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BDSM case goes to the Supreme Court

cross-posted from hunter of justice

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions, saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed. Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

PA Supremes say prison may ban porn to prevent "objectification"

The Pennsylvania Supreme Court this week unanimously rejected a challenge to the state's broad ban on sexually explicit printed materials in prisons. The court did not state conclusively that the ban is constitutional, but held that the plaintiff prisoner had not met the heavy evidentiary burden that courts generally require in order to take a case of prisoners' First Amendment rights to trial.

Here's what Pennsylvania prohibits any prisoner to obtain:

(1) materials in which the purpose is sexual arousal or gratification; or (2) the material contains nudity which means showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple (exposure through “see through” materials is considered nudity for purposes of this definition).

Infelicitously for his case, the particular plaintiff here was serving a sentence for rape. Even more infelicitously, he represented himself. And to make matters worse, the evidence he was prepared to present consisted of affidavits from fellow prisoners asserting that viewing nudity did not have ill effects on their rehabilitation or day-to-day conduct.

Interpreting a handful of Supreme Court precedents, the court held that a prisoner faces a heavy burden to take a case of individual constitutional rights to trial. The state's burden, it said, is simply to articulate a "rational connection" between its censorship standards and any "legitimate penological interest." If the state can meet that low bar, the prisoner must then present specific facts that call that basic rationale seriously into question. The court was silent as to how a pro se prisoner is to meet this burden in a First Amendment case, where calling into question the state's rationale would seem to require access to expert witnesses, social science research, or the like. In other words, if the state can come up with any rationale that the court will "buy" in the abstract, a prisoner would seem to need substantial outside assistance to take the case to trial.

Be that as it may, the court found that the state's asserted goals were rational, and that the prisoners' affidavits did not raise any genuine question about their validity. What were those goals? The primary rationale accepted by the court was that:

the pornography ban serves to foster the rehabilitation of inmates, including sex offenders like [the plaintiff], and is consistent with inmate treatment objectives, particularly discouraging inmates from “objectifying” others, rather than treating them as individuals.

The court also accepted the state's reasoning that pornography in the prison would lead to a "hostile work environment" for prison staff. While the workplace-harassment rationale, and the idea that pornography will have a particularly dangerous effect on persons convicted of any sex offense, are not new, I believe the "objectification" rationale is not as frequently seen.

While it may seem remarkable - at least to those familiar with philosophical and feminist debates over the concept of "objectification" - that courts would accept this vague rationale at the level of abstract, unsupported logic, one must keep in mind the litigation context. As the litigation around same-sex marriage demonstrates, the ability to overcome vague government interests under a "rationality" test often depends on the ability to go toe-to-toe with the state in contesting its logic. That is to say, a pro se prisoner lacks not only the ability to gather sophisticated evidence in a case like this, but also the resources to engage in the kind of sophisticaed legal argument that may be necessary merely to ge to trial.

Remembering Dr. Tiller

Last night I went with my wife to the Religious Coalition for Reproduce Choice memorial service for Dr. George Tiller last night at the National City Christian Church. It was a very moving service, with Dr. Leroy Carhart delivering the euology for his colleague and friend.

Most people didn't understand Dr. Tiller's work - they didn't understand the basic facts about what late-term abortions are, who has them and why. I urge you to read this article which explains the facts and the stories of women who have had these procedures. I would also recommend visiting IAmDrTiller.com, which collects the stories of the people who dedicate their lives to making abortion, safe, legal and accessible.

Individuals and private organizations will keep up the important work of clinic defense, but it is now up to the U.S. Justice Department, along with state and local governments, to take meaningful steps to monitor and prevent threats and acts of terrorism against abortion providers throughout the country.

Reduced posting

This blog will see reduced posting for a short while because I am busy with actual lawyer things. As a small consolation, I leave you with this off-topic but mildly amusing snippet from a recent environmental decision in the Ninth Circuit:

We begin with the cross-appeal, which contests the dismissal of the [claims against the] Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.

I like to imagine the lawyers getting postcards of deer from their friends for months.

Not a crime to show dirty pictures of onself to a teen old enough to consent to sex

The usual Creep Caveat applies to this post.

Here's another case dealing with exhibiting harmful matter to a minor. In Salter v. State, 2009 WL 1409484 , the Indiana Court of Appeals overturned such a conviction on the ground that the statute was vague as applied to pictures sent over the Internet to a young woman of 16. The court reasoned that since the state set the age of sexual consent at 16, the "harmful matter" statute failed to provide clear notice to the defendant that he could legally have sex with the woman but could not legally send her pictures of his erect penis.

We understand Salter's argument to be that he had no way of knowing that pictures of his genitals would be considered “harmful” to M.B., given that, under Indiana law, he could have been naked in front of M.B. and had sex with her without violating any law. Again, we must agree.

...By setting the legal age of consent at sixteen, the Indiana legislature has made an implied policy choice that in-person viewing of another person's genitals is “suitable matter” for a sixteen- or seventeen-year-old child. That being so, how could Salter have known that a picture of his genitals would be “harmful,” that is, not “suitable,” for M.B.? Asked another way, if such images are harmful to sixteen- and seventeen-year-old children, then why would our legislature allow those children to view the same matter in-person, in the course of sexual activity?

One judge dissented, noting that the defendant didn't have a sexual relationship with the young woman involved, and that the harmful matter statute did not depend on a minor's consent. But given that the young woman here sent the defendant semi-nude pictures of herself as well, it seems fair to say that there was some kind of consensual sexual relationship here, albeit an online one. It would be truly bizarre if it were legal for two people of whatever age to have sex, but illegal for them to have cybersex. I am aware, however, that in the eyes of many people over 35, anything involving the Internet is automatically twice as dangerous.

(N.B. - the court's opinion makes no mention of the defendant's age.)

Though originally nabbed because of this online relationship with a teenager, Mr. Salter was also charged with something even more unsavory: possession of child pornography. This included not just the pictures of the 16-year-old created and sent by her, but also pictures of unknown, younger children apparently obtained from the Internet. Mr. Salter was clearly liable for possession of the latter (but not the former, because Indiana sets the age for defining child pornography at the age of sexual consent, 16). But the prosecutor decided to go for a bigger sentence by charging him with creating child pornography, on the basis of his downloading the images and burning them to CD. The court (again 2-1) following the reasoning of the New Jersey Supreme Court (State v. Sisler) in concluding that simply copying preexisting digital images does not fall within the ambit of a statute targeted at the actual production of child pornography. The court reasoned that copying a digital images is analogous to simple possession, not to creating a new image.

