Category Archives: Sexual Justice

Federal courts ask: What is the meaning of ‘sex’?

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Existing prohibitions against discrimination ‘because of sex,’ already provide a civil rights umbrella wide enough to cover discrimination based on sexual orientation and transgender identity, some judges are beginning to say.

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A number of federal courts have begun to ask a question that has become more and more subtle over the past few years: What is the meaning of ‘sex’?

It’s a question that has in many ways evolved out of the storms of cultural change that have surrounded the country’s shifting ideas about human sexuality and gender over the past few decades. Many of these culminated in the US Supreme Court’s landmark 5-to-4 decision in 2015, in which a bare majority declared same-sex marriage a constitutional right.

On the one hand, the high court’s epoch-changing decision that legalized same-sex marriage created the kind of situation that inevitably arises out of rapid cultural change. Today, neither the federal government nor some 28 states offer any explicit civil rights protections for lesbian, gay, bisexual, and transgender people (LGBTQ), either in the workplace or any other arena of daily life.

“It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress,” notes the legal scholar William Eskridge, professor at Yale Law School in New Haven, Conn.

And many throughout the country, even those with liberal-leaning views, continue to be uneasy about the presence of transgender people in certain sensitive places, including school bathrooms and locker rooms.

On Friday, President Trump issued a policy memo that would disqualify most transgender people from serving in the military, after tweeting about his plans to issue such a ban last July. As Defense Secretary Jim Mattis reported to the president in February, the administration is concerned that the presence of transgender soldiers could “undermine readiness,” “disrupt unit cohesion,” and create unreasonable health care costs for the military, echoing arguments used in the past for other groups.

At least four federal courts have found this reasoning constitutionally jarring as well, potentially violating the Constitution’s guarantee of equal protection under the law.

Yet beyond sweeping constitutional questions which regulate what the government can do to its citizens, the nation’s evolving definitions of sex, marriage, and gender have also been quietly transforming the nation’s civil rights laws, which regulate how citizens live their common lives together.

Title VII and Title IX

Indeed, a number of federal courts have recently begun to weigh in on a vigorous and relatively new legal idea, simmering for the past few years in federal civil rights cases but only now beginning to take a more defined legal shape.

There may be no need to press Congress and the majority of state legislatures to change their statutes and explicitly add LGBTQ people to their lists of protected classes. (Traditionally, these include race, color, religion, sex, and national origin.) Existing prohibitions against discrimination “because of sex,” already provide a civil rights umbrella wide enough to cover discrimination based on sexual orientation and transgender identity, some judges are beginning to say.

The Obama administration took this position in 2016, telling the nation’s public schools that transgender students should be able to use the bathroom of their choice, a directive that interpreted Title IX’s prohibitions against sex discrimination as covering transgender identity.

Last April, the US Court of Appeals of the Seventh Circuit in Chicago, which includes nine justices nominated by Republican presidents and five by President Ronald Reagan, also embraced this idea. In an 8-to-3 decision that spanned the panel’s ideological spectrum, the full court ruled that the Title VII’s prohibition against sex discrimination in the workplace also included any based on sexual orientation.

Last month, the Second Circuit in New York issued a similar ruling. “Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” wrote Chief Judge Robert Katzmann for the 10-3 majority. It would be impossible “for an employer to discriminate on the basis of sexual orientation without taking sex into account,” he continued.

Such an evolving legal definition of sex could again reshape the nation’s legal landscape. “Potentially a lot is at stake,” says Professor Eskridge. “Depending how broadly you go, this idea could affect dozens of state statutes and dozens of federal statutes, the chief of which are Title VII and Title IX,” sections in the landmark 1964 Civil Rights Act that forbids discrimination both in the workplace and in public schools.

Original intent

On the surface, the debate over the meaning of “sex” in these cases divides legal thinkers into classic liberal and conservative approaches to the law. Those who focus on the “original intent” of laws and the precise words of the legal text have generally rejected the expansive lines of thinking about the definition of sex.

“I think the better answer, the cleaner answer is just, let Congress go ahead and change the laws,” says Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory Law School in Atlanta. And there’s virtue in hashing out such questions through a political process rather than letting a panel of judges make such society-shaping decisions.

