Current Issue

Transparent: When Legal Fictions and Judicial Imagination Make Facts Disappear, They Enforce Transphobic Discrimination

Published Jul 14, 2015

Kim is a transgender parent who was ordered to pay more in child support than she earned. When she could not pay, a court found her in contempt and put her in jail. In jail, she was dressed in a woman’s uniform, paraded through every part of the men’s population, and then held in solitary confinement in the wing for violent male offenders. Her story provides an example of how courts sometimes view legal fictions as more real than the facts of a person’s life.

Legal fictions include presumptions, which are defined as “legal inference[s] or assumption[s] that a fact exists because of the known or proven existence of some other fact or group of facts.” When used appropriately, legal fictions can facilitate the law’s legitimate purposes. However, when facts contradict legal fictions, facts should be considered, in order to temper the potential for resulting irrationality and injustice. Legal fictions impact specific groups disproportionately. This is particularly true for those whose experiences are outside judges’ experiences.

This Article gives an example of this disproportionate impact and recommends that courts consider discrimination in hiring as relevant to whether a parent is voluntarily unemployed for the purposes of imputing income for child support determinations. Part I demonstrates how multiple judicial officers’ distraction, imagination, and misguided reliance on legal fictions, rather than on the facts of the individual’s life, made injustice real in Kim’s life. It attempts to understand judges’ unarticulated reasoning through a re-created conversation. Part II discusses legal treatment of transgender people in general. Part III suggests legal recommendations to promote clearer thinking and more rational decisions within the courts regarding the distracting and emotionally charged issues surrounding transgender individuals. Specifically, I suggest that the legal fiction that permits courts to impute income to unemployed parents should change to explicitly recognize discrimination in hiring. Courts should adopt an evidentiary rule accepting self-reports of gender identity. To facilitate legal thinking that transcends simplistic binary models of human experience, judges should make an effort to understand more about trans people. Judges should also adopt a simple schema for understanding the distinct categories of sex, gender identity, gender expression, and sexual orientation. Judges should be evaluated according to their ability to prioritize facts (here, discrimination against transgender people in hiring, which leads to unemployment) over legal fictions (here, a parent able to work but not working is voluntarily unemployed, rather than the target of discrimination in hiring). Finally, judges should be evaluated for their ability to prioritize facts over their own fears.

Intersections at the Border: Immigration Enforcement, Reproductive Oppression, and the Policing of Latina Bodies in the Rio Grande Valley

Published Jul 14, 2015

A series of events in 2014 brought significant attention to the United States-Mexico border. Over the summer, reports of an influx of undocumented Central American immigrants began circulating.[2] Though most coverage mentioned only children crossing the border, many of these young migrants traveled alongside their mothers. Reports of this influx raised public awareness about the increased level of immigration enforcement at the border and the rise of federal family detention centers in south Texas. That same year, a series of lawsuits against the State of Texas’s House Bill 2, which implemented significant restrictions on reproductive health clinics and abortion services in the state, shone a light on the health crisis facing women in the Rio Grande Valley.

Part I of this paper lays out the constituent systems of immigration enforcement and anti-abortion policies in recent Texas history and situates these systems within larger national trends. Part II addresses the way the systems work together, using a framework of “intersectional subordination” to highlight the particular violence they work upon undocumented immigrant Latina women and Latino/a communities more broadly. Part III gives a brief historical perspective on the intersectional failure of the Chicano/a rights and reproductive rights movements. It argues that the marginalization of Latina women, generally, and activism against Latina reproductive oppression specifically, has contributed to the development of an abortion jurisprudence that fails to remedy the expansive negative outcomes of anti-abortion policies. Finally, Part IV concludes by arguing that the undue burden standard fails to protect marginalized women from violations of their reproductive and bodily rights and argues for reworking abortion jurisprudence and reproductive justice advocacy to better encompass the full intersectional experience and racialized outcomes of anti-abortion policies.

The Inaccessible Road to Motherhood — The Tragic Consequence of not having Reproductive Policies for Israelis with Disabilities

Published Jul 14, 2015

The desire of an individual to become a parent can be very strong, especially in ‘child-centric’ societies, where the idea of having children and raising a family is highly valued. In those societies, the prominent pro-natal nature translates into policies and laws regulating reproduction. The Jewish-Israeli society is a prime example of such a society where the use of state-funded Assisted Reproduction Technologies (ART) is the highest in the world—eight times higher than the international average. However, the road to becoming a parent is not as smooth to all members of Israeli society. A recent case that went all the way to the Israeli Supreme Court proved how the current Israeli reproductive policies, particularly surrounding third-party reproduction methods i.e., adoption or surrogacy, are inaccessible to people with disabilities (among other minority groups) who share the same great desire to become parents.

