Click on titles for abstracts; click on abstracts for full papers.

Book Projects:

Deviant Justice: The Transformation of Gay and Lesbian Rights in America (in progress).

Articles:

The LGBT Disconnect: Politics and Perils of Legal Movement Formation, 2018 Wis. L. Rev. __ (forthcoming).

Bureaucratic Agency: Administering the Transformation of LGBT Rights, 36 Yale L. & Pol’y Rev. __ (forthcoming 2017).

Expressive Ends: Understanding Conversion Therapy Bans, 68 Ala. L. Rev.  793 (2017).

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).

The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States, 24 J. Hist. Sexuality 225 (2015).

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).

 

ABSTRACTS

 

Deviant Justice: The Transformation of Gay and Lesbian Rights in America (dissertation in progress).

Deviant Justice analyzes the dramatic transformation of gay and lesbian rights in the United States during the late twentieth century. Over fifty-five years, American law moved from a regime that criminalized consensual sodomy in all fifty states to one in which gays and lesbians have a fundamental right to marry. In that same time period, homosexuality changed from a marker of psychopathy to a benign variation in human sexuality, at least for the majority of Americans. This project asks how the law helped normalize what was once considered deviant, such that a formerly reviled group moved from the margins toward the mainstream in most of the country.

The manuscript traces the iterative process of normalization chronologically and thematically to explain how same-sex sexuality became legally protected. Unlike most scholarship on gay and lesbian rights, which focuses on the Constitution and claims in federal court, these arguments are based on analyses of legal contests at the state and local levels, where laws shaped conceptions of gays and lesbians as community members: criminal sexual psychopath and sodomy statutes, child custody disputes, adoption and foster care regulations, school curricular standards, state anti-discrimination laws, hate crimes protections, and marriage regulations. By connecting debates in cities and towns around the country, where social movement activism influenced municipal laws and community norms, Deviant Justice crafts a national account of legal change that shows how incremental shifts at the state and local levels radically reformulated American law. Each chapter draws on extensive original archival research and oral history interviews, and emphasizes the role of a different set of non-legal actors in fostering legal change.

The LGBT Disconnect: Politics and Perils of Legal Movement Formation, 2018 Wis. L. Rev. __ (forthcoming).

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. __ (forthcoming 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).

familyThis 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).

Raising Children is Our RightThe 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).

Sexual Behavior in the Human MaleThis 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).

Phall-o-meterThe 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).

DNA databankThis 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.