Medical Conscience and the Policing of Parenthood

As state and local anti-discrimination provisions become more and more comprehensive, physicians who refuse to treat patients for reasons of sexual orientation or marital status are beginning to face legal liability. Increasingly, physicians are invoking codes of medical ethics alongside more familiar constitutional law claims in support of their claim to insulation from legal liability. This Article explores what medical ethics has to say about physicians who, for sincerely held religious reasons, refuse to treat patients for reasons of sexual orientation or marital status. The issue is explored through the lens of a case recently decided by the California Supreme Court in which infertility physicians refused to help a lesbian couple have a child with the aid of artificial insemination. Through a close examination of the provisions of medical ethics codes and the arguments based on those codes raised in the California case, this Article concludes that medical societies should not support carving out an exception from anti-discrimination laws for physicians who, for reasons of religious conscience, want to express their class-based biases in the clinic

Rescuing Children from the Marriage Movement: The Case against Marital Restrictions on Adoption and Assisted Reproduction

Much of the current cultural debate about marriage in the United States focuses on the need for children to be raised by heterosexual married couples. In the current atmosphere, it is important to examine how marriage functions in contexts where parent-child relationships are determined by more than just genetics and marital presumptions. This Article argues that the favoritism toward marriage in adoption and assisted reproduction relates neither to the purposes of marriage nor to child welfare. Part I subjects marital restrictions on assisted reproduction to an interpretivist microscope, and Part II undertakes a comprehensive comparison of step-parent adoption and second-parent adoption. Both Parts raise concerns that are further addressed in Part III’s look at how the contemporary marriage movement, in advocating for favored treatment of married couples at all levels of society, ultimately undermines the welfare of children whose best hope lies with parents for whom marriage is not an option

Naming the Grotesque Body in the Nascent Jurisprudence of Transsexualism

After a description of an analytical framework constructed of theories drawn from the writings of Mikhail Bahktin, Roland Barthes, and Sigmund Freud, this Article discusses the discrepancies in courts\u27 use of medical authority in cases considering the rights of transsexuals and then analyzes courts\u27 ultimate refusal to recognize transsexuals\u27 psychological sex. The thrust of this Article is an examination of the forces compelling such inconsistencies. The result is an analysis which interweaves medical, juridical, psychological and mythic perspectives to disclose the underpinnings of courts\u27 antipathy toward transsexuals

Naming the Grotesque Body in the Nascent Jurisprudence of Transsexualism

After a description of an analytical framework constructed of theories drawn from the writings of Mikhail Bahktin, Roland Barthes, and Sigmund Freud, this Article discusses the discrepancies in courts\u27 use of medical authority in cases considering the rights of transsexuals and then analyzes courts\u27 ultimate refusal to recognize transsexuals\u27 psychological sex. The thrust of this Article is an examination of the forces compelling such inconsistencies. The result is an analysis which interweaves medical, juridical, psychological and mythic perspectives to disclose the underpinnings of courts\u27 antipathy toward transsexuals

Gender Typing in Stereo: The Transgender Dilemma in Employment Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against men because they are men and against women because they are women. This familiar characterization of the Act has been quoted in dozens of sex discrimination cases to support a narrow view of who is protected against sex discrimination in this country. When transsexuals file suit, “[e]mployment discrimination jurisprudence at both the federal and state levels ... captures transsexuals in a discourse of exclusion from social participation. This wide net, using a remarkably refined system of semantic manipulations, snags all claims launched by transsexuals and reveals that no matter how a transsexual frames her discrimination claim, it will fail.” In this Article, I explore whether those words, written after a thorough examination of employment discrimination claims brought by transsexuals in both federal and state courts, need revision in light of recent case law suggesting that the courts are prepared to recognize gender stereotyping as a viable legal theory of sex discrimination for both men and for women. In Part II, I describe the fictional case of a transgendered worker suing her employer for sex discrimination under Title VII of the Civil Rights Act of 1964 and the challenges faced by the law students working on both sides of the matter. In Part III, I explore the current contours of the gender stereotyping theory of sex discrimination and consider how useful such a theory could be to transgendered employees seeking redress for sex discrimination under Title VII of the Civil Rights Act of 1964. I conclude that sex discrimination claims brought by transgendered workers still confront enormous obstacles and that, despite the expanded judicial recognition of gender stereotyping claims, will continue to be difficult to advance into the future

Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Consitutional Law and Policy Reform, The

This Article re-examines the landmark cases comprising the backbone of the family privacy doctrine and discloses, within the folds of their rhetoric of individual liberty, a policy of privacy promoting nuclear families. The re-examination of the landmark cases in Part II demonstrates that the policy of family privacy is to foster the creation and longevity of traditional, nuclear families. Part II illustrates how this policy has become more clearly articulated over time through the Court’s restrictive interpretation of fundamental rights and its recent decision in Troxel v. Granville, the much-awaited ruling on grandparental visitation rights. In Part III, this Article turns to another body of privacy cases, namely, those vindicating the right to individual autonomy, and locates within their treatment of individual sexual and procreative decisions a notable concern for the well-being of nuclear families. This concern, in turn, influences the contours of these individual freedoms. This fresh look at these cases indicates that the quality of privacy vested in individuals depends upon the impact of individual autonomy on the integrity of nuclear families. If the impact is beneficial, individual autonomy is recognized; if it is detrimental, individual autonomy suffers. Parts IV and V explore whether policy reform will attenuate the nuclear family bias deployed through the Supreme Court’s privacy jurisprudence