The Ora Mor Yosef case revolves around a Jewish-Israeli woman with muscular dystrophy who could not bear a child because of her impairment. Her dream of becoming a mother was so powerful that after exhausting all of her other options, she used a surrogate, sperm donation, and egg donation to bring a baby into the world. However, the lack of genetic-biological connection to the baby led the courts to decide not to recognize Ora as the mother, meaning that she never had the chance to even see the baby.

This Paper will examine the exceptional case of Ora Mor Yosef in a broad context and from a “disability legal studies” perspective. It will compare Israeli socio-legal treatment of what I refer to as the right to become a parent with the United States legal system and will show how Israeli law makes it more difficult for women with disabilities to have children. It will continue with a discussion on the concept of disabled motherhood from a comparative Israeli-American perspective. This discussion will illuminate that there are still universal struggles and hardships for people with disabilities, specifically women, as they endeavor to become mothers and in raising their children. By using a Disability Legal Studies framework and a socio-legal analysis, this interdisciplinary paper will bring to the foreground issues and ramifications that were not found in the original reasoning of the Israeli courts’ rulings on the Ora Mor Yosef case, and will demonstrate the crucial role legal institutions play in the social construction of disability and its treatment by society. It is my hope that this paper will therefore help bring more attention to the issue of disabled parents and prevent tragic instances like the one standing in the heart of this paper from recurring.

Medical Transgressions in America’s Prisons: Defending Transgender Prisoners’ Access to Transition-Related Care

Published Jul 14, 2015

With Chelsea Manning’s case making headlines, and hit television show Orange Is the New Black highlighting the struggles of a trans woman in prison, the public is slowly becoming aware of the complex issues facing transgender prisoners. Although it is difficult to determine the precise number of this population, a 2009 study by Brown and McDuffie estimates that approximately 750 prisoners in the United States identify as transgender. This is a relatively small portion of the U.S. prison population, but it represents a sizable portion of America’s transgender population. Nearly one in six transgender Americans—and almost half of the African American transgender population—has been incarcerated in a state or federal prison. Although the issues and concerns of this population have gained more attention in legal scholarship, academia, public policy, and social discourse in recent years, many issues are still largely unresolved for transgender inmates, including their access to medical care.

Part I of this Note will provide a background on gender dysphoria and will introduce the concept of prison as a uniquely and problematically gendered space. Part II will introduce the standard of “serious medical need” that is used in Eighth Amendment jurisprudence, with particular focus on how courts have applied this standard to mental health concerns, a category within which gender dysphoria falls. Part III will introduce the central argument that, while increasingly more courts have found gender dysphoria or gender identity disorder to be a serious medical need, they have done so predominantly—and thus problematically—in cases in which the plaintiff has taken extreme measures to remedy his or her lack of treatment. This arguably establishes a pattern whereby attempted suicide and self-surgery become metrics for evaluating the severity of gender dysphoria, and implies that gender dysphoria is not deserving of treatment until it has reached these catastrophic levels. Part IV will address the tension between using medical rhetoric to secure necessary rights for prisoners and avoiding the pathologization of the transgender community that is inherent in the Eighth Amendment argument. Part V will conclude by providing alternative legal arguments as well as broader policy suggestions that may be used alongside the traditional Eighth Amendment argument to secure medical care for transgender inmates.

Closing the Gap of Justice: Providing Protection for Native American Women Through the Special Domestic Violence Criminal Jurisdiction Provision of VAWA

Published Aug 18, 2014

Soon after Native American Diane Millich and her non-Indian husband got married, they moved into her home, located on the Southern Ute Indian reservation where she grew up. Millich’s husband began routinely abusing her, and within a year she suffered “more than 100 incidents of being slapped, kicked, punched and living in terror[.]” Millich made numerous attempts to call her local tribal and county police for help during these episodes of violence. In fact after one instance of beating his wife, Millich’s husband himself called the sheriff to report what he had done. Because he knew that there was nothing the sheriff could do. That no help would come. That he would never be prosecuted for what he did. Why? Because Millich was a Native American, Millich’s husband was not, and he was abusing her on tribal land. And because of these circumstances, as Millich later observed, “The law couldn’t touch him.” Unfortunately Millich’s circumstance is not an isolated oversight of the law. Many Indian women have not been able to seek help or justice because they happened to be trapped in this scenario: an Indian victim of a non-Indian abuser on tribal land. A recent amendment to the Violence Against Women Act (VAWA), however, was passed to change all this.

