the disproportionate lethal violence that queer female characters are subjected to so as to serve (often straight, cisgender) protagonists, and the real message such “representation” provides – the acceptable systemic devaluation of queer female persons in society.

It is not without irony that at a time when Joe Biden’s beloved situation comedy, Will & Grace, is being revived on NBC.  The sitcom centers on Will, a gay cisgender male character who is a white, upper-middle class, able-bodied lawyer in New York.  The cast features two prominent white cisgender gay male characters, Will, and Jack, with their cisgender, heterosexual female friends, Grace and Karen. The primary 4 characters all live in well-appointed apartments, the gay characters are never shown as having sex, and the show largely ignores issues such as economic inequality, racism in LGBTQ communities, HIV and AIDS, and violence against LGBTQ people. While popular, the show’s association with a notion of progress for true LGBTQ rights falsely equates visibility and acknowledgment (“yes, there are gay people, here are some that won’t cause your Nielsen stock to plummet”) with “real change.”

A core concern, too, when discussing National Coming Out Day is the fact that encouragement to “Come Out” is complicated for persons whose identities and experiences put them at greater risk of institutional and physical violence.  When paradigms that further privilege white, cisgender, upper-middle class lesbian, gay, and bisexual individuals are enforced, it further marginalizes persons of color, persons who experience economic inequality, religious and ethnic minorities, and particularly transgender and gender nonconforming individuals, especially those whose experiences and identities place them at the intersection of multiple marginalized groups. Systems that institutionalize violence against marginalized individuals (such as discriminatory practices in finance, access to healthcare, social services, and education) may have multiplying oppressive effects on multiply marginalized individuals.

A prominent report by Lambda Legal asserts “44% of reported hate murders in 2010 were committed against transgender women.”[12]  The 44% statistic only represents those crimes officially categorized as hate crimes in FBI statistics and AVP analysis. The actual number of anti-transgender hate murders that occurred in 2010 is likely higher but ultimately underreported due to systemic transgender and anti-gender-non-conforming discrimination by communities, families, and the criminal justice industrial complex.  Lambda Legal’s report addresses the fact that this epidemic of lethal violence against transgender women is a terrorizing element that may discourage transgender from disclosing their experience or “coming out”, and discourage these people from “seeking community support” when victimized in other ways.

In 2017 to date, 23 transgender individuals have been murdered, which represents an increase over the 27 recorded in total for the calendar year 2016 by GLAAD[13].  21 of the 23 people who were the victims of transphobic murder in 2017 year are people of color. GLAAD Reports:

Victims of anti-transgender violence are overwhelmingly transgender women of color, who live at the dangerous intersections of transphobia, racism, sexism, and criminalization which often lead to high rates of poverty, unemployment, and homelessness….the National Coalition of Anti-Violence Programs reports an alarming multi-year trend showing that transgender women experience a greater risk of death by hate violence than any other group.[14]

Increased visibility is not the answer to resolving the issues of homophobia, biphobia, transphobia and queerphobia in our society.  When “coming out” or the experience of “being out” puts an individual at risk of violence, we cannot ethically justify the risk of persons’ safety – economic, social, or personal – as a means of propelling social change, nor can we suggest that the continuation of the tradition of “National Coming Out Day” benefits anyone in the LGBTQ community, as it particularly disadvantages those at greatest risk of violence.

As a community, we cannot continue to practice systems that privilege a select few in their “being out,” for this ultimately perpetuates paradigms that enforce model minority stereotypes, and further marginalize those at greatest risk of institutional and personal violence.  It is our responsibility as community members to develop actions that center the voices and needs of those most marginalized among us in seeking change.

Assimilative movements, or movements that hinge on “Pride without Protest” have not proven the test of time, and only serve to create a false perception of equality.  Particularly at a time when our President has taken multiple actions to decrease, diminish, and undermine the rights that LGBTQ persons have fought for, we cannot place any stock on “visibility” as any sort of panacea for achieving real and lasting rights for LGBTQ people, or for protecting anyone from personal or institutional violence.

The institutions of systemic violence have always been present in our society; while there has been some progress in the last 40 years in LGBTQ movements – whether they served only individual communities within the larger LGBTQ community, or whether they served the community as a whole – we need to recognize the real work and sacrifice – the protest, passion, and commitment to revising legislation and engaging in work, writing, radical community support, and action that have garnered success in moving towards equality – and redouble our efforts to meet these current challenges with “vigilant acts of political and cultural provocation – thereby giving voice to the essential creative will of our humanity.”

