Trans student's challenge to prom ejection goes forward

A federal judge in Indiana refused to dismiss a transgender teen's lawsuit claiming he was wrong ejected from his high school prom for wearing a dress. K.K. Logan (who apparently goes by male pronouns) wore typically feminine clothing throughout his senior year, without incident. Yet when prom came in the spring of '06, the principal barred the door and refused to let Logan enter in a dress. With the help of Lambda Legal, Logan asserted violations of his free speech and equal protection rights, and of the Title IX statute (which bars sex discrimination in education).

Leonard Link summarizes the decision:

The school district’s motion to dismiss raised a variety of arguments that have routinely been rejected by other courts in litigation challenging school policies on constitutional grounds, challenging the jurisdiction of the court and asserting the immunity of school officials. Judge Van Bokkelen succintly disposed of all of these arguments, pointing out that reaching any conclusion on the ultimate validity of Logan’s claims would be premature before the issues could be further developed through pre-trial discovery. The court’s ruling means that Kevin Logan and Lambda Legal will get their day in court unless the school board comes to its senses, realizes that school boards usually lose these kinds of cases, and offers a reasonable settlement. The board seems to be placing most of its reliance on a recent 7^th Circuit decision rebuffing a school’s disciplinary action barring anti-gay t-shirts, in which the court expressed unhappiness about federal judges intervening in such disputes between school officials and students, but that ruling did not deter Judge Van Bokkelen.

I blogged about that 7th Circuit decision back in April. It does little to help the school beyond generally saying that federal court intervention is undesirable. The case was actually decided on the grounds that allowing the shirt in question would be disruptive to learning to harmful to some gay students - certainly not rationales that apply here.

Prof. Leonard is right that schools frequently lose free speech suits, but there has been precious little litigation about gender expression through clothing as a form of protected speech. The only prior reported case I'm aware of is Doe v. Yunits, which correctly held that a student's gender expression through clothing is protected speech, just as much as a slogan on a t-shirt:

Plaintiff in this case is likely to establish that, by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her identification with that gender. In addition, plaintiff's ability to express herself and her gender identity through dress is important to her health and well-being, as attested to by her treating therapist. Therefore, plaintiff's expression is not merely a personal preference but a necessary symbol of her very identity....

Although there is little precedent on point, this should be a no-brainer. K.K. Logan has graduated from high school, but a decision or settlement in Logan's favor will help ensure that trans students don't face similar discrimination in the future.

Pregnancy, fisting, and labia clamps: another look at the feds' idea of obscenity

Now comes before this blog another federal obscenity prosecution. This one targets Florida-based producer Barry Goldman, who has now been saved from total obscurity by the Justice Department's dubious attentions.

Given the inherent vagueness of the law of obscenity, the only way to really tell what's "obscene" is to look at patterns in prosecutions, convictions, and appeal outcomes. When adult industry lion John Stagliano was indicted earlier this year, I had a look at the trailers for the indicted videos and surmised that, out of the massive catalogue of Evil Angel Productions, the prosecutor cherry-picked the films in the indictment because they prominently featured enemas, female ejaculation, and BDSM. In this more typical case, involving obscure, low-quality productions, I didn't relish the prospect of doing my own research. Fortunately, Blowfish blogger Thomas Roche has watched this bad porn so I don't have to. (Much thanks to Mr. Roche, since he describes it as "low-quality SM porn by what appears to be an independent, amateur producer with vaguely misogynistic tendencies.")

So what does Justice think stands out about these videos other than bad taste? Based on Roche's description, the feds' interest was probably piqued by: knife play (no cutting), use of clamps on the nipples and labia, (apparent) vaginal fisting, and the use of a pregnant star. "Pregnant and Willing" sounds like the tamest of the bunch, and it will be remarkable if the prosecutor chooses to argue that the presence of a pregnancy should contribute to a finding of obscenity. The one thing that did jump out at me from Roche's description was the use of a face-down hogtie on the pregnant actress; as Roche puts it, "doesn’t seem even remotely safe, no matter how barely-pregnant she is." Unsafe working conditions are a big concern, but they should have no more bearing on a finding of obscenity than the safety of lighting rigs or adherence to industry STD testing protocols.

It also appears likely - again, remarkably - that the prosecutor will focus on the depiction (or suggestion) of fisting. As in the Evil Angel case, one suspects that the prosecutor will try to mischaracterize what is going on. Fisting will likely be presented to the jury as an "extreme," sadistic, painful, and perhaps dangerous act - when in fact it is simply a technically advanced (and admittedly visually dramatic), but perfectly safe and not necessarily painful, sexual technique. I'm basing this guess in part on the fact that fisting is a favorite topic of social conservatives' attacks on sexuality and HIV education funding.

