Abstract: 

The legal regulation of transgender bodies, which is often highly oppressive, restrictive and arbitrary, is commonly regarded as a problem that only affects the transgender community and its allies. This essay, however, argues that the legal regulation of transgender bodies affects everyone – including gender nonconforming and gender conforming people. The law, by creating ideals of male/female bodies, masculine/feminine behavior and adequate sexuality, reinforces the gender binary and strengthens the concept of compulsory heterosexuality. Moreover, by policing the boundaries of sex, gender and sexuality in transgender cases, the law ensures that no one can easily transgress from socially acceptable gender norms.

This essay takes a disruptive approach to the legal policing of transgender identity: it tries to dismantle the reasons underlying the legal regulation of transgender bodies and to show their arbitrariness and oppressiveness towards everyone in society. In doing so, this essay particularly examines the legal problems surrounding gender-based dress codes, segregated public restrooms and the role of compulsory heterosexuality and highlights their consequences for every member of society.

Full Article: How the Legal Regulation of Transgender Bodies Affects Us All

Abstract: This seminar paper explores the U.S. Military’s position regarding abortion procedures. It focuses on the 2012 Shaheen Amendment that seeks to extend federal funding to allow overseas military facilities to provide abortion in cases of rape or incest. The paper argues that, although similar amendments have failed to pass through Congress in the past, now is a peculiarly perfect time to pass this amendment. This is because society’s view towards reproductive rights seems to have liberalized after the 2012 reelection of President Obama and affords Congress an opportunity to allow military women to enjoy equal rights to those of the civilians whom they protect.

Full Article: Overseas and Under Siege: Why Congress Needs to Amend 10 U.S.C. 1093 and Provide Overseas Servicewomen with the Same Reproductive Rights that Civilian Women Enjoy

Abstract: This essay examines the international scrutiny of female genital cutting (FGC) often referred to as female genital mutilation (FGM), and how international legislation overlooks the women affected by the procedure. It focuses on FGC on the continent of Africa, analyzing the policy and legislation influenced largely by those who are either not African or not female. The essay then looks to domestic legislation, reviewing the laws and current practices in Kenya, Senegal, Sierra Leone, and Egypt. Finally, the paper illustrates how changes in the practice of FGC come about with longevity more when those directly affected are brought into the discussion.

Full Article: Female Genital Cutting: The Pressures of Culture, International Attention, and Domestic Law on the Role of African Women

Abstract: This paper explores the role of medical arguments in cases where courts have overturned statutes that burden pleasure-seeking behavior, such as non-procreative sexual intimacy or the use of endorphin-inducing substances. It speculates that the characterization of the individual interests at stake as medical rather than pleasure-related, and the framing of state interests as moral rather than medical, facilitates the judicial decriminalization of pleasure-seeking behavior. This approach to framing individual and state interests is explored and developed in the context of statutes that burden non-procreative sexual intimacy, including key cases on contraception, abortion, and “obscene devices.” After developing the paradigm of medicalization through the lens of the sexual intimacy cases, the paper investigates the conspicuous absence of any discussion of pleasure in these cases and in legal discourse more generally. Finally, the pap! er explores the continuing criminalization of many pleasurable substances and argues that the sexual intimacy cases may provide an effective model for using medicalization to challenge statutes that burden substance use.

Full Article: Sex, Drugs, and American Jurisprudence: The Medicalization of Pleasure

Abstract: The plight of young unwed mothers in nineteenth century New Brunswick is not well documented, nor well understood. However, an article in a Fredericton newspaper, the Head Quarters, described the case of Sophia Fennety, a young unwed mother, and her supposed drowning or suffocation of her six-week old infant child on a Fredericton wharf. At trial, the jury found Sophia guilty of manslaughter, but the case was ultimately appealed and decided in The Queen v. Fennety, at the Supreme Court of New Brunswick, where in 1855 Sophia was pardoned. Using The Queen v. Fennety as the backdrop, Sophia’s case is used to illuminate and analyze the social, cultural, and legal context and options available to unwed mothers of illegitimate children in New Brunswick during the mid-nineteenth century.

In particular, this paper suggests three reasons for Sophia’s child abandonment: i) to escape the shame and disgrace of unwed motherhood during that period, ii) her lack of alternative options including access to abortion, adoption, or orphan care, and iii) to the high probability that someone would find her infant in Fredericton upon the wharf and be unable to trace the abandoned child back to her. The paper further posits that Sophia’s treatment by the Trial and Appeal Courts is suggestive of two conditions: i) the Courts’ compassion towards Sophia, and ii) the fact that no specific criminal law existed against the abandonment of children in New Brunswick in 1854. While it is unclear whether the Appeal Court favored one of these conditions over the other, it is clear that its decision to pardon Sophia has kept her story alive for more than 155 years.

