Click on titles for abstracts; click on abstracts for full papers.
Book Projects:
Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition (Cambridge University Press, Studies in Legal History Series, 2024) (forthcoming).
Articles:
Exploring Identity, 54 Fam. L. Q. 1 (2021) (peer reviewed) (received Haub Law Emerging Scholar Award in Gender and Law) (reviewed by Erez Aloni on Jotwell Equality and Aníbal Rosario-Lebrón on Jotwell Family Law).
Expanding LGBT, 74 Fla. L. Rev. 243 (2021) (selected for Harvard/Stanford/Yale Junior Faculty Forum).
Queering Reproductive Justice, 54 Rich. L. Rev. 671 (2020) (invited symposium contribution).
Framing Trans Rights, 114 Nw. U. L. Rev. 555 (2019) (Dukeminier Award winner).
The LGBT Disconnect: Politics and Perils of Legal Movement Formation, 2018 Wis. L. Rev. 504.
Bureaucratic Agency: Administering the Transformation of LGBT Rights, 36 Yale L. & Pol’y Rev. 83 (2017) (Dukeminier Award winner).
Expressive Ends: Understanding Conversion Therapy Bans, 68 Ala. L. Rev. 793 (2017) (Dukeminier Award winner).
Agency Nullification: Defying Bans on Gay and Lesbian Foster and Adoptive Parenting, 51 Harv. C.R.-C.L. L. Rev. 363 (2016).
The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34 Law & Hist. Rev. 487 (2016) (peer reviewed).
The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States, 24 J. Hist. Sexuality 225 (2015) (peer reviewed).
The Modern Mulatto: A Comparative Analysis of the Social and Legal Positions of Mulattoes in the Antebellum South and the Intersex in Contemporary America, 15 Colum. J. Gender & L. 665 (2006).
Gendered Crime, Raced Justice: A Critical Race Feminist Approach to Forensic DNA Databank Expansion, 19 Nat’l Black L.J. 78 (2005).
Book Chapters:
Regulating Same-Sex Sexuality in the Twentieth Century, in The Cambridge History of Sexuality in the United States (Jen Manion & Mick Syrett eds.) (in process) (invited contribution).
The Coming Out of American Law, in The Bill of Rights in Modern America (David J. Bodenhamer & James W. Ely, Jr. eds., 3d ed.) (2022) (invited contribution, peer reviewed).
Shorter Works:
Complicating Conformity, 40 L. & Hist. Rev. 819 (2022) (invited contribution).
Commentary for Massachusetts v. Blache, in Feminist Judgments: Criminal Law (Sarah Deer et al. eds.) (2022).
Op-Eds & Letters:
Protecting Trans Children: Scientific Uncertainty and Legal Debates Over Child Custody and Access to Care, Bill of Health (Harvard Law School, Petrie Flom Center), Sept. 20, 2023.
“Don’t Say Gay” Laws Harm Students Already at Risk, Atlanta J.-Const., Feb. 17, 2023.
Everyday People Must Save Marriage Equality, Winston-Salem J., Dec. 9, 2022.
Florida’s Bill Restricting LGBTQ Discussion Will Hurt All Children, LGBTQ and Straight, Wash. Post, Mar. 9, 2022.
False Claims of Protecting Children are Fueling Anti-Trans Legislation, Wash. Post, July 6, 2021.
Letter in response to “Why So Many Mothers Feel Like Failures,” N.Y. Times, Mar. 5, 2021 (with Meghan Boone & Jane Aiken).
The History Behind the Latest LGBTQ Rights Case at the Supreme Court, Wash. Post, Nov. 17, 2020.
The Fight Against AIDS Has Shaped How Potential COVID-19 Drugs Will Reach Patients, Wash. Post, Apr. 29, 2020.
ABSTRACTS
Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition (Cambridge University Press, 2024) (forthcoming).
Family Matters explains the dramatic transformation of gay and lesbian rights in the United States during the late twentieth century.