The court therefore reversed these convictions as well. It noted that the state could not prosecute Salter for simple possession as to the images of the 16 year old regardless, and might have screwed itself out of charging him with possession of the other images because of the state's Successive Prosecution Statute. Which hopefully will teach that prosecutor a lesson.

Craigslist bows to states' pressure, axes "Erotic Services"

This week Craigslist announced that, pursuant to a deal with several state attorneys general, it will be eliminating its "Erotic Services" section. The news media have framed the pressure on Craigslist as a response to recent crimes against people who used the site. Connecticut Attorney General Richard Blumenthal, who spearheaded the effort, has pitched his campaign alternately as aimed at preventing trafficking and child exploitation, and as a plain morals campaign against "pornography, nudity, and open offers of sex for money." Craigslist initially vowed to require posters on Erotic Services to enter credit card information, but the state officials wouldn't settle for that, so the site is no replacing the section with a new "Adult" section, in which each post will be pre-screened by Craigslist employees.

A coalition of organizations advocating for sex workers released this statement:

With Craigslist’s recent announcement that its Erotic Services category will be discontinued within the week, hundreds of thousands of erotic service providers will become more vulnerable to dangerous predators. Eliminating erotic listings as Connecticut Attorney General Richard Blumenthal and others propose will only drive us further underground.

Policing the masseuses, phone workers, pro-dominants, and escorts using Craigslist fails to protect those of us who are coerced into the sex industry. Preventing the use of Craigslist advertisements also eliminates the advantage of screening clients online, which makes for a safer work experience by filtering out potentially dangerous individuals. Furthermore, keeping us offline hinders police investigations of violent crime. In the Boston murder of Julissa Brisman, it was online tracking that enabled the police to identify the suspect. One has to wonder: are the Attorneys General examining the evidence or simply enforcing their moral values?

“Removing the erotic services category from Craigslist does not help prevent violence against escorts and other sex workers. It only pushes me and people like me out of the places where advertising is available,” said Jessica Bloom, a sex worker from Sex Workers Action New York (SWANK). In the face of increasing criminalization, we insist upon respect. As mothers, daughters, brothers, and members of your community, we claim that sex work is real work, work that we are entitled to conduct in safety. As such, we must be accorded the human right of full protection under the law.

Sex work activist Miss Calico has this to say about the move:

It’s true that Craigslist is a major advertising venue, for prostitutes but also sex workers of all kinds: the largest in the nation. Its loss will have a distinct effect on the people who use it. Here’s how it works: we advertise to attract the clients we want, and screen to eliminate the clients we don’t, but the number of clients we need stays the same. Anything that hurts our methods of attracting clients, like the shutdown of Erotic Services, will affect how stringent our screening can afford to be. It’s pretty clear to me that Craigslist has just made its sex workers more marginalized and more at risk.

Now, Craigslist has no responsibility to provide an advertising venue. But if Attorney General Richard Blumenthal is trying to make sex workers safer, he’s going about it all wrong. He doesn’t need to protect us from ourselves, or from our clients. He needs to protect us from criminals.

At the Sex 2.0 conference this past weekend, Melissa Gira analogized the panic over Craigslist to New York City's "cleanup" of Times Square. Both spaces came to represent the threat of sexual corruption encroaching on "normal," "decent" places. Targeting these spaces allowed politicians to simultaneously appear to be both protecting moral purity and addressing real social problems of crime, etc., without really addressing those problems at all. As Miss Calico points out, sex work isn't going away, and the short term effects of driving online sex work advertising "underground" -- at least until some other site replicates the efficiency, anonymity and ubiquity of Craigslist -- could be harmful both for sex workers and for law enforcement.

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As a side note, none of the news reports or press releases indicate what kind of legal claims the state governments might have had against Craigslist. I've previously mentioned the question of federal immunity under Section 230 of the Communications Decency Act with regard to a still-pending public-nuisance suit targeting "Erotic Services." The Ninth Circuit Court of Appeals recently held, in an egegrious case of revenge porn, that Yahoo! might have lost its 230 immunity only because its staff specifically promised the plaintiff to take the offending material down.

UPDATE: Here's some further analysis of Craigslist's likely legal defense under CDA from the Electronic Frontier Foundation. (More, too, from the Citizens Media Law Project which notes the site's previous efforts to ensure Erotic Services isn't use to exploit children.) Of course, settlements like this are based not only on likelihood of success but on business decisions about public relations and litigation costs. They have previously won litigation over discriminatory preferences in their housing ads, but that doesn't mean they're eager to go through the process again. Ditching Erotic Services was clearly more desirable for Craigslist than fighting several state governments in court and in the media.

Sex 2.0 and "I Am a Sex Worker" PSA

I attended the Sex 2.0 conference in Silver Spring, MD this past weekend, and it was an absolute blast. It was great to meet bloggers and activists I admire (like Elizabeth Wood), catch up with my college classmate and former sex-educator colleague Maria Diaz, see a lot of other familiar faces, and share in discussions of the Internet, social media, sex blogging, erotica, sex work, and sexual freedom activism. One of the many cool things I was turned on to was CARAS, an organization of academics that supports and promotes community-based research on alternative sexualities. Another was this awesome PSA from Sex Work Awareness:

Gender, "deception" and the law, pt. 3

This is the third post in a series inspired by the Angie Zapata murder trial in Colorado, and in particularly by the suggestion by some people that transgender people who are victims of hate crimes by sexual partners were themselves guilty of "deception." In the first post, I sketched out the traditional narrow legal interpretation of the kind of deception that can vitiate sexual consent. In the second post, I explored possible extensions of this concept and argued against them. This post specifically considers the question of disclosure by transgender people of their sexual anatomy and/or gender history to sexual partners.

Actual gender "deception" cases. A recent article by an Israeli law professor identified five cases internationally in which transgender individuals have been prosecuted for failing to disclose their gender history to sexual partners: two cases in the U.S., one in the U.K., and two in Israel. See Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harvard Journal of Law & Gender 165 (2009).

