Trans* and Gender Nonconforming Students: Suggestions for Law Faculty

Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty

By Gabriel Arkles1

I.     Introduction

In a way, creating accessible, nondiscriminatory, and effective law school experiences for trans* and gender nonconforming2 students is easy. All of our skills as educators apply; we can simply extend our existing strategies and best practices. Like all students, trans* and gender nonconforming students benefit from professors who care about their learning and expect the best from them, create respectful classroom dialogue on difficult issues, provide meaningful feedback, and so on.

In another way, creating accessible, nondiscriminatory, and effective law school experiences for trans* and gender nonconforming students is fantastically difficult. Simply acknowledging trans* existence and accepting gender nonconforming people on their own terms requires an overthrow of a deeply entrenched view of gender in our society: that gender is a binary, fixed, universal, apparent, and a political truth. Many everyday classroom practices and longstanding university policies created with the best of intentions can harm trans* and gender nonconforming students because they are based on assumptions about gender that just don’t hold up. Partly because of these policies and practices, relatively few openly trans* and gender nonconforming people hold positions—especially the most powerful and prestigious positions—as faculty, staff, or students in law schools. Fortunately, more and more trans* and gender nonconforming people are entering law schools and many cisgender3 people want to learn how to work with them respectfully and effectively.

Like most worthy endeavors, transforming law schools to better support trans* and gender nonconforming students is not so much a matter of checking items off a list as engaging in an ongoing process. It requires participation of diverse stakeholders, attention to the particulars of unique institutions and situations, and respect for the perspectives of the people who are most directly impacted: trans* and gender nonconforming students themselves.

This document may help faculty take steps to improve some of their practices quickly and to start this larger process, but it is no substitute.4 In it, I address several major areas of concerns that can emerge by providing a general tip, examples of practices that need improvement, and examples of improved practices.
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Event: First Toast

The First Toast is a celebration to honor the work of the
Law Review.  The outgoing Board toasts to a successful
upcoming year, and the incoming Board toasts to the old
Board‘s hard work and achievements throughout the past

The First Toast is OPEN to the entire CUNY community, so
please attend, even if you are not on Law Review!  The
event is a special time to recognize and celebrate each




Access to healthcare for persons with mobility impairments

Inaccessible Medical Equipment: A Barrier to Routine Medical Care For Persons with Mobility Impairments and a Civil Rights Issue

by Thomas J. Keary1

More than twenty years after the passage of the Americans With Disabilities Act of 1990 (ADA) and forty years after the passage of Section 504 of the Rehabilitation Act of 1973 (Section 504), a recent study of physicians’ offices in five major metropolitan areas reveals that patients with mobility impairment are being turned away in disturbingly high numbers. This trend is due to physical barriers to routine medical care posed by inaccessible medical and diagnostic equipment, such as examining tables, rather than by building accessibility. The results indicate that there is a continuing need for education of health care providers and patients, as well as enforcement of these laws by the government and by consumers of health care.

Researchers at the Center for Quality of Care Research at Baystate Medical Center in Springfield, Massachusetts, telephoned 256 specialty medical and surgical practices seeking an appointment for a fictional, obese wheelchair user, who could not self-transfer to an examining table.2 Of this number, 22% reported that the patient could not be seen because, in most instances, they were unable to transfer the patient from a wheelchair to the examination table (18%) and to a lesser extent because the building where the practice was located was inaccessible for people in wheelchairs (4%).3 Practices in eight medical subspecialties, such as endocrinology, gynecology and orthopedic surgery, were tested. Of these subspecialties, gynecologists had the highest rate of inaccessible practices, with 44% of the gynecological offices called informing the tester that she needed to go elsewhere, usually because the provider lacked a table that could be raised and lowered, or a lift to transfer the patient out of a wheelchair.4

Inaccessible medical equipment has an impact on the timeliness and quality of care provided to people with mobility impairments. A study by Dr. Lisa I. Iezzoni, a Professor of Medicine at the Harvard Medical School, found that mobility-impaired patients with breast cancer, when confronted with inaccessible equipment, experienced delays in receipt of treatment and physician failure to perform a proper examination. In a follow up study, Iezzoni reported that mobility limitations affected the diagnosis and treatment decisions for women with early-stage breast cancer.5

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New Board Members Announced

Congratulations to the 2014-2015 CUNY Law Review Board!