Full Article: The Queen v. Fennety: Infant Abandonment in Mid-Nineteenth Century New Brunswick, Canada

Abstract: Bought and sold, consumed and exploited: human bodies, labor, personhood, and dignity have become the most valuable, reusable, and profitable products in the 2011 world market. In the early twenty-first century, increased awareness and international concern mobilized several legal mechanisms to combat the 32 billion dollar human trafficking industry. In 2002, the Rome Statute of the International Criminal Court entered into force, with specific reference to “trafficking in persons” as a crime against humanity. Despite the developments in human trafficking law, awareness, and policy over the past decade, the International Criminal Court’s (ICC) potential treatment of trafficking as a crime against humanity remains a question mark. This paper examines the potential of the ICC in prosecuting human trafficking as a crime against humanity, identifying the complex contexts of trafficking, the opposition that ICC prosecution will likel! y face, and approaches that the ICC could take in investigating and prosecuting human trafficking. Highlighting the challenges of defining trafficking, the shadow of armed conflict in the ICC’s developing jurisprudence, and the risk of overlooking the gravity of human trafficking, this paper concludes by urging the ICC to look beyond the situations to which international law has traditionally applied. To realize the promise of the Rome Statute, this paper urges the ICC to incorporate the Palermo Protocol, common purpose, and the exceptional and global effects of the trafficking market in approaching human trafficking as a crime against humanity.

Full Article: Prosecuting Human Trafficking As A Crime Against Humanity Under The Rome Statute

Abstract: The “equal opportunity harasser” defense to a sexual harassment claim—allowing for an employer to escape liability under Title VII by showing that members of both sexes were sexually harassed—is problematic on its face. Intuitively, it seems both wrong and right: it appears to be a bizarre loophole that more harassment can be a defense to a sexual harassment claim; and yet, at the same time, it is seems that it must be true that an action cannot constitute sex-based discrimination if it is taken toward both men and women. This paper explores the “equal opportunity harasser” defense in order to pinpoint the source of the tension described above. The paper begins by tracing the origins of the defense in Title VII case law and proceeds by following its evolution including courts’ responses to its employ. Through grappling with the conceptual difficulties it presents, this paper argues that recognizing the “equal opportunity h! arasser” defense not only runs contrary to courts’ core assumptions regarding the nature of sexual harassment claims, but also threatens to undermine the effectiveness of sexual harassment litigation overall. In order to avoid these problems, either the “equal opportunity harasser” defense must be eliminated altogether or legislation must be enacted outlawing sexual harassment outside of the Title VII framework.

Full Article: Taking the Sex out of Sexual Harassment: How the “Equal Opportunity Harasser” Defense Threatens to Change the Contours of Sexual Harassment Under Title VII, and Why it Should be Eliminated

Abstract: The paper is about a Canadian immigration rule that permanently prohibits the reuniting of children with their parents in Canada simply because their landed immigrant parents did not list their children on their application forms.

This paper is interested in how violence can manifest itself in the strict application of rules. In particular, the paper questions the value of both having strict rules, and applying the rule in a firm manner. The stringent application of rules can illuminate what we value normatively; it expresses an adherence to rule-based decision making that takes no interest in the context into which people conduct their lives. The paper argues that when we apply rules strictly, we engage in making overbroad generalizations to make decisions in an easier fashion but we do so at the expense of making fair, just and reasonable decisions. In choosing to use a broad generalization to make decisions, the state, in this particular case, is tipping the balance to give more weight to its interests of protecting our borders from fraud than providing a just and fair process for families to reunite in Canada.

Full Article: Violence and the Form: The Ultrahazardous Activity of Excluding Children in Canada’s Immigration Family Class

Abstract: This paper considers the tug of rights between a woman’s right to choose to have an abortion and a physician’s or pharmacist’s right to object, on the basis of conscience, to assisting in the procurement of an abortion. It considers the contours and legal justifications of the respective rights and points out recent attempts by states, in particular, the state of Mississippi, to reinforce the right of members of the medical profession to object to assisting with an abortion in ways that have great potential to deprive the woman of her right to choose to abort. The paper also looks at the development of jurisprudence under the Free Exercise Clause of the U.S. Constitution to demonstrate the prevalent view that the autonomy and self-determination that warrants a woman’s choice to abort deserves as must protection as the medical professional’s inclination to act according to the dictates of his conscience. It also considers the proper limits of conscientious objection and points out the real danger that a passionate objector may act excessively and in a manner that actually imposes his view upon the woman. The paper scrutinizes the Mississippi Health Care Rights of Conscience Act to show its deficiencies in excessively reinforcing the medical professional’s right to conscientiously object, by allowing unrestrained refusals to counsel, advise or refer and not mandating that medical professionals provide notice of their inclination to object to carrying out their duty to assist with the procurement of an abortion.

Full Article: Tug of Rights: How Excessive Conscience Allowances to Physicians and Pharmacists Tug at a Woman’s Right to an Abortion

Abstract: This paper considers eugenics broadly with particular emphasis on its use to repress the reproduction of poor minority women. It starts by looking at the historical development of eugenics and foundational facially valid justifications that gave the practice legitimacy. It then considers modern day practices in the immigration and welfare arenas which, when scrutinized, reveal a eugenic intent to stifle reproduction with a gender and status bias against poor minority women. The foundational justifications are used as a theme throughout the paper to pierce the veil of social betterment that masks eugenic intentions. Finally it looks at recent uses of products of scientific and technological development, namely, in-vitro fertilization and surrogate birth by Nadya Suleman and Michael Jackson and societal responses to demonstrate the eugenic implications that have arisen even out of this scientific breakthrough. Though society has come a long way by denouncing the practice of blatant eugenics, a subtle and sophisticated form still persists in many aspects of its policy and institutions. Individuals must be cognizant of this before any true enlightenment and change could occur.

Full Article: Eugenics Then and Now