Dukeminier Awards Journal
Recognizing the Best Sexual Orientation and Gender Identity Law Review Articles of 2013
Current Issue: Volume 13 (2014)
Urban Bias, Rural Sexual Minorities, and the Courts by Luke A. Boso, 2011-2013 Richard Taylor Law Teaching Fellow, The Williams Institute, published in 60 UCLA L. Rev. 562 (2013), also awarded the Stu Walter Prize
Dominant narratives about sexual minorities assume that homosexuality is incompatible with rural life. The very act of authenticating oneself as a lesbian, gay, or bisexual person is typically associated with a “coming out” process that involves publicly claiming one’s sexual identity status and assimilating into an urban gay community. Boso identifies how this largely unexamined urban bias penetrates LGBTQ politics, popular discourse, and legal analysis alike, minimizing the experiences of sexual minorities who lack the economic resources or desire to move away from their rural locales. Urban bias, Boso argues, undercuts the agency of rural sexual minorities who choose not to move, undervalues the burdens that accompany severing ties to one’s communities of origin, and places the onus on individuals to liberate themselves from discrimination. Judges perpetuate these problems by infusing urban bias into legal analysis in two ways: by invoking common aspects of rural life to dismiss sexual minorities’ discrimination claims and by ignoring the rural context when it would bolster sexual minorities’ claims for protection in other areas. As a result, the rural context diminishes sexual minorities’ access to justice, compounding the vulnerability of an underserved population already facing significant economic and geographical marginalization.
Creation Stories: Stanley Hauerwas, Same-Sex Marriage, and Narrative in Law and Theology by Charlton C. Copeland, Associate Professor of Law, University of Miami School of Law, published in 75 L. & Contemp. Probs. 87 (2012), also awarded the Michael Cunningham Prize
LGBTQ activists frequently use narrative, or the personal perspectives of members of marginalized groups, as a way of challenging stereotypes and increasing support for their cause. Particularly in the context of same-sex marriage advocacy, the use of narrative has been primarily aimed at mainstream publics outside the LGBTQ movement, such as legal decision-makers, with the goal of fostering empathy and identification with LGBTQ people. Copeland evaluates this use of narrative in same-sex marriage advocacy through a critical comparison with the use of narrative in quite a different context: “narrative theology,” a scholarly movement within contemporary Christian theology that emerged to offset the discipline’s perceived liberal leaning. Narrative theologians, much like critical race scholars in the legal academy, use narrative to amplify the voices of those excluded from the mainstream and to challenge the dominant paradigms that generate their exclusion. For narrative theologians in particular, the objective is to cultivate the common values and religious tenets that position Christians as “outsiders”—to celebrate the collective group identity that differentiates this group from the mainstream. For marriage equality advocates, by contrast, the use of narrative serves more to highlight the values that LGBTQ “outsiders” share with the heterosexual mainstream, or to minimize the differences between same-sex couples and “everybody else” which might serve as the basis for same-sex couples’ exclusion from marriage. Some within the movement have critiqued this use of distance-minimizing narratives, saying that it hinges the social acceptance of LGBTQ people on their assimilation of dominant sexual mores and idealized social institutions. Copeland offers the narrative theology approach as resource for LGBTQ advocates who take this critique seriously or who otherwise hope to cultivate movement solidarity by embracing, rather than downplaying, alternative forms of intimacy that remain highly stigmatized.
