Symposium Book 2020 | University of Richmond Law Review

Gender Stereotypes and Gender Identity in Public Schools

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Introduction

In recent years, claims brought by transgender students requesting accommodations from a public school have been framed under Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program or activity that receives federal funding. Although the statutory language does not specifically include discrimination on the basis of gender identity, a number of advocates argued that gender identity was encompassed by the term sex, and a number of federal courts agreed. More notably, in May 2016, the Department of Education (“DOE”) issued a “Dear Colleague” letter interpreting the statutory language to include discrimination on the basis of gender identity, specifically noting that Title IX thus prohibits discrimination against transgender students. Given the seemingly changing tide in agency interpretation, as well as an increasing number of courts agreeing, the statutory argument dominated new claims.

With the change in presidential administrations, however, came a sharp about-face in agency reading of the statute. In February 2017, the DOE withdrew the prior letter, and subsequently announced that the Department would no longer represent transgender students and their claims. At around the same time, then-Attorney General Jeff Sessions issued a memo stating that the similar statutory language forbidding employment discrimination because of sex in Title VII of the Civil Rights Act of 1964 did not apply to discrimination against transgender employees. The Trump administration agencies presented a united front that the term “sex” meant solely biological sex, and not gender identity.

Given the changing interpretation of Title IX, both statutory and constitutional arguments supporting the right of public school students to express their gender in any manner contrary to traditional gendered norms have renewed vitality. In the decades since Stonewall, students facing school discipline for nonconforming gender presentation that violated school dress codes have attempted to challenge the dress codes as violating their First Amendment free expression rights. Tracing these arguments is not only helpful as a historical exercise, but also to present alternative arguments under an unsympathetic presidential administration and Supreme Court. In today’s world in which the Trump administration targets transgender students, employees, and service members, one strategy is to embrace gender nonconformity for cisgender, transgender, and nonbinary students all at once, in the hopes that thinking about the expression rights of students will be a more fruitful approach than just relying on Title IX.

Dara E. Purvis*

*Professor, Penn State Law; J.D., Yale Law School; M.Phil., University of Cam- bridge; B.A., University of Southern California. Thanks to Athena Dufour, Chris Marple, and Kellen Shearin for extremely helpful organizing and editing.

Building Queer Families and the Ethics of Gestational Surrogacy

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Introduction

Throughout American history, government has used the law to deny some citizens the right to create or sustain families with children to show contempt for those citizens. As LGBT people fought for dignity, equality, and justice from Stonewall to the present, one of the greatest success stories of that fight is the change in how the law defines and protects families. Into the 1990s, people in same-sex relationships had cause to fear that their sexual orientation could be used to deprive them of custody of their children. Now, many states, through statute or case law, routinely recognize two parents of the same sex for a child, and some explicitly forbid discrimination on the basis of sexual orientation in adoption. Still, others are slowly taking steps to level the assisted reproduction playing field for same-sex couples through their laws and policies.

This Essay focuses on a particular aspect of the world of family building for LGBT people, which is the use of gestational surrogacy to create families with children. Within the LGBT community, gay men are the most frequent users of this practice because they must find a woman willing to gestate a child if the fathers desire genetic connection. The ethical concerns about hiring a gestational surrogate increase when the arrangement involves cross-border reproductive travel, sometimes pejoratively referred to as “reproductive tourism,” in which commissioning or intended parents1 from a developed nation hire a surrogate from a developing nation to gestate a child.

Kimberly Mutcherson*

*Co-Dean and Professor of Law at Rutgers Law School in Camden.

LGBTQ Rights in the Fields of Criminal Law and Law Enforcement

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Introduction

Although not the first time LGBTQ folks fought back against police authority, the Stonewall Riots or Stonewall Rebellion, is commonly referred to as the genesis of the LGBTQ Pride movement in the United States. A lesser-known fact is that these riots were led by the transgender community—a community which today faces unheard of rates of violence, especially transgender women of color. Transgender women of color are murdered in the United States at rates that continue to increase. This Essay will explore unprecedented violence against the transgender community and the LGBTQ+ community at large, especially as it relates to the action and inaction of the criminal legal system. In an attempt to move beyond mainstream activism and research, this Essay will examine queer criminology, which explores the experiences of the LGBTQ+ population as victims, offenders, and professionals in the criminal legal system both in the United States and abroad.