Violeta Arciniega & Chelsea Breakstone
Digital Articles Editors

Catalina Delohoz & James King
Executive Articles Editors

Rebecca Arian & Li Litombe
Notes & Comments Editors

Emily Farrell & Tana Forrester
Public Interest Practitioner Section Editors

Rachel Nager & Syeda Tasnim
Special Events Editors

Julie Pennington
Managing Articles Editor

Nabila Taj & Patrick Tyrell
Managing Editors

Elizabeth Koo

Event: Inhuman Incarceration

Join Law Review for a panel representing grassroots organizers, legal workers, prison psychologists, and policy makers for an informed discussion on the conditions and effects of the American prison system and what we, as a community, can do about it.


Professor Ann Cammett received her J.D. from CUNY School of Law where she currently teaches the third-year Family Law Concentration. Prior to joining CUNY, Professor Cammett was awarded Law Professor of the Year at the William S. Boyd School of Law in 2011. From 2004 to 2006 she served as the Reentry Policy Analyst for the New Jersey Institute for Social Justice, working to develop programs and advocacy materials to improve prisoner reentry outcomes. In 2000 she was a recipient of the Skadden Fellowship at the New York Legal Aid Society, where she represented formerly incarcerated women facing civil sanctions arising from criminal convictions. Professor Cammett’s scholarship explores intersectional legal issues of race, gender, poverty, mass criminalization and the family. She is a recognized expert on the policy implications of incarcerated parents with child support arrears and other collateral consequences of criminal convictions. Her work in this area has been cited in two amicus briefs to the U.S. Supreme Court in the case of Turner v. Rogers, and excerpted for family law casebooks and other treatises.


Five Omar Mualimm-Ak is a former inmate turned activist who advocates for prison reform. He spent more than 5 of his 2. 12 year prison sentence in solitary and other forms of isolated confinement. He works tirelessly to raise awareness and fights to reform the use of solitary confinement across the state. He is the founder and Executive Director of The Incarcerated Nation Campaign (INC), which is a grassroots movement made up of formerly incarcerated persons, family members of those currently incarcerated, activists, students, and advocacy organizations, all working together to educate the community on issues of mass incarceration, improve conditions for the incarcerated and their families, and create a support base of re-entry for those returning back to our communities. Mr. Mualimm-Ak also works as an activist and organizer for the American Friends Service Committee and Campaign to End the New Jim Crow, Solitary Watch, and the New York Campaign for Alternatives to Isolated Confinement. Remarks he made at Cardozo Law can be seen here.

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Prof. Robson on Justice Scalia’s Petard

Justice Scalia’s Petard and Same-Sex Marriage


Ruthann Robson1

Justice Antonin Scalia is well known not only for his conservative views, but also his literary language. So perhaps he might appreciate how the Shakespearean phrase, “hoist with his own petard,”2 could describe how his dissents are being used to support the very outcome he derided: the constitutional recognition of same-sex marriage.

In United States v. Windsor decided in June 2013, the Court, by a bare majority, declared unconstitutional section 3 of the Defense of Marriage Act (DOMA) which prohibited federal recognition of same-sex marriages even if the marriages were recognized by state law.3 As in two other important cases involving lesbian and gay rights, Romer v. Evans (1996)4 and Lawrence v. Texas (2003),5 Justice Kennedy wrote an opinion for the majority longer on rhetoric than on analysis and Justice Scalia wrote a dissent guaranteed to be called “scathing.” In these dissents, Justice Scalia not only criticized the majority opinion’s lack of rigor and exercise of judicial supremacy, but he warned of the consequences of the Court’s decision.

In Romer, Justice Scalia’s alarm was loud, if imprecise. He famously accused the Court, like other legal elites—including law schools—of taking sides in the “culture wars” by prohibiting discrimination on the basis of sexual orientation.6

At that time, Congress had just passed the Solomon Amendment,7 denying federal funding to law schools that enforced their non-discrimination policy against military recruiters because of the military’s exclusion of homosexuals. A decade later, the Court unanimously upheld the constitutionality of the Solomon Amendment in Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006).8 But Justice Scalia’s dissent in Romer might also be read as signaling the end of Bowers v. Hardwick (1986),9 in which the Court upheld the constitutionality of criminalizing homosexual sodomy; Scalia’s dissent in Romer chastises the majority for not even mentioning this holding.10

