Dukeminier Awards Journal

The Dukeminier Awards
Best Sexual Orientation and Gender Identity Law Review Articles 

Click here for 2011 Student Writing Competition
Extended Submission Deadline: January 16, 2012

(To nominate an article for a 2011 Dukeminier Award, please email Michael Boucai at boucai@law.ucla.edu )

The Dukeminier Awards acknowledge and distribute the best law review articles published on sexual orientation and gender identity law issues each year. The goals of the prizes are to encourage scholars to begin or continue writing about sexual orientation and gender identity law and public policy; provide valuable recognition and support for scholars, law students, and lawyers who write in this area; and provide easy access to each year’s best scholarly materials for those outside of legal academia, including lawyers, judges, other legal actors, and policy makers.

About

Each year, scholars, lawyers, judges, and law students throughout the United States publish hundreds of articles concerning various aspects of sexual orientation law. The Williams Institute and the UCLA School of Law students who staff the journal have initiated The Dukeminier Awards to acknowledge and distribute the best of these articles.

Our goals are that the journal will:

* encourage scholars to begin or continue writing about sexual orientation law and public policy;
* provide valuable recognition and support for scholars, law students, and lawyers who write in this area;
* provide easy access to each year’s best scholarly materials for those outside of legal academia, including lawyers, judges, other legal actors, and policy makers.

Closer to home, The Dukeminier Awards provide a unique educational experience for UCLA law students. In addition to a basic sexual orientation law course, UCLA School of Law offers an annual seminar on “Sexual Orientation Law Scholarship.” The students in that seminar, under the instruction of our faculty, undertake the intellectual processes involved in selecting each year’s Award articles. They develop a universe of articles published each year, peruse these articles to select several dozen for closer consideration, and then spend their time in the seminar closely reading and analyzing the chosen texts. The seminar culminates with the students’ and faculty members’ selection of the best articles for that year, which are then published as The Dukeminier Awards.

Having undertaken a version of this process once, we can attest that the decisions we had to make were not easy ones. The vast quantity of material from which we selected is a testament to the broad range of sexual orientation scholarship produced each year. There were many articles worthy of recognition. We readily acknowledge that the articles we select would not necessarily be the same choices everyone would make. However, we can say that we gave careful consideration to a large number of articles in the process of making our selections, and learned a great deal from the articles we selected as well as those we did not.

We are quite proud of the breadth and depth of the articles selected for the Dukeminier Awards. If they show a bias, it is for the provocative, interesting, and cutting edge, supported by careful research, and elegant writing. We selected the articles to be of use to those whom the journal is meant to serve: scholars, lawyers, judges, and law students working on these issues on a regular basis. We hope you will keep the journal on your shelf as a resource; and we look forward to supplementing it each year with a new and equally useful volume.

A word on technique: In publishing the Dukeminier Awards in a single volume, we are reprinting law review articles that have appeared in other journals. We have formatted our text so that the original pagination is evident; this will allow legal professionals using this volume to cite to the original law review material, or to our own pages – whichever is more appropriate to their task.

- William Rubenstein, Former Williams Institute Faculty Chair  & Brad Sears, Williams Institute Executive Director, 2002-2003 Dukeminier Awards Editorial Board