• In the United Kingdom in 1991, Jimmy Saunders was charged with indecent assault on the basis that he concealed the fact that he was born female from two sexual partners. He was convicted, though the Court of Appeals reduced his sentence.
  
• In Colorado in 1995 - the same state where the Zapata murder took place - Sean O'Neill was charged with false impersonation and sexual assault on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to lesser charges.
• In 1997 in Washington state, Christopher Wheatley was charged with sexual assault on the basis that he concealed the fact that he was born female from two sexual partners. He plead guilty.
• In Haifa, Israel in 2003, Hen Alkobi was charged with sexual assault and "impersonation of another person" on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to the sexual assault charge, contested the impersonation charge, and was convicted on both charges.
• In 2007, another transgender man in Israel was charged with statutory rape as well as "indecedent acts" on the basis that he fraudulently obtained consent from a sexual partner by concealing the fact that he was born female. (My only source for this case is Gross, who does not give a name and says the case was ongoing as of early this year.)

I would be very interested to find out more about these cases than is available in readily-accessible, English-language sources, particularly the U.K. and recent Israeli cases.

Notably, all of these cases involved male-identified transgender persons who had sexual relationships with underage women (and in all but one case, with multiple underage partners). It thus appears that it is peculiarly trans men who partner with women who are in danger of being prosecuted for dating without disclosing (whereas women who partner with men are in more danger of being killed by their partners). Additionally, each of these cases apparently could have been prosecuted solely on charges of statutory rape. Thus, these are not cases of individuals being singled out for prosecution based on failure to disclose, but rather cases that would have been prosecuted regardless based on the involvement of minors - though it is clear that prosecutors and/or judges in these cases did have particular reactions of disgust to these gender-variant defendants, and to their involvement of seemingly unwitting young women in what these authorities no doubt regarded as homosexuality.

As far as I can tell, in only one of these cases -- the U.K. case -- did a court rule that failure to disclose one's anatomy or gender history vitiates consent and creates liability for sexual assault. In the other cases, it appears the defendants simply decided to strike a deal, which made sense given that they were probably liable for statutory rape regardless. The latter cases provide no support for the legal theory that these circumstances negate consent. Even in the Saunders case, it's not clear from secondary sources to what extent this aspect of the prosecution was challenged, or even if the assault convictions themselves (rather than just the sentence) were appealed.

U.K. law today. In 2000, the Law Commission of the United Kingdom specifically recommended that the U.K. Sex Offences Act not be interpreted to treat a failure to disclose transgender status as deception that vitiates consent. The Commission reasoned that this would amount to "the creation of a special rule for transsexuals," and accordingly would likely violate the European Convention on Human Rights, which prohibits discrimination against trans people and guarantees the right to expression and recognition of a person's gender identity. (While the Commission stated this recommendation only in terms of individuals who had undergone sex reassignment surgery, it would probably take a different view now that, under the Gender Recognition Act, the U.K. permits change of legal gender in the absence of surgery.)

Regardless, in 2003 the U.K. revised its sexual offenses law, and narrowed the language concerning deception. Following the traditional approach of American courts, the current language covers only situations of deception about "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant." Thus, regardless of the Saunders case, it appears that UK law today would not treat failure to disclose anatomy or gender history as rape or indecent assault.

Trans people are not liars. Consider why a transgender person would hesitate disclose their sexual anatomy or gender history to an actual or potential sexual partner. Trans people are not sexual predators looking for unsuspecting victims. They live in a society where their gender identity and expression are not accepted as authentic by many, perhaps most people around them - indeed, where that identity and expression are viewed as mere pretense. They live in a society where fear and loathing of gender variance and homosexuality are intense. These fears are linked by failure to understand or accept trans identities, and manifest most strongly as fears of sexual pollution. These facts are particularly salient for trans people who are young, are just beginning or have recently made a gender transition, and who live in rural or socially conservative areas. Add to this the psychic distress, embarassment and extreme shyness many trans people experience regarding aspects of their sexual anatomy and gender history. Being rejected by a partner who does not accept their gender identity is a painful prospect - as is seeking out partners who will desire them precisely because of not accepting their gender identity.

Given this context, disclosure to potential partners is fraught on all sides for many trans people. The partner who will both accept their identity and still desire them will be rare - depending on geography and other factors, perhaps very rare. At the same time, by not disclosing they are not lying: they are simply living their lives and presenting their authentic gender, as they do in other social relationships. And once an interpersonal connection exists, the prospect of coming out can be frightening, and appear very much easier to postpone or avoid.

Trans people are no more liars when they do not disclose these matters to potential partners than they are liars by simply living their lives. This is who they are. Of course, in a long-term relationship, tiptoeing around the personal details will be difficult and probably unhealthy for the relationship. For this reason, and in response to very real fears of violence, trans people usually do disclose to sexual partners, especially when looking for a lasting romantic relationship. While I have little sympathey for other people's anxieties about being sexually polluted by a sexual partner with the "wrong" body parts, it's never desirable to risk distress to others. But I find it difficult to judge morally, and repulsive to punish criminally, the choice of some individuals, particularly in casual encounters or at the beginning of a relationship, not to come out.

Gender, "deception" and the law, pt. 2 of 3

In my last post, I began a discussion of the concept of sexual "deception," inspired by the pernicious suggestions of some commentators that transgender hate crime victims such as Angie Zapata themselves committed criminal sexual assault by failing to disclose their anatomy/gender history to sexual partners. I explained that the law has generally construed the concept of criminal sexual deception very narrowly, to include only deception about (a) the nature of the act itself as a sexual act, and (b) the identity of a defendant posing as another person. In this post, I will consider some other potential categories of sexual "deception." In a final post, I will discuss the handful of cases in which transgender individuals have actually been prosecuted on the basis of nondisclosure to sexual partners.

Beyond the narrow categories discussed in my last post, other types of sexual "deception" have been rejected by courts and most commentators as grounds for criminal liability. By contrast, some commentators have taken the view that deception about any fact that the defendant had reason to know would be material to the complainant vitiates consent and constitutes rape. Let's consider what kinds of information that could include.

Fraud in the inducement.

