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 apolitical 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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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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Prof. Robson on Justice Scalia’s Petard

Justice Scalia’s Petard and Same-Sex Marriage

by

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

 SPACE LAW AND THE FUTURE OF PUBLIC INTEREST

Mclee Kerolle1

INTRODUCTION

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

NEW YORK BAR ADMISSION OF LAW SCHOOL GRADUATES AFFORDED DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

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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Prof. Borgmann on Hollingsworth v. Perry

CUNY Law Review is proud to introduce our latest installation in our ongoing series of web-exclusive pieces for Footnote Forum by our own Prof. Borgmann. For a primer on the procedural history of the Proposition 8 saga that led to Hollingsworth v. Perry, see our interactive graphic walk-through.

HOLLINGSWORTH v. PERRY
STANDING OVER CONSTITUTIONAL RIGHTS

Caitlin E. Borgmann1

INTRODUCTION

One might expect that a Supreme Court decision addressing the constitutionality of a citizen initiative that bars marriage between same-sex couples would yield a predictable political division among both the Justices and Court commentators. Liberal Justices and commentators, one might conjecture, would want the Court to recognize a fundamental constitutional right to marriage equality, while conservative Justices and commentators would prefer the issue be left to the political process. The Supreme Court’s recent decision in Hollingsworth v. Perry reflected no such tidy outcome, however. The majority opinion addressing California’s Proposition 8 (“Prop 8”), which amended the state’s constitution to exclude same-sex couples from legally recognized marriage, sidestepped the substantive issue through a procedural maneuver. Rather than reach the merits, the Court held that the official proponents of Prop 8, who had defended its constitutionality both in the district court and on appeal, lacked standing to appeal the district court’s opinion invalidating the initiative. The Court’s decision left marriage equality as the rule in California (although not elsewhere). Liberal Justices Breyer, Ginsburg, and Kagan joined Chief Justice Roberts’s majority opinion, as did Justice Scalia, while conservative Justices Thomas and Alito, and liberal Justice Sotomayor, joined Justice Kennedy’s vigorous dissent. Some liberal commentators who favor marriage equality applauded the Court’s decision.2

It is of course not possible to know exactly what motivated each of the Justices in Hollingsworth. But standing is a doctrine that the Court has notoriously manipulated to reach desired results on the merits.3 Commentators have widely speculated that the liberal Justices who sided with the majority preferred not to reach the merits either because they believed there were insufficient votes to find Prop 8 unconstitutional,4 or because they believed such a decision might be politically premature and therefore counterproductive, as it might prompt a backlash.5 Some proponents of marriage equality were quietly relieved by the Court’s refusal to address the merits, since it allowed the district court’s invalidation of Prop 8 to stand without risking an adverse Supreme Court decision that would be binding on all states.6

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Prof. Janet Calvo on U.S. v. Windsor’s Impact on Immigration Law

We are proud to introduce Prof. Janet Calvo’s discussion of the Windsor decision’s impact on immigration law as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For more on this opinion, see Prof. Ruthann Robson’s related piece

U.S. v. WINDSOR’S IMPACT ON IMMIGRATION LAW

Janet M. Calvo1

The Defense of Marriage Act (DOMA), barred federal immigration authorities2 as well as other federal officials from recognizing same-sex marriages. Now that DOMA has been declared unconstitutional in U.S. v. Windsor,3 the federal officials that implement immigration law have declared that same-sex marriages will be recognized to the same extent as opposite-sex marriages. This has implications for several aspects of immigration law and practice. On July 1, 2013 the Secretary of Homeland Security directed the U.S. Citizenship and Immigration Services (USCIS) “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,”4 and the USCIS posted additional information about implementation.5 On August 2, the Secretary of State similarly stated “when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses,”6 and the Department of State website provided further detail, in line with the USCIS position.7

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Prof. Ruthann Robson on U.S. v. Windsor

We are proud to introduce Prof. Ruthann Robson’s comment on United States v. Windsor as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For a discussion of this decision’s impact on immigration law, see Prof. Janet Calvo’s related piece.

CASE COMMENT:
UNITED STATES V. WINDSOR
133 S. Ct. 2675 (2013)

Ruthann Robson1

A landmark. A victory for “gay rights.” An example of judicial activism.

Each of these appellations is an accurate descriptor of the Court’s decision in United States v. Windsor, rendered on the last day of the 2012–2013 term.By a bare majority, the Court declared Section 3 of the Congressional Defense of Marriage Act (DOMA) prohibiting federal recognition of same-sex marriages unconstitutional. The Court resolved the threshold issue of whether it had Article III power to hear the case, given the unusual posture of the litigation, in favor of rendering a decision, unlike the outcome in the companion case of Perry v. Hollingsworth involving the constitutionality of California’s Proposition 8.2 The Court’s reasoning included a discussion of Congressional power to pass DOMA, given that marriage and other family matters are generally within the province of the states under federalism as it has developed in the United States. Ultimately, however, the issue was not one of Congressional power. Instead, the majority concluded that DOMA’s Section 3 violated the equal protection component of the Fifth Amendment.

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The VRA in the Wake of Shelby County

We are proud to launch Footnote Forum, CUNY Law Review’s new online companion featuring web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary. Download the inaugural installation, CUNY Law Professor Frank Deale’s Reflections on the History And Future of the Voting Rights Act in the Wake of Shelby County, or keep reading below.

REFLECTIONS ON THE HISTORY AND FUTURE OF THE VOTING RIGHTS ACT IN THE WAKE OF SHELBY COUNTY

Frank Deale1

I.

At the conclusion of America’s deadliest military conflict, the United States Congress sought to reconstruct a nation torn apart by civil war by enact­ing a program of radical social change designed to eliminate the legal disabilities shouldered by the newly freed African-American male population. Included in the numerous proposals was a series of Amendments to the U.S. Constitution: the 13th Amendment would abolish the institution of slavery; the 14th Amendment would provide equal protection and due process under law to those with former slave status; and the 15th Amendment would enable them to protect these rights via a right to vote, unencumbered by “race” or “color” discrimination. The Congress was empowered to enforce this provi­sion with appropriate legislation.

Less than 50 years after the enactment of these historic provisions, a substan­tial number of African-Americans went to polling stations in the state of Alabama, the home of Shelby County, seeking to register as voters for an upcoming election. In flagrant violation of the language in the Constitution, they were turned away because of their race. Undaunted, over 5,000 of them joined a civil case to enforce the Constitution, which was heard by the Su­preme Court of the United States. The Court correctly understood the gist of the plaintiffs’ complaint, which was that “the great mass of the white popula­tion intends to keep the blacks from voting.”2 Yet, notwithstanding the stark nature of the facts, the Court denied relief, concluding that:

If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a state and the State itself, must be given by them or by the legislative and political department of the Government of the United States.3

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