In Memory Jesse Dukeminier

This journal is named in memory of Jesse J. Dukeminier (1925-2003), who was a member of the UCLA law faculty for forty years. The journal celebrates scholarly excellence in the field of sexual orientation, and Jesse Dukeminier was an excellent scholar and gay man. Q.E.D.? No. His own scholarly eminence is unquestioned, but he never wrote on topics centered on sexual orientation. Nor was he what one would call an activist in the cause of gay rights. His field was property law, and in that field he was most certainly a star. His casebook, Property, co-authored with James E. Krier, has run to five editions, the latest published in 2002. It is, in substance and in number of adoptions, by far the leading casebook in the field. The same can be said of his casebook, Wills, Trusts, and Estates, co-authored with Stanley M. Johansen (6th ed. 2000). He was a nationally known authority on the Rule Against Perpetuities, and he contributed to the law’s development not only in his scholarship but in the legislative process. For example, he wrote the revision of the Rule adopted by the California legislature. Surely, however, the explanation for dedicating this journal to him lies elsewhere. Jesse Dukeminier was a beloved teacher, among a handful of UCLA law teachers in the last generation who were revered by their students. (In his case it is not excessive to say “revered.”) His sexual orientation was no secret; his union with David S. Sanders, a prominent psychiatrist, began around the time Jesse joined the UCLA faculty, and was well known to all. Long before it became widely understood that Coming Out was an important act of social and political construction, Jesse was Out, without ceremony–indeed, without raising the subject, unless someone else raised it first. He went about his life, in work and in recreation, as himself. Precisely because he was so admired, he contributed to the cause of equal citizenship by carrying on his day-to-day living under the assumption that his sexual orientation, although very much a part of his sense of self, was not especially noteworthy. For others who self-identified as gay or lesbian or bisexual, Jesse’s behavior could help to ease the way to their own public acknowledgement of their sexual orientation. Imagine that the year is 1973, and that you are one of Jesse’s students, a gay man or lesbian who has remained largely closeted. You may think, “If this highly admired man is Out, why should I not be?” And for those acquaintances who self-identified as straight, Jesse’s presence in their lives helped them to redefine the meanings they attached to homosexual orientation. Such a person might think, “If Jesse is gay, then the negative things I have heard about a gay orientation have to be false.” Jesse was not vain, but he was aware of his high standing among his students, his colleagues, and his friends. So, without ever getting on a soapbox, he was–knowingly–a walking advertisement for the proposition that equal treatment for every person, of any self-identified sexual orientation, is the proper social norm, the entitlement of all persons. The difference in public attitudes on this subject from 1973 to 2003 is remarkable and has made itself felt in legislation and in Supreme Court decisions. In a quiet-but-public way that was very much his own, Jesse Dukeminier was one local leader in that change. When the generous donation that was to become the Williams Institute was offered to our school, Jesse Dukeminier was one of a group of faculty who participated in the Institute’s design. He continued in active support of the Institute until his death. The UCLA Law School community is honored to dedicate this journal to his memory.

- Kenneth L. Karst, UCLA School of Law

 

The Dukeminier Awards Best Sexual Orientation Law Review Articles of 2009
Volume 9. 2010

● Denied the Finish Line: Sex Verification Testing for Intersex Athletes Under the International Association of Athletics Federations, by Yamuna Menon, University of Connecticut School of Law, also awarded Jeffrey S. Haber Prize for student scholarship

● Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homo-phobia by Clifford J. Rosky, Associate Professor of Law, University of Utah College of Law, published in 20 Yale J.L. & Feminism 257 (2009), also awarded Michael Cunningham Prize

● LGBT Elder Law: Toward Equity in Aging by Nancy J. Knauer, Professor of Law, Temple University, published in 32 Harv. J.L. & Gender 1 (2009), also awarded Stu Walter Prize

● Gender Outlaws Before the Law: The Courts of the Borderlands by Aeyal Gross, Faculty of Law, Tel-Aviv University, published in 32 Harv. J.L. & Gender 165 (2009)

● Heterosexuality and Title VII by Zachary A. Kramer, Assistant Professor of Law, Penn State School of Law, published in 103 Nw. U.L. Rev. 205 (2009)

● Racing the Closet by Russell K. Robinson, Professor of Law, UCLA School of Law, published in 61 Stan. L. Rev. 1463 (2009)

● Safety and Solidarity Across Gender Lines: Rethinking the Segregation of Transgender People in Detention by Gabriel Arkles, Acting Assistant Professor of Lawyering, NYU Law, published in 18 Temp. Pol. & Civ. Rts. L. Rev. 515 (2009)

The Williams Institute would like to thank Jeffrey S. Haber, Brondi Borer, and Stu Walter for their endowment gifts to fund individual prizes recognizing outstanding scholarship related to sexual orientation and gender identity law.

