Sexual Identity and the Law Seminar

Professor Thomas

I. FIRST MEETING
A. INTRODUCTION, ADMINISTRATIVE DETAILS, PRELIMINARIES
Will address the law of sexual minorities: Gays, Lesbians, Bisexuals and Transsexuals.

Compare Gay Civil Rights movements and other Civil Rights movements.

Critical Race Theory and Law and Sexual Identity and the Law: The Race Dimension of Sexual
Orientation in the Law.

Definitions of Race:
1. Scientifically
2. Political Phenomenon
3. Jurisdictionally (Constitutionally), and
4. Socially (Cultures)

Work place discrimination of Sexual Minorities

Relation btwn Sexual Orientation and Sexuality Private Law
Same Sex Relations, Domestic partnerships and Non-Marital Relations
Comparison of sodomy laws – State v. Fed
Comparisons of sodomy male/female
Exclusions of military
Right of gay students
Rights of gay parents (natural/adoptive)
Legal status of Hate crime status and amendments (Co Amend 2)
Canada’s Same-Sex laws
Native America v. Western comparison

Legal implications of Minority claims: Think of the differences and why should it matter.

Comparisons:
Fed Const: Scrutiny levels: Rational Review, Intermediate, and Heightened.

Modern Anti-Discrimination Law (Post Caroline Products) is designed to set forth the purpose of
those elements. Must look to the intent of the movement.
Gay: Keep police out of bars, beds (negative freedom); adoption, inheritance.
Black: Black/White relationships (if it was more, they should be more receptive of others)

Gays in the Military – corruption of force.

Methodologies of America: Myth of a Color Blind, Gender Blind society.

Special Rights rhetoric, Deliberate blindness (one man, one vote).

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 Critics of Liberal thoughts would disassemble Civil Rights. Crits were White/Straight/Men.
Are Queer Crits more interested in getting rid of Civil Rights that Race Crits.
Beyond the Whiteness of the Queer Crit movement and the Straightness of the Civil Rights
movement, should Critical Race theory be the basis of a New Civil Rights Movement?

B. READINGS
1. Women, Gays and the Constitution, Richards, David
a. 1951
Donald Cory – Analogies btwn Gays and other minority groups (Blacks, Jews) – Neither
Antiracist or Feminists (both waives) were hospitable to such claims

Differences: Involuntary character of sexual preference,

Lack of an associated philosophy of life,
Not being rooted in the family, and
Lack of public recognition.

American Gays needs cultural heroes who would break the silence.

Henry Hay – Mattachine Society, Los Angeles, organized politically for gay rights

Brings together of Gay men from throughout the country during WWII added to the subsequent
Gay movement.

b. 1969
Stonewall Riots

c. 1971
Dennis Alterman – Homosexual Oppression and Liberation – Search for a gay identity and
analogies were drawn to the comparable identity-transformative struggles of women.

d. 1976
Adrienne Rich – Lesbianism must be regarded as a legitimate feminist option -
Wife/Mother/unjust moral degradation inflicted my sectarian orthodoxy of compulsory
motherhood and an unjust burden of an idealized duty of maternal self-sacrifice.
“Children need no longer ‘live under the burden of their mother’s unlived lives’.”

Compulsory Hetro: the insistence that women, to be women, must form a sense of self
based on attachment and dependence upon the authority of men (assumption that
straight life is the norm). Lesbianism morally empowers women (basic human rights and
skepticism re: Traditional gender roles).

Gay men, precisely b/c they do not sexualize women but nonetheless often had and form
profound moral identifications with them, may indeed contribute something unique to rights-
based feminism: moral identifications w/women not based on and therefore sometimes
distorted by sexual objectification. Rights-based feminism might, on such grounds, redefine
its aims in terms of claims for the basic human rights of all persons (Male/Female) against
all form of politically enforced gender stereotypes.

Sexual Id & Law A.S.B. Page 2

 2. Some Queer Notions about Race: Blacks, Gays and the Struggle for Equality ,
Delany, Samuel
1904 – NY Subway opened and Jim Crow Laws mandating separate-but-equal schooling
first instituted in the South.

Single Drop of Blood Rule – single drop of Black blood makes a person Black. “Black
contaminates White, but not the other way around.”

Blacks are associated with Prostitutes and Pimps:

“Prostitutes and perverts, destroy, undermine and rot the foundation of society.”

Homo & Prostitutes represents untrammeled pursuit of pleasure, the opposite of social
responsibility.

Race  Spanish / Italian – Raza – old family

Can only marry into a family, not out (Drop Rule-corruption theory)

White Woman Black Woman

Dilutes the Black race.
White Man Keeps race pure
Corrupts White race
Extends Black race.
Black Man Keeps race pure
Corrupts White race.
Same-sex relations threatens to bring pollution/procreation to a halt.

What makes us gay?

1. Gay identity
2. Not normal
3. That is how we have been interpreted..

Homophobia w/in Critical Race theory. Crit’s couldn’t live up to their own criticisms.

Bower = Plessy

Sexual Id & Law A.S.B. Page 3

II. SEXUAL ORIENTATION, RACE AND GENDER IDENTITY IN SCIENCE
AND CULTURAL STUDIES
Church Doctrine:
The highest earthly goal of human being was to enter into marriages through which children
would be produced.
The only non-sinful form of sex was procreative sex btwn H&W.
Disapproved of practices that undermined the procreative potential of vaginal sex btwn a H&W.

A. SCIENTIFIC THEORIES
3. Doctors, Gender and Sex: From the Sexologist to the Anti-Freudians
a. The Early Sexologist
(1) 1700’s
Reinforced the Christian attitudes toward sexuality.

Boerhave, Dutch Dr. – Sexual activities was the cause of a variety of physical
maladies. Excessive sexual activities by a man would ultimately be physically
debilitating (note male bias).

Tissot, French Dr. – Non-procreative sex activities (Onanism) can lead to many
ailments. Both men and women.

Homosexuality distinguished as an orientation and different from other non-

procreative sexual activities.

Westphal, German Dr. – First study of what would current be considered

transsexuals (Congenital Inverts).

(2) 1800’s
Krafft-Ebing, German Dr. – Distinguished btwn Perverse acts (untainted) and
Perversion (tainted, congenital condition). Coined the term ‘Invert’ (Homo).
Some engage in Homo acts w/o lasting consequence (untainted), others
manifest a hereditary condition (tainted).
Gender inversion of women, little emphasize on men.
Challenged notion that women were asexual, claiming they enjoyed sex and in
fact were more sexual, but difference b/c of diffused erogenous region.
Female Homo increasing b/c of feminism. Ability to work outside home
enabled ability to find love where they work, often w/other women.

(3) 1900’s
Lydston, American Dr. – Compared removal of slavery = removal of inhibitions
placed upon Black’s sexually to the Homosexual, sexual appetite. When there
is removal of all sexual inhibitions man degrades to a lower form of animal.
Less frequent w/Whites. Hot climate of South contributes to reversion.

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 b. Freud and His Followers
(1) Freud
Freud is the most famous of the Sexologist.

Human children are sexually alert from a very early age and are bisexual in their
sexuality.

Oedipus Complex – Children desire their mother and are jealous of their father.
Boys escape mother’s embrace and identify w/once-hated father.
Girls learn affect mother not appropriate sexual object, discover they have no
penis, identify w/mother and accept sexual overtures from men (people
w/penises)

Sexual Object – person from whom sexual attraction proceeds

Perverse Sexual Object – members of same-sex, children and animals

Sexual Aim – The act toward which the instinct tends

Perverse Sexual Aim – oral/anal, voyeurism and S&M (anything not
penile/vaginal)

Fetishism – some inappropriate body part (i.e. foot) or some inanimate object
related to the body (i.e. panties) becomes the sexual object. Fetish becomes
pathological when the fixation passes beyond the point of being merely a
necessary condition attached to the sexual object and take the place of the
normal aim.

Groundbreaking Recharacterization: Sexual perversions are not themselves

pathological, but are the symptom or neurosis.

(2) Rado
Rejected Freud’s theory of human bisexuality.

Men embody masculinity and women femininity, and satisfactory relationship can
only occur btwn masculine men and feminine women.

(3) Bieber
Homo is caused by pathologic parent-child relationship, such as a boy’s relationship
w/a smothering mother and distant father. Mother conveys demasculinizing and
feminizing attitudes.

Homo is a mental illness.

(4) American Psychiatric Association

Influenced by Rado.

1952 – listed Homo as a serious sociopathic personality disturbance.

1968 – degraded Homo to a mental disorder.

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 c. The Post-Freudians
(1) Kinsey, Hooker and the Anti-Moralists
i. Kinsey (bug expert)
“The world is not to be divided into sheep and goats….Only the human mind
invents categories and tries to force facts into separated pigeon-holes.”

Sexual Behavior in the Human Male (1948) – Revolutionized American thinking

about sex, reflecting dramatic statistics regarding Homo.