Courts have generally distinguished in this area between fraud in the factum, i.e., about the nature of the act consented to, and fraud in the inducement, i.e., about factors that motivate consent. To state this distinction is to recognize that it is far from an airtight distinction. It's possible to define any personal or circumstantial fact as part of the "nature of the act consented to," but not very meaningful to do so. Consider some common examples:

• Promise of love or marriage

Courts once upon a time would punish people who broke such promises to sexual partners with civil judgments (not imprisonment). No longer.

• Promise of money.

The failure to pay a promised fee for sexual services seems much more like theft of services than rape - and it no doubt would be treated as such, except inasmuch as the selling of those services was illegal to begin with.

• Personal prestige and connections.

"I'm a record producer" or "I'm in a rock band" are the typical examples. But note that this comes in many degrees, and such claims to power, status or wealth may also be implied through conspicuous consumption, name-dropping, and the like.

In all of these circumstances, I think it's fair to say that what's going on is dishonest and sleazy, but bears little resemblance to rape.

Personal characteristics.

This category, of course, includes things like anatomy and gender history. Again, personal characteristics can be described as part of the "nature of the act" or the "identity" of the (putative) perpetrator, but this strikes me as a rather circular word game. Here are a few key examples of personal characteristics that may not be readily apparent, yet would be sexual deal-breakers for some people:

• Marital or relationship status
  
• Sexual orientation (esp. identification as gay or bisexual, or sexual history with X gender)
  
• Race, ethnicity, nationality, or caste
• Religion
• Manner of employment (e.g., involvement with a controversial practice or cause)
  
• Criminal record
  

I'd go further and state that at least in some situations and for some individuals, not only could these facts be deal-breakers, but if discovered after the fact any of them could cause some individuals deep feelings of shock, disgust and betrayal, as has apparently or allegedly occurred in several cases involving trans people. [This was originally a reference to the Zapata case, but commenters noted that the relevant facts were very much in question in that case.]

Yet do individuals have a right to know these facts? If so, a troubling list of subsidiary questions appears: Do they have a right to know some of these facts but not others? If so, which ones? Is such a list to be determined by how common intense feelings about a particular characteristic (vis a vis sexual partners) are among the general population (or some sub-population)? Unless such a list is codified in a statute, how are individuals to know which personal facts they are bound to disclose? Furthermore, is there an affirmative obligation to disclose to all partners? To all partners that one knows for sure have strong feelings about that personal fact? To all partners that one has reason to believe might have strong feelings about that personal fact? What constitutes reason to believe, and isn't possession of that knowledge by a particular partner often happenstance? Or is the obligation simply not to make affirmative contrary statements? In my view, these problems are intractable, at least as a matter of law.

Additionally, a disclosure obligation will necessarily place the greatest burden on members of socially marginalized groups. Essentially, group members will be forced to wear a scarlet letter with regard to their entire romantic and sexual lives. It strikes me as very problematic to place a societal badge of approval on loathing for certain groups of people, even in the name of protecting the sexual autonomy of others.

Caveat amator.

The notion of "caveat amator" is often mentioned in discussions of sexual deception: individuals ought to be aware of some inherent risks of sexual activity. This logic, quite obviously, can be taken too far, particularly given the larger social context of gender inequality. But it does seem apt with regard to the question of disclosing personal characteristics, and all the moreso the less the persons involved know one another. In a casual sexual encounter, or even early on in dating, it is self-evident that there is a great deal about your sexual partner you do not know. Even if a person makes false statements about him- or herself, the extent of the emotional harm done to the other person will typically vary with the length and depth of the parties' acquaintance. Finding out that my lover of three years has, say, a loathsome personal history will certainly be far more distressing than finding out the same thing about the anonymous stranger I shagged at the bathhouse.

Law versus morality/ethics.

There are a few tangled but distinct questions here:

1. Whether nondisclosure or false statements to sexual partners should be treated as vitiating consent to sex, so that seemingly consensual sex is regarded as a sexual assault.
2. Whether nondisclosure or false statements to sexual partners should be subject to legal penalty on some other basis (such as subjecting partners to harmful consequences).
3. Whether nondisclosure or false statements to sexual partners is immoral or unethical.

It seems obvious to me that, assuming sets (1) and (2) exist, they will each be smaller subsets of (3). There is a great deal of sleazy behavior in sexual relationships that should be condemned and discouraged. But as Alan Wertheimer has noted in his thoughtful book Consent to Sexual Relations, "The law is a blunt and expensive instrument, to be invoked with great reluctance, even at the cost of refusing to sanction some behavior that is clearly wrongful." (Wertheimer devotes a full chapter to the topic of deception, which is worth reading.) Moreover, it seems to me just to take into account factors that may inhibit an individual from immediately disclosing some potentially inflammatory personal facts - particularly their membership in a marginalized social group based on characteristics having no relation to their moral worth or contribution to society.

On the general principle that causing avoidable emotional distress to others is wrong, one could easily recognize a moral imperative to disclose some information to potential partners who might be upset by it. All the moreso in situations where the potential partner will be unwittingly involved in unethical behavior (as with a cheating spouse) or exposed to tangible risks (as with a sexually transmitted infection). While others might disagree, I am hesitant to recognize a strong imperative of this sort on the basis of membership in any socially marginalized group. But regardless of that question, it seems clear to me that nondisclosure in such contexts should not be regarded as vitiating consent to sex.

Gender, "deception" and the law, pt. 1

Last week, a Colorado jury sentenced Allen Andrade to life in prison for the brutal murder of 18-year-old Angie Zapata. The jury rejected Andrade's attempt to mitigate his crime by arguing he was provoked into a crime of passion following the discovery that Zapata, with whom he'd had a sexual encounter, was a transgender woman. Queer and transgender blogs covered the story of the trial quite thoroughly (I've mentioned it previously too), and I won't recount all that here. Suffice to say that whatever my usual qualms about our criminal justice system, the Zapata verdict was reassuring in its rejection of the desperate but nonetheless vile victim-blaming defense strategy. Still, a number of commentators have predictably placed the blame on Zapata for her own gruesome death by condemning her supposed "deception" about her gender history. (The local paper covering the trial even ran the headline "Andrade: Stunned Victim or homophobe?") Some have gone so far as to suggest that such "deception" of a sexual partner could constitute criminal sexual assault.

