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INTRODUCTION 1335 I. ABORTION RIGHTS 1336 II. GAY RIGHTS 1345 INTRODUCTION The poet laureate Robert Pinsky wrote that "[a] country is the things it wants to see." (1) But a [...], Walter Dellinger's scholarship, litigation, and popular writing were marked by a distinctive combination of doctrinal sophistication, strategic sagacity, and deep humanity. One theme that informed his work was the "normative power of the actual": the idea that "what is already in place, seems right." Dellinger saw that while that concept can produce unthinking acceptance of an existing, and unfair, legal order, it need not always be so. Sometimes, the normative power of the actual can bend the legal order to accommodate social change that has already occurred. Dellinger's work on abortion rights and on gay equality illustrates this point. Dellinger offered a powerful critique of abortion laws that rested on blinkered accounts of history and present-day conditions. And his embrace of the normative power of the actual anticipated the nation's reaction to the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. Similarly, Dellinger harnessed the normative power of the actual to help achieve marriage equality for same-sex couples.

TABLE OF CONTENTS INTRODUCTION 885 I. BACKGROUND ON BOSTOCK V. CLAYTON COUNTY 887 A. Justice Gorsuch's Majority Opinion 887 B. "Dueling Textualisms" 888 II. JUSTICE ALITO'S APPENDIX C 889 A. [...]

FEATURE CONTENTS INTRODUCTION 1068 I. SEX EQUALITY, REAL DIFFERENCES, AND ANTI-STEREOTYPINC 1084 A. Real Differences 1084 1. Biology Is Neutral, or Biology Is Not Bigotry 1095 2. The Two Sexes [...], This Feature uses recent developments in LGBTQ-equality law to unsettle sex equality's enduring commitment to biology as a basis for sex discrimination. Sex equality rejects sex discrimination when it is based on sex stereotypes, defined as gross generalizations about women and men, but not when it is based on biological differences between the sexes, like pregnancy, anatomy, and strength. Biological justifications for race discrimination--once commonhave been relegated to the trash heap of history. But biological justifications for sex discrimination persist. This is so because sex equality insists that biology alone is neither a stereotype nor an expression of bigotry. Biological rationales for sex discrimination remain attractive to lower federal and state courts, and have received the Supreme Court's blessing, most recently in Dobbs v. Jackson Women's Health Organization. The result is a broad swath of laws across substantive areas--including family law, tort, immigration law, criminal law, property, and abortion law--that sustain sex inequality courtesy of biology and despite a fairly robust anti-stereotyping principle. This Feature argues that sex equality's continued embrace of real differences should not survive what LGBTQ equality shows: that biologically rationalized sex discrimination is an illegal sex stereotype. It uses recent developments in LGBTQ equality surrounding sex, the body, procreation, and parenthood to unsettle sex equality's beliefs in the reality of biological differences between the sexes and in the legality of laws based on those differences. It urges sex equality to grapple with what LGBTQ equality has to say about biology and its role in lawmaking and imagines what the American law of sex might look like when it does. Biologically rationalized sex distinctions have always been sex stereotypes. It is just that now, LGBTQ equality makes those stereotypes easier to see, harder to ignore, and impossible to justify.

INTRODUCTION Slowly but surely, some U.S. courts are increasing protections for LGBTQ+ individuals (1) and eliminating stereotypes in laws based on sex and gender. (2) A recent Fourth Circuit decision [...]