Sexual Behavior in the Human Female (1953) – Reported less Homo

activity/attraction among Women, but established that they are sexually active,
rather than passive.

ii. Hooker (psychologist)

Controlled experiments w/independent blind judges determined Homo’s
psychologically functional and could not discern any difference btwn Homo &
Hetero group.

(2) Chodorow and Other Feminist Critics of Freud

Freud is male bias – focus is on the penis.

Chadorow
Women develop their gender identities w/in an ongoing, same-sex relationship,
girls do not have to curtail their primary love. Males gender identity requires an
emotional separation form the mother and identification w/the father. Thus, the
basic feminine sense of self is a sense of connectedness, whereas the basic
masculine sense of self is a sense of separateness.

Stefan
1994 APA deleted from the defination of trauma (Rape Trauma Syndrome) that
they occur outside the range of usual human experience.

The shifting of the focus from sexual violence to pathological labeling of victims
response to the violence illustrates how the process of Medicalization is a male
bias.

(3) Szanz, Foucault and the Anti-Clinicians

Szanz
It is the Drs and not their patients who were misreading reality.

Sexual Inversion ’65 – The biological desirability of procreation provides a

descriptive case for hetero, but noa normative argument that everybody must
participate or that departures…are bad….

The Manufacture of Madness ’70 – Compared the therapies of electroshock and

drugs to impose sexual conformity and extinguish sexual deviation to the Church
during the inquisition.

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 Foucault
Sexuality was itself constructed by the discourse of the Sexologist and their
bourgeois allies, and that repression only intensified the discourse of sexuality.

d. Bowers v. Hardwick (’86) p44

F – Hardwick and straight couple were charged under Ga. criminal § x sodomy. ∆ ’s
committed sex w/consensual adult in their homes. DA dismissed action against
straight, found to lack standing. Charged Hardwick.

I – Whether the Fed Const confers a fundamental right upon Homo to engage in
sodomy and hence invalidate the laws of many states that still make such conduct
illegal.

R – No

A – The proposition that any kind of private sexual conduct between consenting adults
is constitutionally insulated from state proscription is insupportable.

Anti-Judeo-Christian

No connection to family, marriage or procreation

C – Unpersuaded that sodomy laws of some 25 states should be invalidated

Dissent – The right of an individual to conduct intimate relationships in the intimacy of

his/her own home seems to me to be the heart of the Const.’s protection of
privacy.

Family Law Class – The dissent is consistent w/Roe

4. The Sexual Psychopath: Psychology, Immigration and AIDS

a. Shifting Regulatory Concerns, Circa 1930
Popular anxiety and regulatory emphasis shifted from maintaining female purity toward
controlling male violence. Trends which contributed to this shift are:
American psychiatry expanded beyond hospitals and into prisons,
Social stresses of the depression, and
Scientific study of sexuality became respectable.

Psychopath – a man who couldn’t control his sexual impulses and preyed on other
(Homo quintessential psychopath).

Krafft-Ebing – male invert was basically womanish

American Krafft-Ebing followers – male Homo is aggressive
American Freudians – the predatory male Homo, who recruits little boys as sexual
partners, b/c he was uninhibited by social pressures or domesticating females and
was too sick even to find mature male companionship. The ‘Vampire Lesbian.”

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 ‘30’s-‘40’s – dominant pattern of child abuse was female children by adult male
family members, however this was belittled in light of the supposed sexual deviant.

Cts came to the realization that prison was not the solution (same-sex prisons were rife
w/sodomy) so the offenders were to be ‘rehabilitated – lobotomies, massive injections of
male hormones, electrical shock and other aversion therapies.

’35-‘60’s – 26 states (which included all major US cities) passed sexual psychopath
laws transferring authority over sex offenders from cts to psychiatrists, where they could
receive indeterminate sentence to a psychiatric institution, to protect society and
rehabilitate the offender.

b. The Post-WWII Anti-Homosexual Campaign

Medical personnel provided neutral reasons for ferreting out Homos ‘for their own good’

1950 Report on Homo’s in Govt - The social stigma attached to sex perversion is so
great that many perverts go to great lengths to conceal their perverted tendencies,
making them easy prey for gangs of blackmailers.

1956 – Fl Senator Charley Hohn, chaired committee investigation Homo and other
subversives, w/a focus on teachers. 54 Fl teachers lost their license. State employees
fell under suspicion when spotted by investigators at Homo hangouts or named by a
suspected Homo.
‘The Home’s goal and part of the satisfaction is to bring over the young person, to
hook him for Homo.’

Kinsey – lost funds in retaliation against his proHomo stands.

c. Case Study: The Psychopathic Personality Exclusion in U.S. Immigration Law,

’52-‘90
Immigration Act of 1917 – Excluded all medical categories created by earlier statutes as
well as ‘persons of constitutional psychopathic inferiority,’ a catch-all provision
that was sometimes used to exclude sexual inverts.

Immigration and Nationality Act of 1952 (overhauled ’17 Act) – created new categories
dividing Psychopathic Personalities (disorders of personality) and Sexual
Perverts (Homos)

• Boutilier v. INS (’67) p179

F – ’55 Canadian National, first admitted into US.
’59 NY, arrested for sodomy, charge reduced to assault, and later dismissed on
default.
Started residing w/lover.
’63 Applies of US citizenship, and discloses arrest
’64 Disclosed in an affidavit to INS the frequency of Homo acts (3-4 yr), but
considers himself Bi, and that he resides w/lover.

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 R – Congress used the phrase ‘psychopathic personality’ not in the clinical sense,
but to effectuate its purpose to exclude from entry all Homos and other sex
perverts.

A – Psychopathic personality is a code word for Homo and post-WWII psych

community uses.

C - Deported

Dissent – Douglas – Cites Kinsey

If we are to hold, as the majority, that any acts of Homo suffice to deport the
alien, whether they are part of a fabric of antisocial behavior, then we face a
serious question of due process.

• 1979 – INS Don’t ask, don’t tell approach –

Primary Inspection - No question regarding Homo. Referred to Secondary
Inspection if, unsolicited admission or unambiguous material or unsolicited 3
pty states.
Secondary Inspection, asked privately if Homo. If no, no further examination.
If yes, alien sign stmt.

• Immigration Act of 1990 – Revoked policy of excluding Homos.

d. Immigration Exclusion of People w/HIV

’87 Senator Jess Helms sponsored rider that AIDS/HIV as one of the infectious
diseases which non-citizens could be excluded from entree the US.

’93 Health and Human services Secretary Shalale proposed to remove the HIV
exclusion to no avail.

AIDS/HIV, majority associated w/gays, has become a partial replacement of the gay
exclusion, an example of the Medicalization of American anxieties about sexuality.

e. Stonewall (note 3, p184)

June 26, 1969 – NYC police raiding the Stonewall Inn in Greenwich Village triggered
physical, violent resistance by ‘drag queens, fags and dykes.’ 2 days of riots
insued. Started gay civil rights movements.

1970, APA Convention in San Francisco – protested wanting Homo no longer to be

classified as a psychiatric disorder.
Protester – ‘I’ve read you book Dr. Bieber, and if that book talked about black
people the way it talked about Homos, you’d be drawn and quartered and you’d
deserve it.’

1971, APA Convention in D.C. – gay activists stormed Convention.

Dec 15, 1973 – Homo was declassified as a disease.

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 Later in ‘70’s – Ego-Dystonic Homosexuality – an unwanted source of distress where
when one wants to increase Hetero arousal to initiate/maintain relations, but
there is a sustained pattern of overt Homo arousal.

5. Transsexualism, Medicalization and the Origins of Homosexuality

a. Science-Based Questions about the Assumption of Sex Binariness
Normal Human 46 chromosomes – Female=XX; Male=XY
Turner’s Syndrome – 45 chromosomes – Raise W, w/o ovaries.
Klinefelter’s Syndrome – XXY chromosomes

1) Fausto-Sterling – The 5 Sexes: Why M & F are not enough.

Male Male Pseudo- True Hermaphrodite Female Pseudo- Female

Hermaphrodites Hermaphrodite
Penis Testes and some External genitalia Ovaries and some Vagina
and manifestation of ambiguous, manifestation of and
Testis vagina, but no generally small penis male penis, but no Ovaries
ovaries and vagina. testes.
Internally, Testis and
Ovaries.

2) Exam of Basic Sexual Concepts: Evidence of Human Hermaphroditism

Chromosomal Sex
Gender role and orientation as M/F evidenced itself independently of
chromosomal sex, but in close conformity w/assigned sex and rearing.

Gonadal Sex
Gonadal structure per se proved a most unreliable prognosticator of a person’s
gender role and orientation.

Hormonal Sex
Hormonal Sex must be distinguished from gonadal structure, for ovaries do not
always make estrogen, nor testicles androgens.
Like gonadal sex, hormonal sex per se proved a most unreliable prognosticator
of a person’s gender role and orientation.