[1] Mitchum, Preston. “On National Coming Out Day, Don’t Disparage the Closet.” The Atlantic. 10/11/2013.  Accessed 10/11/17.

[2] Serophobia is defined as “ a manifestation of fear and aversion by certain people, towards people living with HIV… [which] manifests… through acts of exclusion or discrimination, whether implicit or explicit.” Accessed 10/11/17.

[3] Human Rights Campaign. “The History of Coming Out.” Accessed 10/11/17.

[4] ACT UP. “Documents.” Accessed 10/11/17.

[5] ACT UP New York. “Home Page.” Accessed 10/11/17.

[6] Gere, David. How to Make Dances in an Epidemic: Tracking Choreography in the Age of AIDS. University of Wisconsin Press. 2004. 82-83.

[7] Farooq, Sameen. ACT UP: The AIDS Revolution. Accessed 10/11/17.

[8] Schulman, Sarah. Ties that Bind: Familial Homophobia and Its Consequences. The New Press. New York. 2009. P 45-46.

[9] The Movement Advancement Project. “Hate Crime Laws.” 10/2/17. Retrieved 10/11/17.

[10] Columbia Law School. “New Project on Religious Exemptions and Civil Rights Launches”. 3/24/2014. Retrieved 10/11/17.

[11] NBC News. “Transcripts on Meet the Press: May 6: Joe Biden, Kelly Ayotte, Diane Swong, Tom Brokaw, Chuck Todd.” Retrieved 10.11.2017.


[13] Adams, Nick. “GLAAD Calls for Increased and Accurate Media Coverage of Transgender Murders.” 9/25/17. Retrieved 10/11/17.

[14] Adams, Nick. “GLAAD Calls for Increased and Accurate Media Coverage of Transgender Murders.” 9/25/17. Retrieved 10/11/17.

Call for Research Assistants – Professor Katherine Franke

Posted on October 2nd, 2017 by Elizabeth Boylan

Professor Katherine Franke and the Center for Gender & Sexuality Law are seeking student Research Assistants to work with Professor Franke on a range of topics related to LGBTQ rights, reproductive rights and justice, racial justice and religious liberty.   The position will comprise approximately 5-10 hours of work each week, and will begin immediately.

We welcome applications from all upper level students at Columbia Law School.  The position pays $15/hour.  Students who wish to receive academic credit for their work may consult with Professor Franke and the Registrar’s office about accreditation requirements.

If you are interested, please send a CV, transcript, and the name of a Columbia Law professor who can serve as a reference to Liz Boylan, Associate Director for the Center for Gender & Sexuality Law at

In Memoriam – Edie Windsor

Posted on September 13th, 2017 by SUZANNE GOLDBERG
 Comments Off on In Memoriam – Edie Windsor  

Cross-Posted to Medium

It is with great sadness that we honor the passing of Edie Windsor, victorious marriage-equality plaintiff in United States v. Windsor and long-time leader in the LGBT community.  We had the privilege of welcoming Edie to Columbia Law School in February 2014 as the keynote speaker for the Center for Gender & Sexuality Law Symposium on Marriage Equality and Reproductive Rights: Lessons Learned and the Road Ahead. Introducing her then, we recognized her iconic status as a person whose willingness to fight back against discrimination helped to transform the law, politics and and many communities in the United States and beyond:

It is not often that a law school gets to welcome a rock star. But in our world, Edie Windsor is a rock star. She is one of the major civil rights plaintiffs of our lifetime, whose lawsuit challenged–and triumphed over–the federal Defense of Marriage Act. Her victory in that suit has been vital to changing the landscape of marriage equality for all Americans.

Excerpt from “A Conversation with Edie Windsor,” by Suzanne Goldberg, Madeline M. Gomez and Andrew Chesley in the Columbia Journal of Gender and Law.

Edie, we will miss you, your courage, your great sense of humor, and your tireless commitment to making this a better world for all.