INTRODUCTION I. THE CONTENT MODERATION ASSEMBLAGE A. Deconstructing Moderation B. Putting Moderation Back Together II. A HISTORICAL MODEL FOR SEXUAL CONTENT MODERATION A. Legal Contexts, Discourses, and Values 1. Repressive [...], Content moderation plays an increasingly important role in the creation and dissemination of expression, thought, and knowledge. And yet, throughout the social media ecosystem, nonnormative and LGBTQ+ sexual expression is disproportionately taken down, restricted, and banned. The current sociolegal literature, which focuses on content moderation as a whole and sees echoes of formal law in the evolution of its values and mechanics, insufficiently captures the ways in which those principles and practices are not only discriminatory, but also resemble structures of power that have long been used to police queer sexual behavior in public spaces. This Article contributes to the sociolegal literature by approaching content moderation from an explicitly queer perspective, bridging siloed scholarship on law, technology, and LGBTQ+ history. It argues that content moderation for "sexual activity" is an assemblage of social forces that encodes queerness as sexual in a way that straightness is not. This is the case because far from simply reflecting free speech principles, as several scholars have argued, content moderation in fact resembles oppressive anti-vice campaigns from the middle of the last century in which "disorderly conduct," "vagrancy," "lewdness," and other vague morality statutes were disproportionately enforced against queer behavior in public. This analogy highlights underappreciated pieces of the content moderation puzzle. Like anti-vice campaigns, sexual content moderation emerged from similar sociolegal contexts, relies on similar justificatory discourses, leverages similarly vague rules, similarly operates mostly without rigorous, science-backed expertise in sexual content, also disproportionately silences queer content, and similarly does so without due process. Ultimately, I argue that like anti-vice enforcement, sexual content moderation results in the maintenance and reification of social media as "straight spaces" that are hostile to queer, nonnormative expression. This Article provides a full, critical account of sexual content moderation and its effects on queer expression. It details and challenges the current content moderation literature and explores potential new directions for scholarship, moderation, and law. The similarities and differences between anti-vice enforcement and sexual content moderation also suggest a way forward, offering novel justifications for modest legal reform, social activism, and platform responsibility.

TABLE OF CONTENTS INTRODUCTION 87 I. POLARIZATION OF RELIGIOUS LIBERTY IN THE UNITED STATES: KEY DRIVERS 89 A. End of White Christian America 89 B. Tribalization of American Politics and [...], Americans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims' rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest--especially the self-interest of the conservative Justices of the Supreme Court--can help depolarize religious liberty. Professor Derrick Bell's theory of "interest convergence" helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. Bell used interest convergence theory to analyze judicial decisionmaking during the civil rights movement. Other scholars have built upon Bell's original thesis about Black people's rights by extending interest convergence to other racial minorities. This Article is the first to consider the implications of interest convergence not just for religious minorities but specifically the status of religious minorities in today's politicized religious liberty landscape. In so doing, it aims to formulate a theory of "religious liberty interest convergence." Specifically, this Article applies Bell's framework to two recent Supreme Court cases. It uses interest convergence theory to explain the rulings against Muslim claimants in Trump v. Hawaii (2018) and for Muslim claimants in Tanzin v. Tanvir (2020). The Article concludes by assessing the relevance of religious liberty interest convergence to political coalition-building. In both the judicial and coalition-building contexts, relying on self-interest helps create openings where openings may not otherwise be possible.

INTRODUCTION In January 2019, California Senator Scott Wiener introduced Senate Bill No. 145 ("SB 145"), which amended the Sex Offenders Registration Act. (1) California Governor Gavin Newsom signed the bill [...]

INTRODUCTION The late Ruth Bader Ginsburg began her notorious career rendering unprecedented opinions and scathing dissents in the name of effectuating the prohibition on sex-based discrimination. (1) In her early [...]

"You never completely have your rights, one person, until you all have your rights." - Marsha P. Johnson (1) Introduction 916 I. History 919 A. Employment-at-Will 919 B. The Development [...]

INTRODUCTION At the heart of Singapore's political identity lies a paradox: Singapore's reliance on liberal foreign policy (1) while maintaining an insular, conservative socio-political landscape. (2) This inconsistency forms a [...]

TABLE OF CONTENTS INTRODUCTION I. A FRAMEWORK FOR UNDERSTANDING ORIGINAL PUBLIC MEANING IN A CHANGING SOCIETY A. Framing the 'Public' of Original Public Meaning 1. The Basic Concept of 'Ordinary [...], The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court's recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time We argue that longstanding statutes are inherently dynamic because they inevitably evolve beyond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution The framework depends in part on courts defining 'meaning' properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism create difficulties for originalism, but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence) We explore the relationship among societal, linguistic, and normative dynamism and their implications for original public meaning. Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to "biological distinctions between male and female," as all the opinions in Bostock assumed, and that gender and sexual orientation were essentially nonwords in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, today's gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to "biological distinctions" and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law can assume in societal and linguistic dynamism: one reason gays and lesbians are a novel social group is that they live in a world where same-sex intimacy is not a crime and the state does not treat homosexuality as psychopathic.