Indeed, this was part of the reasoning behind a three-judge panel in the 11th Circuit in Atlanta, which came to the opposite conclusion. In a 2-to-1 decision, the majority said that discrimination “because of sex” and discrimination based on sexual orientation were two different things. The disagreement among appeals courts could invite a potential Supreme Court review, scholars say.

But the history of the legal concept of “sex discrimination” unfolded in a much more complex way, many observers note, and conservative jurisprudence, too, has played a key role in the evolving definitions of “sex” that almost immediately began to widen over time.

“There’s been this natural progression of the law,” says Susan Eisenberg, managing partner at the Miami office of Cozen O’Connor. As a trial attorney who has been defending companies from civil rights complaints for more than two decades, she’s has watched as the concept of “sex” in discrimination cases has evolved over time, changing the ways she defends her clients.

The evolution of civil rights law

In the first decade after the passage of the 1964 Civil Rights Act, she and others point out, the “original intent” of the prohibition against sex discrimination was clear. The nation’s elite law schools and medical schools were often reserved for male applicants only, single women could be denied leases and bank accounts, and the nation understood its merit-based workplace as the natural domain of men alone.

But by the 1970s, people began to claim that sexual harassment in the workplace also violated Title VII’s prohibition against sex discrimination, and the Supreme Court agreed, declaring “a hostile work environment” as a violation of Title VII.

By the end of the 1980s, the Supreme Court found that discrimination based on “gender stereotypes” was also a violation of civil rights laws – in this case a woman who was passed up for promotion because she did not act feminine enough.

“She argued: that’s discrimination against me on the basis of my sex,” says Steve Sanders, a professor at Indiana University’s Maurer School of Law in Bloomington. “They’re not discriminating against me as a woman per se, but they’re discriminating against me because I failed to demonstrate certain stereotypes of what it means to be a woman, and the Supreme Court accepted that.”

And the nation’s high court broadened the definition even further in 1998, ruling unanimously that Title VII’s workplace protections covered sexual harassment between members of the same sex – a key decision, says Ms. Eisenberg, citing a passage that in many ways redefined her job.

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” wrote Justice Antonin Scalia for the majority in the case Oncale v. Sundowner, explaining the expanding definition of sex in this area of civil rights law.

“The sexual orientation cases that we’re now seeing basically takes the logic of these cases one step further,” says Professor Sanders. “If you’re a man, the social stereotype and the social expectation is that you will want to have sex with a woman, that you will want to have a relationship and a marriage with a woman. But, no, you defy that gender stereotype about what it means to be a man, because you’re attracted to other men.”

“Well, if the idea that men should only be attracted to women and women should only be attracted to men is a form of gender stereotyping, ergo, the logic goes, it’s covered by Title VII,” he says.

The Trump administration, however, maintains that while the Justice Department “is committed to protecting the civil and constitutional rights of all individuals,” in these case it remains “committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided,” said Justice Department spokesman Devin O’Malley in February.

‘Lack of clarity can prove expensive’

Corporate attorneys say most businesses have already instituted their own antidiscrimination policies. “But though many have adopted these, only voluntarily, the unevenness, the irregularity of anti-discrimination laws, I think is very challenging for the business community to grapple with,” says Darren Rosenblum, professor at the Elisabeth Haub School of Law at Pace University in New York. “So I think there is an imperative to clarify the law on this point. That’s what they need first and foremost, because the lack of clarity can prove expensive, figuring out which norms to follow.”

Even so, Eisenberg points out that given the ways in which the high court has redefined the meaning of sex in past precedents, today simple claims of “gender stereotyping” already covers most claims of discrimination based on sexual orientation or gender identity.

“And if you’ve got people who are being discriminated against just because they’re not part of a protected characteristic, that’s just not good management,” Eisenberg says. “It’s not good for recruiting, it’s not good for maintaining employees, it’s not good all the way around.”

Complete Article HERE!

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What is good sex?

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Here are six sexual health principles to follow

by Silva Neves

Sex is one of those topics that everybody talks about and everybody has opinions about.

What I mostly hear in my consulting room is that people don’t have good sex education and they compare themselves to what they think others do in bed.

In the absence of good sex education, what we have left to rely on is pornographic films, which is entertainment and not an accurate depiction of everyday sex, or your friends lying about their sex life being amazing.

Deep down, many people are confused about what good sex really is, and many people wonder if their sex life is good enough.