A Conversation with Columbia Law School Visiting Scholar, Tamar Katz Peled

Posted on August 22nd, 2017 by Elizabeth Boylan

This Summer, Tamar Katz Peled joined the Center for Gender & Sexuality Law as a Visiting Scholar.  I spoke with Tamar 2 weeks ago about her research, and her plans for pursuing further inquiry and advocacy work in her primary field of study: reproductive surrogacy, and reproductive access in legal and social contexts.  Below is a transcript of this conversation.

For more information on the Visiting Scholars Program at Columbia Law School, visit Columbia Law School’s International Programs Page

* * * * *

E.B.: Welcome on board – – Upon learning about your work, we were excited to support you as a Visiting Scholar at Columbia Law School.  Thank you for joining us and taking time to discuss your work.

T.K.P.: First and foremost, it is a great pleasure for me to be a Visiting Scholar with the Center for Gender and Sexuality Law at Columbia Law School. This center represents a spiritual homeland for my heart and mind: All my fields of interests that include my academic education, research work and the courses I teach are synonymous with the Center’s work.

E.B.: While visiting with the Center and Columbia Law School, what do you seek to accomplish?

T.K.P.: My work concentrates primarily on the mutual influences between gender and sexuality in law and culture, with respect to new reproductive technologies and to sexual and intimate relationships. I would like to advance my research in some of my main projects, through engaging with the faculty and researchers who are members of the Center, and who work closely with the Center at Columbia. I am interested in discussing mutual ideas and areas of interest as well as to introduce other elements of the projects that I work on, particularly how gender and reproductive rights are addressed, and how discrimination is enabled via Israeli Law.

E.B.: What prompted you to pursue the topic of surrogacy in your work?

T.K.P.: The main issue about surrogacy is how it is intimately tied to a person’s body through pregnancy: Following pregnancy [the birth parent] delivers the baby in order to give [them] away. The legal implications of this stoked my imagination and my thoughts: I imagined myself as the birthing mother and as a woman striving for a child; Both situations evoked many questions and dilemmas for me as a woman. In order to answer these questions, I had to start my research by interviewing the people that are involved in all aspects of these relationships and procedures. Following these interviews, I examined these answers through legal lenses. I have been dealing with this subject for almost seven years, and I continue to find it interesting and challenging.

E.B.: How might we conceive of surrogacy as a human rights issue?

T.K.P.: My idea relates to the dignity, honor and respect that we as a society, and the law as our representative, must give to people that serve as surrogates: the respect that they need and deserve. This is one of the most intimate ways that a person can provide a service for another. I hope to use my work to mobilize a pursuit of rights for surrogates and persons involved in surrogacy proceedings all over the world.

E.B.: Looking ahead, what topics and themes would you like to explore in your research?

T.K.P.: I have so many projects in mind that I need to double my time in a day in order to conduct them all: In the ART (Assisted Reproductive Technology) field, I just posed for a research grant proposal regarding the freezing eggs. In regards to intersections of religious law and civil society: I have a lot to do – Religion’s influence on societies and on states profoundly impacts the resources that people have access too, even in secular nations. I am also eager to advance research about gender-based and sexuality-based bullying on the internet.

Although the legal systems regarding gender and sexuality have moderately changed all over the western world we still have a lot to do to seek reproductive justice. Oppression still occurs all over. I think that one of the main problems is that law and legal systems frequently speak to enforcing and upholding equality, but equality is not present in society, and/or these laws are not enforced. For example, in Israel, I analyzed “The Law for Equal Rights for Women-1951” and my conclusions showed that it serves to promote a myth of equality, while actually maintaining discrimination. I believe that one of our main goals must be to tear the mask of equality from the face of the laws, and make the legal changes that are necessary and demanded so as to achieve equal rights for women and people of all genders in our systems.

* * * * * 

More information on this Summer’s Cohort of Visiting Scholars at Columbia Law School may be found here.  Tamar Katz Peled may be reached by e-mail at

Cross-posted to Medium.

New York, June 13, 2017–Columbia Law School’s Sexuality and Gender Law Clinic released a comprehensive country conditions report documenting the serious risks LGBT people in Guyana face. The report, Documentation of Country Conditions Regarding the Treatment of Gay Men, Lesbians, Bisexuals, and Transgender Individuals in Guyana, which can be filed as an index by asylum applicants, documents why LGBT individuals may have a well-founded fear of returning to their country of origin. This evidence is crucial for every LGBT asylum seeker from Guyana, but many available resources are out of date or incomplete. This report remedies that problem by providing up-to-date, comprehensive, and easy-to-access information that can make all the difference in asylum seekers’ applications.