Finally, this case is a stark example of prosecutorial forum-shopping. In the age of the Internet, you can bring an obscenity prosecution anywhere, and thanks to the Miller test you can rely on local "community values" to set the bar for conviction. So, the Evil Angel case involved material produced in California, but the indictment was brought in Florida. Here, the material was produced in Florida, but the indictment was in Montana!

Corporate Censorship of Audacia Ray

Author, director and sex blogger Audacia Ray is the latest prominent netizen to run head-on into increasing private regulation of online sexual speech. From Chris at Sex in the Public Square:

• First of all, Dacia tried last month to open an account at Citibank for her business, Waking Vixen Productions. After filling out the preliminary paperwork, she received a voicemail delicately informing her that her line of business made them unable to take her account.
• Then, early this month, she got a similar notice from iTunes, notifying her that her podcast, Live Girl Review, could no longer be included in their directory. ITunes was less direct than Citibank, saying only that podcasts could be excluded "for a variety of reasons." On checking out their podcast spec sheet, she found "strong prevalence of sexual content" included among the possible reasons that Apple can kick you to the curb.
• And just last week, Google yanked her Google Checkout account, barely twenty-four hours after she'd put her new short film The Love Machine up for sale. According to the e-mail Google sent Dacia, "the products or services [she's] selling on [her] website are considered ‘Restricted’ per our policy- Adult goods and services."

Policies like these appear far broader than necessary to achieve legitimate goals such as shielding minors from pornography. As Chris points out, they serve instead to push sexual speech into a suffocating online ghetto. And as long as sexual speech is ghettoized, it will be dominated by crass commercial porn, and robust, diverse, and challenging discussions of sexuality will never find a broad public audience.

More on the stripping-for-legal-services case

The reports of the disciplinary hearing board and review board confirm that the lawyer in question was sanctioned primarily on the basis of extensive findings regarding his abuse of the lawyer-client relationship and criminal acts of sexual assault, as well as lying to the police.

While I wrote before the Illinois does not have a codified per se rule against lawyer-client sexual conduct, it turns out that like some other states, Illinois nevertheless has a judicially-crafted per se rule. The board had no need to decide whether receive exotic dances alone constituted a sexual relationship, because the lawyer engaged in much more direct, and unwanted, sexual contact. Accordingly, he was sanctioned more severely than lawyers who had sex with consenting clients.

In other words, this was really a case about straightforward abuse and misconduct, not about the use of exotic dance as in-kind payment. However, the hearing board did say this:

[Lawyer] admitted [client] performed nude dances for him in his office in exchange for a reduction of his bill. This admission alone is sufficient to support a finding of misconduct. However, because of our other findings, we need not, and do not, base our recommendation on this finding alone.

The review board agreed that this conduct "is reprehensible in and of itself." But because this case involved additional and much more serious conduct, neither body made clear its reasoning on this point.

The reports I've linked to are lengthy, and boil down to "don't assault your clients (and by the way also don't play games with the definition of 'sexual relationship' either)." But I can't help pointing out this icky-squicky moment, from a tape of a conversation between the parties:

[Client]: It's been more than that. I know it has. But every time I'm here, there's been touching and groping and stuff like that, every time.

[Lawyer]: Not every time you've been in my office, no....

[Client]: If it was dancing, I have no problem with dancing. I love dancing and I love - that's my job, but you took it a lot further than that, I mean -

[Lawyer]: Well, only because you let me.

Gah. Which is why even exotic dancers who want to trade their services for legal help will be glad this guy isn't practicing law for awhile.

Schroer v. Library of Congress: What Next?

Judge Robertson's judgment for Diane Schroer may be pathbreaking, but it's only one district court decision. What happens next? Here are some possibilities:

The government could decide not to appeal. Prof. Leonard observes that an appeal can't be taken here until a final order, which means the remedy phase must first be completed. That could take months, and as Prof. Hunter observes, by then there will be a new Attorney General, who may well decide not to appeal. They make a policy decision not to challenge the ruling; on the other hand, the government usually defends suits against federal agencies vigorously.

The D.C. Circuit is likely to reverse. The D.C. Circuit is one of the most conservative in the country; nine of its thirteen members are Republican appointees, and some are noted conservative ideologues. I would fully expect the D.C. Circuit to adhere to the "traditional concept of sex" approach of Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984).

Other courts could choose to distinguish Schroer. Like Barnes in the Sixth Circuit, this case fits well into the sex stereotyping theory because it involves an employer's reaction to someone who is in the process of gender transition. In both cases, the employer first encounters the plaintiff as male and is prejudiced against her when confronted with her transition and her feminine gender presentation. A court might find that this theory doesn't apply when an employer has only known the plaintiff post-transition, and discrimination occurs when the employer later learns of the transition. In such a case, the court might see it more as discrimination because of the status of being transsexual rather than because of not conforming to expectations for the gender the employer initially saw them as. Then, the court would have to agree with Judge Robertson's theory that discrimination because of transsexuality as such is also sex discrimination, because transsexuality is an aspect of sex - and no other court has yet accepted this theory, even though it is clearly correct.

