Dukeminier Awards Journal
Recognizing the Best Sexual Orientation and Gender Identity Law Review Articles of 2012
Current Issue: Volume 12 (2013)
Gendered (In)Security: Migration and Criminalization in the Security State by Pooja Gehi, Director of Litigation & Advocacy, Sylvia Rivera Law Project, published in 35 Harv. J.L. & Gender 357 (2012), also awarded the Ezekiel Webber Prize
Over the past decade, both immigrant rights and LGBTQ rights have been key issues in United States political and legal debates. These two issue areas, however, have rarely publicly intersected. While the “war on terror” has heightened the public debate around immigration, national security, and border control, LGBTQ concerns and LGBTQ immigrants continue to be rhetorically separate from immigration-focused conversations. This rhetorical separation is especially problematic for those living at the intersections of different identities, including LGBTQ immigrants of color who live in poverty. As this Article demonstrates, the separation ignores how individuals who do not fit the public description put forth by rights-based organizations are the most negatively impacted by the laws and regulations that these mainstream organizations challenge.
At common law, children born out of wedlock were legally disfavored — filius nullius, the child of no one. But according to an inherited legal progress narrative, this all changed in 1968 when the U.S. Supreme Court decided Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., ushering in a new era in which the common law tradition that imposed serious disadvantages on non-marital children gave way to a more liberal era where the sins of the parents would not be visited upon the children. More recently however, illegitimacy seems to be making a comeback. In June 2011, the Family Leader, a Christian conservative group, exhorted presidential hopefuls to sign “The Marriage Vow — a Declaration of Dependence upon Marriage and Family.” “The Marriage Vow” emphasized the importance of the traditional nuclear family and marital fidelity, disavowed the expansion of civil marriage to same-sex couples, and identified the harms of illegitimacy. Illegitimacy has also become pervasive on both sides in the debate over same-sex marriage. Marriage traditionalists argue that marriage was intended to deal with the problem of illegitimacy and irresponsible procreation, while those favoring marriage equality argue that illegitimacy is an injury foisted upon same-sex couples and their families simply because they are ineligible for civil marriage. In this Essay, Professor Murray debunks the inherited legal progress narrative that claims that law abandoned the common law’s treatment of illegitimacy and its many legal disadvantages in favor of a more liberal legal regime. Murray revisits Levy, Glona, and the line of unmarried fathers cases and argues that constitutional protection for illegitimate families has been contingent on adhering to norms forged in the marital family. Murray then turns to the emergence of illegitimacy as a salient concept in the struggle for marriage equality. She traces the emergence of the “illegitimacy as injury” argument in marriage equality cases, and she explains the underappreciated costs of using illegitimacy to bolster claims for marriage equality.
Title VII: A Shift From Sex to Relationships by Victoria Schwartz, Bigelow Teaching Fellow and Lecturer in Law, The University of Chicago Law School, published in 35 Harv. J.L. & Gender 209 (2012), also awarded the Stu Walter Prize
This Article challenges the common assumption that Title VII does not protect against discrimination because of sexual orientation. It does so by showing that the same jurisprudential logic which has led courts to find that an individual who is discriminated against because of his or her relationship with someone of a different race, national origin, or sex is actionable under Title VII—a form of discrimination that this Article calls relational discrimination—necessarily applies to discrimination because of sexual orientation. While courts have consistently rejected arguments that Title VII applies to sexual orientation, this position is indefensible in light of the current state of the law. Courts presented with sexual orientation discrimination claims have focused primarily on an individual plaintiff’s protected characteristic in isolation, resulting in courts’ fixation on how to interpret “sex” as a statutory term. Meanwhile, courts analyzing other kinds of Title VII claims have gone beyond viewing an individual plaintiff’s protected characteristic in isolation, and have instead applied a relationship-based analysis. As a normative matter of statutory interpretation, this analysis should appeal to jurists on both sides of the political spectrum, and it should force scholars, academics, and courts—who have largely conceded that sexual orientation is not protected by Title VII—to confront and apply these relational principles to sexual orientation-based employment discrimination cases.
The Dukeminier Awards also recognizes this year’s winner of the Williams Institute’s annual student writing competition:
Meerkamper’s paper explores how genderqueer plaintiffs—meaning those who do not, or do not always, identify as either a man or a woman—might serve to expand the law’s conception of sex and gender through strategic litigation. Meerkamper argues that lawyers and advocates should include genderqueers when analyzing sex discrimination claims under state and federal statutes, as well as when considering possible constitutional challenges to gendered governmental regulations and identification requirements. Meerkamper poignantly and persuasively suggests that genderqueer legal victories would benefit those who defy or reject strict gender binaries as well all people in the broader trans community.
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.