Gender and Soft Decertification

'Abolishing legal sex status: The challenge and consequences of gender-related law reform', the 2022 final report of the UK Future of Legal Gender Project 2018-2022 states 

 1. The Future of Legal Gender was a collaborative research project, funded by the Economic and Social Research Council, UK, that ran from May 2018 until April 2022. It explored, from a social justice perspective, the legal, social, and policy implications of reforming the current system in England & Wales which requires everyone to have a legal sex. 

2. Having a legal sex begins with birth registration as female or male and continues over a lifetime unless a person formally transitions. Obtaining a Gender Recognition Certificate under the Gender Recognition Act 2004 changes a person’s gender and their legal sex. Otherwise, the presumption, in law, is that a person’s gender is the sex they are registered with at birth. 

3. Legal sex and gender contribute to who we are as legal subjects. They affect how we are treated, and the opportunities that we have, as this report explores. More generally, legal sex status contributes to the social development of women and men as two separate groups of people. It suggests that both sex and gender matter – not simply for remedying inequality but as core settled aspects of who we are. 

4. To explore whether the current system of assigning people a legal sex and gender status should be dismantled, and the challenges and potential difficulties this proposal raises, we undertook extensive research, involving several different methods (described in more detail in the appendix). This included a survey eliciting over 3,000 responses; 200 interviews with government officials, trade unions, regulatory bodies, community organisations, service providers, academics, lawyers, and general publics; and iterative focus group discussions and workshops with lawyers, academics, legal drafting experts, NGOs, and public officials to explore the principles of decertification emerging from our research. 

5. Our research identified benefits to decertification. These included: dismantling a legal system which formally places people, from birth, in unequal social categories of female and male; supporting greater self-expression – free from gender constraints; and removing the legal burdens currently placed on people who want state recognition of a change in their sex and gender status. 

6. Concerns about decertification also emerged from our research. These concerns mainly related to gender and sex-specific services, data collection, violence, and positive action. Some research participants worried that measures to abolish sex as a legal status would make it harder to retain provision and spaces based on distinctions between women and men (or females and males) and that this would disadvantage women. 

7. Our research identified some ways of tackling these concerns. These strategies build on current practices of ‘soft decertification’ as public bodies and other organisations and agencies respond to users, staff, and clients who self-identify outside of a binary framework of gender anchored in the sex registered at birth. However, the hollowing out of legal sex has also faced opposition from groups who assert the importance of attending to women as a class defined by their sex. During this research, public bodies described how they navigated tensions between these competing demands, amid divergent interpretations of the relevant law. 

8. Advancing gender equality as a broad, intersectional agenda does not just depend on state action. It also does not depend on equality law alone; other laws also shape gender relations and whether people can live in gender nonconforming ways. However, equality law has become a site of intense debate. Our research explored how different categories in equality law operate and questioned whether people need to be legally assigned to a category, such as gender or sex, to access legal remedies. Other equality grounds, such as race and sexual orientation, operate without requiring these ‘protected characteristics’ to be part of a person’s legal identity. 

9. Several interviewees suggested that the present political climate was not a suitable or safe one in which to question the architecture of equality law or to radically alter gender and sex categories. Decertification may therefore be better approached through the prism of ‘slow law’. This involves transitional legal reforms (e.g. making gender transitioning easier, and legally recognising other gender identities) while also attending to far-reaching structural concerns of poverty, violence, exclusion, and exploitation. Decertification does not rely on these concerns being resolved. However, what decertification means and how it will work will be shaped by the social policy landscape within which its implementation is situated. 

10. In section 9, we set out some possible principles for a law decertifying sex and gender.

Section Nine goes on to state

Legislative principles for the decertification of sex and gender 

The principles that follow provide an example of what decertification could entail if it was introduced as a legal reform. The questions listed identify areas for further discussion and consideration. 

Aims of decertification:

1. To abolish a legal system of certification that treats sex and gender as legally assigned or registered qualities of individuals; 

2. To contribute to the dismantling of hierarchical structures based on gender and sex, that also encode and institutionalise difference; 

3. To support the lives of people whose gender leads them to experience exclusion or other forms of disadvantage; 

4. To contribute to the undoing of social injustices and inequalities more broadly. 

Principles of decertification law: 

1. Legal registration of sex and gender is abolished. 

Sex and gender status would no longer be legally established or assigned (for instance by registering sex on birth certificates). Laws such as the Gender Recognition Act 2004, that provide a mechanism for changing legal sex and gender status, would become redundant. Sex observed at birth could continue to be recorded, in aggregate, for planning and statistical purposes, but would no longer form part of an individual’s legal status. 

Existing legal registration of sex and gender (through birth certification or Gender Recognition Certificate) would no longer carry legal effect. 

2. Introduction of a new ground of gender in equality law. 

Gender remains a legally important term for tackling social subordination, discrimination, violence, and other injustices, including through equality law. Legal use of the concept of gender can also encompass inequalities that relate to forms of embodiment associated with sex. The current grounds of ‘sex’ and ‘gender reassignment’ in the Equality Act 2010 would be merged to form the ground of ‘gender’ as a ‘protected characteristic’ for discrimination, harassment etc. and the public sector equality duty. Recognising gender as a ‘ground’ of inequality and discrimination, i.e. the basis on which inequality and discrimination take place, does not require individuals to be legally assigned to specific gender categories. Employers, service providers, and others also cannot require people to dress or behave differently on grounds of gender. 

Question 

Should gender itself be legally defined? The Equality Act 2010 currently adopts different approaches to different grounds of inequality. In some cases, it works by identifying member classes that together comprise the overall category (e.g. for sex and sexual orientation); in some it describes component elements of the category (e.g. race). As gender’s meaning is in flux, one option is to leave its definition to evolving case-law (as with the ‘protected characteristic’ of religion and philosophical belief). However, since the scope of gender as a legal ground is currently in dispute, an alternative option is to provide a non-exhaustive legislative list of component elements. This could include bodily sex, gender non-conformity, norms and expectations relating to women and men, and social transitioning. 

3. Gender-neutral legal drafting. 

Current ‘gender specific’ terminology includes mother, female, father, male, woman, man, opposite sex, same sex. Building on existing practice, where it is necessary to use pronouns in legislation, gender-neutral pronouns (e.g. they, them, their) should be used except where this leads, or contributes, to structural inequality, other injustices, or to lack of legislative clarity. In contexts where it is legally important to name physical processes with gendered meanings, this can be done without using an explicitly gendered language (e.g. gestational or birth parent rather than mother or woman. This recognises that people other than women also become pregnant). 

4. Legal right to organise gender-specific provision for specific purposes. 

Gender-specific provision, activities, and membership criteria would remain legally valid where this is done to address social subordination, unfairness, violence, or harassment (for instance, women’s domestic violence shelters, women’s sports, community provision for nonbinary and agender young people etc). 

Question 

Should gender-specific provision also be permissible in other circumstances, for instance: • To establish or maintain personal dignity in conditions where mixed gender provision is perceived (by the individual concerned or according to prevailing social norms) as demeaning, embarrassing or uncomfortable (e.g. in certain hospital wards)? • By small, informal organisations or those not in receipt of public or commercial funds, even where these are not intended to address social subordination, unfairness, violence, or harassment (e.g. a men’s tennis club)? 

5. Self-identification. 

Decertification introduces a presumption of self-identification in determining ‘gender’ category membership in line with certain other legal categories, such as sexual orientation and race. 

The term ‘gender-specific’ refers to the use of single or multi-gender categories for provision, activities, and data collection by organisations and individuals, which do not extend to include all gender-based categories. ‘Subordination’ refers to rules, decisions, policies, and practices that sustain, contribute, or lead to socially patterned asymmetries of power in relation to resources, treatment, and regard. 

The term subordination is closely linked to inequality. What it emphasises is the processual character of inequality.  However, it recognises that: a) unlawful discrimination may relate to physical embodiment and/ or others’ perceptions in ways that diverge from self-identification; b) taking up gender-specific opportunities or benefits through affirmative action may also require demonstrated evidence of disadvantage based on gender or a capacity and readiness to represent subordinate and marginalised gender experiences; c) gender-specific provision may draw on alternative or supplementary criteria to self-identification in relation to selecting staff, users, and volunteers (e.g. relevant work experience, suitability). However, evidentiary requirements that undermine a person’s wellbeing and dignity are not acceptable. 

Question 

If alternative or supplementary criteria to self- identification, by an organisation or individual service provider, are legally permitted, should they be subject to regulatory oversight (e.g. by an equality commissioner, specialist tribunal, or court)? 

