Toward A More Perfect Union: The Road To Marriage Equality For Same-Sex Couples

The Author believes that civil unions have become synonymous with inequality. In this posture, the term inequality should be descriptive rather than subjective. She argues that civil unions relegate gay and lesbian couples to second-class status. However characterized or defined, civil unions are not marriages. Those two statuses are not equivalent; they are not equal. Within that framework, in order for any one person to decide where he or she stands on the issue of whether gay and lesbian couples should be entitled to marriage, civil unions, something else, or nothing, he or she must first understand why marriage matters to families and how the Goodridge case and others fit into the civil rights struggle to create equality for gays and lesbians as well as into other civil rights struggles. Section II of this Article describes several examples of how the exclusion from marriage has harmed families, and, therefore, why it matters to people, gay and non-gay alike. Section III describes the history of marriage as it has evolved for same-sex couples and its relationship to other civil rights struggles. Section IV describes the Goodridge case, its outcome, and aftermath. Finally, Section V takes up the question of whether civil unions are a legitimate station on the way to marriage rights or a misguided departure in a struggle for equality and concludes that civil unions are an unacceptable alternative

Protections for Transgender Employees

Many transgender employees routinely face demotions, unfavorable conditions of employment, and even discriminatory terminations--due not to job-related problems but to employers\u27 discomfort with and animus against transgender people. Lawyers may look to several sources of law in order to redress the rights of transgender clients who face adverse treatment in such situations, including transgender-specific nondiscrimination laws, state and federal sex discrimination laws, and state disability laws. Although courts historically have found transgender people excluded from coverage under certain laws, developing case law supports the arguments of transgender employees who face workplace discrimination

Symposium: Issues in Estate Planning for Same-Sex and Transgender Couples: Foreword

Despite the sea of change in possibilities for creating lawful relationships for many gay, lesbian, bisexual, and transgender individuals, most jurisdictions do not allow them to marry or enter into any comparable legal status. The vast majority of states either by statute or state constitutional amendment actually prohibit marriage for same-sex couples. And, even when couples can marry or enter into a comparable legal status, they are faced with uncertainty regarding what effect, if any, will be accorded to that status should they travel or move. Given the legal challenges that same-sex couples face, the need for high-quality estate planning for same-sex couples is greater than ever

Misapplying Equity Theories: Dress Codes at Work

This Article provides a new perspective on Title VII caselaw concerning employer-mandated, sex-specific dress codes. With few exceptions, courts have held that employer dress codes do not constitute sex discrimination even when they expressly differentiate based solely on an employee\u27s sex. In other contexts, courts readily acknowledge that facially sex-based practices and policies are presumptively unlawful under Title VII. When it comes to dress codes, however, nearly the opposite is true. Courts generally presume a sex-based dress code to be permissible, and the burden falls heavily on the employee to show, beyond the mere fact of differential treatment, some additional disparity or harm, such as that the particular requirements at issue are more burdensome for women than for men or that they perpetuate stereotyped views of women as inferior or as sexual objects. This pervasive attitude of judicial laissez-faire toward sex-based dress codes is increasingly anomalous in the wider context of sex discrimination caselaw, and yet shows no signs of abating. This Article argues that this doctrinal blind spot is an unintended-and unfortunate-by-product of second generation equality theory, which downplays formal equality and focuses on anti-subordination principles as the purpose of equality law. While affirming the continuing importance and viability of second generation equality theory in the areas of affirmative action and disparate impact, the Author argues that an over-emphasis on anti-subordination theories has skewed dress code caselaw and prevented courts from seeing the discriminatory harms caused by sex-specific dress requirements. Prescriptively, the Article suggests ways for litigants to refocus courts on first generation principles in dress code cases. This includes strategies for identifying the harm caused by the formal labeling of difference, a harm ignored in cases of sex discrimination but well understood for race. Such a litigation strategy would be more effective than pursuing the currently popular sex stereotyping theory, which has largely failed to expose the detrimental impact of sex-based dress codes on employees

Symposium: Issues in Estate Planning for Same-Sex and Transgender Couples: Foreword

Despite the sea of change in possibilities for creating lawful relationships for many gay, lesbian, bisexual, and transgender individuals, most jurisdictions do not allow them to marry or enter into any comparable legal status. The vast majority of states either by statute or state constitutional amendment actually prohibit marriage for same-sex couples. And, even when couples can marry or enter into a comparable legal status, they are faced with uncertainty regarding what effect, if any, will be accorded to that status should they travel or move. Given the legal challenges that same-sex couples face, the need for high-quality estate planning for same-sex couples is greater than ever

Epilogue

The First Circuit reversed the district court\u27s order dismissing Lucas Rosa\u27s claim against Park West Bank. The appeals court\u27s reversal seems to be part of an emerging nationwide rejection of cases from the 1970s and 1980s in which courts summarily dismissed sex discrimination claims brought by transgender plaintiffs, no matter how squarely the facts appeared to present a clear-cut case of discrimination based on sex. Creating what appeared to be a transgender exception to sex discrimination law, those earlier courts ignored what the First Circuit recognized here-that a bank officer who tells an applicant to go home, change, and return presenting a more masculine appearance may very well have engaged in sex discrimination, even where the applicant may fairly be characterized as transgender or cross-dressing

Some Modest Proposals for Challenging Established Dress Code Jurisprudence

Historically, most courts have sustained employer-imposed, gender-based dress codes. Two well-established exceptions to the rule exist for dress codes that either (1) objectify or sexualize women or (2) allow for flexibility of standards for male employees\u27 appearance but require stricter rules for women. A third, still-evolving exception has recently developed regarding challenges to dress codes by transgender litigants. Despite this recent progress, however, the classical gender-based dress code -- requiring women to conform to feminine stereotypes and men to conform to masculine stereotypes -- has, up to the present, been sustained by a majority of the courts time and again. The Author discusses two cases that offer insights as to why dress codes generally survive challenges, while also portending strategies for reversing this longstanding trend

Brief for the Plaintiff-Appellant Lucas Rosa in the United States Court of Appeals for the First Circuit Lucas Rosa v. Park West Bank and Trust Company on Appeal from the United States District Court for the District of Massachusetts

This is the brief for the Plaintiff-Appellant Lucas Rosa v. Park West Bank and Trust Company in the United States Court of Appeals for the First Circuit. This appeal is from a Final Judgment, entered October 18, 1999, that disposed of all claims in the case. This case involves an action brought pursuant to the Equal Credit Opportunity Act and Massachusetts statutes forbidding discrimination in places of public accommodation, and credit, against a bank for refusing to issue and accept a loan application from a bank customer because of the customer\u27s sex

Probation Restrictions Impacting the Right to Procreate: The Oakley Error

In State v. Oakley, the all-male four-justice majority held that a probation condition restricting David Oakley\u27s right to have children passed constitutional muster. This Article discusses this question of the appropriate approach to evaluating the constitutionality of probation conditions. The Wisconsin Supreme Court\u27s approach is compared to that of other courts in cases involving, in some way, decisions limiting a probationer\u27s right to have children. The Author concludes that regardless of what constitutional standard or degree of scrutiny courts apply, cases can (and do) go both ways with respect to upholding or striking down probation restrictions on fundamental rights. However, the dominant trend despite the Oakley decision has been to strike down procreation restrictions. The Article details an alternative approach to the evaluation of probation conditions under the unconstitutional conditions doctrine that was revitalized in the 2001 Supreme Court term and argues that, in the end, probationers should have at least the same protections for constitutional rights as do incarcerated felons. Accordingly, no absolute curtailment of probationers\u27 procreation rights, which the Oakley restriction is, should survive constitutional review