The Dukeminier Awards Best Sexual Orientation and Gender Identity Law Review Articles of 2008
Volume 8. 2009

● ARE YOU STILL MY MOTHER?: INTERSTATE RECOGNITION OF ADOPTIONS BY GAYS AND LESBIANS, 58 Am. U. L. Rev. 1 (2008) – Rhonda Wasserman

● THE CULTURAL PROPERTY CLAIM WITHIN THE SAME-SEX MARRIAGE CONTROVERSY, 17 Colum. J. Gender & L. 343 (2008) – Marc Poirier

● ONE TRAIN MAY HIDE ANOTHER”: KATZ, STONEWALL, AND THE SECRET SUBTEXT OF CRIMINAL PROCEDURE, 41 U.C. Davis L. Rev. 875 (2008) – David Alan Sklansky

● DOCUMENTING GENDER, 59 Hastings L.J. 731 (2008) – Dean Spade

The Dukeminier Awards Best Sexual Orientation and Gender Identity Law Review Articles of 2007
Volume 7. 2008

● Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J.L. & Gender 461 (2007) – Deborah A. Widiss, Elizabeth L. Rosenblatt, and Douglas NeJaime

● The Doctor Won’t See You Now: Rights of Transgender Adolescents to Sex Reassignment Treatment, 31 N.Y.U. Rev. L. & Soc. Change 361 (2007) – Sonja Shield

● Who Gets to Interpret the Constitution? The Case of Mayors and Marriage Equality, 3 Stan. J.C.R. & C.L. 1 (2007) – Sylvia A. Law

● Why Personal Presentation in the Workplace Is Not Trivial: Performativity Theory Applied to Title VII Sex-Dependent Appearance Standard Cases, student note by Gretchen Adel Myers

The Dukeminier Awards Best Sexual Orientation and Gender Identity Law Review Articles of 2006
Volume 6. 2007

●  CONSTITUTIONAL TIPPING POINTS: CIVIL RIGHTS , SOCIAL CHANGE, AND FACT-BASED ADJUDICATION, 106 COLUM. L. REV. 1955 (2006) – Suzanne B. Goldberg

Professor Suzanne Goldberg, in her article reprinted from the Columbia Law Review, examines the process by which courts “tip” from one understanding of a social group and its constitutional claims to another, observing that courts frequently focus on “facts” about a social group in such an analysis. Professor Goldberg argues that this “fact-based adjudication” method is flawed in that it obscures judicial involvement in selecting among competing norms. She considers the costs and benefits of courts using greater candor to acknowledge the normative judgments upon which their decisions rest.

● TRANSCENDING THE INDIVIDUALIST PARADIGM IN SEXUAL ORIENTATION ANTIDISCRIMINATION LAW, 94 CAL. L. REV. 1271 (2006) – Holning Lau

Professor Holing Lau, in his article reprinted from the California Law Review, looks at the difficulty of addressing discrimination by businesses that restrict their goods and services to opposite-sex couples. Online dating services, couples resorts, and dance studios frequently enforce rules that require patrons to engage in their activities only in opposite-sex couples, but Lau argues that this type of discrimination cannot be addressed using the lens of individual rights. Individuals are not prevented from using the services based on sexual orientation, but rather same0sex couples, or potential couples, cannot use the services as couples. Lau introduces the concept of a couple’s aggregate rights to examine this question.

● IMMORAL PURPOSES: MARRIAGE AND THE GENUS OF ILLICIT SEX, 115 YALE L.J. 756 (2006) – Ariela Dubler

Professor Ariela Dubler, in her article reprinted from the Yale Law Journal, contextualizes the Lawrence decision within “the history of attempts by federal lawmakers and judges to define the relationships among the genus of illicit sex, the genus of licit sex, and marriage.” Professor Dubler contrasts Lawrence with the role of marriage in immigration legislation of the early 1900′s and judicial response to that legislation. In this context, she views Lawrence as a case where a relationship was considered licit by a court despite the fact that, and in part because, it made no claim to marriage. She sheds new light on the significance of Lawrence by helping the reader to understand the broader context of caselaw assessing the licit/illicit divide and the role of marriage in transporting relationships across that line.

● FROM STONEWALL TO THE SUBURBS? TOWARD A POLITICAL ECONOMY OF SEXUALITY, 14 WM. & MARY BILL RTS. J. 1539 (2006) – Angela Harris

Professor Angela Harris, in her article reprinted from the William and Mary Bill of Rights Journal, offers a cautionary approach to understanding the recent victories in same-sex relationship recognition and sodomy decriminalization represented by Lawrence v. Texas  and Goodridge v. Dept. of Public Health. Professor Harris observes the common parallels made in legal scholarship between the civil rights victory of Brown v. Board of Education and these two recent cases in sexual orientation law. Examining these cases through the lens of political economy, she observes that rather than deep and abiding social change, legal victories like these actually accomplish “preservation [of the status quo] through transformation.” Describing how neoliberalism has shifted the political context of the U.S. and absorbed and neutralized many of the apparent wins of social justice movements of the last few decades, Harris cautions sexual orientation law scholars to beware of the limited significance of the changes that Goodridge and Lawrence may actually represent.