6. Data collection can continue to use gender- based categories where appropriate, for instance a government survey on homelessness or pay. Questions about gender will normally rely on self-identification. On occasion, other kinds of data may be more useful, e.g. based on service provider or employer perceptions of the gender composition of their users and workplace. Data-gathering in relation to embodied sex should take account of variations in sex development (also referred to as intersex) and the diversity of human bodies. For medical purposes, good practice means asking questions at a higher level of specificity. ‘Are you menstruating?’ rather than: ‘what is your sex?’ since the sex category elicited by this question may not provide useful information on the body that someone has. 

7. Harmonisation. 

Existing laws should be revised to align with the principles for the decertification of sex and gender. Marriage, for instance, should take a single unified form, merging the currently separate legal provisions for ‘same-sex’ and ‘opposite-sex’ marriage. 

8. Levelling up. 

Welfare-related laws that require revision because of decertification should be revised in ways that enhance rather than reduce public provision (e.g. the definition of overcrowding should be extended to two persons of ‘any gender’ who are over ten and share a room, see Housing Act 1985, s. 325). 

9. Recognising plurality. 

Where law uses the terminology of ‘same sex’ and ‘opposite sex’ (e.g. definition of ‘sexual orientation’, Equality Act 2010, s. 12), or assumes that there are two gender statuses, this should be amended to recognise plurality.

Appearance

''Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86' by  Kate Redburn in (2023 Law and History Review 1-45 comments 

 Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans. 

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

Redburn states 

In the early afternoon of March 24, 1964, John Miller was approaching his home on the Upper West Side of Manhattan. He had just crossed the intersection of West End Avenue and Ninety-First Street when a police officer stopped him and asked his name. When he replied “Joan Miller,” he was taken into custody. iller, later described by The New York Times as a “tall, burly man of 58,” was a father with a military record. He was also a transvestite, or cross-dresser, which meant that he enjoyed dressing as a woman.  His crime was violation of Section 887(7) of New York State's vagrancy law, by then over a century old, which made it illegal to appear in public with one's “face painted, discolored or concealed, or being otherwise disguised, in a manner calculated to prevent. . . being identified.” While the law did not explicitly reference clothing, police often used it to punish cross-dressing, and courts usually accepted that interpretation. Most of the time, people arrested under such laws did not mount expensive legal defenses, and those who did rarely appealed past the trial court level. 

John Miller was different. Yes, like many gender outlaws before him, he could not afford to mount a legal defense.  In fact, his arrest cost him his job. But Miller had advantages that his predecessors did not: he could turn to a community of other transvestites through new networks of identification and support. Miller was on the guiding council of Full Personality Expression (FPE), one of the earliest social and political organizations for transvestites, whose reach eventually encompassed much of the United States and parts of Western Europe. The organization pledged $300 to his cause. Miller also broadcast requests for financial support in Transvestia and Turnabout, two early transvestite publications, and received at least seventy contributions from the United States, Canada, and England. The geographic range of this support reflected both the broad scope of the emerging transvestite network, and the community's shared desire to challenge cross-dressing regulation. As one donor from Texas put it in a quick note with his contribution, “We need to get rid of these damn laws.” 

Laws banning cross-dressing were ubiquitous in urban America by the middle of the twentieth century. Most were more explicit than New York's Section 887(7), like the law in Columbus, Ohio, which criminalized any person who “shall appear upon any public street or other public place . . . in a dress not belonging to his or her sex.” Starting in the late 1960s, however, criminal defendants began to successfully undermine cross-dressing bans in a range of cities, from New York and Los Angeles to Toledo and Champaign-Urbana. Hoping to challenge their arrests, these defendants argued that anti-cross-dressing laws were facially unconstitutional, or unconstitutional as applied to them. As their successes mounted, gender outlaws began to bring civil lawsuits against cities to enjoin them from enforcing their anti-cross-dressing ordinances, marking a shift from the defensive posture of the criminal defendant to the offensive posture of the civil litigant. By 1980, criminal defendants had successfully challenged cross-dressing arrests in at least sixteen cities, introducing many courts to transvestite and transsexual people in the process. 

To the extent that historians have addressed the decriminalization of cross-dressing, they have understood it as an adjunct to a broader attack on vague municipal laws. This article restores the anti-cross-dressing cases to their place within the LGBT constitutional narrative. In that story, the campaign to decriminalize sodomy looms large. Substantive due process rights to sexual privacy and equal protection for sexual and gender minorities became the primary constitutional vehicles for vindication of LGBT rights and full sexual citizenship, culminating in the Supreme Court's endorsement of same-sex marriage in 2015. By reconstructing the disjointed efforts to repeal anti-cross-dressing laws across the country, this paper points to the multiplicity of legal paths for constitutionalizing gender non-conformity in the early days of LGBT constitutional litigation. 

The challenges also bring into focus a distinct legal movement of gender outlaws. Although they were not centrally coordinated, gender outlaws across the country developed their own legal strategy to decriminalize cross-dressing, and in some cases, constitutionalize protections for gender non-conformity. They did so in an era before legal nonprofits organized a cohesive gay and lesbian legal agenda, before that group added transgender legal issues to the mix, and indeed before the identity category “transgender” was in wide circulation. 

Historians of LGBT law in this period tend to emphasize how gay and lesbian “homophile” activists of the 1950s and 1960s promoted the idea that homosexuality was an identity rather than stigmatized conduct or medical pathology. In their efforts to organize against police harassment, they drew inspiration from the Black civil rights movement to portray homosexuals as an oppressed minority group. Despite changes in medical taxonomy and self-identification, police and courts did not easily differentiate between sexual orientation and gender identity. 

For homophile activists, that was part of the problem. To make the analogy sympathetic, they distanced their politicized homosexual identity from its former bedfellows—gender inversion, racial impurity, sex work, poverty, and crime. Their legal strategy reflected that analysis from the beginning as they mobilized gay identity to articulate a gay legal subject with protected rights to assemble, have sex, organize on campuses, work, and form families as gay people.  Those campaigns laid the groundwork for the constitutional arguments most associated with the contemporary LGBT movement: sexual privacy and the civil rights of “discrete and insular minorities” under the Equal Protection Clause of the Fourteenth Amendment. 

Unlike many gay rights legal claims of the same period, challenges to cross-dressing bans often succeeded without analogizing gender non-conformity to identity-based minority groups. The split in legal claims mirrored social transformation on the ground. Gender outlaws entered courts amid a major shift in how medical authorities and social groups understood the relationship between sexuality and gender, an epistemic change that Joanne Meyerowitz has called the “taxonomic revolution.”  In these formative years of movement and identity consolidation, gender outlaws strategically deployed and obscured their identities, exploiting confusion about gender-bending and playing off of courts’ ignorance. 

In some cases, challengers attempted to introduce the legal system to transvestites, transsexuals, and drag queens without closing the door on other gender outlaws. These efforts met with mixed success: courts began to recognize constitutional rights, but litigation also limited which gender outlaws would benefit. Some challengers sought to expand personal freedoms to include gender expression through clothing, but others yoked trans civil rights to medical authority, defining the trans legal subject as a person seeking medical treatment for pathologized transsexualism. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. It also emphasizes the role of legal institutions, alongside social life and medical discourse, in shaping the analytical categories of gender. Over time, one strand of gender outlaw experience consolidated and became legible to courts as a rights-bearing subject, which I call the trans legal subject. 

Three tactics typify the overall strategy. First, gender outlaws challenged cross-dressing bans for vagueness, inviting courts to invalidate the laws without asking judges to adjudicate, or even understand, their gender identities at all. In a second set of challenges, lawyers argued that cross-dressing was a form of expression protected by the First and Fourteenth Amendments. Under this theory, cross-dressing conduct could be protected regardless of the defendant's gender identity. In a final set of cases brought under the Eighth Amendment, lawyers did make claims based on a consolidated sense of identity, telling courts that cross-dressing was a treatment for medically diagnosed transsexuality. 

Many historians have noted the salience of gender non-conformity in anti-homosexual policing in the decades following World War II. But such policing was not limited to gays and lesbians, precisely because homosexuality was not thought apart from other stigmatized behavior. Police targeted a broad range of activities, which Emily Hobson has called “street life,” including Black and Brown youth culture, “homosocial contact among working-class men, homosexuality and gender transgression, sex work, and interracial contact of various kinds.”  Homophile activists believed that social inclusion and legal recognition required a more respectable image.  Many histories build from this foundation by following the homosexual once he was shorn of his seedier associations, leaving the subject of gender non-conforming policing both widely remarked upon and relatively under-studied. 