As the report shows, Guyanese law criminalizes sexual intimacy between men—with punishment that may include life in prison—and cross-dressing, which renders transgender individuals especially vulnerable throughout Guyanese society. Discrimination and harassment of LGBT individuals also remains rampant, and police and other authorities provide little protection. LGBT individuals are also denied access to health care as a result of the AIDS crisis.

“All asylum applicants need to submit an index of country conditions to corroborate why they are afraid to return to their home country, explained Jackson Dartez ’18, a Clinic student. “However, those who are unrepresented have difficulty gathering these types of sources, which can make or break an asylum claim. The Clinic’s report provides this supporting evidence for asylum seekers from Guyana who have suffered persecution as a result of their LGBT identity, giving them a fairer chance of succeeding in their application.”

The report, which is based on government documents, NGO studies, academic research, media accounts, and the Guyanese criminal code, identifies that LGBT people are persecuted in Guyana in numerous ways, including:

*     The Guyanese government refuses to reform anti-LGBT laws, with officials alternatively claiming that it is unnecessary because they are seldom enforced, and that they are crucial because they represent Guyanese values. However, the laws provide a backdrop against which LGBT individuals in Guyana suffer immensely.

*     The police are frequently at the center of the persecution. LGBT individuals are often the victims of hate crimes, but law enforcement officers typically will not investigate due to anti-gay sentiment and transphobia. Indeed, police extortion of LGBT individuals is common, and the police have been known to encourage violence against LGBT people—including urging inmates to rape LGBT individuals in custody.

*     Societal discrimination against LGBT individuals is widespread. LGBT individuals are verbally and physically harassed when they walk down the street, and ostracized by family members and their communities. The mental health consequences of homophobia and transphobia are extreme. Young LGBT individuals in Guyana are four times more likely to attempt suicide than their heterosexual peers, a significant number given that Guyana has one of the highest suicide rates in the world.

Yleana Roman, a staff attorney at Immigration Equality, the country’s leading LGBTQ immigration group, noted that having this information available to asylum seekers is crucial: “Well documented country conditions can make all the difference in ensuring an asylum claim is successful. Creating the report for one asylum seeker helps that person, but by making this widely available, the Clinic is potentially saving the lives of many people.”

The Clinic has distributed the report through Immigration Equality and has made it available for download on the Clinic website.  Link to the report directly, here.

The report was prepared by Clinic students Arielle Feldshon ’17, Patti Rothenberg ’18, Arielle Trapp ’18, Carolina Rivas ’18, and Dartez. They worked under the supervision of Suzanne B. Goldberg, director of the Clinic and the Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School, as well as Marie-Amélie George and Jenny Ma, Clinic supervisors and Associates in Law. Yleana Roman of Immigration Equality also supervised the students in completing this report. The students spent several months reviewing sources on conditions in Guyana as part of a Clinic project to prepare a client’s asylum application, which is still pending. Although the Clinic is representing a gay man, the index also includes information about the persecution of lesbian, bisexual, and transgender Guyanese individuals.

Columbia Law School’s Sexuality and Gender Law Clinic addresses cutting-edge issues in sexuality and gender law through litigation, legislation, public policy analysis, and other forms of advocacy. Under Professor Goldberg’s guidance, Clinic students have worked on a wide range of projects to serve both individual and organizational clients in cases involving issues of sexuality and gender law.

Cross-posted to Medium.

In a significant gender equality ruling, the Supreme Court today struck down a federal immigration law that made it harder for fathers than mothers to pass their U.S. citizenship on to their children. Current immigration law discriminates between citizen fathers and citizen mothers whose children are born abroad.

The Court recognized the rule’s connection to “the long-held view that unwed fathers care little about, indeed are strangers to, their children.” And it relied on the amicus brief of Population and Family Law Scholars submitted by Columbia Law School’s Sexuality and Gender Law Clinic to rebut that assumption and show that “unwed fathers assume responsibility for their children in numbers already large and notably increasing.” As Justice Ginsburg wrote in an opinion joined by five other members of the Court, “lump characterization” based on gender stereotypes “no longer passes equal protection inspection.”