The Supreme Court could decline to hear the case. As Prof. Leonard observes, the Supreme Court in 2005 declined to hear a similar case out of the Sixth Circuit. However, this does not necessarily mean they will do the same thing again. The Justices may have thought that since the Sixth Circuit's decision represented a departure from older decisions by other circuits, and was based on Supreme Court precedent handed down since those earlier decisions, that the issue might resolve itself without the court's intervention. If the D.C. Circuit affirmed Judge Robertson's ruling, this confirm that the courts of appeals might just sort this out on their own. But if the D.C. Circuit were to reverse in this case, the situation would be different: a clear circuit split on the the application of the most recent applicable precedent.

And if the Supreme Court does hear the case? Gods only know. The Court has only ever heard one case involving a transgender plaintiff, and that 14-year-old decision tells us little about the Justices' predispositions in this area. (Farmer v. Brennan case held that it is unconstitutional for prison authorities to stand idle while prisoners suffer physical and sexual abuse, but set a high bar for such claims.) On the one hand, this is easily the most conservative high court in generations, but its record on employment discrimination is far from all bad; broad pro-employee rulings by the conservative Rehnquist Court made suits like this possible. Judge Robertson's opinion seems tailor-made to appeal to the Court's conservatives - particularly Justice Scalia - with its emphasis on the plain statutory text; it emphasizes that to rule the other way would require placing inferences about legislative intent about the logical meaning of the statute's words. I think this case could go either way before the high court, but it would be far preferable for Congress to clarify the matter first.

More on judgment in Schroer v. LoC

Judge Robertson's fabulous ruling has already been thoroughly blogged at ACLU's Get Busy Get Equal Blog, RH Reality Check, Leonard Link, Feministing and hunter of justice.

I agree with Prof. Hunter that this is "an enormous breakthrough in the law." The decision is not unprecedented legally - several other courts have held that anti-trans discrimination is covered by Title VII - but it is perhaps the most thorough and well-reasoned such decision, and the facts are simple and compelling.

Prof. Leonard notes what is perhaps the most remarkable aspect of the court's reasoning - its analogy to religious discrimination. From the opinion:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion. But in cases where the plaintiff has changed her sex, and faces discrimination because of the decision to stop presenting as a man and to start appearing as a woman, courts have traditionally carved such persons out of the statute by concluding that “transsexuality” is unprotected by Title VII. In other words, courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.

This is precisely right, but Robertson is the first judge to latch on to this logic, largely for the reason he states. This analogy makes it much harder to refute Robertson's holding.

Another remarkable thing about the decision is it shows something we rarely get to see: a judge openly changing his mind. Judge Robertson's 2006 ruling refusing to throw out the case expressed reservations about applying the "sex stereotyping" theory to anti-transgender discrimination. Instead, he favored looking at this as a more traditional sex discrimination claim, to the extent Schroer could prove that transsexuality is an aspect of "sex." But, says Robertson now: "That was before the development of the factual record that is now before me." He continues:

Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.

Either way it was sex stereotyping, and it was also discrimination directly premised on Schroer's sex. All roads here really do lead to Rome.

On another level, the Schroer judgment reads like a manual for employers on What Not to Do When Dealing with Transgender Workers. Robertson catalogues the baseless assumptions made by Library of Congress staff, and points out how easily they could have been dispelled had any bothered to actually think things through. Robertson also rejects on its face an excuse that wouldn't pass the red-face test in a race or religion case: we can't hire the plaintiff because of other people's discriminatory attitudes.

I'll have more to say soon on the future of this case.

Victory in Schroer v. Library of Congress!

Following a four-day trial last month, D.C. federal district judge James Roberston today released his decision in favor of Diane Schroer, concluding:

In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker’s sex stereotypes about how men and women should act and appear, and in response to Schroer’s decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.

I'll likely have more to say on this come next week. For now, here's the opinion (PDF), and here's a nice summary at hunter of justice. Once again, h/t to How Appealing.

Exotic dance and the lawyer-client relationship

A Chicago-area lawyer has been suspended following complaints by a client, who happens to be an exotic dancer. The Chicago Tribune provides this lead for the story:

A DeKalb lawyer was suspended for 15 months Thursday for arranging to have a female client perform nude dances for him in exchange for credit on her legal fees, a state commission said.

Puzzlingly, only in the latter half of the article is it mentioned that this same client also made allegations of sexual assault against the lawyer. (A grand jury failed to indict him.) It is not at all clear from the article to what extent the disciplinary action was taken on the basis of the assault allegations vs. the exchange of dances for legal services. Sexually assaulting or even sexually harassing a client would certainly be sufficient grounds for discipline, in and of itself.