This article asks what happened to the gender outlaws who did not, could not, or would not see themselves in the new homosexual political identity. The answer reveals early constitutional arguments that gender non-conformity deserved protection on its own terms. It also invites a reconsideration of the contemporary LGBT legal movement. Legal histories often describe a gay and lesbian civil rights movement emerging from the ashes of gay liberation in the early 1970s, and only adding the “T” to LGBT in the 1990s. Returning to the history of the late 1960s and 1970s, however, suggests an alternative periodization in which campaigns for trans and gay civil rights sprouted from the same root, and grew in parallel. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group. 

The cases described in this article form a fractured archive of roughly thirty legal challenges from 1963 to 1986. They are national in scope, arising primarily in the West, Midwest, and Northeast, with some appearances in Texas and Florida. About two-thirds appear in published case reporters that include important details such as the names and affiliations of the attorneys and, in some cases, their written submissions. Other cases come from print media, mostly within gay, lesbian, transvestite, transsexual, and drag publications. The level of detail varies significantly, making it difficult to generalize about the attorneys who brought these cases or the arguments they raised. Regional branches of the American Civil Liberties Union (ACLU) made several important contributions, as did the national office after 1973, and one significant case was brought by a legal clinic at Northwestern University School of Law. 

Despite these limitations, this article tells a new story. Gender outlaws and their lawyers drew on the popularity of unisex clothing, movements for free expression, and emerging medical discourses on gender identity to argue that cross-dressing could be a benign fashion choice, a protected expression, or a necessary medical treatment for transsexuality. Their successes helped topple cross-dressing regulation in cities and towns across the country, but not without ambivalent results for gender outlaws on the whole. In order to make gender non-conformity legible to the legal system, lawyers translated the diverse array of gender outlaw experiences into a distinctly trans legal subject, defined by medicalized trans identity. Out of disjointed legal defense of gender outlaws emerged a transgender legal movement.

Tort, Social Justice and Feminist Theories

'Social Justice Tort Theory' by Martha Chamallas in (2021) 14(2) Journal of Tort Law comments 

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

Her 'Race and Tort Law' in Khiara Bridges, Devon Carbado and Emily Houh (eds) Oxford Handbook on Race and the Law in the United States comments 

Although Richard Delgado published the first critique of tort law from a critical race perspective in 1982, the role of race remains undertheorized in torts scholarship and torts theory, taking a back seat to the dominant approaches that rarely mention race or other social identities. This leave the misimpression that tort law is race-neutral and bears little connection to constitutional or civil rights law, where issues of racial justice are more frequently analyzed and debated. 

This chapter contests that conventional wisdom and demonstrates that the shape of contemporary tort law has been affected by the social identities of the parties and cultural views on race and ethnicity. The significance of race is not confined to a particular doctrinal area but crops up in intentional tort, negligence and strict liability cases and spills over into debates about the proper measure of damages. It enters tort law through a variety of pathways, sometimes explicitly, but more often the influence of race is beneath the surface and can be gleaned only by looking closely at judicial rhetoric or at implicitly biased assumptions relied on by judges and juries. 

This overview of the contemporary “race and torts” legal landscape borrows frames from critical race and interdisciplinary scholarship to organize the key cases, issues and debates into four, somewhat overlapping categories: (1) racial discrimination, harassment and insult; (2) stereotyping and racialized contexts; (3) racial devaluation; and (4) racially disparate effects. The portrait that emerges is of a flawed system that tends to reproduce rather than ameliorate racialized harms, while never quite losing its potential to change course and advance racial justice.

'Law and Economics Against Feminism' by Martha T McCluskey in Deborah L Brake, Martha Chamallas and Verna L Williams (eds) Oxford Handbook of Feminism and Law in the United States comments 

 This chapter analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century. Building on other accounts, I trace how non-academic organizations invested heavily in developing and institutionalizing law and economics as a seemingly neutral methodology that could build academic credibility for anti-egalitarian ideology and legal change. Further, the chapter explains how the substance of this law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best insulated from contested morality and politics. The central law and economics division between seemingly objective economic maximizing and subjective social distribution puts feminist law in a double bind, naturalizing a gendered baseline that generally makes feminist reforms appear costly, unfair, or ineffective. This core conceptual move closes off feminist legal efforts to question and redefine what counts as productive, legitimate economic gain. 

Finally, I explore how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics identifies freedom with an economy imagined to remove individual self-interested choices from public support or accountability. That ideal of freedom closes off analysis of how law’s gendered assumptions and unequal protections pervasively limit individual agency and meaningful choice in the economy and in society. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.

'Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive' by Linda C McClain and Brittany Hacker in the same volume comments 

Liberal feminism remains a significant strand of feminist jurisprudence in the U.S. Rooted in 19th and 20th century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism’s focus remains to challenge unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of autonomy, liberty, privacy, and governmental obligations to promote gender equality, including in the family. Addressing internal feminist critiques, liberal feminism shows the capacity to evolve. Maintaining its focus on disrupting traditionally-conceived gender roles and fostering meaningful autonomy, it adopts more complex, nuanced discourse about sex, gender, and the gender binary and embraces new demands for inclusion and equality.

'Sex-Positive Feminism's Values in Search of the Law of Pleasure' by Susan Frelich Appleton in the same volume comments 

In challenging traditional stereotypes of female sexualities centered on passivity, subordination, harm, and repronormativity, sex-positive feminism’s proponents criticize legal feminism generally for undervaluing women’s pleasure, which they celebrate. Yet these proponents often struggle with charting a supportive and affirmative course for law and legal institutions, which have long fostered sex negativity. 

This essay proceeds in three parts. Part I identifies sex positivity not as a distinct theory but rather as a thread that runs through multiple iterations and eras of feminisms, sometimes expressly and at other times latently, as a potential answer to criticisms and problems. Along the way, this Part demonstrates the importance of power and power disparities in sex-positive feminism and the role of gender. Part II turns to the place of law and legal institutions in sex-positive feminism, juxtaposing prevailing critiques of law’s sex negativity with promising opportunities for change. Part III continues on this note of optimism, consulting popular culture for possibilities to support a more fully developed sex-positive and feminist legal regime.

Stigma

'‘I Wouldn’t Call the Cops if I was Being Bashed to Death’: Sex Work, Whore Stigma and the Criminal Legal System' by Zahra Stardust, Carla Treloar, Elena Cama and Jules Kim in (2021) 10(3) (2021) International Journal for Crime Justice and Social Democracy 142 to 157 comments 

Discourse on sex work is replete with narratives of risk and danger, predominantly focused on violence and disease. However, the risks instigated by police, maintained by the criminal justice system and sanctioned by the state—criminal laws, licensing laws and targeted policing—receive far less attention. This paper responds to this gap in three ways. First, we examine how stigma manifests in sex workers’ experiences of Australian policing, which act to disincentivise sex workers from accessing criminal legal mechanisms. Second, we illustrate how sex workers are denied victim status as they are seen by law as ‘irresponsible citizens’ and blamed for their experiences of crime. Third, we argue that these factors create conditions in which sex workers must constantly assess risks to access safety and legal redress while structural sex work stigma persists unabated. We conclude that ‘whore stigma’ is entrenched in the criminal legal system and requires a systematic response that necessitates but goes beyond the decriminalisation of sex work.

Hatecrime, Speech and Gender

The 114 page Interim Report by the NSW Legislative Council's Standing Committee on Social Issues regarding Gay and Transgender hate crimes between 1970 and 2010 comments

This inquiry marks the first parliamentary examination of a distressing time in our history for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community. It has sought to understand the LGBTIQ experience of hate crime and, in doing so, has given the opportunity for the stories of victims and their families to be told – often stories of brutality, tragedy and injustice. The committee was deeply moved by these stories but also encouraged by the strength and resilience of those telling them. For many decades, pervasive prejudices against LGBTIQ people ran deeply in society. Even with legislative change following the decriminalisation of homosexuality in 1984, bias attitudes were still being perpetuated within the broader community with a legacy that is still keenly experienced today. The ensuing violence and crime against gay and transgender people, particularly in the 1970s, 1980s and 1990s, was shocking, abhorrent and all too common. Amidst this stood a NSW Police Force and a broader criminal justice system with a culture influenced by the social values of the time.

Over the course of this inquiry, the committee came to hear the experiences of those who lived through that time, and received evidence exploring the barriers to justice for victims. Drawing from this evidence, the committee makes the first of two key findings – that the prevailing acceptance of and indifference towards violence and hostility directed at gay men, principally during the period prior to the mid-1990s, impacted on the protection of and delivery of justice to victims of hate crime.

The committee's second finding relates to the responsibility of the NSW Police Force to ensure that all its interactions with the public, including the LGBTIQ community, are conducted with both respect and professionalism. During the inquiry, the committee learnt that, while historic attitudes to gay and transgender people influenced the way in which victims of hate crime were treated and their cases investigated, time has brought about significant change in the way the LGBTIQ community is now engaged and regarded, especially within the criminal justice system. In particular, the committee is aware that great efforts have been made by the police to bridge the gap that once existed with the LGBTIQ community, in recognition of its responsibility to treat all people with professionalism and respect. We also acknowledge that there is still more work to do improving the relationship between the police and the LGBTIQ community.