Lawrence v. Texas achieved Scalia’s implicit prediction regarding the demise of Bowers v. Hardwick. In his dissent in Lawrence, he repeats (and at times quotes) his earlier accusations regarding lack of rigor and assertion of judicial supremacy.11 He adds a further criticism regarding the Court’s failure to honor stare decisis.12

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Student Article: Space Law and the Future of Public Interest


Mclee Kerolle1


On April 10, 2013, the Obama Administration released its proposed budget for 2014 with initial reviews showing that there would be a $200 million cut for NASA’s planetary exploration program.2 Critics against the cut, such as Planetary Society CEO Bill Nye, have spoken out about the crippling effect the cuts will have on future missions and the cuts potential to reverse a decade’s worth of investment building the world’s premier exploration program.3 On the other hand, proponents of the budget have praised it for its approval of $105 million for a mission to capture an asteroid so that it can be explored by 2015, as well as its funding for ongoing human spaceflight and support for private space taxis that could launch astronauts to and from the International Space Station.4 Irrespective of the divisions the budget proposal has caused among those in the space industry, one thing is for certain: the space industry is going through a resurgence. Not since the Space Race has there been more of a reason for people to be excited about what lies ahead. Rightfully so, considering that despite budget cuts and perceived setbacks from the public (such as the retirement of NASA’s space shuttle program in 2011) the space industry is now a $250 billion per year global market.5

Now with what Jeffrey Kluger, a senior Time magazine writer, calls a “handful of the world’s most daring entrepreneurs” 6 picking up where the space shuttle program left off and transporting cargo and astronauts into space, the space industry is looking to grow rapidly in what is poised to become the Second Space Race. However, unlike the Space Race of the 60s & 70s, the Second Space Race will be less about government space programs and more about the private space industry actors.  With more private actors entering the space industry, more opportunities are becoming available for lawyers specializing in space exploration. While space law as a field of law is still in its infancy, the concept of a space lawyer isn’t new. Space lawyers, and space law for that matter, have been at the center of satellite issues for some time. Because satellites handle television transmissions, GPS signals, and other projects for commercial, military, and government clients, several binding international treaties such as the 1972 Convention on International Liability for Damage Caused By Space Objects7 and the 1967 Outer Space Treaty8 have been used to “address liability and risk concerns over satellites…regarding fault for either non-functioning satellites or people or property on the ground” injured or damaged by falling satellites.9  Current issues that will need to be faced by the space law community include commercial human spaceflight, space debris, export control reform, and flags of convenience. 10 Other issues such as property rights to outer space resources will grow in importance as the commercial spaceflight industry matures.11

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DACA and NY Bar Eligibility

Our latest Footnote Forum installation comes from Professors Janet M. Calvo, Shirley Lung, and Alizabeth Newman.1


Janet M. Calvo, Shirley Lung, Alizabeth Newman2

Non-citizens who are afforded Deferred Action for Childhood Arrivals (DACA) qualify for New York State bar membership. Over four hundred thousand young people in the United States have been approved for DACA, a program for non-citizens who came to the United States as children.3 Approximately one percent of DACA-eligible non-citizens have pursued graduate education,4 including law school. The admission of those approved for DACA to the bar is supported by New York statutes and the constitutional jurisprudence of the United States Court of Appeals for the Second Circuit and the New York Court of Appeals. The New York Judiciary Law explicitly precludes alienage as a basis for denial of bar admission. New York has a history of routinely admitting non-citizens to the bar; there is no categorical exclusion from bar admission of any particular category of law graduates based on immigration status. An individual’s immigration category does not determine whether he or she possesses the skills, competence, and moral character to serve as an advocate in the courts of New York and to ethically represent the best interests of clients.

I.    Deferred Action for Childhood Arrivals (DACA) Permits a Non-citizen to Reside in the U.S. and Affords Employment Authorization 

On June 15, 2012, the Department of Homeland Security announced DACA.5 The United States Citizenship and Immigration Services (USCIS) considers applications for DACA. DACA can be requested for two years and may be renewed. Those afforded DACA are not removable from the U.S. based on immigration status.6 They are eligible for authorization to work7 and are given an “Employment Authorization Document.”8 They then may obtain a Social Security card9 and a New York State driver’s license.10

DACA is a form of deferred action and is similar to other immigration categories of non-citizens. Deferred action has been available to non-citizens for many years.11 Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security. Further, there is a long-standing federal regulation that allows employment authorization to those granted deferred action.12

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