INTRODUCTION On August 19, 2019, the City Council of Fayetteville, Arkansas, had a ten-hour meeting. (1) More than a hundred citizens lined up to share their thoughts on Ordinance 119, [...]

ARTICLE CONTENTS INTRODUCTION 80 I. SEX SEGREGATION IN LAW AND CUSTOM 86 A. "The Last Great Piece of Americana": Preserving the Male Public 88 B. "The Myth of the Evil [...], This Article recounts the first history of sex in public accommodations law--a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only LGBTQ people but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed "men-only" signs. Women held secondary status in civic organizations, such as Rotary and Jaycees, and were excluded altogether from many professional bodies, such as press clubs. Sports--from the Little League to the golf club--kept girls and women from achieving athletic excellence. Financial institutions subsumed married women's identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for "full and equal enjoyment" by both sexes. When "sex" was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to public spaces. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples' wedding cakes to transgender people's restroom access.

Walsh v. Friendship Village of South County, 352 F. Supp. 3d 920 (E.D. Mo. 2019). I. INTRODUCTION Over one million Americans are married to someone of the same sex. (1) [...]

Abstract The idea that people in the United States are free to exercise their religion has existed as long as the country itself. Presently, in the aftermath of the presidential [...]

Lampley v. Mo. Comm'n on Human Rights, No. SC 96828, 2019 WL 925557 (Mo. Feb. 26, 2019) (en banc) I. INTRODUCTION "The constitutional sword necessarily has two edges: Fair and [...]

I. INTRODUCTION 91 II. TH E EVOLUTION OF THE OIC'S APPROACH TO HUMAN RIGHTS 92 A. The OIC's Early Engagement with Human Rights 92 B. The Cairo Declaration on Human [...], This article further explores the Organization of Islamic Cooperation's ("OIC") peculiar understanding of international nondiscrimination and equality norms by considering how it engages with sexual orientation and gender identity ("SOGI") rights. After reviewing the OIC's historical approach to human rights and its ambivalent acceptance of universality, the article focuses on the organization's contemporary effort to promote the "protection of the family" within the international human rights arena. This campaign--driven by the OIC's belief that "Islamic family values" are under legal and intellectual assault--champions only those families premised on marriage between a man and a woman. Consequently, families built around lesbian, gay, bisexual, transgender and intersex ("LGBTI") and other relationships risk exposure to inequality, discrimination and denial of existing rights under international human rights law. OIC advocacy of protection of the family, however, is by no means the only area where the organization has sought to exclude the LGBTI community. Nor does the OIC's position in the narrow context of family reflect a complete accounting of its motives for opposing recognition of SOGI rights. Accordingly, the article proceeds to consider how other core components of the OIC's human rights platform and accompanying rationales manifest hostility even to the slightest hint of SOGI rights recognition. As will be demonstrated, this hostility cuts across a wide swath of human rights issues, ranging from extrajudicial killings to the right to health. And while by no means reflective of the sole possible interpretation of Islamic norms, the OIC continues to press its view as authoritative, generating significant controversy and fallout, particularly at the United Nations. After highlighting the shortcomings and inconsistencies associated with the OIC's position on SOGI recognition, the article concludes by offering several recommendations. These recommendations, directed at states and civil society, outline responses to the OIC's attempt to undercut international equality and nondiscrimination norms and are intended to ensure that the principle of universality is not undermined in the formulation and enforcement of international human rights law.

As Justice Brandeis famously explained, under our federal system, states are laboratories for testing "novel social and economic experiments." These laboratories, however, must operate within constitutional limits. Under the Constitution, [...]