The suggestion that transgender people who fail to disclose their gender history to sexual partners are themselves perpetrators of sexual violence owes more to horror of transgender people themselves, and of perceived "homosexual" acts, than to legal interpretation. Yes, many rape and sexual assault statutes state that deception vitiates consent. But the inherently malleable concept of deception has rightly been narrowly interpreted by courts. In this and a subsequent post I hope to sketch out some of the how and why of that interpretation, and why extending it to situations like the Zapata case would be legally untenable and morally unacceptable.

American and British courts have interpreted the concept of deception in rape and sexual assault statutes narrowly, to account for a few obvious situations in which the defendant's conduct obviously vitiates consent and fits within, or closely resembles, the common law concept of battery. See, e.g., David P. Bryden, Redefining Rape, 3 Buffalo Crim. L. Rev. 317, 457-75 (2000). This is a sensible approach, given how malleable and potentially limitless the concept of deception is.

Nature of the act. Courts have regularly said that fraud concerning the "nature of the act" vitiates consent, but by that they mean something very specific: the defendant causes the victim to believe that an otherwise unwanted sexual contact is something else entirely. The classic examples are medical professionals purporting to conduct a clinical examination or deliver a medical treatment.

Mistaken identity. Courts have also recognized identity fraud as vitiating consent, and this also means something very specific: the defendant causes the victim to believe that the defendant is actually some other person altogether. The classic example is the defendant posing as a person's spouse.

Infection, fertility and common-law battery. Several states now criminalize exposure of unwitting sexual partners to a sexually transmitted disease, but this is not classified as a species of rape. Rather, it is considered akin to common-law battery; liability is based not on whether the sexual partner would have consented given certain information, but rather on the potential physical injury. One could also imagine liability for lying about having had a vasectomy, but in this scenario, too, liability would be based not on the notion that consent to sex was vitiated as such, but that the victim would probably have insisted on using contraception. It was not the sex that was unwanted, but the consequences. These statutes are controversial, of course, both as a matter of justice and of public health.

In a follow-up post I intend to sketch the debate over extending the deception concept to other scenarios, and argue that doing so is unwise; and to discuss briefly the handful of cases in which transgender people have been prosecuted for "deception" of sexual partners.

Surfing cable is not "exhibiting harmful matter to a minor"

The California Court of Appeals recently overturned a conviction for "exhibiting harmful material to a minor," also known as "showing kids dirty pictures." The court ruled that there was insufficient evidence that the television segments involved fit the statutory definition.

Cable is not a crime. Shaun Martin at the California Appellate Report has this assessment of the case:

(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well. So if you're convicted of misdemeanor sexual battery (as David was here in Count II), that's fair.

(2) More relevant to this appeal, however -- and to most of us law-abiding citizens as well-- it's not illegal to be flipping through channels on the television and stumble across an NBC, HBO, or (even) Cinimax program. Even if a 16-year old is present. And even if you (allegedly) linger on a fake sex scene -- e.g., your typical broadcast "waist up, lots of grunting" shot) longer than you should given the audience. That's what's on television nowadays. It's not obscene. And it does not count as illegally "exhibiting harmful material to a minor," for which David was convicted in Count One. Watching regular television simply isn't a crime. Even if it's "Leaving Las Vegas," "American Beauty," or (to your eternal regret) "Showgirls"....

The court noted that there was no way to tell from the sketchy descriptions of the TV segments involved whether, under the terms of the statute, the allegedly "harmful matter" lacked "serious value":

Was the dance by the unclothed female lurid, artistic, or even a cultural or tribal dance? There is no way to know and no reasonable basis for inferring that it lacked such value. As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare‘s Romeo and Juliet.

Should "exhibiting harmful matter to a minor" be criminal? Although overturning the conviction in this case, the appeals panel made clear that they saw no constitutional or policy problem with the law, and in fact, went out of their way to suggest that the law could and should be drafted more broadly, so as to capture cases like this one. Specifically, they noted that the legislature had narrowed the definition of "harmful matter" in 1988 so that it essentially tracked the Supreme Court's definition of obscenity. The judges suggested, though, that the First Amendment does not require a statute like this to be so narrow, because the statute also required that the exhibiting must be done "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor." The court said this was a case of "mixed speech and expression," and so it would be permissible to reach a broader category of otherwise-protected speech. The court said it "would encourage the Legislature to revisit this issue, given the potential consequences of so narrowly defining harmful matter when it is used to groom young victims for acts of molestation."

I understand the rationale here: it is not the mere exposure of minors to racy material that is punished, but the use of the material to facilitate abuse. But I'm not sure whether it is either necessary or wise as a matter of policy. Not sure whether it's necessary, because there are any number of other things a person might do to "groom young victims for acts of molestation" other than show them pornography -- engage in sexual talk with them, for example, or give them alcohol, or do any number of other things to curry affection and normalize inappropriate intimacy -- and we don't separately criminalize them. Not sure whether it's wise, because the intent factor fails to set clear, objective boundaries on when prosecution is appropriate. Public screenings are clearly exempted, but in any one-on-one interaction there exists the possibility of unintended but untoward appearances. It is at least reassuring, however, that the California Court of Appeals has previously interpreted this law to require a specific intent to entice the minor into physical sexual contact with the defendant, as opposed to encouraging the minor to, e.g., masturbate alone. People v. Jensen, 114 Cal.App. 4th 224 (App. 6 Dist. 2003).

Who cares? Prof. Shaun had these closing thoughts on People v. Dyke:

The fact that the trial court let this count go forward, and that the jury convicted on it, says some pretty damning stuff about the judicial system here. I get the keen sense that this happens not because of some neutral assessment of whether it's in fact illegal to watch television alongside a 16-year old, but rather because we don't like what the defendant allegedly did here and are eager to punish him however we can.

This blog frequently addresses criminal cases in which the defendant clearly committed one or more serious crimes. In such cases, prosecutors regularly reach out for anything in the book to increase the sentence, increase their plea-bargaining leverage, and/or provide a fall-back charge. Not infrequently, they find a statute, or (as here) advance an interpretation of a statute, that could also apply to a significant swath of innocent conduct. I blog on these cases for three reasons: 1) such prosecutorial practices are a misuse of law and the justice system, in violation of the spirit (if not the letter) of the Double Jeopardy Clause; 2) criminal cases involving obvious "bad guys" are one of, if not the most common context in which courts consider potentially inflammatory sex-related topics, such as pornography and BDSM, and provide a window into judges' thinking (and prejudices) about these issues; and 3) the American experience with sodomy laws teaches us that the fact that a law is only ever used to prosecute truly culpable persons doesn't mean that it can't have other harmful effects.