There are many more stories to be told about the LGBTIQ experience of hate crime, such that as we began to hear from victims, their families, advocates and others during this inquiry, it became very clear that we would not have sufficient time to thoroughly examine all aspects of the terms of reference. Granted that historic cases of gay hate crime should be revisited, what is the most appropriate mechanism for this review? Are LGBTIQ hate crimes being reported today and if not, why not? What of the underreported experiences of trans people and young LGBTIQ people, among the most vulnerable of our community? Are there contemporary bias crimes that we need to consider? What of the experiences of the LGBTIQ community in rural and regional New South Wales? These are just some of many questions that require further exploration. To this end, the committee makes the principal recommendation that the NSW Legislative Council re-establish this inquiry in the 57th Parliament.

The committee also makes other recommendations in support of this principal recommendation as well as its key findings, including that the NSW Police Force ensure that all officers have the skills and knowledge to engage with LGBTIQ people respectfully and equally.

Many individuals and organisations have worked with passion and perseverance over the years in the pursuit of justice for victims of LGBTIQ hate crime and their families. It is always fraught to single out individuals or organisations for praise. However I particularly draw attention to ACON and their community advocacy and leadership producing the historic report In Pursuit of Truth and Justice, which strongly informed this inquiry. I also acknowledge Mr Steve Page as a serving police officer in the early 2000s who connected the pattern of gay hate murders in the eastern suburbs, triggering a coroner's report that overturned former findings of suicide or misadventure. In doing this he precipitated a culture change in the NSW Police Force and provided much needed emotional closure for many of the family and friends of the gay hate crime victims.

The committee's Findings are

1  That a prevailing acceptance of and indifference towards violence and hostility directed at gay men principally during the period prior to the mid-1990s impacted on the protection of and delivery of justice to victims of hate crime, including but not limited to Mr Alan Rosendale, Mr Scott Johnson, Mr John Russell and Mr Ross Warren. 

2 That the NSW Police Force is responsible for ensuring that all interactions by police with the general public and the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community is done with both respect and professionalism. These are, and continue to be, key priorities for the NSW Police Force.

The  Recommendations are

R 1 - That the NSW Legislative Council re-establish the inquiry into Gay and Transgender hate crimes between 1970 and 2010 in the 57th Parliament and the terms of reference for further inquiry and report be subject to a decision of the House. 

R 2  - That all evidence received and records produced by the Standing Committee on Social Issues during its inquiry into Gay and Transgender hate crimes between 1970 and 2010 in the 56th Parliament, be made available to the Standing Committee on Social Issues for further inquiry and report in the 57th Parliament. 

R 3 - That the NSW Police Force ensure that all officers have the skills and knowledge to engage with lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people respectfully and equally. 

R 4 - That, should the inquiry be re-established consistent with Recommendation 1, the committee invite witnesses to address the issue of the appropriate mechanism for independent review of past gay and transgender hate crimes. 

‘Harming women with words: The failure of Australian law to prohibit gendered hate speech’ by Tanya D'Souza, Laura Griffin, Nicole Shackleton, and Danielle Walt in (2018) 41 University of New South Wales Law Journal 939 comments

In Australia, gendered hate speech against women is so pervasive and insidious that it is a normalised feature of everyday public discourse. It is often aimed at silencing women, and hindering their ability to participate effectively in civil society. As governmental bodies have recognised, sexist and misogynist language perpetuates gender-based violence by contributing to strict gender norms and constructing women as legitimate objects of hostility. Thus, gendered hate speech, like other forms of hate speech, produces a range of harms which ripple out beyond the targeted individual. The harmful nature of vilification is recognised by the various Australian laws which prohibit or address other forms of hate speech. But as we map out in this article, gendered hate speech is glaringly absent from most of this legislation. We argue that by failing to address gendered hate speech, Australian law permits the marginalisation of women and girls, and actively exacerbates their vulnerability to exclusion and gender-based harm. 

 The authors argue

Since the shock victory of Donald Trump in the 2016 United States presidential election, western nations like Australia have witnessed a renewal of grassroots feminist activism, as movements such as #MeToo and #TimesUp continue to unfold across social media platforms and other public spaces. Accompanying such movements has been vehement backlash by conservative voices, sometimes from unlikely quarters. Gender roles and relations are not only the topic under debate – they also form the terrain upon which these discussions and struggles are playing out. The same can be said of language: the current shifts in cultural dynamics involve a contest over whose voices will be heard, and whose shut down. Hateful speech has become a key weapon in this struggle. 

It is in this context that we focus on the issue of gendered hate speech (‘GHS’), canvassing possible definitions, as well as analysing its effects, its legal status, and its implications. Current approaches to defining and regulating hate speech in Australian laws indicate possible definitions of GHS. In particular, we examine how GHS could be defined broadly (progressively) or narrowly (conservatively), reflecting a focus on either the victim and their experience, or on broader public interests and security. Prohibiting GHS according to current laws on vilification would likely reflect a more conservative approach, and even prohibiting ‘offensive behaviour’ rather than vilification may still be interpreted according to concerns for the public interest. This would be problematic in various ways, given that it does not address the harm to and perspective of the targeted individual, but would nonetheless represent a marked improvement over current absent or inconsistent laws. 

We argue that GHS is best understood in its broader socio-political context, as a means by which patriarchal structures and norms are enforced through the policing of women’s presence and their behaviour. GHS also produces a range of troubling effects, not only on the individuals who are targeted, but on broader social groups and dynamics. As government bodies and scholars alike have confirmed, GHS can be seen as fuelling gender-based violence in Australia, through the perpetuation of gender prejudice and hostility. 

Despite these harms, GHS is alarmingly under-regulated in Australia. An overview of Australian laws relating to vilification, offensive behaviour and the urging of violence on the basis of identity, exposes the glaring absence of any laws relating to hateful speech or speech inciting violence on the basis of gender in almost all Australian jurisdictions. In contrast, sex and gender (or gender identity) are recognised as important aspects of identity or categories of group membership deserving of protective measures in Australian laws relating to discrimination. But such anti-discrimination laws do not apply to individual verbal attacks. 

By failing to legislate against GHS in any meaningful or systematic way, Australian law can be seen as complicit in the persistence of GHS, and by extension, gender-based violence. This is one of the key ways in which our legal system produces women’s vulnerability. We explain how a vulnerability analysis takes us beyond the standard arguments about the harms of hate crime. Crucially, it also helps to show why legislating against GHS would not simply be a protective, paternalistic form of state intervention, but one which can support women’s agency, especially their discursive and political agency in public spaces. 

Before proceeding, two things are worth noting. The first is to acknowledge that there are other reasons to find statements that comprise GHS troubling. For instance, the speech may constitute family/intimate partner violence, verbal abuse and/or controlling and coercive behaviour. Likewise, conduct involving GHS may overlap with other areas of law, such as harassment or assault. Although we do not discuss these other areas of law or reasons for concern, we are conscious of them. But our focus in this article is specifically on the nature of GHS as hate speech and its place in Australian laws as such. 

Second, we acknowledge the ways in which ‘proposals to regulate hate speech invariably end up citing such speech at length’, and that the recirculation of such speech ‘inevitably reproduces trauma as well’. However, avoiding such repetition at all costs can also be counter-productive, as ‘[k]eeping such terms unsaid and unsayable can also work to lock them in place, preserving their power to injure’. Troubled by the ways in which scholarly and other literature sometimes include instances of hate speech seemingly for shock value as much as for pedagogical or analytical purposes, we have chosen to repeat GHS sparingly rather than gratuitously in this article. We also warn readers that in some places where examples are provided, the content may cause offence.

Bachelor Taxes

 'Taxing Bachelors in America: 1895-1939' by Marjorie Kornhauser (in (2013) 6 Studies in the History of Tax Law comments 

Bachelor taxes have existed across the globe and throughout millennia. In modern income taxes, they occur only indirectly, as by-products of favorable exemptions and tax rates for married couples. However, in prior centuries—even the 20th century—bachelor taxes existed as direct, explicit taxes levied on bachelors as bachelors. From 1895 through 1939, American municipalities and states proposed these taxes with surprising frequency and newspapers consistently reported on them as well as on foreign bachelor taxes.