Two Models of the Prison: Accidental Humanity and Hypermasculinity in the L.A. County Jail by Sharon Dolovich, Professor of Law, UCLA School of Law, Scholar-in-Residence, Center on the Administration of Criminal Law, New York University School of Law, published in 102 J. Crim. L. & Criminology. 965 (2013), also awarded the Ezekiel Webber Prize
The K6G unit of L.A. County’s Men’s Central Jail, which houses gay and male-to-female transgender inmates, is virtually free of the problems that tend to define typical prison life: gang politics, hypermasculine posturing, and the endemic threat of sexual victimization and other physical violence. Drawing on original data gathered from within the L.A. County Jail, Dolovich analyzes the key features that distinguish the K6G unit from the standard model of prison life (in the Jail’s general population) and enable K6G’s relatively safer and more humane carceral conditions. Dolovich emphasizes a unique set of structural arrangements—including the unit’s impermeable boundaries to keep out would-be predators, the respectful and trustworthy demeanor of its supervising officers, the certainty of automatic reassignment for re-offenders, and the popular interest in the unit’s success—which combine to create a collective sense of safety among its residents. Whereas the constant fear of violence causes general population residents to self-protect through tough posturing, emotional repression, and even anticipatory attacks, the absence of such vulnerability in the K6G unit enables residents to relax, show emotion and creativity, and reject newcomer’s efforts to introduce gang politics into the unit. While the sexual identity of the K6G residents may have contributed to some of its positive developments, sexual identity is an insufficient explanation on its own, and as Dolovich explains, overemphasizing its causal role requires a reliance on unfounded assumptions regarding inmates’ innate preferences and abilities. By looking instead to how K6G’s structural features may contribute to its residents’ psychologically healthier carceral experience, Dolovich offers productive insights into the types of penal reforms that could effectively restructure and humanize carceral conditions more broadly.
The Dukeminier Awards also recognizes this year’s winners of the Williams Institute’s annual student writing competition:
A Bottom-Up Approach to LGB Defamation: Criticizing Narratives of Public Policy and Respectability by Gregory K. Davis, Harvard University, also awarded the Jeffrey S. Haber Prize for student scholarship
Davis’ comment concerns LGB defamation cases, where a plaintiff has alleged injuries resulting from the false imputation of homosexuality or bisexuality. Most courts today, with the encouragement of mainstream LGBT advocates, look to the existence of state and local laws to determine whether an imputation of homosexuality would be defamatory in that jurisdiction; if these laws exist, the assumption goes, there must be sufficient support for LGB people such that falsely identifying someone as LGB should not cause great harm to his or her reputation. Davis argues that this “top-down” approach to LGB defamation inaccurately offers formal measures as a stand-in for community norms—an assumption that is particularly problematic in poor, rural, and racial minority communities marginalized by the political process—and circumscribes the remedies available to people living in the many communities where homosexuality imputations can still be quite harmful. Davis argues that the courts should instead take a bottom-up approach, which takes into account a plaintiff’s actual community situation, and the particular norms that constitute that community, to make a more realistic determination of the likely reputational effects of falsely identifying someone as LGB.
Keeping Closets in Our Classrooms: How the Qualified Immunity Test Is Failing LGBT Students by Natalie Knight, UCLA School of Law and UCLA Luskin School of Public Affairs, also awarded the Ezekiel Webber Prize
Knight’s comment explores the privacy rights of LGBT students who are “outed” to their parents by public school officials. Despite recent advances, homophobia remains pervasive in many schools and homes, endangering and obstructing progress for LGBT youth. Knight draws attention to one area where the hope for progress appears especially dim: the unauthorized disclosure of a public school student’s sexual identity to her parents. In particular, Knight highlights how the qualified immunity doctrine presents a seemingly insurmountable hurdle for public school students wanting to establish and protect a right to informational privacy in this area. Qualified immunity prohibits lawsuits against public employees except where there is a violation of an established constitutional right. Yet when that right is the right of public school students to be free from disclosure of their sexual identities, precedent cannot establish that right because those students are incapable of filing suit to establish such a right. The qualified immunity doctrine thus puts LGBT students in an impossible paradox of requirements, blocking effective resolution of this important problem.
The Williams Institute would like to thank Jeffrey S. Haber, Brondi Borer, Stu Walter, Chuck Williams, and the family and friends of Ezekiel “Zeke” Webber for their endowment gifts to fund individual prizes recognizing outstanding scholarship related to sexual orientation and gender identity law.