In 1960, consensual sodomy was a crime in every state. Fifty-five years later, the Supreme Court ruled that gay and lesbian couples had a fundamental right to marry. In the span of two generations, American law moved from a regime that criminalized gay and lesbian relationships to one that recognized and affirmed the dignity of gay and lesbian families. The causes of this rapid, extraordinary success mystify academics, advocates, and the public alike. How is it that a rights movement secured so much, so quickly? The nature of its limitations does as well. Why is it that the gay and lesbian rights movement, a movement initially aimed at promoting sexual liberation, became so focused on parents, children, and families? Family Matters provides the solution to these two puzzles. It argues that gays and lesbians were able to transform American law precisely because they put forward a vision of gay and lesbian life that centered around conventional domesticity. While this focus reflected the genuine aspirations of many within the gay and lesbian community, it was also a strategic response to the intense resistance that met the community’s demand for recognition as full, rights-bearing citizens of the United States.
Family Matters is not just another history of the marriage equality movement. Instead, it demonstrates that largely unexamined legal changes at the state and local levels between the end of World War II and the 1990s reshaped the place of same-sex sexuality in American society and law in a manner that made same-sex marriage possible. In particular, it examines the decriminalization of consensual sodomy, the reform of child custody laws and foster care regulations, the creation of domestic partnership registries during the AIDS crisis, the development of gay-inclusive school curricula and gay-straight alliances, and legislation aimed at combatting violence perpetrated against gays and lesbians during the 1980s and 1990s. Changes in these areas of the law allowed gays and lesbians to be open about their sexual orientation, projecting a vision of same-sex sexuality that highlighted how gay and lesbian couples fit within traditional models of domestic life. Accordingly, legal change helped make possible the personal and political project of “coming out.” This increased visibility, in turn, provided fuel for further reform. Family Matters thus highlights the paths to marriage equality, rather than making marriage its central focus. Additionally, it shows why the movement left behind community members whose priorities did not center on marriage and children.
Exploring Identity, 54 Fam. L. Q. 1 (2021).
Custody disputes between parents who disagree as to how to address their child’s gender identity have become the newest battleground in the country’s culture wars. This Article provides the first comprehensive analysis of custody cases involving gender expansive children—an umbrella term this Article uses to refer to transgender, nonbinary, and children exploring non-traditional gender identities. By explaining the medical debates over treatment for gender expansive children and connecting these disputes to related precedent, this Article makes three distinct contributions.
First, this Article demonstrates that courts are focusing on the wrong question when adjudicating these cases involving pre-adolescent children. Judges have been trying to determine which parent is correct as to the child’s gender identity. However, the science of gender identity development indicates that only adolescent children’s gender identity is stable. The adult gender identity of pre-adolescent, children, on the other hand, may be unknown until after a period of exploration. As a result, courts should be focused on which parent is best suited to help the child with the exploratory process, rather than its outcome.
Second, the Article reveals that courts have recognized children’s interests in exploring their identities as part of the “best interests of the child” analysis. By conducting an analysis of more than 90 custody opinions involving children who explore their sexual orientation, racial identity, and religious affiliation, this Article demonstrates that gender expansive child custody cases are the latest iteration of a long line of family court precedent involving judicially recognized fundamental identity characteristics. Just as judges have endorsed exploration in these analogous situations, so too should they recognize pre-adolescent children’s need to explore their gender identity.
Third, this Article provides decisionmakers with the practical information they need to resolve their cases. The best interests of the child standard is largely discretionary, which provides family courts with flexibility to promote children’s needs. However, family courts need the relevant scientific data and precedent to reframe their approaches. Additionally, legislators may want to enact statutes that reinforce gender identity exploration, which they are more likely to do when armed with the scientific evidence and precedent that this Article provides. As a result, this Article’s analysis of medical literature and immutable identity cases is more than a framework for understanding the issue—it is also the solution to the problem.
Expanding LGBT, 74 Fla. L. Rev. 243 (2021).