●  The Sound of (Congressional) Silence: The Broader Meaning of ‘Sex’ in Title VII, student note by Sergey Moudriak, UCLA Law

Mr. Moudriak’s comment examines the use of medical evidence in Title VII claims brought by transgender employees. He argues that courts should not rely on controversial medical diagnoses, but rather on the sex stereotyping prohibition laid out by Price Waterhouse v. Hopkins to find that discrimination against transgender employees violates Title VII.

The Dukeminier Awards Best Sexual Orientation Law Review Articles of 2005
Volume 5. 2006

●  SAME-SEX MARRIAGE AND SLIPPERY SLOPES, 33 HOFSTRA L. REV. 1155 (2005) — Eugene Volokh

Professor Eugene Volokh, in his article reprinted from the Hofstra Law Review, examines the plausibility of slippery slope arguments in the same-sex marriage debate. Opponents of same-sex marriage often make slippery slope arguments; for example, they argue that legal recognition of same-sex marriage will lead to legal recognition of polygamy. These claims are usually asserted without empirical support. Professor Volokh concludes that the potential slippery slope harms of recognizing same-sex marriage, “while plausible and potentially significant, are not very likely.” Professor Volokh’s detailed analysis of slippery slope arguments provides new clarity to the same-sex marriage debate.

●  SAME-SEX COUPLES: DEFINING MARRIAGE IN THE TWENTY-FIRST CENTURY: PUTTING A PRICE ON EQUALITY? THE IMPACT OF SAME-SEX MARRIAGE ON CALIFORNIA’S BUDGET, 16 STAN. L. & POL’Y REV. 197 (2005) — M.V. Lee Badgett and R. Bradley Sears

Professors M.V. Lee Badgett and R. Bradley Sears, in their article reprinted from the Stanford Law & Public Policy Review, assess the impact the legalizing same-sex marriage would have on California’s state budget. After a rigorous economic analysis, the authors offer a conservative estimate: “the California state budget will benefit from an annual net gain of approximately $123 million during the first three years it extends marriage to same-sex couples.” Professors Badgett and Sears’ article, while focusing on California, is a template for future analyses of same-sex marriage’s effects on other state budgets. These economic analyses allow participants in the same-sex marriage debate to reach better-informed conclusions regarding the desirability of same-sex marriage.

●  CURRENT DEBATES IN THE CONFLICT OF LAWS: RECOGNITION AND ENFORCEMENT OF SAME-SEX MARRIAGE: INTEREST ANALYSIS IN INTERJURISDICTIONAL MARRIAGE DISPUTES, 153 U. PA. L. REV. 2215 — Tobias Barrington Wolff

Professor Tobias Barrington Wolff, in his article reprinted from the University of Pennsylvania Law Review, focuses on whether states have the power to refuse recognition of out-of-state same-sex marriages. Although many scholars have written on the interjurisdictional aspects of same-sex marriage, Professor Wolff adds new insight to the debate. Most other scholars have made categorical claims that states either do or do not have the power to deny effect to out-of-state same-sex marriages. In contrast, Professor Wolff proposes a nuanced method of analysis that can lead to different results on a case-to-case basis. Professor Wolff discusses what interests courts should consider in these cases and how those interests should be analyzed.

●  CONSISTENCY, INTEGRITY, AND EQUAL JUSTICE: A PROPOSAL TO RID CALIFORNIA LAW OF THE LGBT PANIC DEFENSE, student note by David L. Annicchiarico, UC Hastings

Mr. Annicchiarico’s comment criticizes LGBT panic defenses, which murder defendants argue to mitigate the charges against them to manslaughter. A defendant who invokes the defense argues that he killed his victim out of panic – either because he received a same-sex sexual advance from his victim or because he discovered that his victim was a transgender person. Mr. Annicchiarico proposes three ways to eliminate LGBT panic defenses in California: amending the state’s manslaughter laws, modifying jury instructions, and modifying hate crime laws.