In couching this discussion within the theoretical and practical application of queer criminology, this Essay will highlight the marginalization of LGBTQ+ folks and explore the impact that intersectionality has on the experiences of the LGBTQ+ community with special attention on law enforcement. For example, queer criminology studies the persistent distrust that the LGBTQ+ community has of police5 as well as the experiences of LGBTQ+ identified police officers and other agents within the criminal legal system. Further, as the current Administration continues to roll back the rights and liberties of the LGBTQ+ community, there must be a focus on how past and present policies continue to negatively impact LGBTQ+ people at the micro and macro levels. This Essay will also pay special attention to LGBTQ+ youth and transgender people of color.

Carrie L. Buist*

*Assistant Professor, Grand Valley State University School of Criminal Justice.

Framing Legislation Banning the “Gay and Trans Panic” Defenses

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Introduction

Since the 1960s, criminal defendants who have attacked (and in most cases killed) lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) victims have relied on the “gay and trans panic” defenses in order to avoid conviction or to receive lesser punishment. Contrary to what the name suggests, the gay and trans panic defenses are not freestanding legal defenses. Rather, over time, defendants have invoked gay and trans panic concepts to support one of three well-established legal defenses: (1) provocation, (2) insanity (or diminished capacity, and (3) self-defense (or imperfect self-defense). Depending on which of these defenses gay and trans panic concepts are being used to support, if successfully raised, a defendant who attacked or killed a LGBTQ victim could receive a lesser charge or sentence, or avoid conviction and punishment altogether.

This Article, prepared for the University of Richmond Law Review symposium commemorating the fiftieth anniversary of the Stonewall Riots of 1969, uses the Stonewall Riots as an opportunity to analyze and theorize the political dimensions of legislation banning the gay and trans panic defenses. As a moment of resistance to state violence against LGBTQ people, the Stonewall Riots are a useful platform to examine the historical and current relationship between the state and the gay and trans panic defenses. Drawing on original readings of medical literature, this Article brings the historical role of the state in the growth of gay and trans panic to the surface and discusses how gay and trans panic ideas blur the distinction between state and private violence.

Jordan Blair Woods*

*Associate Professor of Law, University of Arkansas School of Law, Fayetteville. The Author is thankful for the helpful discussions and suggestions from Beth Colgan, Erin Collins, Laurent Sacharoff, and Beth Zilberman. The Author is also grateful for the excellent research assistance from Hannah Hines and the University of Arkansas School of Law library staff, and especially Cathy Chick and Steven Probst. Thank you to the editors and staff at the University of Richmond Law Review for their careful edits, insightful suggestions, and work.

From the Mattachine Society to Megan Rapinoe: Tracing and Telegraphing the Conformist/Visionary Divide in the LGBT-Rights Movement

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Introduction

From the beginning of the LGBT civil rights movement, there has been an intracommunity debate concerning strategies and tactics to effect legal and social change. On one end of the spectrum, the lesbian and gay organizations of the 1950s—the Mattachine Society and the Daughters of Bilitis—advocated an assimilationist strategy that sought tolerance rather than full acceptance and integration. The tactics to affect this strategy are best described as conservative and conventional—to look and act as “straight” as possible in order to convince courts, legislatures, and the public that lesbians and gay men should be left alone rather than fired from their jobs and criminalized for their intimate conduct. On the other end of the spectrum, the protesters at the Stonewall Inn on June 27, 1969, advocated for liberation along many axes—gender, race, sexual orientation, gender identity, class. The Gay Liberation Front, inspired by the Stonewall Riots and formed shortly thereafter, embodied this liberation-based strategy. Its tactics are best de- scribed as confrontational, intersectional, and anti-assimilationist. This Article will refer to these two approaches as Conformist and Visionary.

Presumably, both the Conformist and the Visionary approaches shared the general end goal of equality for LGBT people; what equality looked like to each group reflects the differences between them. The differences between their strategies and tactics can be generalized as ones of imagination and vision.