Internal Accessory Organs

Those that deviated in Gonadal and Hormonal sex also did so herein.

External Genital Appearance

External genitals are the sign from which parents and others take their cue in
assigning a sexual status to a newborn and in rearing thereafter.
There was considerable evidence that visible genital anomalies occasioned
much anguish and distress, greatest w/those whose external genitals flagrantly
contradicted the sex they grew up. Uniformly, patients were psychologically
benefited by corrective surgery, when possible.

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 Assigned Sex and Rearing
Very close connection btwn assigned sex and rearing and the establishment of
gender role and orientation.

Gender Role and Orientation

In the course of growing up, a person’s sexual organ sensations become
associate w/a gender role and orientation as M/F which becomes established
through innumerable experiences encountered and transacted.
Studies of hermaphroditism point strongly to the significance of life experience
encountered and transacted in the establishment of gender role and orientation.

• One’s sex is as much a cultural as a biological creation, must as

gender has long been assumed to be.

• The fact that child bearing is associated w/western women’s present

oppression does not mean this is the case in other social systems.

• New Guinea – like in ancient Greece, young men are initiated into full
manhood by receiving semen anally. This contrasts w/western notions where a
man who has such intercourse is perceived as becoming a woman.

• High incidence of hermaphroditism (Berdache) among SW Native

Americans – accepted and respect w/in tribe often matchmakers, magician,
healer or ritual specialist. Viewed as 3rd sex.

b. Transsexualism, Medicalization and Commodification

Transsexuals (or transgendered persons) are a product of sex and gender binaries, for
they are people who believe that their biological sex does not met their gender.

Issues of Medicalization are critically important for transsexuals, in part b/c of the
debate over whether this phenomenon is a psychological disability and in part b/c of the
availability of sex-reassignment surgery (originally designed to align hermaphrodites sex-of-
rearing and sex-of-genitalia in a satisfying, culture-conforming way) as a way to meet their needs to
realign their sex and gender.

Hausman: By demanded sex change, transsexuals distinguished themselves from

transvestites and Homos.

c. Hard-Wired Homosexuals?
1990’s boom in research to find biological basis for sexual orientation.

1) Sociobiological Theories
Not addressed but mentioned.

2) Anatomic Studies
Anatomic studies share the common hypothesis that there are physical differences
in the brain structure of gay/nongays, and that these differences cause the
difference in sexual orientation.

Sexual Id & Law A.S.B. Page 11

 Gorski of UCLA – Hypothalamus.

LeVay
The fact that M/W differ in the size of brain areas thought to be connected
w/sexual behavior, coupled w/the cultural assumption that gay men have female
brains and lesbians have male brains, led to the hypothesis that the
hypothalamus might be different btwn gays/nongays.

3) Hormonal Studies
Similar to Anatomic Studies in that the Gay Male brains are feminized, and lesbian
brains are masculinated, but the reason is hormones, not brain structure.

4) Genetic Studies
All traits are preprogrammed genetically. Extreme view.

Testing done w/siblings bro/bro and sis/sis to show concordance rate of orientation

Brothers Sisters
Id Twin 52% 71%
Fraternal Twin 22% 37%
Adoptive Sibling 11% 33%
Biological
9% 14%
Nontwin Sibling

Higher percentages among F can be explained by connection v. M separateness.

ASK: WHY IS ADOPTIVE HIGHER THAN BIO NONTWIN?

B. Cultural Studies, Sexual Identity and Race

1. Feminist Theories
MacKinnon: Theory of the Relationship of Patriarchy, Gender and Sexuality
Women’s sexuality, has been systematically expropriated by men in the same way that
capital systematically expropriates the labor of workers.

The experience of (hetero)sexuality is the locus for multiple forms of coercion and
abnegation of the female sense of self, much less agency.

M&W are divided by gender, made into the sexes as we know the, by the social
requirements of heterosexuality, which institutionalizes male sexual dominance and
female sexual submission. If this is true, sexuality is the linchpin of gender inequality.

Rubin: Thinking Sex: Notes for Radical Theory of the Politics of Sexuality
Sex Negativity
Virtually all erotic behavior is considered bad (by western cultures) unless a specific
reason to exempt it has been established – most acceptable is reproductive w/in
marriage.

Sexual Id & Law A.S.B. Page 12

 Hierarchical System

Marital, Reproductive Heterosexuals

Unmarried monogamous Heterosexual Couples

Other Heterosexuals

Stable, Long-term Lesbian/Gay Relationship

Promiscuous Lesbian/Gay

Transsexuals, Transvestites, Fetishists,

Sadomasochists, Sex Workers (Prostitutes/Porn)

Those whose eroticism transgresses generational boundaries.

Outside Scheme: Solitary Sex/Masturbation – inferior substitute

In Sin Promiscuous
Homos
Monogamous Non-Procreative
S/M Hetero Married
Procreative
For $
Vanilla Free

Bodies
W/Manuf Only Coupled Alone or
Objects No in Groups
Porn At Home Same
Gen Relation
Porn Cross
In Park

Generational Casual

Inner Circle Charmed / Outer Circle Limits

2. Postmodern Theories
a. Foucault’s Critique of the Repressive Hypothesis
It is a staple of popular thinking that uptight or religious societies repressed sex, and
that that in the last several decades, sexual rebels have sought liberation from these
edicts. Not so, said Foucault.

Sexual Id & Law A.S.B. Page 13

 A traditional view might see the confessional only as a moment when the church
exercises its power over the penitent, who is required to divulge any sins against
ecclesiastical proscriptions.

It was deemed a paramount importance to monitor the children (boys) for any signs of
sexuality, and to take all possible precautions to prevent masturbation.

Foucault interpreted the history of sexuality not as a simple story of the repression of
sex, but as a much more complicated process that spreads sex over the surface of
things and bodies, arouses it, draws it out and bids it speaks, implants it is reality and
enjoins it to tell the truth.

Before sexuality became an important system, alliance was the primary system for
understanding and organizing households (in rural nonwestern societies alliances in
still typically the primary organizational system).

Constructivism:
Social Meaning Constructivism – Sexual object choices as fixed. Activities that are
thought normal in one settinga re taboo or criminalized in another.

Behavioral Construvtivism – Sexual object choice as fixed across cultureal and

historical eras.

Gender-of-Object-choice constructivism – Constructivism abandons the assumption that

the terms homo and hetero necessarity describe human sexul predisposition.

Sexuality Constructivism – Distinguishes btwn a raw physical coapacity for erotic

pleasure and the organization of that capacity into a coherent, patterned element
of the self.
Unlike sex, which is a natural fact, sexuality is a cultural production.

Marjorie Rowland v. Mad River Local School District.

3. The Social Construction of Race: Some Observations on

Illusions, Fabrication and Choice, Lopez, Ian

Sexual Id & Law A.S.B. Page 14

III.SEXUAL PRIVACY AND THE ANTI-SODOMY LAW
A. SEXUAL PRIVACY
1. Substantive Due Process and the Right to Privacy

2. The Evolving Right of Sexual Privacy

Paul and Pauline Poe v. Abraham Ullman (’61) p10
State cannot endorse immoral (non-procreative) conduct within a marriage. No one has
the right to conduct in private illegal conduct.
Ct: Statute was vague. Designed to affect all parties, but used only against homos.
Legalizations of morality.

Case came about during the drafting of the Model Penal Code, which suggested that
sodomy should not be criminalized.

Giswold v. Conn (’65) p13

F - ∆ , Executive Dir. Planned Parenthood and Buxton, Medical Director – Both were
arrested for providing info. and medical advice to married persons s or means to
prevent conception. Conn. § prohibits use of conception preventing drugs or
instruments. TC – Guilty

R – Outlawing the use of contraceptives/birth-control is unconstitutional.

A – Cases law suggests the guarantees of the Bill of Rights have a penumbra, formed
by emanation, from those guarantees that help give them life and substance.

Various guarantees create a zone of privacy

3rd Amend – House (quartering of solders during peace time)
4th Amend – House/Person (search and seizure)
5th Amend – Self-incrimination

Forbids use rather than regulation manufacture

The very idea is repulsive to the notion of privacy surrounding the marriage
relationship.

C – Reversed.

Sexual Id & Law A.S.B. Page 15

 Stanley v. Ga (’69) p20
The mere private possession of obscene mater cannot constitutionally be made a crime.
The right to receive information and ideas regardless of their social worth is
fundamental to our free society. Ct. focus on freedom of mind and though and on the
privacy of one’s home. (Can have in house, doesn’t include child porn pictures, but can
written child porn)

Whether the state can ban the use of porn in the home?
Under state police power: A state can ban in public, but not in the home.
This Public/Private distinction is a fiction: How is someone to get in into the home?

Could be interpreted as an interpretation case – 1st amendment protection could extent.

I.E. Maplethorpe

Eisenstadt v. Baird (’72) p24 Follow up to Griswold

§ prohibited prescribing contraceptive devices for unmarried people.