 

The Dukeminier Awards Best Sexual Orientation Law Review Articles of 2004
Volume 4. 2006

● THE UNKNOWN PAST OF LAWRENCE V. TEXAS, 102 MICH. L. REV. 1464 (2004) — Dale Carpenter

Professor Dale Carpenter, in his article reprinted from the Michigan Law Review, tells the story of Lawrence v. Texas that is missing from both the Supreme Court’s opinion and popular accounts of the case. Based on in depth interviews with lawyers, police officers, and other key players in the events that led up to the case, his article calls into question the arresting officers’ claim that they actually saw John Lawrence and Tyrone Garner having sex. Professor Carpenter also uncovers the stories of the unsung heroes of Lawrence, including a bartender and a court clerk, whose invaluable contributions in the early stages of the litigation, until now, have been overlooked. Told in a compelling narrative style, Professor Carpenter’s piece adds important factual texture to our understanding of Lawrence and the history of the gay civil rights movement.

● MORALS-BASED JUSTIFICATIONS FOR LAWMAKING: BEFORE AND AFTER LAWRENCE V. TEXAS, 88 MINN. L. REV. 1233 (2004) — Suzanne B. Goldberg

Professor Suzanne Goldberg, in her article, reprinted from the Minnesota Law Review, asks whether, after Lawrence v. Texas, a state’s moral agenda alone provides sufficient grounds to restrict individual liberties. Although the Supreme Court has, over the years, relied on the rhetoric of morality to justify legislation, Professor Goldberg reveals that the Court has long been suspicious of exclusively morals-based justifications for legislation. Lawrence, then, may not be the constitutional aberration Justice Scalia declares it to be inhis dissent, but rather a final and explicit declaration of a rule the Court has been developing for some time. Because there are a number of difficulties associated with courts reviewing morals-based legislation, Professor Goldberg proposes that all legislative actions, even those related to moral issues, should be supported by provable facts.

● LAWRENCE V. TEXAS: “THE FUNDAMENTAL RIGHT” THAT DARE NOT SPEAK ITS NAME, 177 HARV. L. REV. 1893 (2004) — Laurence H. Tribe

Professor Laurence Tribe, in his essay reprinted from the Harvard Law Review, examines Lawrence v. Texas through the lens of the Supreme Court’s substantive due process jurisprudence. After providing a close reading of Lawrence, Professor Tribe argues that like the Court’s earlier substantive due  process cases, Lawrence grounds substantive due process liberties in the self-governing nature of personal relationships. He also speculates that, even if it does not happen immediately, the reasoning of Lawrence paves the way for same-sex marriage in constitutional doctrine.

● SEXUAL ORIENTATION AND THE PARADOX OF HEIGHTENED SCRUTINY, 102 MICH. L. REV. 1528 (2004) — Nan D. Hunter

Professor Nan Hunter, in her essay reprinted from the Minnesota Law Review, looks at the implications of the Supreme Court’s constitutional analysis in Lawrence v. Texas for future regulations on homosexuality. Noting that the Court used a form of heightened scrutiny in Lawrence, she argues that the paradox of this level of review is that while it decriminalizes same-sex sexual relations, it simultaneously ushers in a new legal regime that will allow for even greater regulation of homosexuality. Unable to rely solely on morality, courts now will have to engage in more particularized and context-driven evaluations of state restrictions on homosexuality, which means that courts will be asking more rather than fewer questions about the lives of lesbians and gay men.

● UNDERSTANDING LAWRENCE V. TEXAS AFTER FIFTY YEARS OF BROWN V. BOARD: A RESPONSE TO JUDGE REINHARDT, student note by Zachary Shepard, UCLA Law

The Dukeminier Awards Best Sexual Orientation Law Review Articles of 2003
Volume 3. 2005

● LESBIAN AND GAY FAMILIES: GENDER NONCONFORMITY AND THE IMPLICATIONS OF DIFFERENCE, 31 CAP. U. L. REV. 691, 694, 724-47 (2003) — Carlos Ball

Professor Carlos Ball’s article, reprinted from the Capital University Law Review, sets out to reframe the debate over same-sex parenting. Proponents of same-sex families have long argued that there are no differences between children raised by gay parents and those raised in opposite-sex households. Professor Ball breaks from this tradition. Starting from recent studies of gay parenting which indicate that the children of gay men and lesbians are more likely to exhibit nontraditional gender attitudes and behaviors, he argues that those who support same-sex families should embrace these differences rather than minimize them. In doing so, Professor Ball recasts the debate over same-sex parenting as one of parental autonomy, a principle already valued in our legal tradition.