Some people criticise their sex life as ‘healthy’ or ‘unhealthy’. Some people ask me questions like: ‘Am I normal for having a fetish?’, ‘Am I unhealthy for having lots of sex?’, ‘Do I masturbate too much?’, ‘Should I feel more sexual?’, ‘Am I strange for not liking penetration?’ And so on and so forth.

When we talk about sex, we tend to focus on the particular acts rather than on the broad view of sexuality: human sexuality is rich and varied and there are thousands of ways to have sex and be sexual. One person’s favourite sexual activity can be another person’s repulsion. How can we even begin to identify what is good or bad, healthy or unhealthy without falling into the trap of being opinionated, judgemental, critical and shaming?

I invite you to think about your sex life differently. If you want to know if the sex you’re having is good or bad, stop focusing on sexual acts and instead think about sexual health principles. There are six of them:

1. Consent: Consent can only be expressed from a person aged 16 or over, with a fully functioning brain. Consent cannot be expressed from a person who has impaired thinking under the influence of drugs or alcohol, for example. Consent to exercise your sexual right to have sex with whomever you choose should be unambiguous. If there is doubt, take some extra time to have a conversation with your sexual partners to make sure the cooperation between you is clear.

2. Non-exploitation: This means to do what you and your partner(s) have agreed to do without any coercion using power or control for sexual gratification.

3. Protection from HIV, STIs and unwanted pregnancy: It is your responsibility to make sure that you are at low risk of contracting a sexually transmitted infection. Often it requires a honest conversation with your partner, and an explicit agreement on how you are going to protect each other. If you have a STI that is infectious, it is your responsibility to put protection in place that won’t knowingly infect your partner(s).

4. Honesty: Being honest and upfront with your sexual desires and sexual needs is important. Everybody is different, and human sexuality is diverse. It is likely that your partner may not know all of what you like, need or want sexually. In fact, some people are not in touch with their own sexual landscape and all the parts of their body that is erogenous. Being able to express to your partner what you want or need is important. It can be difficult and it is a courageous conversation to have, because you can risk hearing your partner saying that they don’t like what you like. When couples stay in a place of honesty and truth, often they can work some things out between them to achieve a fulfilling sex life.

5. Shared values: It is important that you and your sexual partner are ‘on the same page’ about what is acceptable and what is not. Our values are important to us because it informs us on what specific sexual acts means to us and contributes to our motivation for having sex. Conversations about values can clarify important aspects of your sexual health which will help with giving consent to have sex.

6. Mutual pleasure: Pleasure is an important component of sex. For good sexual health, it is crucial that you make sure that what you do bring you pleasure and at the same time, to be able to hear what your partner finds pleasurable. It is a good idea to talk about it with your partner because it is not possible to assume. We usually feel good when we bring pleasure to our partners and we also feel good when we feel pleasure ourselves.

You can stop thinking about being a ‘good bottom’ or a ‘good top’. You can stop worrying about your kinky sex life being healthy or not. If you move away from opinions about specific sexual acts, there is no judgments to be made and you can ensure your sexual life to be good by meeting the six principles of sexual health.

Complete Article HERE!

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“The Alternative Is Awful”

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Sexual Justice Pioneer Carol Queen on Why Sexual Justice Needs to Evolve

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“As Wilhelm Reich believed, if a state can control peoples’ sexuality, it can control them — politically, culturally. This is a huge challenge for organizers, theorists, justice advocates,” Dr. Carol Queen, founder of the sexual justice movement (and my queer fairy godmother since I interned for her at the Center for Sex and Culture), tells me.

As a pivotal figure of the sexual justice — formerly sex positivity — world, Dr. Queen is no stranger to that challenge. “The deeper definition of sex positivity — way more than just enthusiasm about sex, which was never intended to be the definition of that phrase — is about social justice: access to information, resources, freedom from shame, a focus on consent, diversity and more,” she says.

Dr. Queen has decades of experience uniting social justice and sexuality through advocacy, education, and community development. She has written extensively on topics ranging from bisexuality to queer kink; co-developed sex education resources to combat the AIDS crisis; and mentored up-and-coming activists, artists and educators. One of her key accomplishments is founding the Center for Sex and Culture along with her partner Robert Morgan Lawrence in 1994 after they noticed the lack of spaces for sexuality workshops in the Bay Area. The center has become especially important for subcultures and marginalized communities in the world of sexuality and gender: queers, leather and kink communities, sex educators, sex workers, erotic artists and more. “[The Center] tries to make space for multiple needs: giving diverse people a space to gather, collecting cultural materials in the library and archive and making them available to researchers, etc., [and] presenting creative work about sex/gender, which is the way more people develop their understandings about sex more than any sex ed class,” says Dr. Queen. In other words: the centre gives people the chance to learn from and build connections with each other, pointing us towards the future.