The Conformist and Visionary divide has permeated the LGBT community’s civil rights campaign through the present day, as has the debate among scholars and advocates about the “best” approach to effect lasting change. While most scholars discuss the benefits and drawbacks of these two approaches vis-à-vis the law and society writ large and propose that one take precedence over the other, this Article explores how this decades-long intracommunity divide—the conversation among activists and scholars within the LGBT community—might shape the future of the movement. Rather than attempt to settle on the “best” approach, then, this Article instead focuses on the impact of the dynamic created by the intracommunity debate vis-à-vis the law and society writ large. It asks and answers the questions: What work did the Conformist and the Visionary approaches do to support the rise of LGBT rights in the United States? And, what work do they continue to do today, so that we may anticipate the growth and impact of LGBT rights on education law and employment law in the future? In doing so, it does not make a normative or strategic judgment concerning either approach. Rather, its goal is to expose and explore what this Article calls the transcommunity dialogue—a communicative pathway between the LGBT community and society at large, which is informed by the Conformist-Visionary dynamic.

The Article proceeds in four parts. Part I describes the historic trajectory of the Conformist and the Visionary approaches. It then sketches the scholarly debate concerning these approaches. Part II frames the Article within social science literature on the importance of intragroup disagreement in social justice movements, which necessarily implicates intergroup dynamics. Part III traces these approaches to two current-day LGBT legal issues: (1) Title VII’s promise of pay equity as illustrated by the U.S. Women’s National Soccer Team pay equity lawsuit1 and Title VII’s promise of nondiscrimination as illustrated by the sexual orientation and gender identity (“SOGI”) lawsuits currently pending at the United States Supreme Court, and (2) Title IX’s promise of educational equity “on the basis of sex” as illustrated by the legal battles over transgender elementary school children seeking to access sex-segregated facilities that align with their gender identity. Part IV adds to the scholarly conversation about this intracommunity de- bate by interrogating the dynamic created by the intracommunity debate itself and its relationship with and impact on these contemporary Title VII and Title IX legal battles. The Article concludes by predicting that both the Conformist and the Visionary approaches will continue to contribute to equality gains for the LGBT community. It attempts to telegraph the work that these approaches have done in the past to the work that they might do in the future.

Kyle C. Velte*

* Associate Professor, University of Kansas School of Law. Many thanks to the Univer- sity of Richmond Law Review for organizing this important symposium and for including me among the outstanding scholars, activists, and practitioners who presented. Thanks also to my research assistant, Delaney Hiegart. This Article is dedicated to the Conformists and Visionaries who came before us; the arc of the moral universe may be long, but it is bending toward justice faster because of your work at a time when that work was tremendously risky, scary, and difficult. We stand on your shoulders.

*

Shared Histories: The Feminist and Gay Liberation Movements for Freedom in Public

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Introduction

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. While they had engaged in earlier, smaller protests and reforms, Stonewall ignited a mass gay liberation movement and sparked popular awareness of LGBTQ people’s civil rights struggles. LGBTQ activists demanded their rights to express identity, associate with one another, and engage in queer behavior. That same year, the newly burgeoning feminist movement also launched protests and called for women’s equality in public accommodations—the legal term of art for places open to the public. These groups shared a history of regulation. Customary business practices, the discriminatory administration of liquor licensing laws, and limited protections against discrimination all denied LGBTQ people and heterosexual women alike the freedoms that heterosexual men enjoyed in public space. As they resisted this regulation, LGBTQ people and cisgender women won mutually reinforcing legal reforms.

To understand the dramatic change in social custom and law regulating gender and sexuality over the last half century requires examining the historical regulation and deregulation of cisgender women and of LGBTQ people together. Risa Goluboff has led the charge against siloed accounts of social movements and socio-legal change, arguing against historical narratives that treat subordinated groups as distinct and in pursuit of discrete goals. By instead synthesizing the histories of social movements, Goluboff shows that we gain better understanding of how social and legal structures of hierarchy and oppression “worked [and] how they then fell apart.” Heeding this call, this Article offers a close examination of dual case studies of feminist and gay and lesbian activism, in the period from the late 1960s through the mid-1980s.

Elizabeth Sepper * Deborah Dinner **

* Professor of Law, University of Texas at Austin School of Law.

** Associate Professor of Law, Emory University School of Law. Thank you to participants in the University of Richmond Law Review Symposium on the 50th Anniversary of the Stonewall Riots. We thank Athena Dufour, Chris Marple, and the staff of the University of Richmond Law Review for their superb organization and editing