● “THEY SAY HE’S GAY”: THE ADMISSIBILITY OF EVIDENCE OF SEXUAL ORIENTATION, 37 GA. L. REV. 793 (2003) — Peter Nicolas

Professor Peter Nicolas’s article, reprinted from the Georgia Law Review, addresses an issue that has, until now, been largely overlooked in the judicial case law and scholarly literature—whether evidence of a person’s sexual orientation is admissible as evidence. Specifically, he discusses the relationship between sexual orientation and evidentiary rules dealing with relevance, hearsay, privilege, opinion testimony, judicial notice, and presumptions. Professor Nicolas’s article is a good example of sexual orientation scholarship that is rigorous, doctrinal, and valuable both to the progress of ideas and to the everyday practice of law.

● HASTENING THE KULTURKAMPF: BOY SCOUTS OF AMERICA V. DALE AND THE POLITICS OF AMERICAN MASCULINITY, 12 Law & Sexuality 271 — Marc R. Poirier

Professor Marc Poirier’s article, reprinted from the journal Law & Sexuality, examines the Boy Scouts of America’s ban on homosexuality. After discussing the recent Boy Scouts litigation — including the Supreme Court’s decision in Boy Scouts of America v. Dale — Professor Poirier recasts the Scouts’ ban in terms of gender theory. Professor Poirier contends that the Boy Scouts’ policy is just as much focused on reinforcing conventional attitudes about masculinity as it is about the Scouts’ disapproval of homosexuality. Positioning the Boy Scouts litigation into the larger Kulturkampf over homosexuality, Professor Poirier concludes that the Boy Scouts’ policy concerning homosexuality, for all of its ill effects, will nevertheless have the positive effect of making individuals in the Scouting world confront and reassess their own attitudes about gender norms and homosexuality.

● ‘TIL CONGRESS DO US PART: A PROGNOSIS FOR SAME-SEX MARRIAGE IN THE UNITED STATES BASED ON INTERNATIONAL DEVELOPMENTS, student note by S. Jason Comer, Tulane University Law School

The Dukeminier Awards Best Sexual Orientation Law Review Articles of 2002
Volume 2. 2004

● COVERING, 111 Yale L.J. 769 (2002) — Kenji Yoshino

Professor Kenji Yoshino’s article, reprinted from The Yale Law Journal, identifies three distinct ways that minorities may be pressured to assimilate: by “converting,” “passing,” or “covering.” Professor Yoshino maps periods of the gay rights movement into these three categories. He then identifies a common thread between race, sex and sexual orientation discrimination — namely, that all three forms can force a person to cover or downplay one’s behavior or identity. His comparative analysis reveals that when covering is considered, the law does not protect gay people from unlawful discrimination as strongly as it protects racial minorities and women. Responding to this discrepancy, Professor Yoshino formulates a novel approach to understanding anti-gay discrimination, which he then applies to specific instances of race and sex discrimination. The result is an article that will greatly advance not only sexual orientation law scholarship, but also antidiscrimination scholarship more generally.

● EXPORTING IDENTITY, 14 Yale J.L. & Feminism 97 (2002) — Sonia Katyal

Professor Sonia Katyal’s article, reprinted from The Yale Journal of Law and Feminism, argues that there has been a major shift in the global gay rights movement. Professor Katyal contends that the gay rights movement in the United States originally focused on securing privacy and same-sex sexual conduct rights but has since abandoned this view. In its place, she argues, the United States has exported — and other countries have adopted — a model that revolves entirely around gay identity. Professor Katyal fears that, in adopting a Western model of gay identity, the global gay rights movement has mistakenly shut out sexualities and behaviors that fall outside conventional sexual orientation categories — for instance, the identity and behaviors of transgendered persons. Her article promotes a more inclusive model of gay rights. In doing so, Professor Katyal both contributes to thinking about the global gay rights movement and encourages reflection on choices that have been made in the United States.

