Dukeminier Awards Journal
Recognizing the Best Sexual Orientation and Gender Identity Law Review Articles of 2019
Current Issue: Volume 18 (2019)
by Adam P. Romero, Arnold D. Kassoy Scholar of Law and Director of Legal Scholarship and Federal Policy, The Williams Institute, UCLA School of Law
The Michael Cunningham Prize
Assistant Professor of Law at Wake Forest University School of Law
Bureaucratic Agency: Administering the Transformation of LGBT Rights, 36 Yale L. & Pol’y Rev. 83 (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.
The Supreme Court’s decision in Obergefell v. Hodges marks a tremendous victory for lesbian, gay, bisexual, and transgender people. Some scholars suggest, however, that in addressing one form of discrimination, the Court derailed efforts to dismantle another—the privileging of marriage over nonmarriage. By excavating the forgotten history of marital status advocacy, this Article complicates the progress-and-decline narrative of the law of nonmarriage. Using original archival research, this Article illuminates how the conventional narrative of nonmarriage overstates the progressive nature of its past. Statutes prohibiting marital status discrimination are cited as examples of earlier attempts to unseat marriage from its privileged position. This uncovered history demonstrates that marital status advocacy was a critical step on the road to greater equality. But this work primarily sought to address discrimination within marriage, not discrimination against those living outside of it. This Article also sheds light on the future of nonmarriage. As a result of earlier marital status activism, discrimination within marriage is much less pronounced today. Many of the statutes and practices that required differential treatment of husbands and wives have been repealed or invalidated. These remarkable successes can be attributed to the multi-dimensional strategy utilized by advocates. This strategy holds much promise for the contemporary struggle to address discrimination against those living outside of marriage.
The M.V. Lee Badgett Prize
Deborah A. Widiss
Associate Dean for Research; Professor of Law and Ira C. Batman Faculty Fellow at Indiana University School of Law
Intimate Liberties and Antidiscrimination Law, 97 B.U. L. Rev. 2083 (2017)
In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing. During the 1980s and 1990s, several state supreme courts held that landlords who refused to rent to unmarried couples were responding to unprotected conduct (i.e., non-marital intimacy) rather than engaging in impermissible discrimination on the basis of marital status. Similar arguments are made today in cases concerning same-sex couples who are denied wedding-related services or unmarried pregnant women who are fired. This Article argues such decisions misconstrue the relevant statutory language, and it shows how modern constitutional doctrine should inform the interpretation of private antidiscrimination law to offer more robust protections for intimate liberties. This Article also addresses whether antidiscrimination protections related to intimacy can be enforced despite objections premised on religious beliefs. Some courts, as well as the Trump Administration, have suggested that statutes prohibiting discrimination on the basis of marital status or sexual orientation serve less “compelling” interests than provisions prohibiting race discrimination. This argument is deeply flawed. Courts have long recognized that statutes intended to eliminate discrimination serve compelling purposes, even when they address factors that do not trigger strict scrutiny under the Equal Protection Clause. The compelling nature of antidiscrimination laws related to intimate liberties should be especially obvious: They protect individuals’ freedom to make fundamentally important choices that are central to personal dignity and autonomy.
The Ezekiel Webber Prize
Jordan Blair Woods
Assistant Professor of Law at the University of Arkansas School of Law
Unaccompanied Youth and Private-Public Order Failures, 103 Iowa L. Rev. 1639 (2018)
Each year, approximately 1.7 million “unaccompanied youth” under the age of 18 live on their own in homelessness or in other unstable living conditions. Many of these youth ran away or were kicked out of their families or child welfare placements. Others became homeless upon or soon after being released from juvenile detention. As this Article describes, the government responds to unaccompanied youth through a complex web of family-centered interventions in both the child welfare and the juvenile justice systems. Child welfare responses adopt a view of unaccompanied youth as victims of negative family circumstances and respond by altering their family environments—first through attempting to repair the biological family relationship, and when that is not possible, by providing youth substitute families through foster care and adoption. When those family-centered approaches are not working, juvenile justice laws and law enforcement policies and practices pressure unaccompanied youth to reunite with their families (whether biological, foster, or adoptive) and allow for their arrest and detention. In this regard, the government adopts a very different view of unaccompanied youth as delinquent offenders when they do not fit into family systems. This Article shows that unaccompanied youth whose needs are not served under family-centered child welfare responses are ultimately left vulnerable to entering a destructive cycle of homelessness and involvement in the juvenile and criminal justice systems. It further argues that the experiences of unaccompanied youth, and unaccompanied LGBTQ youth in particular, demonstrate the limits of the family-centered approach as a wholesale or comprehensive solution to the child welfare needs of adolescent youth. The shortcomings of this approach illustrate a need for a paradigm shift in child welfare law and policy (and relatedly, juvenile justice law and policy) that places greater emphasis on non-family-centered approaches to serve vulnerable youth in need of help from the state, especially late-adolescent youth. Under this new framework, child welfare law and policy responses would conceptualize the agency and autonomy of unaccompanied youth in positive and empowering terms, and provide greater space for support systems, skills, and resources outside of family systems to help them achieve self-reliance and self-actualization as adults.
The Dukeminier Awards also recognizes this year’s winner of the Williams Institute’s annual student writing competition.
The Jeffrey S. Haber Prize for Student Scholarship
Case Western Reserve University School of Law
Preserving the Possibility of a Future Biological Family: State-Mandated Insurance Coverage of Fertility Preservation for Youth Patients When Primary Treatment Causes Sterility, 18 Dukeminier Awards J. 267 (2019)
This Note urges state policymakers to address the needs of youth patients who face infertility due to the medical treatment they receive for their primary diagnosis. By mandating insurance coverage of and physician-provided information on fertility preservation for this population, legislators can help ameliorate a current dilemma for many young patients: sterility that results from treatment. This Note examines youth patients being treated for gender dysphoria as a case study.
The Williams Institute would like to thank David Sanders, Jeffrey S. Haber, Brondi Borer, Stu Walter, Chuck Williams, IGLSS and the family and friends of Ezekiel “Zeke” Webber for their endowment gifts to fund individual prizes recognizing outstanding scholarship related to sexual orientation and gender identity law.