R - Where a § draws a distinction based upon marital status, the classification must be
reasonable and must be based upon some ground of difference that rationally explains
the different treatment.

Choice to have or not have procreative sex, is the flip side to decide whether to have
children.

Roe v. Wade (’73) p24 Focuses on Dr.

F – Tx § x abortion procure/attempt, except by Dr. for purpose of saving mother’s life.
’70 – Single, Dallas woman, sought a declaratory judgment holding Tx § innocents,
permitting her to terminate pg by a competent licensed Dr. under safe and clinical
conditions in Tx. π claimed § violates 1st, 4th, 5th, 9th, and 14th Amend. TC - ∆ AC
– Reversed, per 9th Amend.

R - § restricting abortion to a life-saving procedure violates Due Process clause of the 14th
Amend., the right of personal privacy inferred by the Bill of Rights supports Abortion.

A – Restrictions more subject of 19th century – Christianity.

1st § UK 1803 Abortion of a quickened fetus is a capital crime - quick = first
recognizable movement 16-18th week. Victorian Social concern to discourage illicit
sexual conduct.

1950’s – Most jurisd-banned abortion regardless, Alabama and DC permitted to

preserve mom’s health.

Guidelines:
3rd Trimester – New human, abortion if there threatens woman’s life – Viability (state
interest at its highest)
2nd Trimester – State may regulate abortion if threat to woman’s health
1st Trimester – Permitted, less chance of mortality

Sexual Id & Law A.S.B. Page 16

 Where state has compelling interest it can regulate, but must be drawn narrowly.

C - Affirmed

B. THE ANTI-SODOMY LAWS

1. Bower and It’s Legacy
People v. Onofre (’80) p40
Classic extensions of a privacy claim.
Challenge to sodomy law.

Dissent: Right to choice of sexual gratification. This is ‘ordered liberty’ – legalization of

morality.

Bowers v. Hardwick (’86) p44

F – Hardwick and straight couple were charged under Ga. criminal § x sodomy. ∆ ’s
committed sex w/consensual adult in their homes. DA dismissed action against
straight, found to lack standing. Charged Hardwick.

I – Whether the Fed Const confers a fundamental right upon Homo to engage in sodomy
and hence invalidate the laws of many states that still make such conduct illegal.

R – No

A – The proposition that any kind of private sexual conduct between consenting adults is
constitutionally insulated from state proscription is insupportable.

Anti-JedoChristian

No connection to family, marriage or procreation

C – Unpersuaded that sodomy laws of some 25 states should be invalidated

Dissent – Stevens – The right of an individual to conduct intimate relationships in the

intimacy of his/her own home seems to me to be the heart of the Const.’s
protection of privacy.
The dissent is consistent w/Roe, and has lied groundwork as gay discrimination as
sexual discrimination cases.

Originally, this included a Hetro couple also, but that portion of the case was dismissed.
Link to all Hetro cases – Non-procreative sex.

2. Sodomy, Morality and History

3. International and Comparative Perspectives on Anti-

Sodomy Law

Sexual Id & Law A.S.B. Page 17

IV. SEXUAL ORIENTATION DISCRIMINATION
A. OVERVIEW OF SEX DISCRIMINATION LAW
Frontiero and Frontiero v. Richardson (’73)
Female military officers required to show their husbands are dependant to be eligible for
spousal benefits.

B. SEXUAL ORIENTATION DISCRIMINATION

1. Rational Basis Test
US v Va (’96)
F – Va Military Institute established 1839 has historically been an all male school. Goal is
producing citizen-soldiers, via a adversative model of education featuring hazing which
was to lead to bonding. TC – VMI, acknowledging that woman were denied a unique ed.
Opportunity available only there and to admit them would alter some aspect of the
school’s distinctive methods. In response to ruling Va established the Va Woman’s
Institute to Leadership, however there were lower qualifications of the teachers and
students. At VMI they used a cooperative method of education instead of the adversative
model. TC – Approved remedial plan w/separate but equal parallel school, but wasn’t
equal. AC – Affirmed.

I1 – Does Va’s exclusion of women from the educational opportunities provided by VMI –
extraordinary opportunities for military training and civilian leadership development – deny
to women capable of all of the individual activities required of VMI cadets, the equal
protection the laws guaranteed by the 14th Amend?

I2 – If VMI’s unique situation as Va’s sole single-sex public institution of higher education –
offends the Constitution’s equal protection principle, what tis the remedial requirements?

A – Ginsberg – The Ct’s current direction for cases of official classification on gender:
Focusing on the differential treatment or denial of opportunity for which relief is sought, the
reviewing ct must determine whether the proffered justification is Exceedingly Persuasive.
The burden of justification is demanding and it rests entirely on the state. The state must
show at least that the challenged classification serves important governmental objectives and that
the discriminatory means employed are substantially related to the achievement of those
objectives. The justification must be genuine, not hypothesized or invented post hoc in response
to litigation. And it must not rely on overbroad generalizations about the different talents,
capacities or preferences of males and females (X inherent differences).

H – Single sex education is unconstitutional. There is no reason to believe that the admission of
women capable of all the activities required of VMI cadets would destroy the Institute,
rather than enhance its capacity to serve the more perfect Union.

Concur – Rehnquist – Surpassed Craig (to withstand constitutional challenge-classifications by

gender must serve important governmental objectives and must be substantially related to
achievement of those objectives), with adding the requirement that the State must
demonstrate an exceedingly persuasive justification to support a gender-based
classification.

Sexual Id & Law A.S.B. Page 18

 Dissent – Scalia – History doesn’t count, and scrutinizes are too random/abstract. Single-sex
instruction serves a substantial interest, that is evident from the long and continuing
history of this country of men’s and women’s colleges. There are developmental/inherent
differences between men and women (ie. feminist theory)
Rational Relation should apply.
This is a “counter-majoritarian preference of the society’s law-trained elite.”

2. Suspect Classification Issues

a. Equal Protection Classification
Romer v. Evans (’96) Colorado Amend 2
Ct invalidated a Colorado Constitutional Amend passed by referendum (voted upon
[voting rights issues not raised, but could][Voting is a preferred right, not Fund, as it is
regularly circumscribed]) permitting discrimination against Homo’s. The referendum
was based on the premise that it was equalizing rights (“Equal Footing”), but it was
particularly broad on a single group and is hostile towards the group it affects. Ct
applied Rational Basis.

Freedom of Association.
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston – Nurture v.
Nature

Classifications:
Characteristic of Groups – political powerlessness
Nature of Process – Amend 2 classified a group then denied them all rights
Role of Animus – btwn the narrowness and the impact, the law was only to punish

Dissent – Scillia – although only 4% of pop, they mustered 46% of vote, and therefore
not insular and discrete. Let the people vote. Animus motivation is permitted.
Discouraging minority sexuality is a legitimate state interest.

Limited Decision: Stronger cases can be made for Sexually Discrimination. This law
focused on the animus, and not the basis.

b. Sexual Orientation Classification

c. Sex Discrimination vs. Sexual Orientation Discrimination

1. Watkins v. US Army (9th Cir ’88 cert denied ’90) p374
F – ’67 π enlisted, making known his homo tendencies. Became an officer and
Army remarked his orientation didn’t interfere in any way with military
function.
’81 New regulation disqualifying all gays from Army, regardless of time or
record.

R – Laws discriminating against homo orientation are subject to strict scrutiny.

A – The regulation goes to traits, not conduct. Hardwick does not prohibit
orientation, just conduct.

Sexual Id & Law A.S.B. Page 19

 Gays are a suspect class that has historically suffered purposeful discrimination
amounting to gross unfairness. Determining gross unfairness requires
considering:
1) Whether a trait defines the class, which bears no relation to ability to
contribute to society
2) Whether prejudice and stereotypes saddle the class; and
3) Whether the trait defining the class is immutable.

Immutable – those traits that are so central to a person’s identity that it would be
abhorrent for govt to penalize a person for refusing to change then, regardless
of how easy that change might be physically.

C – Regulation Stricken, bears little relation

Dissent – Gays cannot be a suspect class because it may be criminal.

2. Steffan π v. Perry ∆ (DC ’94) p374

F - π in his last year of a Naval Academy was dismissed solely because of
admitting his homosexuality. TC – Upheld

R – Military discrimination on the basis of homosexual status is a rational

government objective.

A - π relied on presumption (rebuttable) based on homo status and that it will lead
to conduct. Claiming can’t be jailed for being blind, but blind & driving = killing
someone could be jailed.

Mass Bd of Retirement v. Murgia (’76) – mandatory retirement of police at 50 to

prevent unsatisfactory job performance.

∆ reasonably assume that when a member states that he is a homo that

member means that he either engages or is likely to engage in homo conduct.
(eg. Status Leads to Conduct)

C – Affirmed

Dissent – Status doesn’t necessarily lead to conduct. This assumes homo, unlike
herto, are incapable of controlling sexual desires.

