The Sex Bureaucracy

Jacob E. Gersen

Harvard University

Jeannie Suk

Harvard Law School

March 18, 2016

California Law Review, Vol. 104, August 2016, Forthcoming
Harvard Public Law Working Paper No. 16-13

We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.

Number of Pages in PDF File: 59

Keywords: administrative law, sex, sexual violence, sex discrimination, sexual assault, sexual harassment, separation of powers, Title IX, Clery Act, Administrative Procedure Act, OCR, Department of Education, universities

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Date posted: March 24, 2016 ; Last revised: April 22, 2016

Suggested Citation

Gersen, Jacob E. and Suk, Jeannie, The Sex Bureaucracy (March 18, 2016). California Law Review, Vol. 104, August 2016, Forthcoming; Harvard Public Law Working Paper No. 16-13. Available at SSRN: http://ssrn.com/abstract=2750143

Contact Information

Jacob E. Gersen (Contact Author)
Harvard University ( email )
1875 Cambridge Street
Cambridge, MA 02138
United States
Jeannie Suk
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
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