Whether the exchange of exotic dance - including, here, nudity and at times the privacy of the attorney's office - for legal services is itself grounds for discipline is an interesting question. Nothing in the Illinois Rules of Professional Conduct prohibits in-kind payment, of which this is one kind; clients pay lawyers with services like plumbing. Interestingly, unlike the ABA's Model Rules, Illinois does not have a rule prohibiting sexual relations with current clients. If Illinois had such a rule, it would raise the question whether private nude dances constitute "sexual relations."

Since Illinois doesn't have a sexual-relations rule, this conduct would have to fall under either Rule 1.7(b) (personal conflict of interest interfering with competent representation) or Rule 8.4(a)(5) (conduct prejudicial to the administration of justice). I really don't think receiving exotic dances is prejudicial to the administration of justice, and if it is the legal profession has some serious culling to do. However, it is not hard to imagine this situation presenting a conflict of interest. Although on one level the transaction between exotic dancer and patron is one of fee-for-service, it is also a kind of service that is not unlikely to generate strong feelings (of lust, romantic interest, etc.) on the part of the patron- particularly the regular patron. The professional boundaries typically maintained by dancers would also be eroded by giving dances in a private setting. It is not hard to imagine the lawyer developing an attachment of one kind or another to the client that could interfere with competent representation.

This is not unique to exotic dancing, or other kinds of sexually-charged entertainment. There are other kinds of services that would probably be inappropriate between lawyer and client for the same reason - say, for instance, psychotherapy. (Many sex workers will tell you that their job can be a bit like being a shrink!) At least, they would be inappropriate as an ongoing method of payment. The story here indicates that the dance transaction began inadvertently when lawyer and client ran into one another at the client's workplace, after speaking about legal representation on the phone. I don't think this by itself would create a conflict, even if they realized it after the lawyer received a dance or two. Similarly, a lawyer could probably represent a therapist whom she saw for a few brief sessions in the recent past.

So a situation like this could present an interesting question and possibly a serious ethics problem, even in the absence of more clear-cut misconduct. Unfortunately, the Tribune decided to go for the titillation factor rather than provide the whole story.

H/t to How Appealing.

Quick hit: US to require Gardasil for immigrants

As Jill at Feministe said:

I am all for making Gardasil more accessible and affordable. I think there’s a good argument to be made for making it a mandatory vaccine for school-age children — with an easy voluntary opt-out clause — because in many states that’s the only way that low-income families will be able to afford it, since mandatory vaccines are more likely to be covered by Medicaid (I also think there’s a better argument against it, but that’s another post). I think there’s a very good (and obviously widely-accepted) common-sense argument to be made for making certain vaccines mandatory for new immigrants or visitors to the U.S. — and some vaccines for highly communicable and airborne diseases are mandatory. That’s reasonable.

But making the HPV vaccine a requirement? It’s both unnecessary and frightening. It’s also shamelessly xenophobic.

Indeed it is - foreigners as sexual threat, anyone? Ick.

There has been a lot of press about adverse reactions, but thus far I think it has been overblown. Given the public concerns and some degree of real uncertainty, it's appropriate right now to back off of plans to mandate Gardasil for U.S. schoolchildren. If and when these fears die down, mandating the vaccine for schoolchildren will make good sense. For now, promoting voluntary vaccination still makes sense to me, though we should remember that (as was recently said at RH Reality Check) there's more to HPV prevention than Gardasil.

But making it a condition for immigration, without covering the cost, is just another unfair barrier. Vaccination is a good thing, but HPV does not pose anything like the kind of epidemiological threat that would justify requiring it in this circumstance. Moreover, the considerable ($300+) cost of Gardasil will no doubt be (yet) a(nother) barrier for some individuals and families.

Bride, groom call foul on marriage equality

A Sacramento couple told their local paper that their "rights were violated" when they were required to sign a marriage license as "Party A" and "Party B" rather than "Bride" and "Groom." They apparently were unaware that, following In re Marriage Cases, the state changed its forms to be gender-neutral. When they altered their forms, they were rejected.

"We are traditionalists – we just want to be called bride and groom," said Bird, 25, who works part time for her father's church. "Those words have been used for generations and now they just changed them."
...

Bird and Codding have refused to complete the new [California marriage] forms, a stand that has already cost them. Because their marriage is not registered with the state, Bird cannot sign up for Codding's medical benefits or legally take his name. They are now exploring their options, she said.

Bird's father, Doug Bird, pastor of Roseville's Abundant Life Fellowship, said he is urging couples not to sign the new marriage forms, and that he is getting some support from congregants and colleagues at local churches.