In many circles, “LGBT” is an antiquated acronym that excludes many of the individuals that the movement is supposed to serve. “LGBTQ,” “LGBTQIA,” and other variations of the acronym have become ever more pervasive as nonbinary, intersex, and asexual individuals have become increasingly visible. The LGBT initials that once signaled solidarity and intersection are now appearing limited because they highlight only certain subgroups.
Although many movement organizations have adopted a more expansive formulation of LGBT, national legal rights organizations have limited their agendas to LGBT issues. Until recently, they devoted the bulk of their efforts to gay and lesbian concerns by focusing on securing marriage equality and sexual orientation-based antidiscrimination protections. Lately, their agenda has expanded to encompass transgender rights, but that work has centered around transgender individuals who are gender conforming. To pursue these goals, national organizations have used assimilationist arguments that tend to exclude the less mainstream members of the LGBT community.
This Article argues that including nonbinary, intersex, and asexual rights would require national LGBT organizations to reformulate their current goals and tactics in ways that could benefit not just nonbinary, intersex, and asexual individuals, but also more marginalized current members of the LGBT community. For that reason, what is at stake in expanding national LGBT rights groups’ agendas is as much the representation of existing members as it is that of new ones. However, such a change could have significant costs, as national organizations have pursued assimilationist goals and strategies because these are effective and efficient means of securing legal rights. Given the competing concerns undergirding movement expansion, this Article presents alternatives that national organizations and nonbinary, intersex, and asexual rights advocates might also consider.
Queering Reproductive Justice, 54 Rich. L. Rev. 671 (2020).
The Supreme Court has simultaneously retreated from its once-protective stance towards reproductive rights while recognizing and safeguarding LGBTQ rights. This jurisprudential disconnect affords advocates an opportunity. By focusing on the intersection of these two areas of law— queer reproductive justice—advocates may be able to forge useful precedent in the LGBTQ rights space to then apply to other reproductive justice issues, including abortion and contraception. This Essay highlights three queer reproductive justice spaces—family formation, sex education curricula, and medical decision-making—to demonstrate how LGBTQ rights advances may inure to the benefit of reproductive justice more generally.
This argument, while deeply practical in nature, implicitly challenges the conventional wisdom of social movement mobilization. Social movements are usually thought to promote the interests of their most privileged group members, whose rights are the least threatening to the status quo. Each incremental rights gain then trickles down to more marginalized individuals. For reproductive justice advocacy, the most effective approach may be one that “trickles up” from the most to the less marginalized.
Framing Trans Rights, 114 Nw. U. L. Rev. 555 (2019).
In the wake of marriage equality, opponents of LGBT rights refocused their attention and made transgender rights their main target. To persuade voters to maintain gender identity anti-discrimination protections, LGBT rights campaigns have presented trans identity in a specific but limited way, emphasizing gender-conforming transgender individuals and thereby implicitly reinforcing the gender binary. Although LGBT rights groups have succeeded in their efforts, their messaging may undermine the movement’s broader litigation strategy and render even more vulnerable the substantial portion the transgender community that identifies as non-binary.
The trans rights framing choices thus raise questions about how the LGBT movement’s advocacy decisions blur the lines between success and failure, advancement and retrenchment. To illustrate this tension, this Article details the history of marriage equality campaign strategies, identifying how and why LGBT rights groups applied those frames to trans rights. Using these events, this Article analyzes the factors that both motivate and circumscribe social movements’ framing decisions more generally to identify whether and how to alter trans rights advocacy.
How trans rights are framed is a significant subject that extends far beyond whether a specific city or state maintains or eliminates its gender identity protections. Although political positioning in an electoral campaign may seem far removed from the work of courts, legislatures, and administrative advocacy, this Article demonstrates how porous the boundaries are, such that the frames of the former have a substantial impact on the latter. Drawing on the scholarly literatures on acoustic separation and popular constitutionalism, this Article identifies why it is that LGBT state and local ballot measure contests cannot be separated from the movement’s broader strategies. It consequently provides suggestions for reframing transgender ballot measures.
