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Abstract:
When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine's infliction of first generation, or status discrimination against sexual minorities by conflating "sex" - and the prurient representation of sex that constitutes obscenity - and "sexual orientation." Civil rights lawyers and scholars have turned their attentions away from "first generation" discrimination," where groups experience discrimination on the basis of their status, and toward "second generation" discrimination, where groups experience discrimination for failing to downplay or "cover" traits constitutive of their group identities. However, some groups, particularly those in civil rights law's "second wave" - sexual minorities, women, the elderly, and the disabled - continue to suffer first generation discrimination harms. This Article bridges first amendment and anti-discrimination literatures, which until now have not come together to address a harm that falls within their individual, and collective, jurisdictions. Moreover, and perhaps more importantly, the Article addresses a pervasive harm that courts will likely not have the opportunity to resolve. Because their representation is classified as obscenity, and therefore unprotected speech for first amendment purposes, sexual minorities are effectively barred by obscenity doctrine from bringing suit to assert their first amendment rights.

obscenity, first amendment, jurisprudence, law & sexuality, sexuality, gender, discrimination, anti-discrimination, lawrence v. texa

Abstract:
Anything for love; I would do anything for love; I would do anything for love; But I won't do that; I won't do that.

When Meat Loaf mystified scores of listeners in the early nineties by his logically inconsistent song lyrics, he almost certainly did not look to property law when answering his fans most popular question. This Essay does not argue that he should have. However, Meat Loaf's (in)famous song lyrics may be able to shed light on what has become a popular question among property fans, namely what is the nature of the right to exclude.

This Essay argues that an owner's invocation of the right to exclude depends upon the owner's invocation of other rights in the property bundle. In so arguing, the Essay analyzes current efforts to understand the right to exclude through the lens of the property outlaw, whom Eduardo Moisés Peñalver & Sonia K. Katyal profile in their recent article, Property Outlaws. The Essay highlights the effects of Professors Peñalver's and Katyal's argument on the nature of property's right to exclude. After summarizing recent efforts to understand the right to exclude, describing Peñalver's and Katyal's argument that outlaw behavior has a special and socially productive function in property law, and explaining the connection between their article and the right to exclude, the Essay concludes by proffering evidence that Meat Loaf may have audited a first year property course, or at least that he incorporated insights about property law into his music.

property, land use, jurisprudence, exclusion

Abstract:
In her book, Fat Rights: Dilemmas of Difference and Personhood, Professor Anna Kirkland uses fat discrimination as a case study to examine the ways in which we talk about difference in antidiscrimination law. She argues that the proper way to frame questions of difference in antidiscrimination is not in terms of protected traits or categories, but rather in terms of what she calls "logics of personhood." The logics of personhood are narratives that enable us to talk about which differences matter in a given discrimination case. In other words, they are ways of talking about what happens when people do or do not have rights, as well as whether certain people should be protected by antidiscrimination law. After applying the logics to the case of fat discrimination, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law's categories. By identifying in the logics of personhood the presumptions that lay beneath the surface of antidiscrimination law, Kirkland creates an entirely new way to talk about differences among people.

In this Book Review, we extend Professor Kirkland's discussion of fat plaintiffs to a discussion of transgender plaintiffs. Much like fat plaintiffs, transgender plaintiffs' only hope of articulating actionable discrimination claims is to map their claims onto existing antidiscrimination norms. As Kirkland demonstrates in Fat Rights, fat plaintiffs must cast themselves as disabled in order to state an actionable discrimination claims. And as we demonstrate in this Book Review, transgender plaintiffs must cast themselves as gender-nonconformists in order to state actionable claims. While both fat and transgender employees may be willing to negotiate their identities to win lawsuits against their discriminatory employers, the purpose of this Book Review is to ask whether they should have to. We use Kirkland's logics of personhood to demonstrate that fat plaintiffs and transgender plaintiffs share a common frustration with respect to antidiscrimination law's protected categories, namely, that antidiscrimination law sees both fat people and transgender people differently from how they see themselves. And we argue further that this is a significant harm to a plaintiff's dignity and that antidiscrimination law should take into consideration such dignitary harms.

Antidiscrimination law, disability law, transgender, fat

Abstract:
Transgenderism is in transition. The recent decision in Schroer v. Billington offers transgender plaintiffs hopeful precedent, but it is as yet unclear whether other courts will rule the same way in cases of transgender discrimination. This Essay, prepared for the Temple Political and Civil Rights Law Review symposium on transgender rights, argues that in order to ensure more consistent results in cases of transgender discrimination, courts should embrace an understanding of transitional identity. Transitional identity is identity that borrows from one or more extant identities, but which is inchoate, in that the identity does not express fully any of those extant identities. For instance, a religious convert has a transitional identity, because her identity borrows from the religion from which she is converting as well as the religion to which she will convert. Similarly, a transgender person has a transitional identity, because the person's identity borrows from the gender or sex from which the person is transitioning as well as the gender or sex to which the person will transition. This Essay argues that an understanding of transitional identity is preferable - in that it provides a more stable foundation upon which to fight the battle against transgender discrimination - to the prevalent understanding of transgender identity as gender nonconformity.

An overview of transgender discrimination cases in Part I demonstrates the confused conception of transgender identity that has animated courts' decisions. Part II describes what is meant by "transitional identity," and explains how an understanding of transitional identity in antidiscrimination law benefits not only transgender plaintiffs, but antidiscrimination law as a whole. Part III draws on intersectionality theory in developing a theory of transitional discrimination, which is discrimination on the basis of transitional identity. A brief conclusion summarizes this Essay's ideas.

sexuality, gender, transgender, LGBT, discrimination, anti-discrimination, employment discrimination, intersectionality, norms

Abstract:
Jennifer Hoffman identified as a woman. A classmate of mine in law school and a section-mate of mine during our first year, Jennifer wore no make-up, her short brown wavy hair parted to her right side, and an oxford shirt tucked into slacks each day. Jennifer always took her seat in the middle of the classroom in our large first year lectures. While members of my first year section, like many first year law students, shared the fear of being called on in class, many of us shared another fear, as well: the fear that Jennifer would be called on. On more than one occasion, professors leading lectures would call on "Mr. Hoffman" while looking at Jennifer in the middle of the classroom. In so doing, these professors called on Jennifer as they would call on any other student sitting in their classroom, which is to say they used the gendered title with which they assumed she associated and the surname that appeared in her box on the professor's seating chart that represented the seat she occupied.

Since I began teaching law, I have instituted a name-calling policy which provides that since I call on students randomly, before they have the chance to let me know with which gendered title they identify, I call on students by their first names. I tell my students that I do this because "I feel strongly that each individual should be able to choose a gendered title, rather than feel compelled to respond to a gendered title chosen by someone else."

This invited Idea submission explains my name-calling policy and its motivation: an aspiration for gender-neutrality in the law school classroom. Of course, the idea that the law school classroom should be gender-neutral is not universally accepted. For this reason, this Idea argues that law school classrooms should be gender-neutral and that instituting a policy like the Name-calling Policy is an effective step toward the end of gender-neutrality.

gender-neutral, sexuality, gender, transgender, discrimination, anti-discrimination, norms