Although often greeted with hilarity and rarely passed, explicit bachelor taxes during this period were motivated by serious concerns. The need for revenue was one reason these taxes were proposed. It was not, however, the only—or even the major—reason. This paper suggests that social unease was the primary motivation for American bachelor taxes in this period. Decades of industrialization, urbanization, immigration, and increased consumerism had created social tensions and dislocations by radically altering everyday living patterns and basic social institutions. The bachelor tax proposals and discussions during this period expressed many people’s discomfort with the changes. Since they believed marriage was the foundation of society and American democracy, they perceived any threat to marriage as threatening the fabric of America. Consequently, they viewed bachelor taxes as a remedy for the moral decay of the nation. In actuality, the taxes were mainly expressive in nature. Not only did most of them fail to pass, but even if they did pass, they were largely ineffective methods to increase marriages, as some contemporaries noted.

The demise of explicit bachelor taxes did not end concerns about marriage and the moral state of society. These same concerns were part of the debates about mandatory joint returns in the late 1930s and early 1940s. Similarly, they remain an important element of recent debates about marriage penalties and the tax treatment of families. Keywords: tax, bachelors, history, immigration, marriage, politics, population Suggested Citation:

Hegemonic Masculinities

'Enforcing Masculinities At The Border' by Jamie R. Abrams in (2013) 13(1) Nevada Law Journal comments

"American men have no history," declared pioneering masculinities scholar, Michael Kimmel. Masculinities, the study of how men relate to each other and construct their identities, can be used as a powerful sociological and legal tool to understand institutions, power structures, and human relations. While the history of American immigration law has revealed rich multi-dimensional narratives of class, race, and domestic and international politics,  sparse historical work has considered the masculinities dimensions of immigration law.

Abrams states -

This Article considers how unpacking the masculinities dimensions of our paradigmatic shifts in immigration policy might offer an additional - even unifying - dimension to previously disparate and divergent immigration laws worthy of further research. This Article concludes that it is critical to make masculinities visible in immigration law and policy to understand how dominant masculine imperatives shape citizenship itself. This Article suggests that our immigration laws and policies reinforce dominant masculinities at the border by excluding marginalized masculinities and admitting those who comport with dominant masculinity norms. This Article considers whether the state is not just enforcing immigration laws at its borders but whether it also enforces masculinity norms. 

Such an analytical and historical examination might prove influential in modern immigration reform. As private citizens take up guns and machetes to "defend" our nation's borders,  as political movements call for the "taking back of our country," and as anti-immigrant violence and sentiment escalates to dangerous levels, deepening our understanding of immigration law's under-pinnings in terms of masculinities is acutely important. Contemplating the unifying thread of dominant and marginalized masculinities underlying immigration law suggests a cautionary tale for modern immigration legal responses. 

This Article first provides a brief overview of hegemonic, dominant, and marginalized masculinities concepts, revealing the insider/outsider dimensions of masculinities theory that are relevant to its application to immigration law. It then provides examples of how our immigration laws enforce masculinities - admitting immigrant populations that conform to dominant conceptions of western masculinities and excluding marginalized masculinities. Finally, this Article notes the implications of this thesis to modern immigration law in its endorsement of a masculinized state, and the enforcement of a masculinized conception of citizenship. This Article introduces the relevance of this methodology. There is indeed rich and robust work to be done to test these theories and to reveal the value in and the limits of this unitary narrative. 

Abrams claims that -

Masculinity is "both omnipresent and invisible." After famously declaring "American men have no history," Michael Kimmel - and other masculinities scholars - undertook the monumental task of documenting how manhood and masculine relations in America have shaped history, institutions, and social order, and have evolved over time. He revealed the history of changing con- ceptions of "ideal" masculinity, but also the competing versions that challenged the normative view. Kimmel's work identified transformational historical moments during which American masculinities were in crisis as men reinvented and redefined their identities and their social interactions. This Article suggests that these masculinities crises or transformational episodic periods align with peak nativist sentiments and dramatic shifts in our immigration law and policy in notable ways. 

Masculinities are distinctly a relational concept as institutions create masculinities and masculinities also construct institutions, rendering them keenly relevant to a thorough account of immigration law. Masculinities are fluid and characteristically dependent on the "other" to define itself, rendering it hard to capture and explore masculinities in isolation without its relational constructs. It is the framing of the "other" to define masculinities that positions masculinities theory as so informative to understanding immigration law. Likewise, our immigration laws explicitly and implicitly reflect a legal, political, and social framing of the "other," which, this Article reveals, aligns tightly with prevailing masculinities. 

This Article particularly relies on concepts of hegemonic masculinity, dominant masculinities, marginalized masculinities, and hyper-masculinity to support its thesis. Hegemonic masculinity has been described as the "defining gender performance of Euro-American males." Hegemonic masculinity theory defines a dominant conception of masculinity as synonymous with power. It explains how definitions of manhood in American culture reinforce the power that some men maintain and wield over women and other men. "It is a "culturally idealized form of masculine character." 

Hegemonic masculinity frames manhood as the quest to acquire and retain the symbols that express manhood," such as strength, success, and control.' Hegemonic masculinity imperatives exert pressure on men to conform to its ideals, but these cultural traits need not correspond closely to the actual person- alities of the majority of men. Hegemony is thus described by the "successful claim to authority," distinct from actual authority. Indeed, while men as a group may be dominant and powerful, most men as individuals do not feel powerful. The hegemonic model only actually represents a small number of men, but large numbers are "complicit in sustaining the hegemonic model." Men who do not meet these hegemonic norms will conclude that they are somehow "unworthy, incomplete, and inferior." Hegemonic masculinities are thus a relational concept, "not a fixed character type, always and everywhere the same," and "always contestable." 

Hegemonic masculinity is sustained by the quest for a dominant strand of masculinity and the perceived powerlessness that men can derive from the constant pressure to achieve this masculinity. This perception of inadequacy can lead to hyper-masculine expressions. Hyper-masculinity is a theory of exaggerated masculinity expressed as a manifestation of one's insecurities. Hypermasculinity is a "hedge, an effort to offset feelings of masculine inadequacy. " Hyper-masculinity has been used to explain some acts of male violence, extreme conservative viewpoints, and bodybuilding behaviors, to name a few expressions. 

Dominant and marginalized masculinities are hallmark characteristics of Western masculinities - particularly, the use of marginalization as an inter-group dynamic to sustain dominant masculinities. As Cheng explains, "[O]ne's membership in either the dominant group or a marginalized group is based on our conformity to hegemony": you either conform and belong to the dominant group or you do not conform and you are marginalized because you threaten the dominant hegemonic strand. Dominant masculinities refer to the"most common, celebrated, widespread, or powerful" types of masculinities. Marginalization describes "the relations between the masculinities in dominant and subordinated classes or ethnic groups." Marginalization is thus always relative to the "authorization of hegemonic masculinity of the dominant group." 

The exclusion of marginalized and threatening groups has long been a "masculine retreat" in our nation's history, as dominant masculinities have espoused consistent sentiments of nativism and fears of feminization. Hegemonic masculinity is distinctly framed "in relation to femininities and subordinated and marginalized masculinities." It necessitates a hierarchy by positioning masculinity in a hierarchical relationship to femininity. It refers to the "cultural dynamic by which a group claims and sustains a leading position in social life. At any given time, one form of masculinity rather than others is culturally exalted." It is thus framed heavily by what it is not: namely, that men not be gay and not be feminine. Connell described "gayness" as the "repository" of what is "symbolically expelled from hegemonic masculinity . . . ." Masculinity is historically anchored in an exclusionary paradigm, systematically excluding women, immigrants, and gays. Hegemonic masculinity is also historically anchored in nativism and shaped by governing race relations. 

Masculinity is historically fluid, rendering it rich for analysis in immigration law. R.W. Connell explains, "To recognize gender as a social pattern requires us to see it as a product of history, and also as a producer of history." Masculinity is often deployed as a political tool, as this Article will examine. The next sections of this Article examine how paradigmatic shifts in immigration law and policy have aligned with masculinities in crisis and how masculinities have shaped the ultimate direction of immigration law.

Neomaternalism

'Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination Law' by Deborah Dinner in (2014) 91(3) Washington University Law Review comments that

In contests about pregnancy discrimination during the 1970s, feminists, the business lobby, and anti-abortion activists disputed the meaning of sex equality. Existing scholarship has yet to take account of the dynamic interaction between these groups. This Article fills that void, analyzing the legal and political debates that resulted in the passage of the Pregnancy Discrimination Act of 1978 (“PDA”). Feminists’ legal goals and rhetorical frames at times overlapped with and at other times diverged from those of both the business lobby and anti-abortion activists. These points of confluence and departure at once advanced sex equality under the law and also limited its scope.