In the article, Ms. Bird says her stance is "personal - not religious." The article does not state the couple's view of same-sex marriage, or whether they would be happy with different options on the forms. Naturally, though, conservative groups are seizing on their case:

"Those who support (same-sex marriage) say it has no impact on heterosexuals," said Brad Dacus of the Pacific Justice Institute. "This debunks that argument."

Well, so much for the argument that names don't matter. But if this is the best equality opponents can come up with, it's not very good.

One might compare this couple's situation to those of (a) the typical same-sex couple in 48 states, and (b) same-sex couples who, because one of them is transgendered and their transition is not recognized under state law, are legally regarded as an "opposite-sex" couple. Couple (a) is denied the rights, benefits, and/or legal title of marriage. Couple (b) is granted those rights and benefits, and that legal title, but at the cost of accepting the legal titles of "husband" and "wife," thus negating the authentic gender of one spouse. Couple (a) is simply shut out, while couple (b) faces a painful and undignified choice.

The choice faced by this couple is far less stark: the state will recognize them as a married couple, and as a woman and man respectively, but not as "Bride" and "Groom." Same-sex couples could raise the same complaint: the State's forms fail to recognize them as two "Brides" or two "Grooms." For that matter, the State's forms fail to recognize any other specific title for the spouses that may have religious, cultural or other personal significance. So I am disinclined to see a violation of any right here.

Nevertheless, it would not be hard for the State to provide check boxes for "Bride" and "Groom," so as to accommodate all combination; our online wedding registry at Target provided this option. There might be an argument that this constituted a symbolic segregation of couples by gender that produced the same harm as distinguishing between "marriage" and "civil union." However, the differing labels would have far less salience - we are essentially only talking about the marriage license paperwork itself, since "bride" and "groom" are not terms much used by law and government in any event - so I don't think I would find it nearly so troubling.

EDIT: Feministing calls bullshit.

No protection for producer's qualms about "To Catch a Predator"

The Seventh Circuit U.S. Court of Appeals just threw out (PDF) the suit of a TV producer who was fired after she refused to continue work on NBC's "To Catch a Predator," citing ethical qualms.

As a journalist and producer for NBC, one of Bartel’s main responsibilities was to ensure compliance with the ethical standards of journalism and NBC’s internal guidelines. Bartel found numerous aspects of the Predator segment production to be in violation of these standards and guidelines. She believed, for example, that NBC was directly or indirectly to the law enforcement officers participating in the stings. She thought it wrong that “Perverted Justice” representatives [the group that NBC works with to lure the subjects of the show] did not provide NBC with compete transcripts of their conversations with the targets, and that they did not identify all of their volunteers to NBC. She also objected that Dateline and Perverted Justice were staging the arrests in a way that maximized the humiliation of the target. Bartel informed her superiors at NBC of these problems, but they took no steps to cure them. Bartel then told her supervisors that she could not produce the segment.

For more background and the complaint, see The Smoking Gun. H/t to How Appealing.

Bartel relied on New York case law ruling that an attorney employment contract implicitly included protection for actions taken based on ethical duties. The court refused to extend this implicit contract protection for journalists, nothing that New York courts had already refused to extend it to doctors. Once again, lawyers - including judges - think their profession is unique and important above all others. The Seventh Circuit may have been right in its view of New York's judicial precedent, but it is disturbing that lawyers, and lawyers alone, should be granted this implicit protection.

I've never watched the "TCAP" on Dateline, but the concept of it has always struck me as a creepy and dubious undertaking. Other bloggers have noted that while NBC dresses up its crass sensationalism as a public service, the program arguably gives its audience a moralizing excuse to indulge their own fascination with sexuality and youth. It also contributes to the current moral panic about sex offenders, which has given us banishment laws and other constitutionally dubious and counterproductive legislation.

OT: New look and trouble with jumps

Yes, I decided to change the site layout; hope you like it.

Also, I've been trying to incorporate jumps to give the blog a more streamlined look, but have been having trouble with it because the advice on Blogger's help page doen't seem match the code I'm seeing in my template. I readily admit it: I'm a doctor, not a programmer; any advice is appreciated.

MD high court nixes transgender ballot question

Today the Maryland Court of Appeals (the state's highest court) ordered removed from the November ballot a question that would have affirmed or repealed Montgomery County's antidiscrimination protection for transgender people in housing, employment and public accommodations. The court has issued a short order (PDF) , and says it will issue an opinion soon.

The ordinance (PDF) was passed unanimously last fall by the county council, the Board of Elections ruled that a citizens group called Citizens for Responsible Government (which had previously challenged the county's sex ed curriculum as too inclusive) had collected enough signatures to place it on the ballot. Voters would be required to affirm or repeal the ordinance.

The lawsuit, brought by a grassroots group called Basic Rights Montgomery on behalf of a number of voters, alleged that many approved signatures were invalid, and that the state under-calculated the number of required signatures. The trial court found the latter claim meritorious, but said the claim was time-barred. The high court presumably rejected the time-barred argument, and we'll soon see its reasons why.