The LGBT Disconnect: Politics and Perils of Legal Movement Formation, 2018 Wis. L. Rev. 504.
The LGBT movement is facing a crucial dilemma. Although the movement presents itself as a coalition of gays, lesbians, and transgender individuals, many Americans accept and approve of the former (LG), but not the latter (T). Opponents of LGBT rights have capitalized on this social and political disconnect in local ballot measure campaigns, convincing voters to repeal sexual orientation anti-discrimination laws by highlighting that the statutes also contain gender identity protections. There is thus a sufficiently large gap between the identity categories that lesbian and gay legal victories have not built support for transgender rights, and yet they are integrated enough that one can be deployed against the other.
Drawing on extensive original primary source research—including archival materials, newspaper articles, television advertisements, legislative histories, and court filings—this Article uncovers the debates, conflicts, and decisions that shaped the place of transgender rights within the coalition, and argues that national LGBT rights organizations’ legal strategies inadvertently contributed to this contemporary disconnect. This Article demonstrates why it is so important for LGBT rights groups to address this problem by chronicling anti-transgender rhetoric in local ballot measures, where citizens are increasingly voting to repeal LGBT rights. It concludes by identifying several options for how LGBT rights groups can eliminate the gap between lesbian/gay and transgender, which it uses to develop a taxonomy of social movement mobilization.
Bureaucratic Agency: Administering the Transformation of LGBT Rights, 36 Yale L. & Pol’y Rev. 83 (2017).
In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become incidental allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in scientific developments that influenced the decisions of social workers and other bureaucrats working in the administrative state. This phenomenon continues today, with educators resisting laws that limit transgender students’ bathroom access
By uncovering this bureaucratic resistance, this article demonstrates the administrative state’s dynamism and that bureaucracy can be an important site of legal change. Because bureaucrats are charged with enforcing legislation, their actions also have significant normative implications, raising separation of powers and democratic legitimacy concerns. However, the very structure of administrative bureaucracies creates conflict between the branches, as civil servants are hired for their professional knowledge and abilities, yet are also responsible for complying with legislative mandates that may contradict that expertise. This article argues that bureaucratic resistance is inevitable, can be legitimate, and may be desirable.
Expressive Ends: Understanding Conversion Therapy Bans, 68 Ala. L. Rev. 793 (2017).
LGBT rights groups have recently made bans on conversion therapy, a practice intended to reduce or eliminate a person’s same-sex sexual attractions, a primary piece of their legislative agenda. However, the statutes only apply to licensed mental health professionals, even though most conversion therapy is practiced by religious counselors and lay ministers. Conversion therapy bans thus present a striking legal question: Why have LGBT rights advocates expended so much effort and political capital on laws that do not reach conversion therapy’s primary providers?
Based on archival research and original interviews, this article argues that the true significance of the bans is in their expressive function. The laws’ proponents are using the statutes to create a social norm against conversion therapy writ large, thus broadening the bans’ reach to the religious practitioners the law cannot directly regulate. LGBT rights groups are also extending the bans’ expressive message to support the argument that sexual orientation is immutable and to reverse a historical narrative that cast gays and lesbians as dangerous to children. These related claims have been central to gay rights efforts for much of the twentieth century and continue to shape LGBT rights battles.
While the expressive effects of the bans are important, the laws and the campaign around them may have a negative effect. LGBT rights organizations working on the laws do not distinguish between conversion therapy efforts aimed at changing sexual orientation and those targeting behavior. This is troubling, not only because it fails to acknowledge the needs of same-sex attracted individuals who wish to live in accordance with their religious beliefs, but also because it reinforces a limited view of gay identity. Many within the LGBT movement contest the identity model that legal advocates have championed, and that conception of sexual orientation may in fact hinder the movement’s long-term goals. Differentiating between the various types of conversion therapy would help remedy this by emphasizing the law’s need to respect and protect sexual decisions and expressions, as well as create a platform from which to promote a more expansive vision of LGBT rights.
Agency Nullification: Defying Bans on Gay and Lesbian Foster and Adoptive Parenting, 51 Harv. C.R.-C.L. L. Rev. 363 (2016).