Contraceptive Sabotage

Published Aug 18, 2014

This Article responds to the alarm recently sounded by the American College of Obstetricians and Gynecologists over “birth control sabotage”—the “active interference [by one partner] with [the other] partner’s contraceptive methods in an attempt to promote pregnancy.” Currently, sabotage is not a crime, and existing categories of criminal offenses fail to capture the essence of the injury it does to victims. This Article argues that sabotage should be a separate crime—but only when perpetrated against those partners who can and do get pregnant as a result of having sabotaged sex. Using the principle of self-possession—understood as a person’s basic right to self-ownership—this Article argues that women have a self-possessory interest in maintaining their reproductive capacity in its non-pregnant state during and after having sex to the extent they seek to establish with the use or planned use of contraception. Sabotage by sexual partners—typically male—violates this interest and merits criminal punishment. This Article proposes statutory language to criminalize sabotage that should be added to the revision of the Model Penal Code currently underway. Not only would this addition likely survive any Equal Protection challenge, it would arguably serve to strengthen the existing constitutional right to non-procreative sex by setting meaningful limits on one partner’s ability to interfere unilaterally with the other partner’s contraceptive decisions.

Restoring Balance to Abuse Cases: Expanding the One-Sided Approach to Teaching Domestic Violence Practice

Published Aug 18, 2014

“Balance” is an elusive concept in the domestic violence field. Equilibrium can always be threatened by tension between attorney and client, between the parties and the legal system, and, of course, between the parties themselves. Abusive relationships are inherently unbalanced; the abusive partner maintains power and control by systematically overcoming the will of the other partner, often using violence and coercion. When an abuse case enters the legal system, therefore, the playing field is anything but level.

An “I Do” I Choose: How the Fight for Marriage Access Supports a Per Se Finding of Persecution for Asylum Cases Based on Forced Marriage

Published Aug 18, 2014

In the summer of 2013, the country waited anxiously for the Supreme Court to issue rulings in two landmark gay marriage cases that had the potential to fundamentally alter the institution of marriage in the United States. Advocates and opponents of same-sex unions fiercely debated the issue, but although the two sides’ positions were widely divergent, each emphasized the unique role of marriage in the social, personal, and legal fabric of life. Edie Windsor, the named plaintiff in the lawsuit seeking to strike down § 3 of the Defense of Marriage Act (DOMA), agreed. Ms Windsor had been in a committed relationship with her partner for forty years prior to their marriage in 2007. Yet she stated that the transformation after entering into the legal union “was profound” and that she has “asked everybody since who gets married after long-term relationships, ‘Did it feel different the next day?’ and the answer is always ‘Yes, absolutely.’”

Deconstructing Rape by Fraud

Published Aug 18, 2014

In this Article, I critically examine the role of normative masculinity in determining the shape and scope of the criminal law doctrine of rape by fraud, which purports to criminalize sexual intercourse procured through certain material deceptions. In application, the rape by fraud doctrine is exceedingly narrow—deceptively induced sexual intercourse is rarely criminalized as rape, despite deception’s profound impact on the voluntariness of sexual consent. As the Article explains, the rape by fraud doctrine is thus in tension with the prevailing view that rape law principally protects a thick norm of individual sexual autonomy. Despite this tension, the narrowness of the rape by fraud doctrine is frequently defended, often by those who are most committed to individual autonomy elsewhere in rape law.

Through an analysis of court decisions and academic commentary, I demonstrate that those defenses largely rest on appeals to a romanticized ideal of the practice of seduction. I illuminate the link between seduction and a prevailing ideology of normative masculinity that allocates social status for men on the basis of demonstrations of sexual conquest. That ideology perpetuates narratives in which women, through their capacity to grant or withhold consent, hold power over men when pursued as objects for sex. Indeed, within this account, the transgression of women’s power is what makes sexual conquest worthy of masculine status. Deceptions used to procure sex are criminalized only in exceptional cases where the narratives of interpersonal power break down. Thus, the rape by fraud doctrine can be seen as codifying existing limits on masculine status transfer. Ultimately, I argue that understanding the rape by fraud doctrine in terms of normative masculinity exposes an important continuity between contemporary rape law and rape law historically, in which rape was a crime against men’s property interest in women.