C. INTIMATE ASSOCIATION

Sexual Id & Law A.S.B. Page 20

V.SEXUAL IDENTITY AND POLITICAL SPEECH
A. RIGHTS OF ASSOCIATION AND SPEECH
• One, Inc v. Otto Oleson (9th Cir ’57) p411
F – Due to pressure from Senate and FBI, the US Post office confiscated copies of gay
magazine, maintaining the magazine was non-mailable per 10 USC §1462 – obscene,
lewd, lascivious, filth or indecent character.

H – An article may be vulgar, offensive and indecent even though not regarded as such by
a particular group of individuals constituting a small segment of the population b/c their
own social or moral standards are far below those of the general community. Social
standards are fixed by and for the great majority and not by or for a hardened or
weakened minority.

Sup Ct – Reversed, inconsistent w/Roth v. US

• The Market Place of Ideas – John Stuart Mill – Truth or the best answer emerges from
a competition in the marketplace of ides. If some ideas are arbitrarily suppressed by the
govt, there will be a less robust public ventilation of ideas, and we shall be less likely to
come to right answers and good policies.

• Democracy Values
Alexander Meiklojohn – Channels of communication about political and social issues need
to be kept open for democratic self-govt to work well. Cutting off other flow of relevant info
to the body politic, might be defended on ground that it expunges info that most people find
disgusting.

Lee Bollinger – The 1st Amend is a check against people’s tendency to be intolerant from
those different from themselves or who espouse unfamiliar ideas.

• Autonomy Values
Speech and publication are primary methods by which people express, and oftentimes
discover, their individuality and personhood. A libertarian would argue that the state must
leave the individual alone when she is expressing or exploring personhood, unless there is
evidence she is harming others.

• Cts view either via conduct or orientation:

Some conduct can fall w/under 1st Amend protection.

Homo acts become individual conduct (this dilutes gays as movement – Const is drafted
as a group friendly document),

Look to: Intent, Content, Context

Sexual Id & Law A.S.B. Page 21

 1. Rights of Association
NAACP v Al (’58) – Ct disallowed a state’s effort to obtain NAACP membership lists, b/c
disclosure of membership of an unpopular group would surely chill entry into the group.

Daughters of Billitis and Mattachine Society – many members were disinclined to revel their
real names and identities.

Although NAACP didn’t involve gays, its holding was just as important.

a. Sol Stoumen v. George Reilly (Ca ’51) p416 Black Cat Restaurant
F – License pulled b/c persons of known homosexual tendencies patronized the
premises and used it as a meeting place and that beer was sold to minors. Many
were arrested for vagrancy but no illegal or immoral conduct was observed.

R/A –Patterson (Ok ’13) – Such women (prostitutes) are entitled to shelter and that it is
not a crime to give them lodging unless it is done for immoral purposes. The same
reasoning applies to the patronage of a public restaurant and bar by homos, and
mere proof of patronage, w/o proof of the commission of illegal or immoral acts on
the premises, is not sufficient to show a violation.

Ca Sup ct – Reversed as to Count 1, Remanded as to minors

Ca Legislature – Amended law for licensing (ABC Law): Where the portion of the
premises of the licensee upon which the activities permitted by the license are
conducted are a resort of illegal possessors or users of narcotics, prostitutes, pimps,
panderers, or sexual perverts – license can be revoked.

ABC Law Struck down:

Vallerga Dept of Alcoholic Dev Control – ct distinguished btwn situations where
licenses were revoked for obscene, lewd, or other unlawful conduct.

One Eleven Wines and Liquors v. Div of Alcoholic Bev Control – The state could not
punish bars simply for serving homo customers.

Black Cat closed, based on investigation by undercover ABC agent who reported:
dancing, kissing, fondling, and that he was solicited for sex.

The most common situs for state harassment of lesbians and gay men was bars and
clubs – a byproduct of Prohibition’s repeal in ’33. In ending Prohibition, state apparatus
to regulate bars and clubs was designed – licensing to sell alcohol. Licensee had to
satisfy rules – no immoral, disorderly behavior on premises (i.e. prostitution or homos)

Sexual Id & Law A.S.B. Page 22

 b. Gay Student Org of the Univ of Hew Hampshire v. Thomas Bonner (1st Cir ’74)
F – T dance was held w/o incident but media coverage of the event led to criticism by
the Governor, which lead the Board of Director to halt further scheduled social
functsion until it can determine the legal and appropriatness of the org.
W/permission the org participated in a school game, but social functions were
prohibited. Several people, not affiliated w/the org handed out flyers.

A – Healy v. James (’73) – In a school environment, the power to prohibit lawless actin is
not limited to acts of a criminal nature; also prohibited are actions which materially
and substantially disrupt the work and the discipline of the school.

C – The ban was not justified.

B. SPEECH AND ‘THE CLOSET’

C. NON-DISCRIMINATION VS. 1ST AMENDMENT ISSUES
D. HATE SPEECH
E. SEXUAL SPEECH IN THE ARTS

VI. PRIVACY AND OUTING

Stands on Outing: Stragically Outings
No outing at all
Outing at all costs – for their own benefit

Disclosure: Semi
No
Full

A. 1ST AMENDMENT PARAMETERS

The Florida Star v. BJF (’89) p463
F – Name of rape victim taken from ct docket and published.

R – Daily Mail – It a newspaper LAWFULLY obtains truthful information about a matter of

public significance then state officials may not constitutionally punish publications of the
information, absent a need to further a state interest of the highest order.

A - According the press the ample protection provided by that principle is supported by at least
3 separate considerations:
Public interest - impinging
Secured by the Constitution
The dissemination of truth – Placing info in the public domain in the official ct records.

H – Where a newspaper publishes truthful info which it has lawfully obtained, punishment may
lawfully be imposed.

Sexual Id & Law A.S.B. Page 23

 B. INVASION OF PRIVACY
• Sipple v. Chronicle Publishing (Ca ’84) p472
F – Sipple fouled assassination attempt on x-pres Nixon, and became a celebrity as a
result. Sipple was friends w/Harvey Milk and attended many gay parades in SF, NY,
etc.
Chronicle outted Sipple.

A - Tortious Invasion of Privacy:

The disclosure of private facts must be a public disclosure,
The facts disclosed must be private facts, & not public ones, &
The matter made public must be one which would be offensive and objectionable to
a reasonable person of ordinary sensibilities.

Rstmt 2nd Tort – One who gives publicity to a matter concerting the private life of
another is subject to liability to the other for invasion of his privacy, if the mater
publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b)
is not of legitimate concern to the public.

W/Public Official (thrust themselves into the public eye [Limelight]): Actual Malice
Rstmt 2nd Tort – There are individuals who have not sought publicity or consent to it, but
through their own conduct or otherwise have become a legitimate subject of public
interest.

Types of Public Figures: (1) All purpose, and (2) Specific

• ’89 Group of gay activitist journalist in NY challenged the assumption of invasions of

privacy and defamation and begin what came to be called the ‘outing’ of closeted gay men
and lesbians. Proponents of outing justify it as a means to promote positive image of gay
people by ‘claiming’ accomplished individuals as gay and by shattering stereotypes by
revealing that a popular fig is homo; and as a means to expose the hypocrisy of secretly
gay public officials oppose equal rights for gay people.

Taking back / In your face / What of black med student who was denied admission to
school on role model argument?

• Outing as a weapon of last resort. Pete Williams is an Uncle Tom.

“Deciding to out Pete Williams did not require us to search out souls very long. Williams is
not the innocent victim of rabid gay activists. We’re talking about a man who knowingly
assists in the promotion of policies designed to thoroughly undermine the community in
which, part-time, he lives. All reports confirm that Williams has never once interceded on
behalf of gay or lesbian soldiers. He remains silent. We choose not to be so, and we have
that right.

C. DEFAMATION – Libel and Slander

1. Hayes v. Smith and Smith (Co ’91) p479
F – Born again Christian was accused of soliciting a lesbian relationship.

Sexual Id & Law A.S.B. Page 24

 I – Whether stmts which falsely accuse a person of being a homo or engaging in homo
activities constitutes slander per se.

A – Rstmt 1st Tort - Per se – the defamatory remark imputed a criminal offense; a venereal
or loathsome or communicable disease; improper conduct of a lawful business; or
unchastely by a woman.

The primary advantage to a π claiming slander per se is that certain damages are
presumed, if the stmt is so categorized, loss of reputation, and therefore, need not be
proved.

Factors which bear on decision to conclude that accusation of homo are not slander per
se:
(1) The fact that sexual activities btwn consenting adults of the same sex are no
longer illegal in Co tends to indicate that an accusation of being homo is not of such
a character as to be slanderous per se.
(2) If a person is falsely accused of belonging in a category of persons considered
deserving of social approbation.

H – A ct should not classify homos w/those miscreants who have engaged in actions that
deserve the reprobation and scorn which is implicitly a part of the slander/libel per se
classification.