The law at issue in the case, Sessions v. Morales-Santana, concerns children born outside the U.S. and outside of marriage, where one parent is a U.S. citizen and the other is not.  The challenged provision required unmarried U.S. citizen fathers to have spent ten years in the U.S. to pass along their citizenship to their children, while U.S. citizen mothers needed only a single year in the U.S. before the child’s birth to establish U.S. citizenship for their children.  (The law was later revised to reduce the residency time for fathers to five years, which is still five times longer than for mothers.)

Relying on national and international data, the Clinic’s brief argued that “the challenged law’s imposition of extra barriers on non-marital fathers’ passage of U.S. citizenship to their children—barriers that it does not place on non-marital mothers—appears to reflect flawed gender stereotypes about the likely involvement of unwed fathers in their children’s lives.”

Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and director of Columbia Law School’s Sexuality and Gender Law Clinic said, “This important new ruling strengthens the Court’s sex discrimination jurisprudence by rejecting gendered assumptions about mothers and fathers as factually flawed and plainly unconstitutional.”

The Court concluded its ruling by stating that although the usual remedy for discrimination of this kind is to end the inequality by extending the favorable rule, in this case the longer physical-presence requirement is more consistent with the surrounding law and will now be imposed on unmarried U.S. citizen mothers as it is on unmarried U.S. citizen fathers. The Court added that it is for Congress to adjust the rule uniformly for men and women if it chooses to do so in the future.

Columbia Law School student Samuel Rosh ’18 assisted with the brief, and Peter K. Stris, Elizabeth Rogers Brannen, Thomas Logan and Victor O’Connell of Stris & Maher served as co-counsel.

Call for Applications: Sabbatical Visitors, 2017-2018

Posted on April 17th, 2017 by Elizabeth Boylan

The Center for Gender and Sexuality Law at Columbia Law School invites applications for sabbatical visitors for the 2017-2018 academic year to undertake research, writing and collaboration with Center faculty and students in ways that span traditional academic disciplines. The CGSL welcomes applications from faculty from any field who are interested in spending a semester or the academic year in residence at Columbia Law School working on scholarly projects relating to Gender and/or Sexuality Law.

Sabbatical Visitors will receive an office with phone and computer, secretarial support and full access to university libraries, computer systems and recreational facilities. In addition, Sabbatical Visitors will be expected to participate in CGSL activities and present a paper at a program hosted by the Center for students, faculty and staff.

We will be accepting submissions through May 15, 2017.  We prefer electronic submissions, and request that all materials be sent by e-mail to

Applicants should submit:

* Curriculum vitae

* Writing sample

* Research statement (of approximately 1,000 words) that describes the proposed work during the Sabbatical period

* Names of two references who are familiar with your current academic research

If you have any questions regarding the visitor position or the application process, please call the Center for Gender & Sexuality Law at 212.854.0167.  You may also contact Liz Boylan, Assistant Director for the Center for Gender & Sexuality Law by e-mail to

A link to a posting regarding the sabbatical visitor position may be found on the CGSL website, here.

Cross-Posted on the Public Rights/Private Conscience Project Blog, and at Medium

Press Release:
March 29, 2017

Columbia Law School, The Public Rights Private Conscience Project

Proposed New York State Health Regulation Contains Troubling Exemption: The Public Rights/Private Conscience Project Responds to a Proposal on Abortion Access

Liz Boylan,, 212.854.0167


A proposed New York State regulation requiring insurance plans to cover “medically necessary” abortions contains a broad religious exemption that would undermine the state’s longstanding commitment to reproductive health. The exemption—which is not required by New York’s Constitution or laws— defines the term, “religious employers” to include large nonprofits and even some for-profit companies. In the face of a national movement to enact anti-LGBTQ and anti-choice religious exemptions, the regulation would set a harmful precedent by accommodating religion at the expense of other fundamental liberty and equality rights. On Monday, March 27th,  Elizabeth Reiner Platt, Director of Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) submitted a comment on behalf of the PRPCP to the NYS Department of Financial Services “to express [] deep concerns regarding the regulations’ expansion of New York’s existing definition of religious employers.”

Noting that religious liberty is already robustly protected in New York, PRPCP’s comment states, “allowing an organization that operates in the public sphere to violate neutral employee health and benefit laws serves to reduce, not enhance, true religious pluralism.  This is especially true when such accommodations single out particular religious tenets, such as opposition to abortion, for special protection.”