I've been proud to volunteer for Basic Rights Montgomery, and am gratified by this victory. The group that sought the ballot question, CRG, has been criticized by council members for their deceptive and mean-spirited tactics, most significantly telling voters that the law would require unisex bathrooms throughout the county and representing trans people as sexual predators. Now the ordinance, which has been on the books for many months and mirrors those in cities and states around the country, can finally go into effect.

It now appears that Gaineville, FL will have the dubious distinction of holding the nation's first voter referendum on the basic civil rights of transgender people; a similar battle is going on there, with no court-ordered resolution in sight. On Gainesville, see this post from back in July at Transgender Workplace Diversity.

Iowa: Exposure, but not indecent

Iowa's highest court overturned an indecent exposure conviction last Friday in State v. Isaac (PDF), based on a strict reading of a narrowly worded state law. It's a strange tale that exposes the odd intricacies of indecent exposure laws, the possibly perverted workings of the judicial mind, and the question: why is this case before a state supreme court, by golly?


Residents of an apartment building in Ankeny, IA complained of a man talking lewdly outside their windows - but they didn't look outside. When a police officer arrived, he called out to Isaac, who turned to face him, then made a quickly aborted retreat, all before putting away his baby-oiled penis. Under Iowa law, indecent exposure is exposing your "genitals or pubes" to another person, with the intent to arouse or satisfy the sexual desires of either party, if you (ought to) know this will be offensive. Unless it's your spouse. Expose your pubes to your spouse all you like, even if they can't stand it. And yes, that statute says "pubes" - classy folks, Iowa lawmakers.

But back to Isaac: It was a classic case of the "concurrence" problem in criminal law: the defendant committed the requisite act and had the requisite intent, but not at the same time or toward the same person. It was pretty clear that what he was originally up to outside those windows was sexual in purpose - but the court said there were no facts to show his exposure to the officer was anything but inadvertant. (Isaac didn't contest whether the "offensive" part.) Saith the court, Isaac's sexual motivations apparently "evaporated" in the glare of the Law, leaving him simply panicking. Ergo, the crime never occured.

Two dissenting judges had a very different view:

The majority analyzes the facts through the lens of a reasonable person unaffected by the prurient thoughts and desires of a sexually deviant person. In doing so, it forecloses any possibility that someone who would engage in such behavior could also derive sexual gratification from exposing himself to a police officer and running from a pursuing officer with his penis protruding from his pants. Yet, the actions of Isaac in this case were not those of a reasonable person, but a person with a sexually perverted mind....It is a fundamental tenet of law enforcement investigation that it is sometimes necessary to think like a criminal to catch a criminal.

And it's about time to apply that adage to judging. Let's get creative, folks: anything could've turned this weirdo on!! Gee, three guesses which way these two judges are going to vote in the pending Iowa same-sex marriage case.

Naturally, the prosecutor wants the law changed to close this loophole. (Gotta love Iowa: the local paper is called the Nonpareil!) Here's hoping they don't overcorrect and make it sex crime for the desperate to piss in alleyways. Yes, indecent exposure is a crime requiring sex offender registration, which is presumably why Mr. Isaac was determined enough to fight this relatively minor conviction all the way.

And don't worry: he was also convicted of harassment and interference with official acts - which goes to show you that when prosecutors push an expansive interpretation of the law, they oftentimes could simply be content to focus on more appropriate charges.

H/t to How Appealing.

Good reads for Judge Robertson

As federal district judge James Robertson mulls a trial ruling in Schroer v. Library of Congress, two new scholarly articles argue (along somewhat different lines) for a broad interpretation of Title VII to protect transgender employees:

• Katie Koch & Richard A. Bales, Transgender Employment Discrimination, forthcoming in UCLA Women's L.J.
• L. Camille Hebert, Transforming Transsexual and Transgender Rights, forthcoming in Wm. & Mary J. Women & L.

Some evidence that legal academia has not (yet) become totally irrelevant to the law.

H/t to Workplace Prof Blog.

Clothed pole dancing aerobics = "adult business"??

Today we'll discuss that favorite bugaboo of feminist discussions on sexuality and pop culture: pole-dancing aerobics!

No, we're not here to debate whether this popular and lucrative trend is is a route to sexual empowerment, a symbol of a pernicious "raunch culture," or is tacky but harmless fun. Instead, we're discussing something that I know is also dear to the hearts of feminist readers here: zoning. Come on, you know you love zoning, especially zoning + gyration.