The strip-search case: why the Supreme Court needs more women

Dahlia Lithwick has written another piece of brilliant, scathing Supreme Court reportage, on yesterday's oral arguments in Redding v. Safford Unified School District No. 1. The case illustrates why it is that Justice Ginsburg might be feeling "lonely" since the retirement of Justice Sandra Day O'Connor:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks")....

Editorialists and pundits have found much to hate in what happened to Savana Redding. Yet the court today finds much to admire. And even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen. You might think it traumatic that she was forced to strip down to her underclothes and pull her bra and underwear out and shake them in front of two female school employees. No drugs were found. But even those justices lacking a daughter, a niece, or a uterus had access to an amicus brief in this case documenting the fact that student strip searches "can result in serious emotional damage" and that student victims of strip searches "often cannot concentrate in school, and, in many cases, transfer or even drop out." Savana Redding, herself a data point, described the search as "the most humiliating experience" of her life. Then she dropped out of school. And five years later, at age 19, she gets to listen in on oral argument in Porky's 3: The Supreme Court Says "Panties."

...

David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"

...

Adam Wolf, the ACLU lawyer who represents Redding, explains that "the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl's naked body." Wolf explains that he is arguing for a "two-step framework," wherein schools can use a lower standard to search "backpacks, pencil cases, bookbags" but a higher standard when you "require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area." This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to "change into a swimming suit or your gym clothes," because, "why is this a major thing to say strip down to your underclothes, which children do when they change for gym?"

This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—"what was done in the case … it wasn't just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!" Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.

But Breyer just isn't letting go. "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."

Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: "Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience."

It gets weirder. Wolf claims school administrators should have known better than to suspect that "Savana was currently concealing ibuprofen pills underneath her underpants for other's oral consumption," noting "a certain ick factor to this." The Chief Justice quickly replies that the ick factor doesn't attach when you are talking about "the brassiere as well, which doesn't seem as outlandish as the underpants, right?"

Oh, ick indeed. The search for a bright line rule about the expectations of student privacy has turned into a fight between a bunch of guys who still say "brassiere."

My incisive legal analysis: ugh.

Law imitates art? The misplaced fixation on surgical status

Two things have bothered me lately, and it occurred to me that they are connected. One is the difficulty of persuading judges to find for plaintiffs in transgender discrimination cases, particularly in cases involving disputed bathroom use. The other is the overwhelming tendency of pop-culture representations of gender transition to focus on reassignment surgery as the central and defining change, the sine qua non of authentic gender.

As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.

This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.

Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.

Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.

Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.

All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.

Legislative roundup

Obviously, the big legislative news this month comes from Vermont, which became the first state to legalize same-sex marriages without a court order - and over a gubernatorial veto, no less. Much virtual and literal ink has been spilled on this, so I will only comment on the transparent foolishness of Gov. Douglas's justification for his veto. Rather than defend his veto on its merit, Douglas said the legislature shouldn't be spending time on this issue while there are pressing economic and budget matters. They may be logical criticism of the legislature's action, but it is completely illogical as a justification for a veto, which comes only after the legislative effort has been spent, and serves only to set the stage for the legislature to spent more time on an override.

There's lots more to tell. There were big headlines the same week from DC, where the District Council unanimously voted to recognize out-of-district same-sex marraiges, as marriages. When finalized, the measure will of course be subject to an override by Congress, and we will have to wait and see if the Dems can block any such move.

In Nevada, the governor is threatening to veto an impending domestic partnership bill. And in Washington, the legislature has passed an expansion of the existing DP law.

NY Gov. David Paterson has said he will soon introduce marriage equality legislation there. Not clear yet if it can pass the state Senate, which now has a slight Democratic majority. Reproductive rights advocates in New York are also gearing up for the anticipated reintroduction of a Reproductive Health Act, which would codify the right to contraception and abortion New York law, and remove abortion from the state penal code.

On a second vote, the New Hampshire House passed a gender identity antidiscrimination measure last week, by one vote: 188-187. Thus, it appears that the deciding factor in the previous 149-181 "nay" vote was in fact lawmaker turnout, rather than the success of opponents' deceptive messages on bathroom use. That's encouraging.

Earlier this month, North Dakota's Senate rejected by a 2:1 margin a bill that would have purtported to bestow "personhood" on zygotes and embryos. This is yet another defeat for the putative "personhood" movement, but I suspect their aim is less to actually pass legislation than to use these attention-getting bills as opportunities to promote their dressed-up message of full criminalization. Anway, anti-choice groups did get two wins in the state Senate, passing bills that (like one recently passed in Kansas) would require medical facilities to offer ultrasounds before abortions, and (like one upheld by a federal court last year in South Dakota) require doctors to tell patients that abortion terminates a "human life."

In the U.S., private or public insurance coverage for surgery related to gender transition is very seldom available. In Canada and Europe, it's a different story. But in tough economic times, this coverage is, depressingly but unsurprisingly, first on the chopping block. The province of Alberta has now eliminated its public coverage for transition-related surgery. As noted over at Bilerico, this may not be the last word here, since a human rights tribunal in Ontario last year ordered the reinstatement of such coverage there. Blue Cross/Blue Shield of Michigan has also eliminated coverage, citing the need to cut costs. As also pointed out at Bilerico, this may not actually make financial sense in the long-term, since cutting off access to surgery can have its own health care costs down the line.

Bathrooms in the courts

My last post dealt with the bogus "issue" of restroom use by trans people in the context of passing civil rights legislation. As NCTE director Mara Keisling recently noted in an interview for Pam's House Blend, that's unfortunately going to be the focus of a lot of work in the next few years. It's also, unfortunately, going to continue to be the focus of some equally if not more difficult work in the courts, in employment discrimination cases. The challenges that "bathroom issues" present in the courts are illustrated by the Ninth Circuit Court of Appeals's recent decision in Kastl v. Maricopa County Community College, 2009 WL 990760 (9th Cir. Apr. 14, 2009) (No. 06-16907; unpublished).