This article presents an untold history of gay and lesbian rights claims, which had bureaucratic beginnings and developed in the interstices of the administrative state. In the mid-1980s an
d early 1990s, gays and lesbians increasingly sought to foster and adopt children, resulting in a maelstrom of political controversy. Despite elected officials’ edicts and lawmakers’ efforts to prevent gay and lesbians from serving as foster and adoptive parents, social workers believed that gay and lesbian parents often provided homes that best served the needs of children. They consequently defied rules and regulations in order to promote the welfare of their wards. Drawing on unpublished documents mined from archives around the country, interviews conducted with state officials and advocates, judicial opinions, court filings, government publications, articles from national and local newspapers, and other primary sources, this article uncovers the hidden history of gay and lesbian family law, which challenges contemporary understandings of administrative law and presents a new path for LGBT rights.
The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34 Law & Hist. Rev. 487 (2016).
The Custody Crucible argues that lesbian mother and gay father custody and visitation cases in the mid- and late-1970s spurred scientific inquiry into the impact of parental homosexuality on children’s sexual orientation and gender identity, with courts across the United States becoming critical arenas for the articulation of medical knowledge and forums for scientific debates on homosexuality. Courts reviewing lesbian mother and gay father requests for custody rights demanded information on the psychological impact of parental homosexuality on children, rendering questions of gay and lesbian parenthood increasingly important for researchers interested in issues of sexuality. Researchers, both for and against gay litigants, explicitly recognized the role their conclusions would play in courts, which shaped the structure and analysis of their work. This article therefore identifies courts as an important element in the development of scientific knowledge on gay and lesbian families. It also argues that the American Psychiatric Association’s 1973 decision to declassify homosexuality as a mental illness did not sever the connection between gay rights and psychological science, as gay rights advocates claimed, but rather produced new fields of social science research to address debates in the courts.
The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States, 24 J. Hist. Sexuality 225 (2015).
This article analyzes the evolution from sexual psychopath statutes, which proliferated in the United States between the 1939 and 1951, to the decriminalization of consensual sodomy from the Model Penal Code (MPC) in 1955. It argues that sexual psychopath laws, which applied to men convicted of consensual sodomy and were used to commit gay men to psychiatric institutions, paved the way for legal reform through a series of state commission reports that reviewed the statutes. Relying on Alfred Kinsey’s studies, the majority of the reports commented on the fallacy of including consensual sodomy under the umbrella of psychopathy and several questioned the propriety of criminalizing consensual sodomy in the first place. These commissions were largely unsuccessful in their immediate efforts to remove consensual sodomy from the list of crimes that would trigger a sexual psychopath statute or to decriminalize consensual sodomy, but, as this article demonstrates, their work contributed to the decriminalization of consensual sodomy in the MPC.
The Modern Mulatto: A Comparative Analysis of the Social and Legal Positions of Mulattoes in the Antebellum South and the Intersex in Contemporary America, 15 Colum. J. Gender & L. 665 (2006).
The Modern Mulatto compares the regulation of race in the antebellum period with that of sex today, revealing the analogous nature of the socio-legal categories. It argues that antebellum mulattoes threatened the system of slavery, which depended on a strict racial hierarchy, much like intersex individuals today undermine the sexual binary on which many laws are based.
Gendered Crime, Raced Justice: A Critical Race Feminist Approach to Forensic DNA Databank Expansion, 19 Nat’l Black L.J. 78 (2005).
This article analyzes the way in which forensic DNA databank expansion raises questions of both racial and sexual inequality. It argues that, as a result of the disproportionate number of men of color who have contact with the criminal justice system, the databanks are racially skewed. At the same time, the databanks offer the possibility of identifying more perpetrators of sexual violence, and thus are a powerful tool to address violence against women. This article analyzes the tensions between efforts to solve crimes against women and efforts to combat racial injustice, stressing the need to include discussions of both race and sex in debates on forensic DNA databank expansion.