Deceptive Appearances: Judges,Cognitive Bias, and Dress Codes

This Article argues that judges are not immune from decision-making biases that afflict humans generally, and cognitive biases may guide interpretations of the law. Moreover, because of a predisposition toward preserving the statusquo, judicial interpretations of anti-discrimination laws may keep us close to our starting positions despite legislative directives to the contrary. Accordingly, judicial alertness to cognitive biases, including judges\u27s own and those of the participants in their courtroom, becomes even more important

Situations, Frames, and Stereotypes: Cognitive Barriers on the Road to Nondiscrimination

A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain\u27s intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality

You Can\u27t Take It with You: Constitutional Consequences of Interstate Gender-Identity Rulings

Recent U.S. decisions establishing a person\u27s legal sex have adopted a kaleidoscope of approaches that range from the procreative (a man must be able to fertilize ovum and beget offspring, while a woman must be able to produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other half. This Article discusses the constitutional implications of these varied approaches to determining a person\u27s legal sex. It concludes that states that refuse to recognize a transsex person\u27s sex as indicated on an amended birth certificate from a sister state violate principles of full faith and credit and unconstitutionally infringe upon the right to travel under the Dormant Commerce Clause. In addition, when states impose tests that are based on gender stereotypes and force people to live as the sex that conflicts with their self-identified sex, they violate the Fourteenth Amendment\u27s equal protection and substantive due process mandates

Beyond the Binary: What Can Feminists Learn from Intersex Transgender Jurisprudence

Our panel will be discussing recent developments in the intersex and transsexual communities. The transsexual community began to organize in the 1970s, but did not fully develop into a vibrant movement until the 1990s. The intersex movement was born in the mid-1990s and has rapidly developed a strong and influential voice. Recently, both movements have undergone profound changes and each has provided new and unique theoretical perspectives that can potentially benefit other social justice groups. The purpose of our dialogue today is to describe these developments and explore how feminists could potentially benefit from the theoretical frameworks that are being advanced by the intersex and transsexual communities

Situations, Frames, and Stereotypes: Cognitive Barriers on the Road to Nondiscrimination

A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain\u27s intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality

Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold

A 1992 Ninth Circuit decision, Wabol v. Villacnisis, revisited the issue of to what extent constitutional protections apply to United States territories. This long-troublesome question has been made more difficult by the infrequency of decisions and the varying relationships the territories have with the United States government. The Northern Mariana Islands became a Commonwealth in 1976, and were then joined with the United States in a consensual and unique relationship that is defined by a Covenant. The Covenant explicitly exempted the Northern Marianas from the application of certain constitutional provisions, including the Equal Protection Clause as applied to racial restrictions on the alienation of land. It is this last question that the Wabol court addressed. Using that case as a starting point, the author examines the role of the Constitution in defining the relationship between the United States and its flag territories. She traces the history of decisions in this area, beginning with the Insular Cases of nearly a century ago, and offers some criticism of the decisions. The author then looks at the practical consequences of this jurisprudence, using the Northern Marianas as a case study. With that as background, she offers policy suggestions to improve United States-territorial relationships regarding the Constitution

A Bedroom of One\u27s Own: Morality and Sexual Privacy after Lawrence v. Texas

If Justice Scalia\u27s dire prediction in Lawrence v. Texas comes true, Texas, Georgia, Mississippi, Alabama, Louisiana, Kansas, and Colorado may no longer be able to forbid the sale of vibrators, dildos, and other sex toys within their borders. These states have enacted legislation to inhibit activity in the sex toys market. Under the now discredited Bowers v. Hardwick, which upheld criminalizing same-sex sodomy, the government was free to label the sale of sex toys as a crime by prosecuting it under the banner of morality. As Justice Scalia laments, however, Lawrence\u27s overruling of Bowers may change all that by restricting the scope of permissible government intrusion in the bedroom