“The proposed regulation would allow organizations to treat a medically necessary procedure overwhelmingly obtained by women differently than any other type of care,” said Elizabeth Reiner Platt. “Rather than surrender to the troubling trend of protecting particular religious beliefs at the expense of reproductive health, New York should continue to be a national leader in guaranteeing access to comprehensive health care.”

The PRPCP’s mission is to address contexts in which religious liberty rights conflict with or undermine fundamental rights to equality and liberty through academic legal analysis. PRPCP approaches the developing law of religion in a manner that respects the importance of religious liberty while recognizing the ways in which broad religious accommodations may violate the First Amendment’s Establishment Clause.

Read the full letter from the Public Rights/Private Conscience Project here:

Read the NYS Department of Financial Services Proposed Amendment here:

For more information on the PRPCP, visit the PRPCP’s webpage, here:

Press Release:
March 23, 2017

Columbia Law School, The Public Rights/Private Conscience Project

EEOC Proposed Guidance Shows We Can Protect Religious Freedom & LGBTQ Rights

Liz Boylan,, 212.854.0167

March 23, 2017: While the President and Congress consider acts to expand religious exemptions at the expense of LGBTQ and other rights, a proposed federal regulation demonstrates that we can—and should—protect both religious and LGBTQ communities. The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School submitted commentary this week commending the Equal Employment Opportunity Commission (EEOC) on their “Proposed Enforcement Guidance on Unlawful Harassment,” which protects the right of religious employees to discuss their beliefs while prohibiting religiously-motivated harassment in the workplace.

Professor Katherine Franke, Faculty Director for the PRPCP commented, “At a time when we are witnessing government officials engaging in both troubling violations of the Establishment Clause and blatant forms of religion-based discrimination, the EEOC’s proposed guidelines offer a reasoned and careful way to harmonize religious liberty and equality in the workplace.”

Elizabeth Reiner Platt, Director of the PRPCP elaborates, “The proposed guidelines respect both the right to express one’s religious beliefs and the right to a safe and productive work environment. This kind of carefully tailored religious accommodation protects all workers from discrimination.”

The PRPCP’s letter notes that nearly one in three transgender workers, and up to 43% of gay, lesbian, and bisexual people, have faced employment discrimination. The proposed EEOC guidelines “appropriately explain that Title VII’s duty to accommodate religion does not amount to an official sanctioning of religiously-motivated harassment-including against LGBTQ employees, who already face pervasive discrimination in the workplace.”

The EEOC’s responsibility to protect religious minorities and LGBTQ persons is of critical importance, as the Trump Administration continues to issue Executive Orders that roll back LGBTQ protections and express disapproval of Muslims. Of particular concern is a potential Executive Order on Religious Freedom. If signed, the order could provide a special license for those holding certain conservative religious beliefs— including opposition to same-sex marriage, sex outside different-sex marriage, and abortion—to violate any regulations that conflict with these beliefs.

The PRPCP’s mission is to address contexts in which religious liberty rights conflict with or undermine fundamental rights to equality and liberty through academic legal analysis.  PRPCP approaches the developing law of religion in a manner that respects the importance of religious liberty while recognizing the ways in which broad religious accommodations may violate the First Amendment’s Establishment Clause, which, “not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.”[1]

Read the full letter from the PRPCP here:

For more information on the PRPCP, visit the PRPCP’s webpage, here:

The EEOC’s Proposed Enforcement Guidance on Unlawful Harassment is available here:



Cross-posted to Medium

The Organizers of the Women’s March on Washington made a call to action for women to strike on March 8th, 2017 in honor of International Women’s Day. The idea was to utilize this recognized day as a springboard for engagement through a wide-spread strike. The organizers’ language follows:

…we join together in making March 8th A Day Without a Woman, recognizing the enormous value that women of all backgrounds add to our socio-economic system — while receiving lower wages and experiencing greater inequities, vulnerability to discrimination, sexual harassment, and job insecurity. We recognize that trans and gender nonconforming people face heightened levels of discrimination, social oppression and political targeting. We believe in gender justice.