“I want more conversations that help us connect and unite across identity barriers.”

“I want more conversations that help us connect and unite across identity barriers. This is an era when we must, must revive alliances. I came out in Eugene, Oregon, in the 1970s, and the importance of alliances was one of the first lessons I learned. It has never seemed so relevant to me as it does now,” says Dr. Queen.

Carol Queen

She would know. Key to her work in sexual justice is understanding the diversity of identities and “sexual possibilities” through education and advocacy, especially in “respect[ing] each person where they are and helping them appreciate their own point in the diversity mix.” “This is important because too many people have been taught there is only one way to be, and honestly don’t understand they may have their own unique sexuality,” she explains.

As a bisexual woman and longterm LGBTQ rights activist, Dr. Queen believes that sexual justice is especially important for queer women, and that queer women are in turn a key part of sexual justice movements. “Queer women have the gift given to all queers: we must wrestle with cultural notions of normativity to be able to live our lives, find our people, create our alternative relationship variants. Sure, we can marry now, but many queer women don’t want to and wish to connect in different ways. This intersection makes us really important stakeholders in sexual justice and sex positivity,” she says.

Bisexual women, for instance, were key to work changing sexual attitudes in the late 1980s and early 1990s. In a 2000 paper co-written with Lawrence for the Journal of Bisexuality, Dr. Queen documents the importance of bisexual people in the fight against AIDS via their contributions to the Sexual Health Attitude Restructuring Process (SHARP), a safer-sex-oriented program that exposed participants to accurate sexual health information and the possibility of diverse sexual experiences that Dr. Queen worked on directly for several years starting in 1987. SHARP’s active and hands-on education was part of the acclaimed “San Francisco model”: “community-based effort to educate, prevent infection, and provide services that does not primarily rely on governmental or medical direction and intervention” that inspired other work around HIV/AIDS across the United States and worldwide in the 1980s.

Dr. Queen has observed significant shifts in the discussions around sexual justice and sexual diversity since SHARP. “I don’t see the basic underlying activism or kinds of sex as fundamentally different, mostly, but discourse about sex is out of the box and so many issues have been more or less mainstreamed that it’s striking,” she says. “It means more and more people potentially are exposed to the idea that sex, relationship and gender possibilities are many and varied; communities exist; normative ideas can be oppressive and sex/gender/relationship are not ‘one size fits all’ constructs. This is mildly interesting for some people and a matter of life and death for others.”

“[Sexual justice] has to adapt. The alternative is awful.”

“I think many people in the world of sexual justice activism believed that the path forward would only grow more progressive,” she explains. “The reality is way more fraught, and more entwined with tons of other issues: electoral politics, civility and respect on the internet, reactionary responses to identity politics, educational policy, racial justice, feminist issues, so much. And [sexual justice] has to adapt. The alternative is awful,” she says.

To look forward, for Dr. Queen, the long arc of sexual justice requires more deeply examining the healthcare matrix for reproductive rights and gender confirmation; reexamining consent and its intersections with the criminal justice system; more comprehensive sex education that incorporates consent, pleasure, and media literacy especially around pornography; the removal of laws that penalize sex workers as well as certain consensual sexual behavior and relationships; and more respect and understanding around diversity and intersectionality. It also requires looking backward. “I’m sick of all discussions that revolve around the notion that people who came before didn’t know as much as people who are setting the terms of the discourse now. That is, to me, so disrespectful. And it’s my belief that the internet age has made understanding our history, ironically enough, more difficult,” she explains.

Looking backwards to look forwards, what’s her best advice for following in her footsteps? “To do something like I’ve done, one would have to be entrepreneurial, have help from other people who want the project/s to find their audience or community and who help broaden perspective, get as much education as you can manage, realize your own experience is significant but not the marker of everyone else’s, be an ally for other peoples’ genius and identities, and consider it a gift whenever you learn more about other peoples’ perspective and struggle,” she says. The work has never been more urgent.

Complete Article HERE!

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