INTRODUCTION 216 I. GENDER FLUIDITY TODAY 218 II. SEX/GENDER STEREOTYPES IN SPORT PRE-TITLE IX 220 III. TITLE IX AND THE CONTACT SPORTS EXCEPTION THAT DISPROVES THE RULE 223 A. The [...], This Article argues that sex/gender roles in sport have resulted almost entirely from stereotypes rather than from analytical thinking. This situation has created unfairness and discrimination that have been highlighted by the rising trend of gender fluidity. The Article makes a proposal to remedy this unfairness and discrimination. The Article first traces sex/gender roles in sport before the passage in the United States of Title IX of the Education Amendments of 1972, which the courts have interpreted as applying to women in sport. As the participation of women in sport expanded in the twentieth century, pressure built to end the inferior treatment of women. With the passage of Title IX came the start of tremendous progress. This Article further explores how, despite this progress, stereotypes have still retained influence in sport. The so-called Contact Sport Exemption (CSE) to Title IX, for example, exempted such major revenue-producing sports as football and men's basketball from the requirements of Title IX. The Article maintains that the CSE makes little sense in an era of increasing gender fluidity. With regard to intersex or transgender athletes, the CSE offers little guidance on questions such as whether a person transitioning from male to female could play on a women's field hockey team or whether a person transitioning from female to male could play on a football team. The Article reviews the attempts of sporting organizations, such as the International Olympic Committee and the National Collegiate Athletic Association, to deal with intersex and transgender athletes. The Article argues that the attempted solutions fail because they are not scientifically based, they are invasive, and/or they do not take into account Title IX. The Article then proposes a workable solution based on the following principles: (1) separate but equal teams by sex/gender are permissible; (2) where there is only one team in a sport, females may try out for traditionally-male teams like football and males may try out for traditionally-female teams like field hockey; and (3) the definition of "sex" is either the sex at birth or the sex with which the individual identifies for all purposes (i.e., not just for sports).

Twenty-one years ago I was sitting in the African NGO Caucus at the 4th World Conference on Women in Beijing, waiting my turn to speak. The NGO representatives at the [...]

FEATURE CONTENTS INTRODUCTION I. OVERVIEW OF SEX DISCRIMINATION PROHIBITED BY TITLE IX II. GENDER STEREOTYPING AND ANTI-LGBT ANIMUS UNDER TITLE IX A. The Influence of Title VII B. Harassment of [...], LGBT students are bullied at dramatically higher rates than other students. School bullying generally, and the targeting of LGBT students in particular, has recently garnered national attention as a serious problem that needs to be solved. Just as society is increasingly recognizing the destructive effects of school bullying and accepting the LGBT community, federal courts and agencies are increasingly holding school districts accountable under Title IX when schools fail to protect LGBT students from gender-based bullying. This Feature discusses the emerging importance of Title IX litigation and enforcement as a tool to stop peer-on-peer harassment of LGBT students in elementary and secondary schools. Federal courts and agencies consistently recognize that bullied LGBT students may bring sex discrimination claims under Title IX based on a theory of gender stereotyping. Some even view anti-LGBT animus as per se sex discrimination. I argue that Title IX's effectiveness in addressing the problem is limited by overly narrow judicial and agency views of what constitutes actionable sex discrimination. Federal courts and agencies often focus on stereotypes about overt masculinity and femininity and fail to consider stereotypes about the appropriate roles of girls and boys and the relationships between them. They also offer conflicting views on whether bullying based on a student's actual or perceived LGBT status constitutes per se sex discrimination. If federal courts and agencies consistently considered the full spectrum of gender stereotypes and recognized that bullying based on anti-LGBT animus is also sex discrimination, Title IX would better protect LGBT students from harassment. This Feature also discusses the need for legislation that expressly prohibits discrimination based on actual or perceived sexual orientation and gender identity. I argue that this express enumeration is needed to ensure both that schools clearly understand their duty to prevent a hostile educational environment and that LGBT students clearly understand their right to an equal education. Even if Congress amended Title IX or passed new legislation to enumerate LGBT protections--and federal courts and agencies interpreted Title IX as broadly as I advocate--LGBT bullying would not disappear. Title IX cannot carry the weight of this problem on its own. Other reforms are needed, including school policies with enumerated protections for LGBT students, mandatory professional development for school staff, anti-bullying training and education programs for students, and district accountability for reporting incidents of LGBT bullying. This is a complex problem that requires a multipronged solution.