Stephanie Babines is a fitness instructor whose business, Oh My You're Gorgeous, offers classes in hula, salsa, belly dancing and yes, pole dancing. As I need hardly tell you, pole dancing is a great workout for your thighs and abs - and it's all totally clothed. But when Babines sought a permit to move her instruction from house parties and rented venues into a storefront dance studio, Adams Township, PA rejected the permit. The local officer who made the call said he didn't bother interviewing Babines because her website looked all sexy. The Legal Satyricon quotes the complaint:

[The enforcement officer] said he did not need to interview Ms. Babines regarding her intentions for the property because her website spoke for itself. He testified that regardless of whether the activity involved nudity, the dance forms Ms. Babines intended to teach were “provocative” and contained sexual “innuendo,” and her dance studio should therefore be classified as an “adult business.”

[He] further testified that the pink-and-black color scheme of Ms. Babines’ website and the high-heeled shoe in her logo indicated to him that she intended to operate an “adult business” at the 222 Mars-Valencia Road property.

No, really!! See, it's in the New York Times, the AP wire, and the Wall Street Journal's blog!

A cheeky Pittsburgh columnist basks in the positive attention this is getting for nearby Adams Township

I'm probably going to get into trouble with my editors, but I'm going to be blunt and call Babines exactly what she is: Someone possessing a master's degree in project management who currently works as a senior information technology professional.

Would you want someone with that track record starting a business in your community?

Thankfully for the righteous, Babines selected the wrong locale to try to open her den of iniquity. She chose Adams Township -- a place where the moral indignation runs deep, and the legal expenses appear ready to run high.

Thank God for the ACLU - they'll stick up for you when everyone else thinks it's beneath their dignity. The Pennsylvania ACLU filed suit on Babines's behalf last week. Their complaint (PDF) recounts the facts in interesting detail - from the development of sexy aerobics as a national trend to the descriptions of OMYG classes, and calls the town out for violating the First Amendment and misapplying its own ordinance.

Adams Township is going to lose. The Supreme Court has upheld restrictive zoning ordinances applies to strip clubs on the basis of dubious "secondary effects" on the local community. The court will have no difficulty saying that this case is different: you're unlikely to have drunks spilling out into the streets and dancers engaging in prostitution when everyone is there to dance, not watch.

More to the point, the "secondary effects" doctrine is based on the assumption that exotic dancing sits at the "outer perimeter of the First Amendment" - it enjoys minimal protection because it ostensibly it is only barely "speech." Here we're talking about not just booty-shaking, but booty-shaking classes. Thus, the court won't have to address the very interesting question of where clothed pole-dance aerobics sits with respect to the "perimeter" of protected speech.

As for Adams Township, presumably their campaign to stamp out "innuendo" and "provocative" businesses will soon extend to shuttering bars and nightclubs and blocking the Fox network.

OT: How Judges Write (Medicaid Edition)

From a New York appellate decision issued on Tuesday comes this gem of clarity:

Accordingly, we grant the petition to the extent of annulling so much of the DOH's determination as affirmed so much of the DSS's determination as denied that portion of the petitioner's application which was to increase the Medicaid minimum monthly maintenance needs allowance to include expenses for housing, utilities, automobile, Medicare, food, clothing, medical care, and home maintenance, vacating so much of the DSS's determination as denied that portion of the application, and granting that portion of the application to the extent of remitting the matter to the DOH for the calculation of the increase in the minimum monthly maintenance needs allowance so that a portion of his income will be made available to his wife.

Ouch. Good decision, bad writing! This could be an ongoing series.

Quick headlines on abortion, marriage, speech

• Via RHRealityCheck, Justice Ginsburg had some recent comments about the state of abortion rights that you should read. H/t to Nan Hunter.

• Via Leonard Link, a New York judge has rejected a legal challenge to Gov. Paterson's directive to recognize out-of-state same-sex marriages, saying the Governor was simply implementing established state law.

• The UK Guardian had an interesting piece on Tuesday on Mexico City's ground-breaking law permitting abortion. H/t to RHRealityCheck.

• Via Feministing and the Legal Satyricon: A California woman was expelled from a Social Security office last week for wearing a t-shirt reading simply "Lesbian.com." (Wandered over to that URL if you like; there's not much to look at.) As Marc Randazza notes, it is black-letter constitutional law that you can't do that. Turns out the guard was, surprise, working for a private company under contract with Homeland Security. Someone at Homeland Security evidently took first-year Con Law, and they apologized for the action as "inappropriate and unacceptable."

Obscenity as Vagueness

I've been thinking a lot lately about my long-simmering unease with the Supreme Court's obscenity doctrine. I have two basic objections to it: first, it singles out sex for no apparent reason, and second, it is vague. This post elaborates the second concern.

In 1973, a narrow majority of the Court sought to end nearly two decades of being up to its ears in obscenity cases by adopting what it thought was a narrow, workable and and broadly palatable definition of obscenity. The three-prong Miller v. California test controls to this day; it asks:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Ever since Justice Douglas's dissent in Miller, its opponents have argued that the test is impermissibly vague. But the Court rebuffed this concern:

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.