2. Nazeri v. Missouri Valley College (Mi ’93) p481

Per se referred to a stmt whose defamatory nature was apparent upon the face of the
publication, whereas per quod indicated a stmt that required resort to extrinsic fact in order
to become defamatory. Libel per se was actionable w/o proof of damages. Libel per quod
by analogy to slander per quod, required proof of special damages.

3. McCune v. Neitzel (Ne ’90) p485

Malicious Gossip re AIDS

Ozer v. Borquez 940 Pacific 2nd 371 (’97)

1. Facts disclosed must be private in nature, i.e. disease, orientation, sexual habit
2. Disclosure must be to the public – scope is relative
3. Disclosures must be that which would be highly offensive to a reasonable person.
4. Facts disclosed cannot be of legitimate concern to the public.
5. That discloser acted with reckless disregard, know or should have known facts were private.

What is the cost of not coming out? Accusation/Blackmail

Sexual Id & Law A.S.B. Page 25

VII. THE EXCLUSION OF GAYS FROM THE MILITARY
A. THE EXCLUSION OF AFRICAN-AMERICANS FROM THE MILITARY
1. Karst, K, The Pursuit of Manhood and the Desegregation of the Armed Forces
A great many Americans have believed that a citizen has the responsibility, in time of need,
to serve in the armed forces. Citizenship and eligibility for military service have gone hand
in hand.

i. The problem of Manhood and the Ideology of Masculinity

To men at high and low levels in white society, black manhood suggested a new and
disquieting form of rivalry, and so the Union case had to be ‘a white man’s war.”

“Manhood suffrage,” a term commonly use in the era of Andrew Jackson, was not a
slogan of universality; it excluded women and tribal Indians, and even in the North it
typically excluded black men.
“That there was some idea of manhood from which the Negro had fallen or to which he
might be raised.”

Masculinity begins in escape from femininity (mother).

A man is suppose to be: active, assertive, confident, decisive, ready to lead, strong,
courageous, morally capable of violence, independent, competitive, practical,
successful in achieving goals, emotionally detached, cool in the face of danger or crisis,
blunt in expression, sexually aggressive and yet protective toward women.

Henry Kissinger: “Power is the ultimate aphrodisiac.”

When men fear women and seek to dominate them, one reason is that they have
learned to identify male sexuality w/conquest. The deepest fear of all, embedded in a
never-ending drama of male rivalry, is the fear of being dominated by other men,
humiliated for not measuring up to the manly ideal. By making anxiety into an everyday
fact of life, it leads nervous men to seek reassurances of their masculinity through group
rituals that express domination over other groups.

19th Century – The main path to manhood for American males has been the competitive
pursuit of individual achievement in work and in other sectors of the community’s public
life. A man who finds the path of individual achievement to be rough going may try to
express his power by engaging in private violence such as rape or wife-battering or
attaching himself to a group that pursues power through domination of members of
other groups (i.e. Nazi movement, Skinheads). As individuals they seek to avoid the
sense of humiliation by joining a group to act out their squalidly little drams of
domination.

One standard mode of repression of our negative identities is to project them onto other
people, and especially onto members of groups that have been subordinated.

Sexual Id & Law A.S.B. Page 26

 ii. Male Rivalry and the Double Battle of Black Soldiers
a. Race, Sex and the Roots of White Male Anxiety
During colonial era – slavery implied something less than humanity, a status aking to
that of a beast.

African men were thought by Europeans to be especially libidinous, it was easy for
white men to project their own desires onto blacks, and to connect the need for
control over black as the need to control themselves. This association was
intensified in the American colonies as many white slaveholders came to exercise
sexual privileges over female slaves; if white men’s fears of slave revolts came to be
associated w/fears of black men’s supposed sexual aggressiveness, no doubt one
reason was the fear of retaliation.

Southern white militias arrested any black person outside his/her plantation w/o a
pass and dispersed meetings of blacks.

The Emancipation Proclamation (1863) not only provided a legal foundation for a
social upheaval already begun, but also converted a war to save the Union into a
crusade for liberation.

DeBois: “It was the fact that the black man rose and fought and killed that enabled
whites to proclaim him a man and his brother…Nothing else made Negro citizenship
conceivable, but the record of the Negro soldier as a fighter.”

A major motivating factor behind the Jim Crow segregation laws and the myriad
social practices they reinforced was the pursuit of manhood around white men. As
in the days of slavery, this pursuit translated into a need to deny, to reposes, the
manhood of black men.

The day-to-day demonstrations of competence by liberated black men posed a

problem for white male self-esteem, the abstraction of black manhood was
frightening. Southern white men of all stations in life shared a deeper anxiety about
their ability to protect the women around them. When the anxiety about man-as-
provider fused together w/anxieties centered on sexuality, the combination was
explosive. The white woman as the perpetuator of white superiority’s legitimate line,
had to be kept remote from any sexual approach of the black man. The abstraction
of black manhood was transformed into the specific image of the black beast rapist.

b. The Double Battle in the 20th Century

Although black soldiers saw combat in the Indian wars and the Spanish-American
War, they continued to be subjected to discrimination by the civilian population.

“We want victory…but it must not be cheap bargaining, it must be clean and
glorious, won by our manliness…”

Most black draftees were assigned to labor units. Once in Europe, most blacks were
placed under French command b/c of racial attitudes of the white south.

Sexual Id & Law A.S.B. Page 27

 When they returned home, black veterans encountered the same old racial
discrimination in a new and virulent form. In the South, their very presence, as living
symbols of black manhood, challenged the Jim Crow system at its psychic
foundations. The result was a new wave of racial violence, including the lynching of
black veterans in their Army uniforms.

’42 Navy no longer limited back enlistees to messman’s duties and allowed general
service under a ‘Separate-But-Equal” program. Segregation caused of economics
strain.

Integration the Army would eventually result in placing black men in some positions
of leadership; white soldiers would not accept this inversion of the historic racial
definition of authority.

Plessy  Korematsu  Brown

Black soldiers fighting for the end of Jewish apartide was an oxymoron in that racial
apartide in the US was wide spread.

2. Executive Order 9981

Establishing the President’s Committee on Equality of Treatment and Opportunity in the
Armed Services.
President Harry S. Truman, 07/26/48

B. THE EXCLUSION OF WOMEN FROM THE MILITARY

1. History of Women in the Military 1861-1971
a. Civil War
Seely, Sara, Nurse and Spy – 100’s of passing women served in Union Army.
Women were officially welcomed as nurses, but viewed as civilian auxiliaries (till 1901).

b. Spanish American War

Women were officially welcomed as nurses, but viewed as civilian auxiliaries (till 1901).

c. WWI
Nurse Corp officially recognized as official auxiliaries of Army (1901) and Navy (1908).

Female yeomen who could perform clerical and other duties to free up men for combat
(1917).

d. WWII
’43 women were serving overseas – Gen Eisenhower opposed women in the armed
forces until he saw how valuable they were in defending Britain.

Women viewed as staff for jobs that could free up men for combat, but by ’44 were
performing a wide range of other military functions as well, including control tower
operators, radio repair people and operators, air navigations, parachute riggers, gunner
instructors, engine mechanics, aero photographers..

Sexual Id & Law A.S.B. Page 28

 e. Women’s Armed Services Act of 1948’s
Didn’t pass as initially written due to fear that women would end up commanding men.
Imposed a cap on number of women in each branch and duties that could be assigned
(could not be assigned to flight/ship duties when the craft are engaged in combat
missions).

f. Korea (MASH TV show)

Women played less of a roll then they did in WWII.

The top brass grew obsessed w/apparel, i.e. Hair styles had to be fashionable, but
conservative and appropriate to the uniform. Celebrate beehives and large boufants
were frounded upon but were preferable to very short ‘mannish’ styles (there must me
no appearance of lesbianism). Hair shall be arranged and shaped to present a
conservative, feminine appearance.

g. Vietnam
Created a substantial demand for women in a full range of military jobs, and by the
women’s liberation movement, which problematized women’s severely unequal
treatment.

Women didn’t serve in combat until ’67 and then only after much bureaucratic
maneuvering.

The Tet Offensive

The role of women in the armed services changed in the ‘70’s, partly as a result of the
Vietnam experience, but more importantly b/c of the ERA, which was passed by large
margins in Congress and ratified by almost ¾ of the states.

2. Judicial Review of the Different Treatment of Women in Armed Forces, 1971 - 1981
1. Reed v. Reed (’71)
1st time Sup Ct invalidated a § b/c it discriminated against women or relied on a sex-
based classification. Ct invalidated an Idaho statute preferring men to women as
executors of estates.

2. Sharon A. Frontieron and Joseph Frontieron v. Elliot L. Richardson (’73)

Female military officers required to show their husbands are dependant to be eligible for
spousal benefits.