Ms. Kastl was an instructor and student at MCCC in 2000 and 2001, during which time she transitioned from male to female. Following complaints from students about her presents in the women's bathroom, she was instructed that she would be required to use the men's room until she could present proof of having completed genital surgery. (No student ever complained of seeing her genitals.) She was not rehired for the next semester. The case survived a motion to dismiss, but was thrown out on summary judgment (i.e., the court didn't think Kastl had enough evidence to go to trial.)

The Ninth Circuit affirmed. The court recognized that under the law of this and other circuits, discrimination motivated by a transgender (or any other) plaintiff's gender-non-conforming conduct or appearance can constitute illegal sex discrimination. It said that Kastl had presented enough evidence to raise an inference of discrimination. But it also said that the school satisfied its burden of showing a non-discriminatory motive. What the school showed was that students complained about Kastl's presence in the women's room and (in the words of a filing by the school) "expressed concerns regarding their privacy and/or safety." In response, the court said, Kastl had failed to provide sufficient evidence that the school's actions were in fact based on sex-stereotyping discrimination. All this the court said in two paragraphs; both the trial and appellate court opinions give no indication of the actual evidence in the case regarding the school's motivation. The Ninth Circuit added a footnote:

We note that the parties do not appear to have considered any type of accommodation that would have permitted Kastl to use a restroom other than those dedicated to men. After all, Kastl identified and presented full-time as female, and she argued to MCCCD that the men's restroom was not only inappropriate for but also potentially dangerous to her.

But this observation didn't keep the appeals court from throwing out the case. Both the trial and appellate court decisions say next to nothing about what evidence there was concerning the employer's motive.

Despite the sparse opinions, this case illustrates why cases involving disputed bathroom use by trans employees are so difficult to win, even when the employer's actions are (at least to this blogger) obviously discriminatory.

Medical sex. In the trial court, Kastl sought to prove that she was in fact medically female. This is an interesting strategy; if it could be proved, it would presumably demonstrate that the employer's bathroom "policy" was utterly baseless and was simply based on discrimination because of Kastl's gender history. But this strategy is also an uphill battle, whether or not the plaintiff has had genital surgery, because it depends on mustering scientific evidence, and persuading the court, on a complex issue - the criteria for determining "medical" sex - that (as I have discussed elsewhere) medical experts disagree on. Whatever the merits of this strategy in general, it was not successful here, and indeed the court was dismissive of Kastl's attempts to dispute her medical sex.

Flimsiness of employe's reason: "privacy and/or safety." The Ninth Circuit panel apparently believed that students' asserted "concerns about their privacy and/or safety" amounted to a legitimate, nondiscriminatory motive. There is no indication of why students thought their privacy or safety might be threatened, and this is not just because the court's opinion is terse: being around a trans person in the bathroom does not affect anyone's privacy or safety, so long as the toilets have stalls, and trans people are not presumed to be dangerous. That this is so is underscored by the school's focus on genital surgery. How would students' privacy or safety be threatened before the plaintiff's surgery but not threatened afterward? The students wouldn't even be able to tell the difference! It is well-established that the prejudices of third party patrons cannot give an employer a defense, even if those prejudices would have real effects on the employer. This nothing more than a case of third-party prejudice, and in the absence of any evidence to substantiate these concerns, the court should have seen right through them. It should have, but it didn't.

Flimsiness II: "liability." In a similar case, the Tenth Circuit held that an employer's fear of liability consituted a legitimate, nondiscriminatory motive. The court acknowledged that the law would be against any offended person who tried to sue the employer; in the only reported case of this sort, a federal appeal courts rejected claims that permitting a trans person to use the same restroom as the plaintiff constited religious and/or sex discrimination and/or harassment. But the Tenth Circuit said it didn't matter whether an employer would actually be liable, only whether the employer's fear of liability was genuine. This, too, is nothing more than dressed-up "customer preference" scenario, where the employer fears economic consequences from a third party's prejudice toward the plaintiff. Again, the right conclusion would be that this is not a legitimate, nondiscriminatory motive, but the court bought it.

Flimsiness III: Ease of accommodation. The Ninth Circuit acknowledged the possibility that there were options other than firing Kastl or forcing her to use the men's room. In many workplaces, it would be easy enough to provide that either the trans employee, or any person not wishing to use the same bathroom as the trans employee, use a single-person bathroom. While the law does not require "reasonable accommodations" in sex cases as it does in disability cases, the availability of an obvious and cost-free alternative would certainly suggest that the employer's stated motive was a pretext. Unfortunately, an accommodation might well be possible but might not be totally obvious and cost-free. For example, in the Tenth Circuit case the plaintiff was a bus driver, and needed to use various public restrooms around town.

Catch-22. The Ninth Circuit's opinion recognizes that, in contrast to the employer's baseless "privacy and/or safety" concerns, Ms. Kastl had very real reasons for avoiding the men's room. The result is that if employers are permitted to adopt genital-based bathroom policies, most trans people will simply be unemployable. Yet courts in these cases typically treat such policies as obvious and natural, and trans employees' objections to them as frivolous. It might well be difficult to prove the danger of harassment or violence in a particular case, especially since trans employees, quite reasonably, will typically face firing before using the bathroom of their birth-assigned gender. It ought to be possible, however, to bring in evidence from outside the case to establish the reasonableness of the employee's fears. However, courts may well insist that this "Catch-22" theory is only valid when it applies to all members of one gender, and that, like employee dress codes, these policies are permissible because they burden men and women equally.

This theory would fit nicely into the disparate impact concept. Even if it were accepted that such policies are not intentionally discriminatory - or, what amounts to the same thing, based on third-party prejudice - they clearly have the effect of making it impossible for most trans folks to do the job without subjecting themselves to intolerable conditions. In a disparate impact claim, the employer must prove that their policy is based on "business necessity" - something that they clearly couldn't do here. This is one illustration of why, even though there is some good case law out there now, a trans-inclusive ENDA is badly needed. As drafted, however, ENDA would not provide for disparate impact claims based on gender identity. And I think courts are unlikely to accept a disparate impact theory here based on sex, for the same reasons that they may be iffy on disparate treatment claims.

In sum, it is easy to explain why, as a matter of law and as a general matter of fact, a case like this ought, theoretically, to be winnable. But courts are all too willing to accept dubious assertions by employers at face value, and all too ready to discount the assertions of trans people. Even when the facts should support the plaintiff, the court's preconceptions may lead it to see those facts in a way that doesn't support the claim. Add to that potential problems of proof and some uncertainties in current case law, and you have some very, very hard cases to win.

