The Military Must Lead in Advocating for Marriage Equality

Matthew Alex Ward

Pictured: Colonel Ginger Wallace and Kathy Knopf.
Credit: American Military Partner Association

Through explicit statements and an array of support programs, the military has demonstrated its deep commitment to military families. In addition, since the passage of the Don’t Ask, Don’t Tell Repeal Act in 2010, which permitted LGB servicemembers to serve openly, the military has clearly expressed its belief that sexual orientation is a ‘nonissue’ in the military. Given these facts, it would seem that the military would not seek to discriminate between military families based on sexual orientation.

Yet the Defense of Marriage Act (DOMA) frustrates this logical outcome. DOMA prevents the federal government from recognizing same-sex marriages and permits states to refuse to acknowledge same-sex marriages from other states. As a result, DOMA prevents the military from supporting all its military families, even as the military recognizes that family readiness improves military readiness and the efforts of military spouses benefit the military. In addition, inconsistent state laws on same-sex marriage create obstacles for LGB military families. Only once same-sex marriage is recognized nationwide will the military be able to make sexual orientation a true nonissue and realize its promise to support the families of all servicemembers. The military must, therefore, lead in the fight for marriage equality.

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U.S. v. My Mommy: Evaluation of Prison Nurseries as a Solution for Children of Incarcerated Women

Michal Gilad & Tal Gat

Credit: Renee Ya
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In the United States alone, more than 250,000 children are separated from their mothers due to incarceration. This number has been steadily growing over the last two decades. Such separation has substantial detrimental effects on the child, the mother, and, inevitably, the general public. Prison Nursery Programs that provide an opportunity for children to accompany their mothers to prison for the duration of her sentence is one possible, albeit controversial, solution for this dire problem. This article provides a comprehensive analysis of the efficacy of Prison Nursery Programs in providing an adequate solution for children of incarcerated mothers. It examines the ability of these programs to advance the rights and interests of the child, the mother, the state, and the general public. The experience of European countries with Prison Nursery Programs is also presented and analyzed to identify how lessons learned from this cumulative experience can help improve practices in the United States.

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Protecting the Margins: Intersectional Strategies to Protecting Gender Outlaws from Workplace Harassment

Sheerine Alemzadeh

Credit: Victor1558
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Sexual harassment jurisprudence is predicated on heteronormative constructions of desire and power in the workplace. Harassment claims brought by gay and lesbian workers explode this binary gender paradigm by challenging the premise that desire can only flow between workers of different biological sexes. While courts have striven to integrate LGBT workers into existing anti-harassment legal regimes, the contortions made to achieve such integration expose the under-inclusiveness of sexual harassment doctrine in its current form. Workplace harassment on the basis of gender non-conformity, whether manifested as discrimination against gay workers, or against employees who refuse to adhere to norms of gender identity and performance, is largely unprotected under Title VII. Legislators have recognized that Title VII leaves these groups unprotected and have proposed new legislation, the Employment Non-Discrimination Act (ENDA), as a means to protect these groups. Legislators––and academics––have argued that ENDA will adequately address discrimination experienced by LGBT workers.

This paper provides a critique of the proposed Employment Non-Discrimination Act as a catch-all solution to curbing workplace discrimination against gender outlaws. It compares the similar analytical deficiencies of Title VII and ENDA, arguing that both laws strive to protect discrete classes of workers, rather than to dismantle discriminatory strategies employers deploy to maintain gender rigidity, and ultimately gender hierarchy, in the workplace. By excising sexual orientation from Title VII’s prohibition on gender discrimination, ENDA proponents risk eliding the important point that LGBT identity is a manifestation of gender non-conformity. This paper argues that the enactment of ENDA is not enough; Title VII must expand and evolve to cover discrimination waged against all forms of gender non-conformity. A two-pronged Title VII and ENDA approach would preserve the critical connections between discrimination, discipline, and violence targeted towards workers who fail to adhere to the gender norms of the workplace.

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Triangulating Rape

Sarah Swan

Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated. Historically, rape was a legal wrong between two men regarding one’s proprietary interest in a woman: one man’s rape of another man’s wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law.

Despite the fact that the criminal regime has been demonstrably unsuccessful in addressing or deterring sexual harms, it remains the primary forum for their adjudication, and many cultural, legal, and political pressures encourage women to rely solely on this system. This article argues against those pressures, and asserts that triangulated claims in private law represent a potentially promising avenue of redress for sexual harms. These civil suits can function as “crimtorts” (private civil actions which target public harms). Although they must overcome some significant obstacles, triangulated civil suits can serve as an important tool in targeting the social realities that contribute to sexual assault.

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