Reasons why gender may be suspect: 1) History, 2) Policy reasons, and 3)

3. All-Male Service Academies

Navy Sec Middendorr (’73) - Unless the American people reverse their position on
women in combat roles, it would be economically unwise and not in the national
interests to utilize the expensive education and facilities of the Navel Academy to
develop women officers.

Sexual Id & Law A.S.B. Page 29

 4. The Combat Exclusion
Craig v. Boren (’76) – Sex-based classifications are subjected to intermediate scrutiny.
Ct invalidated law allowing 18 yr old females but not males to buy beer.

’77 10 USC §6015 Women may not be assigned to duty in aircraft that are engaged in
combat missions or may they be assigned to vessels of the Navy other than hospital
ships and transports.

5. Registration for the Draft

’79 reinstitution of Draft, in response to Soviet aggression in Afghanistan

President Carter requested congressional authority to register women. Congress

rejected by a large margin, citing:
Limited number of noncombat jobs available to women,
The strain on training resources if equal number of women were introduced, and
The many ancillary issues that needed to be addressed (draft status of mothers).

6. Bernard Rostker v. Robert Goldberg (’81) p348

I – Whether the Military Selective Service Act violates the 5th Amend to the US
Constitution in authorizing the President to require the registration of males and not
females.

A – Judicial deference to such congressional exercise of authority is at its apogee

when legislative action under the congressional authority to raise and support armies
and make rules and regulations for their governance is challenged.

Ct refused to apply heightened scrutiny, although already established for gender

bias (Craig).

Schlesinger v. Ballard – This Ct has recognized that it is the primary business of

armies and navies to fight or be ready to fight wars should the occasion arise. The
responsibility for determining how best our Armed Forces shall attend to that
business rests w/Congress and the President. We cannot say that, in exercising its
broad constitutional power here, Congress has violated the Due Process Cause of
the 5th Amend.

H - The purpose of registration was to prepare for a draft of combat troops. Since
women are excluded from combat, Congress concludes that they would not be
needed in the event of a draft, and therefore decided not to register them, therefore,
does not violate the Equal Protection Component of the 5th Amend.’s Due Process
Clause

3. Women’s Exclusion from Combat

Military experts of all stripes agree, that there can be no shart demarcation btwn comband
and noncombat positions; the latter are often subject to attack and are trained to defend
themselves. Female nurses and doctors have served in combat zones since WWII, and
Passing-Women since Revolution.

Sexual Id & Law A.S.B. Page 30

 In hand-to-hand combat, units having women would be at a disadvantage (many women
are stronger than many men). In the technologically sophisticated armed serces, hand-to-
hand combat is no longer the norm. Many women possess the physical skills for deploying
equipment than men do.

Why is raw aggression necessary or even useful in the modern armed forces? Do we want
a pilot who runs on testosterone, or one who is capable, well organized, skillful at flying
airplanes, follows orders, and is smart about taking only calculated risks?

Women in foxhole, tramples the male ego. When you get right down to it, you have to
protect the manliness of war. War is the greatest test as well as crucible of manhood, a bit
of male bonding that would be undermined by women in the foxhole; men are by nature
aggressive fighters, in contrast to nurturing passive women.

Mady Segal, The Argument for Female Combatants

The willingness to engage in actual combat, to kill and to risk being killed, depends
upon a very strong devotion to the group. This commitment to the group is seen as
depending, among other motivations, on male bonding. The presence of women would
interfere w/the process of devotion of men to each other, as women are outsiders who
are not privy to the male subculture. There may also be competition among the men for
the sexual favors of the women.

One is enged in an elaborate game (war) and when the game is over, one can go home
to an intact world. One of the major components of the world back hold is women, ‘our
women,’ who are warm, nurturing, ultra-feminine, and objects of of sexual fantasy.
Women (at least ‘out women’) are not part of war. Indeed, one of the reasons for
fighting is to protect our women and them rest of what is in the image of the world back
home. If we allow these women into combat w/us, then this psychological differentiation
cannot be maintained, and we lose this psychological defense.

C. THE EXCLUSION OF LESBIANS, GAY MEN AND BISEXUALS FROM THE

MILITARY
6. The Origins of Exclusion
Prussian Barron von Steuben retained for training Washington’s Army at Valley Forge
and literally rewrote the American’s manual on discipline and order. Reasons he was avail
for American service was b/c he was accused of ‘having taken familiarities w/young boys
which the law forbids and punishes severely’ in Prussia and was in danger of being
prosecuted by clergy/state.

03/10/1778 - 1st Gay Ct Marshal – Lieutenant Gen Enslin discovered w/Private Monhart
Prosecution remained high until WWII

1916 – Revision of Articles of War – prohibited assault to commit a felony (i.e. sodomy)

1919 – Newport Naval Training Station Scandals

Undercover operatives was utilized to ferret out ‘sex perverts,’ military personnel and
civilians.

Sexual Id & Law A.S.B. Page 31

 Several operative engaged in sexual activities w/Reverend Kent, Episcopal chaplain
associated w/training center and YMCA. Kent was acquitted, however it was found that
investigators themselves had violated law.

1920 – Military changed to practice of administrative separation w/court martial

1940 – Congress enacted the Conscription Act in anticipation of war. Viewing

homosexuality as a psychiatric and physical problem, screening inductees would save
$.

1941 – Army listed homosexual persons among those to be rejected b/c of psychopathic
personality disorders. The Navy sought to screen out people whose sexual behavior is
such that it would endanger or disturb the morale of the military unit.

Homo’s could be recognized by ‘feminine body characteristics’ or ‘effeminacy in dress

and manner’ or ‘patulous rectum.’ The regulations rejected physically ‘normal’ but
personally ‘effeminate’ men b/c they ‘would become subject to ridicule and joshing
which will harm the general morale and will incapacitate the individuals.’

This decision to medicalize homosexuality combined w/the draft to bring millions of men
under scrutiny.

18M inducted / 5, 000 rejected b/c homo.

On one hand, the military tried to conceive of homosexuality as a form of mental illness
to increase efficiency. On the other hand, it didn’t want declaration of homosexuality to
become a way of avoiding service (i.e. Klinger on MASH).

“a boatload of homosexual activity was unleashed by the war. People of the same sex
serving under extreme set in a deeply felt common cause are bound to grow physically
as well as emotionally closer. Sex among military personnel was widely tolerated by the
command structure for these practical reasons.

Detection of lesbians was even more lax, b/c women didn’t serve in large numbers
before WWII and could be detected by physical examination.
Mother in ltr ’44 – her little girl (20) who I know was clean of heart and mind was
corrupted by this predatory older woman (at training center).

1947-53 – The medical leniency shown during WWII ended soon after the war and
thousand of lesbian and gay solders were hounded in McCarthy-era witch hunts.

A standard script was that homosexuals would be particularly susceptible to blackmail:

their status was so repugnant that Communists would be able to extract secret info out
of them by threat of exposure.
Rebunked in ’58 report by Navy suppressed.

Sexual Id & Law A.S.B. Page 32

 7. Exclusion from 1976-1994
The witch hunts continued after the Stonewall Riots (’69), however a new breed of soldier
cam into being, one who openly conceded his homosexuality and sued the armed forces to
stay in.

Matlovich v. Secretary/Air Force and Berg v. Clayton (DC ’78) Ct declined to hold the
military’s gay exclusions unconstitutional, but held that the military vested illegal discretion
w/officials enforcing the exclusionary policy. The services allowed for retention of
homosexuals were appropriate, but did not define when retention would be appropriate.
Both officers had exemplary service records and no evidence of past misconduct.

a. Dept of Defense Directive 1332.14

(c) A member shall be separated if 1 or more of the following findings are made
(1) Engaged in or attempted to engage in a homo act unless:
(a) A departure of usual and customary behavior
(b) Unlikely to recur
(c) Not accomplished by force
(d) Continued presence is consistent w/interest of the Service, and
(e) Doesn’t desire to engage in or intent to engage in homo acts.
(2) Stated he is homo/bi, unless finding he is not
(3) Has/Attempted to marry person of same biological sex (as evidenced by external
anatomy of person involved), unless finding purpose was to avoid/terminate
military service

b. Perry Watkins v. US Army (9th Cir en banc ’88 cert denied ‘90) p374 DEFINES IMMUTABLE
Watkins was a drag-queen, actively practicing homo.
F – ’67 π (black) enlisted, making known his homo tendencies. Became an officer and
Army remarked his orientation didn’t interfere in any way with military function.
’81 New regulation disqualifying all gays from Army, regardless of time or record.

R – Laws discriminating against homo orientation are subject to strict scrutiny.

A – The regulation goes to traits, not conduct. Hardwick does not prohibit orientation,
just conduct.

Gays are a suspect class that has historically suffered purposeful discrimination
amounting to gross unfairness. Determining gross unfairness requires
considering:
1) Whether a trait defines the class, which bears no relation to ability to contribute
to society
2) Whether prejudice and stereotypes saddle the class; and
3) Whether the trait defining the class is immutable.