Feminists, the business lobby, and anti-abortion activists drew upon two legal discourses in debating pregnancy discrimination: liberal individualism and “neomaternalism.” Feminists used liberal individualist principles of equal treatment and neutrality to challenge sex-role stereotypes under the law. The business lobby used liberal individualist principles of private choice to construct a market libertarian interpretation of sex equality that privatized the costs of reproduction. In opposition to the business lobby, both feminists and anti-abortion activists forged a fragile alliance to advocate the PDA. Both groups made neomaternal arguments that leveraged the social value of motherhood to gain legal entitlements for pregnant workers.

Feminist advocates for the PDA synthesized liberal individualist and neomaternal discourses to pursue the elimination of sex-role stereotypes under the law as well as collective societal responsibility for the costs of reproduction. While the PDA took a significant step toward the realization of this vision, it remains illusory. Our legal culture evolved to embrace not only the valences of liberal individualist and maternalist ideologies that advance sex equality but also those valences that reinforce gender inequality. Market libertarianism continues to privatize the costs of reproduction, while maternalism reinforces the sexual divison of reproductive labor. Ultimately, this Article points to the persistence of tensions in the definition of sex equality and the need for new legal paradigms.

Forms and Norms

'The Right to Be Fat' by Yofi Tirosh in Yale Journal of Health Policy, Law, and Ethics (forthcoming) comments -

Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be a fat legal subject under current U.S. law. Second, maintaining that the antidiscrimination framework provides a necessary albeit insufficient context for fully capturing the meaning of being fat, it formulates the question of legal regulation of body size as a question of liberty, which is unpacked in terms of autonomy and human dignity. Drawing on the critique of mind-body dualism, and on the philosophical tradition of phenomenology, this Article offers a new framework for understanding the experience of being a fat subject of the law; one that goes beyond the medical conceptualization of body size and addresses the nuanced ways in which body size and shape and ways of eating and moving the body have intimate meanings for legal subjects. Addressing practical dilemmas such as the legitimacy of charging fat passengers for two airplane tickets or whether weight-based employment discrimination should be prohibited, it concludes that if American constitutional law is to remain coherent in its protection of liberty, autonomy, and dignity, it must recognize a right to be of any body size, including the right to be fat. 

Another perspective on conformity is provided in '(No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech' by Jeffrey Kosbie in XIX William & Mary Journal of Women and the Law (2012).

Kosbie argues that -

 Despite limited growth in legal protections for transgender people, dress and appearance are largely treated as unprotected matters of personal preference. In response, lawyers and scholars argue that dress and appearance are intimately connected to the expression of identity. Nonetheless, courts have generally deferred to the government’s proffered justifications for these laws.  

This article refocuses on the government’s alleged interests in regulating gender nonconformity. Using a First Amendment analysis, the article reveals how seemingly neutral government interests are used to single out conduct because it expresses messages of gender nonconformity. This approach avoids impossible questions about the subjective intent of the individual to express their identity. 

Drawing on social constructionist theories of gender, this article establishes that dress, appearance, and other behavior communicate the social meaning of gender, and should be understood as communicative under the First Amendment. When the state singles out conduct because it expresses gender nonconformity, the state’s interests are related to the suppression of a message. This violates freedom of speech under the governing O’Brien doctrine. Testing the theory against actual cases involving government employment, child custody, and restroom access, the article recognizes legitimate government interests in privacy, safety, and efficient workplace environments. However, the article argues that under present doctrine on freedom of speech, the government may not suppress gender nonconformity as the means of achieving these ends.

Gendered

Under the headline 'Olympic Games and the tricky science of telling men from women (Gender tests may be the most controversial obstacle the athletes face. The London Games tries a new approach based on testosterone)' the LA Times last month commented that

Of all the obstacles athletes have had to overcome to compete in the Olympics, perhaps the most controversial has been the gender test. 

Originally designed to prevent men from competing in women's events, it is based on the premise that competitors can be sorted into two categories via established scientific rules. But the biological boundaries of gender aren't always clear. 

Consider the Spanish hurdler Maria Jose Martinez-Patiño. A gender test revealed that she had a Y chromosome, which normally makes a person male. She also had complete androgen insensitivity syndrome, or CAIS, which prevented her body from responding properly to testosterone and caused her to develop as a woman. 

The Spanish Athletic Federation got her test results in 1986, just before a major competition that would have set her up for an Olympic run. Though she won the 60-meter hurdles, the federation declared her ineligible for the 1988 Summer Games in Seoul. 

The International Olympic Committee has struggled with cases like these, variously using hair patterns, chromosomes, individual genes and other factors in their long-running attempts to distinguish men from women. All of these tests have been discarded. 

For the London Games, officials are going by a new set of rules that shifts the focus from DNA to testosterone, a hormone that aids muscle development, endurance and speed. 

To a group of increasingly vocal skeptics, the very notion of gender testing is flawed and efforts to measure it biologically are doomed to fail. But some experts said they had to try anyway. "There is no single metric for sex or athletic potential," said Eric Vilain, director of the Center for Gender-Based Biology at UCLA. But he called the new testosterone-based test a pragmatic solution to a real problem. "I have talked to many elite female athletes, and I haven't found one who is comfortable with the idea of having no testing," he said.

The IOC's new gender regulations disqualify from women's events those athletes who "have testosterone levels in the normal male range, which is 7 to 30 nanomoles per liter of blood". [PDF]

Nothing in these Regulations is intended to make any determination of sex. Instead, these Regulations are designed to identify circumstances in which a particular athlete will not be eligible (by reason of hormonal characteristics) to participate in 2012 OG Competitions in the female category. In the event that the athlete has been declared ineligible to compete in the female category, the athlete may be eligible to compete as a male athlete, if the athlete qualifies for the male event of the sport.

 Jon Bardin in the LAT reports that

Athletes with complete androgen insensitivity will be allowed to compete. 

It's impossible to say how many athletes in London will be affected by the new test ... Unlike past tests, which were given to all competitors in women's events, this one will be administered only when the chief medical officer of a national Olympic committee or a member of the IOC's medical commission requests it.  Ljungqvist said the test had a narrow purpose: "We are not determining the gender in an individual. What we are talking about is athletic eligibility."

The article notes that

Accusations of men masquerading as women in the Olympics go back at least as far as 1936, the year questions were raised about American sprinter Helen Stephens after her upset win at the Berlin Summer Games. Stephens passed some sort of gender test — the details are lost to history — and was awarded a gold medal. 

The Cold War raised tensions between the U.S. and Soviet-bloc teams. Whispers about men posing as women were rampant on both sides, leading the IOC to devise a testing procedure in the 1960s. Athletes had to parade nude in front of physicians, submit to genital exams and have their hair patterns analyzed before they could receive certificates of femininity. 

In 1967, that gave way to a more scientific test based on DNA. In people with two X chromosomes, one of them is inactivated and curls up into a tight ball, which the test detects. But the test proved inadequate in cases of conditions like complete androgen insensitivity syndrome, in which athletes had an X and a Y chromosome but the biological appearance of a woman. ... [T]he IOC switched to a test based on a gene called SRY, which initiates testes development. But since the gene is on the Y chromosome and merely tests for that chromosome's presence, it suffered the same flaws. Eight female athletes failed the SRY test at the 1996 Atlanta Games, though all had androgen insensitivity and were ultimately cleared to compete. 

That convinced the IOC to drop routine gender testing, but it and the International Assn. of Athletics Federations retained the right to test those suspected of competing under false pretenses or with medical conditions offering an unfair advantage. 

That's how South African runner Caster Semenya came to be tested at the 2009 World Championships in Athletics in Berlin. ... The international association conducted an inquiry and cleared her to race after a 10-month ban. She carried her country's flag in the opening ceremony for the London Games. 

Association officials were criticized for the seemingly arbitrary nature of their inquiry. The new IOC policy is crafted to be more transparent. ... 

To Martinez-Patiño, now a professor of sports science at the University of Vigo in Spain, the new rules echo the old — they just use a different metric. "Over time they will conduct research and demonstrate the ineffectiveness of this test," she said, "just as has happened with the others."

Marriage

The UK Government has released a short paper [PDF] titled Equal civil marriage: a consultation, commenting that -

Same-sex couples now receive access to equivalent legal rights, bar the ability to be able to be married and to say that they are married. We do not believe this is acceptable.

The introduction of civil partnerships in 2005 was a significant and important step forward for same-sex couples in ensuring that their commitment to one another was recognised in law on the same basis as for opposite-sex couples; for the first time, couples were able to gain important rights, protections and responsibilities that they had been denied in the past.

We recognise that the personal commitment made by same-sex couples when they enter into a civil partnership is no different to the commitment made by opposite-sex couples when they enter into a marriage. We do not think that the ban on same-sex couples getting married should continue. Put simply, it’s not right that a couple who love each other and want to formalise a commitment to each other should be denied the right to marry.