Anyone, anywhere, can join by making March 8th A Day Without a Woman, in one or all of the following ways:

1. Women take the day off, from paid and unpaid labor

2. Avoid shopping for one day (with exceptions for small, women- and minority-owned businesses).

3. Wear RED in solidarity with A Day Without A Woman”[1]

The systemic discrimination against and marginalization of women and gender minorities are at the root of these matters. Prior to the 20th Century, there were few options that women had for pursuing economic independence, and into the 21st Century women and gender minorities are greatly underrepresented in positions of authority in nearly all fields, and are underrepresented on the whole in many fields. Women and gender minorities’ unpaid labor is difficult to quantify: unpaid labor may describe caring for elder members of family and community, caring for and educating children. Unpaid labor also speaks to the number of women and transgender persons who perform uncompensated labor through internships and apprenticeships as a result of lack of access to paid work due to discrimination. The idea of on principle disengaging from unpaid labor is fraught with symbolism, and calls into question how we identify “work,” what it means to participate in work, and what visibility implies.

The reasoning behind the Women’s March on Washington organizers’ call to action is grounded in truths that need to be dissected further if they are to be used as foundational materials for a broad revolution. According to statistics published by Pew Research in 2016, Asian women earn $0.87 for every $1.00 that white men make; white women earn $0.82 for every $1.00 that white men earn; black women earn $0.65 cents for every $1.00 that white men earn, Hispanic women earn $0.58 for every $1.00 that white men earn.[2] In regards to the Women’s March organizers’ statement on trans and gender nonconforming persons’ inequity, per a July 2011 report from the Williams Institute, “78% of respondents to the largest survey of transgender people to date reported experiencing at least one form of harassment or mistreatment at work because of their gender identity; more specifically, 47% had been discriminated against in hiring, promotion, or job retention.”[3] The inequities between the pay that white women receive versus what women of color receive indicate the ways in which multiply marginalized persons experience exponentially greater levels of inequality, and the disproportionate rates of discrimination and mistreatment that transgender individuals face in the workplace are unconscionable. Movements for gender equity need to recognize and attend to fact that race, ethnicity, gender experience and expression and socioeconomic status overlap and compound the fight for justice. We cannot have a movement for gender justice that does not seek to dismantle these systems of power and inequality that divide us and prevent progress.

In multiple contexts, the ability to “take the day off” is heavy with the privilege it bears: It implies that a person can forego a day’s worth of pay, and will not personally suffer individual, collective, or economic violence as a result of their not engaging in work. It could be perceived, too, as an implication that if all women were to be absent from work today, that systems would not fail, people would receive life-saving health-care, and cities will not crumble into ruin: this indicates a critical devaluation of the work that women perform. The “ability” of persons to take the day off is an ableism that represents privileges that are at the core of critiques of White Feminism.

When organized as a large-scale movement or mobilization, a strike is a powerful tool against oppression that highlights how hegemonic systems are profoundly reliant on marginalized constituencies. In individual corporations, communities, and schools, a well-organized strike can result in enormous benefits for the strikers: new contracts are negotiated, demands are met, and progress is achieved for the marginalized group. Strikes, however, can also be devastating: people may be reprimanded, fined or fired for their absence; when the persons and systems that hold the power are unwilling to negotiate change. A strike, too, by particular members of a marginalized group without a collective agreement that all members strike may then result in the discriminatory policing of strikers who may concurrently be members of the group striking (in this case women), and other marginalized groups subject to greater scrutiny (communities of color, transgender/gender-non-conforming women, and women of lower socioeconomic classes). In theory, a large-scale strike by women and gender minorities would have a profound visual effect, but without a uniform plan of action, insurance for financial and/or job protection, and plan for pursuing recourse to end or following the strike, such an action will not be a successful counter-hegemony.

I question what it means when a person’s presence is meant to be more powerful by their conspicuous absence. A Day Without Women raises ideas of visibility and invisibility, and how these relate to women’s experiences and the value that women provide to systems economically, socially, and culturally. If women, as a whole, experience less prominence and visibility in the work place, and are valued less than male persons in the workplace, I question how their absence makes them more visible: while it may not make the individual more visible, it makes the work that they perform — which is on the whole, devalued — more visible. A coarse example might be what would happen if a municipality were to suspend trash pickups: citizens would be forced to see, smell, and otherwise confront the reality of work and workers that are unseen.

Direct action is visceral, and can have profound effects, but it needs to be a part of a larger and more complex dialogue and series of actions in pursuit of a visionary goal. Building a movement that is mission-driven, sustainable, and has specific outcomes requires persistence, complex and multidimensional organization, and visibility.






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