Immutable – those traits that are so central to a person’s identity that it would be
abhorrent for govt to penalize a person for refusing to change then, regardless of
how easy that change might be physically.

C – Regulation Stricken, bears little relation

Sexual Id & Law A.S.B. Page 33

 Dissent – Gays cannot be a suspect class because it may be criminal.

c. Steffan π v. Perry ∆ (DC en banc ’94) Demoted Gay Discrimination to Rational Basis
Professor Thomas went to school w/him – not closeted, celibate, but very starchy.
F - π in his last year of a Naval Academy was dismissed solely because of admitting
his homosexuality. TC – Upheld

R – Military discrimination on the basis of homosexual status is a rational government

objective.

A - π relied on presumption (rebuttable) based on homo status and that it will lead to
conduct. Claiming can’t be jailed for being blind, but blind & driving = killing
someone could be jailed.

Mass Bd of Retirement v. Murgia (’76) – mandatory retirement of police at 50 to

prevent unsatisfactory job performance

∆ reasonably assume that when a member states that he is a homo that member
means that he either engages or is likely to engage in homo conduct. (eg. Status
Leads to Conduct)

C – Affirmed

Dissent – Status doesn’t necessarily lead to conduct. This assumes homo unlike herto,
are incapable of controlling sexual desires.
Is an Admission of homosexuality a statement that:
1. I have already engaged in homo conduct,
2. I intend to engage in homo conduct, or
3. I desire to engage in homo conduct, but do not engage or intend to engage
in such conduct.

• Status-Conduct Distinction
The stmt “I am a heterosexual” is almost of probative as one has will commit illegal
sodomy, as the stmt “I am a homosexual.”
¾ American heterosexuals have engaged in active oral sex and 1/5 in anal.

d. Benecke and Dodge, Military Women in Nontraditional Fields: Casualties of the

Armed Forces’ War on Homosexuals.
’80’s were characterized by a wave of investigations and discharges for alleged lesbian
activities.
USS Norton Sound (’80) – 8 ♀ discharged on hospital ship Sanctuary and USS
Dixon
West Point (‘86) – 8 ♀ MPs discharged
Destroyer USS Yellowstone (’88) – investigation of 30 ♀, including every black ♀, 8
discharged

Sexual Id & Law A.S.B. Page 34

 USS Grappling (’88) – investigation of 5/13 ♀ crew members
Parris Island (’86-’88)

Women are discharged at a rate of 10 times that of men. The different investigative
methods used to target women and men may account for disparity.
♂ typically investigated on a case-by-case basis and handled quietly w/efforts made
to usher out of the service quietly and quickly.
♀ are often targeted and discharged as the result of mass investigations (Witch
hunts), usually sparked by refused sexual advances and most frequently targeted
against competent, assertive and athletic women.

Recourse is limited. A woman who files complains about such harassment (lesbian-
baiting) often finds unresponsive commander or being investigated herself. Reporting
abuse is likely to be labeled as not being a team player – extremely degrading in
military.

Sexual intercourse is a crucial means by which men prove their masculinity to

themselves and other men. Considered from the perspective of the gender identity
theory explored, it appears that sexual access to women service members may held
compensate men for the breakdown of gender boundaries in nontraditional job fields by
providing an alternative means of proving masculinity.

8. Don’t Ask, Don’t Tell 1993-?

a. Policy Concerning Homo in the Armed Forces: Hearings before the Senat
Committee on Armed Services
General Schwarzkopf
Oposed to an executive order lifting the ban on homos in the military out of concer
that it will reduce ability to protect vital interests.

In every case that I am familiar w/and there are many, whenvever it became known
in a unit that someone was openly homo, polzrization occurred, violence sometimes
followed, morale broke down and unit effectiveness suffered.

Isreal has a policy that gays are allowed in their milityar. The gay soldiers do not
sleep in the barracks. They are deliberately put in units where they go home at
night. It is a clear fact that no gay commands or is allowed in elite units, and no
gays command any elite units. And there is also a very, very small number that
even admit that they are gay in the Israeli military.

Colonel Scott
My son, Scott, is a homo, and I do not think there is any place for him in the military.
I love him; as much as I do any of my sons. I respect him, I think he is a fine person,
but he should not serve in the military.

I think if someone declares their homosexuality that is a statement that defines a

behavior. It certainly connotes a behavior. If I say I am black or I am white or
Jewish or Protestant or Catholic, it doesn’t necessarily indicate how I am going to
behave. But it does indicate a behavior if I say I am homo.

Sexual Id & Law A.S.B. Page 35

 Colonel Peck
Finds analogy of race, offensive. More like racists, they chose – racists can be kept
from military.

b. Memo
On 12/21/93, Secretary Aspin issued a memorandum and Directive concerning the
implementation of the new policy. Memorandum from Secretary Aspin to the
Secretaries of the Military Departments et al. They provided that an applicant to
become a member will not be asked about his or her sexual orientation, that
‘homosexual orientation is not a bar’ to ‘service entry or continued service,’ but that
‘homosexual conduct’ is. Such ‘conduct’ includes not only homosexual ‘act’ but also a
stmt by a member or applicant that ‘demonstrates a propensity or intent to engage’ in
such acts. A stmt that demonstrate the ‘propensity’ will thus require separation unless
the member rebuts a presumption that he/she engages or intends to engage in
‘homosexual acts’ or has a ‘propensity’ to do so.

c. DOD Directive #1332.14

(2)…In determining whether a member has successfully rebutted the presumption
that he/she engages in or has a propensity or intent to engage in homosexual acts,
some or all of the following may be considered:
(a) Whether the member has engaged in homosexual acts,
(b) The member’s credibility,
(c) Testimony from others about the member’s past conduct, character, and
credibility,
(d) The Nature and circumstances of the member’s stmt,
(e) Any other evidence relevant to whether the member is likely to engage in
homosexual acts.

This list is not exhaustive; any other relevant evidence may also be considered

Member shall bear the burden by proving, by a preponderance of the evidence.

Sexual Id & Law A.S.B. Page 36

VIII. SEXUAL IDENTITY IN EDUCATIONAL SETTINGS
A. REGULATING STUDENT EXPLORATION OF SEXUAL ISSUES

B. SILENCING CLASSROOM DISCUSSION OF SEXUALITY

C. TITLE IX AND SEXUAL HARASSMENT

D. ANTI-GAY SENTIMENT IN SAME-SEX SCHOOLS

IX. DOMESTIC PARTNERSHIP AND SAME-SEX MARRIAGE

A. LEGAL RECOGNITION OF NON-MARITAL ARRANGEMENTS

B. DOMESTIC PARTNERSHIP LAWS

C. SAME-SEX MARRIAGE
9. The Constitution Right to Marry

10. The Same-Sex Marriage Debate

X. ANTI-CIVIL RIGHTS AND ANTI-GAY INITIATIVES

A. RELIGIOUS OBJECTIONS TO GAY CIVIL RIGHTS

B. DIRECT DEMOCRACY

C. EQUAL PROTECTION LIMITS TO ANTI-GAY RIGHTS INITIATIVES

D. THE CONSTITUTIONALITY OF ANTI-GAY INITIATIVES

XI. PARENTING, ADOPTION AND FAMILIES OF CHOICE

A. SEXUALITY, RACE AND CHILD CUSTODY

B. SEXUAL ORIENTATION AND CUSTODY

C. SEXUAL ORIENTATION, RACE AND ADOPTION

D. GAY PARENTS, SURROGACY AND ARTIFICIAL INSEMINATION

E. SECOND-PARENT ADOPTIONS

XII. WORKPLACE DISCRIMINATION

A. STATE DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

Sexual Id & Law A.S.B. Page 37

 B. GENDER AND SEXUAL ORIENTATION DISCRIMINATION UNDER TITLE
VII

C. SEXUAL HARASSMENT AND HOSTILE WORK ENVIRONMENT UNDER

TITLE VII

D. DISCRIMINATION AND SEX-SEGREGATED JOBS

E. AIDS IN THE WORKPLACE

F. ENDA: THE EMPLOYMENT NON-DISCRIMINATION ACT

XIII. AIDS AND THE LAW

A. AIDS, LEGAL REGULATION AND THE CONFLATION OF SEXUALITY
AND DISEASE

B. AIDS EDUCATION ISSUES

XIV. TRANSGENDERISM, CROSS-DRESSING AND LEGAL

REGULATION
A. TRANSGENDER ISSUES AND LAW
1. Sex Discrimination and Transsexual/Transgender
Discrimination

2. The Medicalization of Transsexualism

3. Public Law Issues Relevant to Transgendered Persons

B. THE LEGAL REGULATION OF CROSS-DRESSING

1. Cross-Dressing in Culture and History

2. The State’s Interest in Gender Normative Dress

3. Cross-Dressing on the Job and in the Family

Sexual Id & Law A.S.B. Page 38