● DISESTABLISHING SEX AND GENDER, 90 CAL. L. REV. 997 (2002) — David B. Cruz

Professor David Cruz’s article, reprinted from the California Law Review, compares the government’s treatment of sex and gender to its treatment of religion. Arguing in favor of a “disestablishment” of sex and gender similar to the law’s disestablishment of religion, Professor Cruz formulates a limit on the government’s ability to support, define, or reinforce prevailing gender norms. Specifically, Professor Cruz looks at how such a disestablishment of sex and gender would play out in three particular situations: governmental identification of a person’s sex/gender, sex-segregated education, and the limitation of civil marriage to one man and one woman.

The Dukeminier Awards Best Sexual Orientation Law Review Articles of 2001
Volume 1. 2002

● Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001) — Edward Stein

● Defending the Sex Discrimination Argument for Lesbian and Gay Rights: A Reply to Edward Stein, 49 UCLA L. REV. 519 (2001) — Andrew Koppelman

Professors Edward Stein and Andrew Koppelman debate the wisdom of arguing that “sexual orientation” discrimination is “sex” discrimination. Professor Koppelman has, in a series of previous articles, powerfully developed the relationships between sex discrimination and sexual orientation discrimination. Moreover, courts are increasingly recognizing this link. Yet Professor Stein is wary of it: he argues that there are theoretical, moral, and practical problems with the sex discrimination argument and that there are better strategies for ensuring lesbian and gay rights. Professor Stein’s critique is incisive, but not so cogent as to silence Professor Koppelman, who responds to it. This debate – originally published in the pages of UCLA Law Review – crystallizes an important set of theoretical and strategic questions currently at the heart of the gay rights movement.

● Do Gay Rights Laws Matter? An Empirical Assessment, 75 S. CAL. L. REV. 65 (2001) —William Rubenstein

Professor William Rubenstein’s article, reprinted from the Southern California Law Review, is empirical scholarship undertaken to have an impact on an important national policy debate. Professor Rubenstein collects data from states that have enacted gay rights laws; his data demonstrate that gay people have filed employment discrimination complaints at rates, per capita, that are similar to the rates at which women file gender discrimination complaints and people of color file race discrimination complaints. Professor Rubenstein’s article provides critical empirical support for the enactment of a federal law banning sexual orientation discrimination in the workplace. It is also an excellent example of how empirical work, not yet widely undertaken in the field, can make important contributions to gay rights issues.

● TRANSFORMING THE DEBATE: WHY WE NEED TO INCLUDE TRANSGENDER RIGHTS IN THE STRUGGLES FOR SEX AND SEXUAL ORIENTATION EQUALITY, 101 CO LU M. L. REV. 392 (2001) — Taylor Flynn

Professor Taylor Flynn’s essay, reprinted from Columbia Law Review, identifies important linkages between transsexual rights and gay rights. As gay rights is increasingly a field identified as “LGBT,” Professor Flynn examines what comes under the “T” – and shows how the rights of lesbians, gay men, and bisexuals will be furthered by favorable outcomes in key transsexual rights cases.

● THE USE OF CRIMINAL SODOMY LAWS IN CIVIL LITIGATION, 79 TEX. L. REV. 813 (2001) — Diana Hassel

Professor Diana Hassel’s article, reprinted from Texas Law Review, could not be more timely: as we go to press, the United States Supreme Court is considering the fate of Texas’s sodomy law. Professor Hassel’s article demonstrates with remarkable clarity and power how sodomy laws are regularly used to undermine the rights of lesbians and gay men in many legal situations. Although gay people may rarely be arrested for violating such laws, Professor Hassel proves the pernicious effect they have on the lives and legal rights of gay people.

● BEYOND THE ENFORCEMENT PRINCIPLE: SODOMY LAWS, SOCIAL NORMS, AND SOCIAL PANOPTICS, 89 CAL. L. REV. 643 (2001) — Ryan Goodman

Professor Ryan Goodman’s article from California Law Review also looks at the effect of sodomy laws – but focuses on the everyday lives of gay people in South Africa. Using the craft of qualitative sociology, Professor Goodman surveyed gay people in South Africa both before and after the eradication of that country’s sodomy law. He reports on the freedom South Africans experience in their everyday lives since the State repealed its sodomy prohibitions, and uses his research to draw conclusions about the importance of “social norms” in everyday life.

Additional questions or hard-copy requests of the journal can be submitted to williamsinstitute@law.ucla.edu.