The Court has repeatedly rejected vagueness concerns about the Miller standard ever since. In doing so, it has consistently pointed to the phrase "sexual conduct specifically defined by the applicable state law." Under this prong, state laws must spell out the particular things or acts that are subject to the obscenity law. For example, Florida's obscenity law defines "sexual conduct" as:

actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

That's plenty specific enough - if all you needed to know was not to include any of the above in your work, you'd be set. But there's more to Miller than that. The table below illustrates the remaining vagueness problem:

What's in Box C?

	With specified conduct	Without specified conduct
Prurient, offensive & no serious value	A Obscenity	B Legal
Non-prurient, non-offensive, and/or has serious value	C Legal	D Legal

When the "sexual conduct specifically defined by state applicable state law" aspect of Miller is separated out from its other components, all speech can be divided into the above four groupings. Only one grouping is illegal: speech in Box A meets all parts of the Miller test. When the Court rejects vagueness arguments about Miller, it is talking about the Y (vertical) axis of this table: you know where you stand with Box B and D, because they lack the specifically defined sexual conduct. As long as you stay on the right side of the Y axis, it doesn't really matter whether your speech actually falls in B or D, because either way you're safe.

But suppose you want to do something that does involve the specifically defined sexual conduct. As long as your speech is in Box C and not Box A, it is your constitutional right to do so. And here you run smack into the vagueness problem: the Y axis may be a bright line, but the X axis - the line that separates the constitutionally-protected C from the criminal A - remains blurry. Once your are on the left side of the Y axis, all that specific definition is cold comfort.

Effectively, the specific statutory definition of "sexual conduct" provides a safe harbor, so you can avoid risk by making sure you stay inside that line. This wouldn't be a problem if we were talking about a commercial regulation. But in the realm of speech, this is called a chilling effect, and it is generally impermissible. Sure, individuals know how not to break the law. But they don't know how to exercise the full extent of their First Amendment rights while not breaking the law. Box C is constitutionally protected speech, but that blurry horizontal line counsels you to get back over into B or D.

This is the vagueness problem: speakers who would like to be in Box C are chilled, even though Box C is constitutionally protected.

Amending the Constitution: GOP bold, Dems not

When it comes to amending the U.S. Constitution, Republicans have been and remain much bolder. This year's GOP platform (pdf) advocates no less than five specific constitutional amendments: a balanced budget amendment, an anti-marriage amendment, repealing the federal income tax, establishing formal rights for crime victims in prosecutions, and criminalizing abortion. Each of these proposals is a bold, controversial change. By contrast, the draft Democratic Platform (pdf) mentions only one: the Equal Rights Amendment, which today is at once fairly uncontroversial and fairly unlikely to ever move again.

I don't think this difference exists simply because Republicans see more things in the Constitution (and constitutional law) that need to be changes. Many Democratic - or at least Democratic leaders and activists - could probably name several constitutional amendments that they think would better our nation - say, to guarantee a fundamental right to education, or to privacy. Rather, I think the difference represents the parties' perceptions of the political advantages of calling for constitutional amendments. Democrats are far more afraid of suffering political from taking positions that could be perceived as radical or extreme; it will lose them more support than it gains them. By contrast, on many issues Republicans believe that taking a radical stand is a net plus, as there are enough voters and donors for whom strong stands on property rights, federal spending, and/or social issues will win them strong support. It may even be that Republicans today are more used to thinking of bold policy proposals, whereas Democrats are more cautious.

Mexico Supreme Court: constitution does not ban abortion

In a sort of obverse Roe v. Wade, the Supreme Court of Mexico last Thursday ruled 8-3 that Mexico City did not violate the Mexican Constitution by permitting abortions. Mexico City broke with the rest of the nation and most of Latin America last year when it legalized abortion in the first trimester.

As I understand it from press reports, the federal government challenged the law on two grounds: first, that Mexican cities lack the power to pass health laws (the court rejected this argument 10-1) and second, that the Constitution requires the criminalization of abortion in order to protect the right to life. This right is situated in a clause similar to our Due Process Clause - individuals shall not be deprived of life, liberty, etc. The court rejected this argument, apparently concluding that the constitutional right to life does not extend to fetuses. According to Justice Guillermo Ortiz:

"It's not up to the Supreme Court to legalize or criminalize abortion."

One protester's take on the decision was revealing:

"They are just encouraging women to be dirty and loose."

Undoubtedly there will be much more debate, legislation and litigation on abortion in Mexico in years to come, but the high court's decision at least resolves one major issue: limits on abortion are not required by the constitution. Presumably social conservatives in Mexico will now be arguing for a constitutional amendment impose criminalization nationwide, similar to the one called for in this year's (and previous years') GOP platform (PDF).