The bathroom canard lives on

The incessant refrain of those who insist that anti-transgender discrimination should remain legal is "bathrooms, bathrooms, bathrooms." Prohibiting discrimination in jobs, housing and public accommodations is, to hear them tell it, an assault on the privacy and safety of women in children in loos everywhere. Perhaps the most remarkable thing about this parade-of-horribles argument is that it keeps popping up, and seemingly keeps working, despite the fact that more than a dozen states and a hundred localities have proven it false.

The bathroom canard was the main argument of the campaign to repeal my Maryland county's antidiscrimination law last year, before the state's high court ruled that the issue did not belong on the ballot. A similar campaign, based essentially on a "bathrooms" message, did go to the ballot in Gainesville, FL last month, and lost 58%-42%.

But while Gainesville voters rejected this tactic, legislators in New Hampshire apparently bought it, voting 181-149 in the state House to kill an antidiscrimination bill. This was the very same week that the House there passed a marriage equality bill 186-179. (Comparing those numbers shows that the margin by which the antidiscrimination bill failed was smaller than the number of lawmakers who cast a vote on marriage but didn't cast a vote at all on antidiscrimination! That certainly tells you something .) Following this success for proponents of discrimination, the same tactic is now being pushed heavily in Connecticut and Massachusetts.

Of course, this is part of a bigger picture of opponents of LGBT equality seeking to frame equal protection of the law as somehow being a threat to individual rights; the frequent arguments that marriage equality threatens the religious liberty of churches that reject same-sex love are just as dishonest. But they're also easier to know how to respond to - as, for example, the Iowa Supreme Court so eloquently did in the closing paragraphs of its recent marriage decision.

But I think it's harder to know what to say to an uninformed audience in response to the bathroom canard, because from the point of view of people who don't understand or accept trans identities, nondiscrimination ordinances would permit "men" to use the ladies' room and vice versa. Moreover, definitional questions about who "belongs" and who doesn't really seem to bother people. Montgomery County legislators tried to dampen these objections by specifying that the law would not apply to places that were "distinctly private and personal," opponents said this was too vague and implied that nothing short of providing carte blanche for discrimination in restroom use would be satisfactory.

Here are some talking points on the issue of from Transgender Law and Policy Institute, similar ones from the Sylvia Rivera Law Project that address these questions. They rightly focus, I think, on a handful of points:

• All transgender people have to use the bathroom somewhere.
• Using bathrooms consistent with their birth-assigned gender just does not make sense for trans people: it would often be more upsetting for everyone involved, and would put the trans person at risk of harassment or violence.
  
• People who enter a bathroom with the intent to assault others, or who stalk or harass others in bathrooms, are and will remain punishable, regardless of gender.
• Trans and non-trans people are not going to be watching each other potty: bathroom stalls have locking doors for a reason.
  
• There is no evidence of threats to safety in privacy in the many jurisdictions that have adopted these laws.
  

One wonders how this is going to play out in Congress when a trans-inclusive ENDA is finally introduced. The Alliance Defense Fund's token witness at the historic first House hearing on anti-trans discrimination last year pushed the bathroom line, but I hold out at least some hope that moderate members of Congress can be convinced not to take these objections seriously.

Why Iowa Matters

Today the Iowa Supreme Court invalidated that state's ban on civil marriage for same-sex couples. The lengthy opinion is available here (PDF). The law profs and other queer bloggers in my blogroll will undoubtedly have many interesting things to say about this decision. Here, in a nutshell, is why I think this decision is so important:

• Of the several courts that have ruled for relationship recognition for same-sex couples, this is the first unanimous ruling.
• This is also the first such ruling from a court in a non-coastal state.
• The ruling clearly rejects any substitute for full equality, such as civil unions.
  
• Much as in Massachusetts, the Iowa Constitution is difficult to amend; it would take at least three years to do so.
• The Court's opinion is very, very thorough, smart and readable; it does an especially good job of dismantling the state's arguments about "immutability" and "political powerlessness" (which, as I have discussed here, often trip courts up). Like the decisions of the Connecticut and California courts, this one provides an invaluable road map for other courts addressing this and many related issues. At the same time, the decision reached only as far as it needed to, ruling on Equal Protection grounds alone and sorting out some of the thorny tangles of Equal Protection doctrine while avoiding others when it was clear that, however they were resolved, the Iowa law would fall.
  

I think this is a momentous decision, indicating that despite the setbacks of Proposition 8 and the string of bad rulings in 2006, litigation is still one among several viable and needed strategies for LGBT equality.

Update: I doubt I can improve upon the great summary and discussion of the opinion over at Leonard Link.

Maryland Senate scares UM into canceling film screening

A planned screening of the high-budget porn epic Pirates II at the University of Maryland-College Park this weekend has been canceled after state Senate leaders threatened to cut public funding:

The screening of the multiple AVN Award-winning blockbuster was approved by a student programming committee for a Saturday midnight show. The publicity led to a state Senate debate, according to the Baltimore Sun.

"That's really not what Maryland residents send their young students to college campus for, to view pornography,"said Senate President Thomas V. Mike Miller.

Although Miller called the screening a misuse of tax dollars at the state university, Digital Playground actually offered the film to students for free. The event would have cost no state or student funds.

"This incident in Baltimore is very sad, but we are thrilled that our film has sparked a very important debate about censorship," Adella told AVN. "The Pirates II screening was unanimously approved by the student programming committee, and there was no legitimate reason to cancel the event."

Nonetheless, Sen. Andrew P. Harris suggested state budget cuts to deny funding to any higher education institution screening a porn film outside of an official academic course.

Miller backed the proposal. With millions in state funds hanging in the balance, UM President C.M. Mote, Jr. caved in and squashed the planned event after a closed-door debate between school administrators and state Senate officials.

It's safe to assume that the state Senate spent many times more public money in getting this screening stopped than would have been spent on the screening.

No word on whether students plan to sue the school for its cowardly cave-in. If the state actually managed to pass such a funding restriction, it would undoubtedly be invalidated as a naked content-based restriction. Off the top of my head, I see no reason why the University president's decision to cancel the showing should not be similarly unconstitutional.