The paper indicates that -

This consultation is about how the ban can be lifted on same-sex couples having a marriage through a civil ceremony. Whilst many of the issues and questions outlined in this document relate to those individuals and organisations that will be directly affected by this, we recognise that this is of wider interest to everyone. We are therefore seeking a wide range of views in response to this consultation on how best this ban can be lifted.

Under current legislation a marriage can only be between a couple of the opposite-sex i.e. a man and a woman. A marriage can be conducted on either, religious premises through a religious ceremony, or on secular (non-religious) premises through a civil ceremony.

A civil partnership can only be between a same-sex couple i.e. either a man and a man or a woman and a woman and can only be conducted through a civil ceremony. A civil partnership can take place on secular premises but can also be held on religious premises, if the religious organisation in question has allowed this to happen (but the ceremony has to remain a civil one). In all cases a civil partnership registration must be secular (non-religious).

During a listening exercise held in autumn 2010 on the next steps for civil partnerships the Government identified a desire to look at equalising access to civil marriage for same-sex couples. As a result a commitment was made to work with all those with an interest in the issue on how legislation could develop. This consultation seeks your views on how this could best be achieved.

The paper notes that -

From these discussions it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage. The Government is committed to taking forward equal civil marriage and wants to consult widely on how best this can be done. The consultation therefore, does not look at reforms to civil partnerships, for example opening up civil partnerships to opposite-sex couples.

In the development of this consultation paper, Ministers and officials have met with a range of organisations including lesbian, gay, bisexual and transgender groups, and religious and non-religious organisations to hear their views and understand the implications of any proposals on this issue.

We have listened to those religious organisations that raised concerns about the redefinition of religious marriage. We are aware that some religious organisations that solemnize marriages through a religious ceremony believe that marriage can only be between a man and a woman. That is why this consultation is limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnized. It will not be legally possible under these proposals for religious organisations to solemnize religious marriages for same-sex couples. There will therefore be no obligation or requirement for religious organisations or ministers of religion to do this. It will also not be possible for a same-sex couple to have a civil marriage ceremony on religious premises. Marriages of any sort on religious premises would still only be legally possible between a man and a woman.

Civil marriage for same-sex couples is not a new idea and an increasing number of other countries are introducing legal recognition of same-sex relationships on the same basis as for opposite-sex relationships.

The paper articulates 'Principles for change', indicating that -

The Government aims to address the following issues as part of this work:

i. To remove the ban on same-sex couples being able to have a marriage through a civil ceremony. The Government recognises that the commitment made between a man and a man, or a woman and a woman in a civil partnership is as significant as the commitment between a man and a woman in a civil marriage. If we recognise the commitment being made is as significant, it is only right that the Government provides couples with the same opportunity to recognise that commitment in the valued institution of marriage.There are a number of differences between civil marriages and civil partnerships as set out below. This consultation is not only about those differences, but also about the principle of no longer distinguishing in civil marriage ceremonies between same-sex and opposite-sex couples.

ii. To make no changes to how religious organisations solemnize marriages i.e. marriages solemnized through a religious ceremony and on religious premises would still only be legally possible between a man and a woman. The Government is not seeking to change how religious organisations define religious marriage and any subsequent legislation would be clear that no religious organisation could conduct a religious marriage ceremony on religious premises for same-sex couples.

iii.To allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.

Removing the bar on same-sex couples being married will enable for the first time, one partner to change their legal gender without having to formally end their marriage. This can be distressing for those couples who want to stay married but cannot currently do so because it is not legally possible for same- sex couples to be married. Equally, couples who are currently in a civil partnership would be able to convert their partnership into a marriage, rather than formally dissolving their civil partnership.

In a discussion of the 'Current position' it notes that although UK civil partnerships "were designed to provide equivalent rights and responsibilities to marriage there are some differences", such as -

• Civil partnership and marriage are two entirely separate legal regimes with different pieces of legislation covering each of them. Civil partners cannot call themselves married for legal purposes and married couples cannot call themselves civil partners for legal purposes. This means that when making a declaration of marital status to an employer, public authority or other organisation, an individual who is either married or in a civil partnership will often be effectively declaring their sexual orientation at the same time;
• Civil marriages are solemnized by saying a prescribed form of words whereas civil partnerships are formed simply by signing the register – no words are required to be spoken;
• Married couples and civil partners are entitled to similar rights and responsibilities but there are some differences around eligibility for some pension rights and laws around adultery and non-consummation and courtesy titles;
• Marriage can currently be conducted either through a religious ceremony or through a civil ceremony. Civil partnerships can only be conducted through a civil ceremony, although from December 2011 it has been possible for couples to have their civil partnership registration take place on religious premises, (although the registration itself must remain secular). This is an entirely voluntary provision for faith groups who want to host civil partnership registrations and does not lift the ban on any religious elements forming part of the civil partnership registration itself. The Government is committed to retaining this provision to enable same-sex couples to continue having a civil partnership registration on religious premises if that religious organisation has agreed.

The paper states that in order to achieve those aims the Government intends to -

• enable same-sex couples to get married through civil ceremonies.
• retain civil partnerships for same-sex couples, including the ability to have a civil partnership registration on religious premises (on a voluntary basis and retaining the ban on any religious elements forming part of the registration).
• allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.
• make no changes to how religious marriages are solemnized.

Under the proposals, the Government intends to allow couples in a civil partnership the option of ‘converting’ their existing civil partnership into a civil marriage.

Perspectives on gay marriage are provided in works such as Odd Couples: A History of Gay Marriage in Scandinavia (Amsterdam University Press, 2011) by Jens Rydstrom, When Gay People Get Married: what happens when societies legalize same-sex marriage ( New York University Pres,s 2012) by Lee Badgett and The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton University Press, 2011) by Margot Canaday.

ADFA

The Australian Human Rights Commission has released its first report [PDF] in the aftermath of the 'ADFA WebCam Incident'.

The Inquiry's Terms of Reference involve review, report and recommendations regarding -

a) the treatment of women at the Australian Defence Force Academy with a particular focus on the adequacy and appropriateness of measures to: promote gender equality, ensure women’s safety, and to address and prevent sexual harassment and abuse, and sex discrimination

b) initiatives required to drive cultural change in the treatment of women at the Australian Defence Force Academy, including the adequacy and effectiveness of existing initiatives and of approaches to training, education, mentoring and development

c) the effectiveness of the cultural change strategies recommended by the Chief of the Defence Force Women’s Reference Group in the Women’s Action Plan including the implementation of these strategies across the Australian Defence Force
d) measures and initiatives required to improve the pathways for increased representation of women into the senior ranks and leadership of the Australian Defence Force

e) any other matters the Panel considers appropriate that are incidental to the above terms of reference.

The key findings are that the ADFA culture had improved significantly since the mid 1990s when there was a comprehensive review of ADFA’s Policies and Practices to Deal with Sexual Harassment and Sexual Offences (the 1998 Grey Review) which found a high level of unacceptable behaviour including sexual harassment and sexual offences. The current Review found that "many of the extreme cultural concerns documented in the Grey Review were no longer apparent" but that "further structural and cultural reform is necessary if ADFA is to become the excellent tri-Service training and academic institution it aspires to be. Excellence requires that ADFA has a strong culture of inclusiveness, fairness, transparency and learning". The Review found structural and cultural deficiencies which have implications for all cadets, particularly for women.

In particular -

a) Commitment to ADFA
There needs to be a strong reaffirmation of ADFA as the centre of excellence for tri-Service education and training for junior officers. ADFA espouses excellence, however it lacks a well-articulated purpose and a clear vision. This inhibits it from realising its potential and, significantly, from integrating equality, diversity and inclusion in a meaningful way. ....

b) Equity and diversity
The concepts of equity and diversity applied at ADFA are generally grounded in disciplinary and punitive processes and as a response to unacceptable behaviour. They are not used as overarching, positive values that can inform and enhance everyday practice. They are not linked to enhancing ADF capability.
ADFA should develop and articulate a clear, unambiguous and widely-disseminated statement about diversity, inclusion and gender equality that recognises the fundamental importance of women to the sustainability and capability of the wider ADF.

It is critical that equity and diversity education is separated from education about reporting unacceptable behaviour and the complaints process. Principles of equity, diversity and inclusion should be embedded into all of ADFA’s policies and practices and ethical leadership instruction. A strong commitment to equity, diversity and gender equality should be actively and visibly promoted by the ADF and ADFA senior leadership teams. This should be accompanied by an unequivocal condemnation of all forms of sexism, sexual harassment and violence against women.

Induction and ongoing education programs on equity and diversity which draw on realistic scenarios should be provided to ADFA staff and cadets. These should be developed and delivered collaboratively by ADFA and an expert educator. There are many visible male role models at ADFA and in the wider ADF. Senior and successful women are not as prominent. To address this, cadets and staff would benefit from regular forums where female role models, both from within and beyond the ADF, deliver presentations on their experiences.

ADFA should fully assess the effectiveness of equity and diversity education, and the diversity network with a view to improving and strengthening it. The success of education on these issues can only be achieved through changed attitudes and behaviours. To track such changes, it is critical that the effectiveness of education and training processes be evaluated against established indicators.

c) Selection, training and turnover of staff
The high turnover of Commandants and military staff has had a significant negative impact on ADFA’s leadership stability, continuity and organisational memory. This includes a detrimental impact on the implementation of policies and practices that affect all cadets, including women. Further, the Commandant has limited influence over which staff are posted to ADFA and has limited engagement with ADF Service Chiefs. The Review makes a number of recommendations which aim to address these issues.

The Review repeatedly heard that ADFA is not considered a prestigious posting for staff. This has an impact on staff commitment to ADFA and on the quality of educators and trainers. In order for ADFA to be Australia’s finest military training academy, the ADF’s three Services need to develop innovative strategies to attract and retain the best staff. Consideration should be given to separating rank and role to enable recruitment of a wider pool of quality educators and positive role models within ADFA. To raise the status of ADFA and staffing decisions, the Service Chiefs could regularly inform the CDF of each posting schedule.

Prior to being posted to ADFA, many military staff have not had experience as supervisors of mixed gender environments or supervision of young people. Induction training at ADFA does not provide staff with adequate tools to deal with the issues that may arise from managing young men and women. Further, induction training does not adequately provide for such principles as equity and diversity and gender equality to be embedded in the daily practice of staff and their interaction with cadets. The Review recommends a range of strategies to reform the induction and training processes of ADFA staff to improve their capacity in these areas. The Review also recommends that quality performance by ADFA staff should be a positive discriminator for career progression.

d) Cadets as young people
Cadets, apart from the midshipmen, generally come to ADFA soon after completing high school. Many have not lived away from home before and many have not had any experience in a military setting. The Navy has instituted the Navy Officer Year One Program (NOYO) for midshipmen prior to commencing at ADFA. The Review heard consistent evidence that cadets from the other services would benefit from a similar program as this would develop their maturity and commitment to their chosen profession. A one year immersion experience could support the maturation process, as midshipmen and cadets prepare to commence their undergraduate studies. The Review recommends that options for service-wide programs should be completed within 12 months of the release of this Report. The preferred option should be implemented in 2013 in readiness for the 2014 cadet intake.

Given their differing levels of maturity and the stressors cadets may experience as they embark on their military training and career, many would benefit from regular mentoring and advice. ADFA should offer cadets a mentor external to ADFA, who may be drawn from a non-military background. Female cadets should be given the option to be placed with female mentors. A number of women’s mentoring programs currently operate through Australian universities, including the University of New South Wales (UNSW). These programs may provide a useful template.

The Review heard that there is regular alcohol use among ADFA cadets. Among some groups, there is heavy alcohol use characterised by binge drinking. Early training is a formative period for ADFA cadets. It is a time when drinking behaviours can become established. Information was provided to the Review that such use is typical of a general drinking culture among young people in Australia. However, the Review also heard that since ADFA cadets, are trained to be future leaders, they should adhere to a higher standard of acceptable behaviour than the wider Australian population.

Heavy alcohol use can increase risks to individual and others’ wellbeing and safety. It can also have a serious impact on women’s safety. The cost of alcoholic drinks in the cadets’ mess is much lower than in public establishments. To minimise the risks arising from the over-consumption of alcohol, ADFA should review its pricing regimes in the mess. In addition, ADFA should ensure ongoing regular alcohol testing is undertaken, as provided by Defence Instruction (General) Personnel 15-4 Alcohol Testing in the Australian Defence Force.

e) Residential setting and supervision
Cadets are generally housed on the ADFA campus. Complex issues arise because the campus is a place of residence and a place of study and work for young people experiencing a new level of independence. There are inadequate levels of oversight and supervision to minimise risks. Greater engagement of staff ‘after hours’, and the creation of appropriate staff accommodation to support this aim, will greatly enhance ADFA’s culture and its effectiveness to promote the development of the cadets within its care.

As a priority, ADFA should instruct an occupational health and safety specialist to conduct a risk assessment of the residential accommodation, including bathrooms, to identify the existence and level of risk to cadets arising from mixed gender living arrangements.

To address the issue of isolation and to increase supervision in the residential setting the Commandant should adopt a system based on a model of Residential Advisors for each first year Division (one male and one female) who will live in the residential block to provide after hours supervision. While they may be recent ADFA graduates engaged in postgraduate study, these Residential Advisors should be outside the cadet structure, and should have appropriate skills and attributes in leadership, and the ability to provide after hours supervision and pastoral care for cadets. They should have a direct line of report to the Commandant in the case of serious pastoral or disciplinary incidents.

In addition, the ADF should explore the creation of residential accommodation on the ADFA site suitable for couples or families, for Divisional staff in association with their training and supervisory roles. Further, the culture at ADFA would benefit from the greater engagement of military, academic and pastoral staff ‘after hours’ and in the residential setting, and the ADF should explore the creation of appropriate spaces to enhance engagement in this setting from all three groups.

f) Gender relations
Gender relations are not well understood among cadets and the messages cadets receive about unacceptable behaviour can be inconsistent. Similarly, the impact of sexualised activities and sexual behaviour is not well understood or grounded in an appropriate ethical framework for the cadet body.

Education on sexual ethics and respectful and healthy relationships should be provided to all cadets, including on issues such as:

• the meaning, inappropriateness and impact of sexist language and sexual harassment
• the meaning of consent
• the appropriate use of technology
• stalking, controlling and threatening behaviours.

g) Complaints process
Training on making complaints of unacceptable behaviour – including sexual harassment, abuse and sex discrimination – should be reviewed to ensure the training is targeted and appropriate to each year group and to staff. It should also reflect an individual’s different responsibilities in relation to incident reporting, response and management.

Reporting a complaint can be difficult for cadets who fear victimisation, lack of confidentiality or that it will undermine their opportunities for career progression. The Review saw merit in the Army’s Fair Go Hotline, which allows Army personnel to raise previously unreported incidents of unacceptable behaviour, including bullying, harassment, victimisation, verbal abuse or assault. Callers can remain anonymous and are not required to disclose that they have used the Hotline. Issues reported to the Fair Go Hotline are investigated and necessary actions are taken.

To encourage reporting of complaints by cadets and to provide staff with a useful tool to find the best referral mechanism for a cadet who has come to them with a complaint, ADFA should establish and promote a dedicated ADFA-specific, seven-day per week, toll-free hotline for all cadets, staff and families. The expert operators will provide advice and referral about the most appropriate mechanism or service (ADFA, ADF or external) to deal with the complaint.

ADFA’s incidents and complaints data is patchy and incomplete. ADFA should develop and maintain, through the ADF information system, a comprehensive, accurate and up-to-date online database, which includes all relevant information about complaints and incidents. The Commandant of ADFA and the Commander of the Australian Defence College should be given monthly reports on incidents and trend data. The database should also undergo annual quality assurance testing to ensure that the standards in the relevant Defence Instructions are being met.

h) Sexual harassment and abuse
Widespread, low-level sexual harassment exists at ADFA. Women disproportionately experience gender and sex-related harassment, as well as general harassment and discrimination. Qualitative and quantitative information also shows there have been isolated incidents of serious sexual misconduct in recent years, including sexual assault. These results were of concern to the Review.

ADFA should take a leadership role by developing and administering an annual survey to measure the level of sexual harassment and sexual abuse. The results from this survey should inform an organisational response. The Review acknowledges that ADFA is not alone in facing these challenges. Other tertiary institutions and residential colleges have similar concerns. Therefore, ADFA should develop its unacceptable behaviour survey in collaboration with the residential colleges and halls of the Group of Eight universities’ colleges and halls, in order to provide meaningful comparisons. It would also demonstrate ADFA’s commitment to lead in this area. Consideration should also be given to including Single Service Training establishments in the development of this survey.

i) Women’s health and wellbeing
The different health needs and physical capacities of women are not well understood. Proportionally, female cadets experience a higher level of injury than male cadets. ADFA should examine women’s injury rates and develop strategies to improve health and wellbeing management. Injured cadets who are disproportionately women are often stigmatised on account of their medical status. ADFA should develop a strategy to address this.

In addition, there is insufficient support for a range of health and wellbeing issues, including sexual and personal abuse and violence at ADFA. ADFA should provide information on key internal and external support services to cadets to be able to respond to cadets’ health and wellbeing needs in a holistic fashion.