Tuesday, March 31, 2009

Pa. federal judge blocks child porn charges for teens

Last week I blogged about the federal suit brought by teens and parents in Wyoming County, Pennsylvania, against a local prosecutor who threatened the teens with felony child porn and sexual abuse charges for taking "provocative" photos of themselves on their cell phones.

The federal judge hearing the case has now issued a temporary restraining order (PDF), prohibiting the D.A. from bringing charges against these young women. The judge found it likely that they would prevail in proving that (1) the photos at issue did not violate any law, (2) the teens had a First Amendment right to refuse to participate in a five-week education and counseling program the D.A. sought to force them to attend, (3) the parents had a fundamental privacy right to refuse such a program for their children, and (4) the D.A. retaliated against the plaintiffs for refusing to participate in the program by threatening felony charges.

(A technical note: The judge also rejected the prosecutor's argument that he lacked the power to interfere with state prosecutions. The court explained that the federal "abstention" rule only prohibits federal courts from intervening in ongoing state prosecutions, not threats of prosecution. If the rule applied to threats of prosecution, after all, it could block a lot of pre-enforcement challenges to state laws that, e.g. abridge the freedom of speech.)

Saturday, March 28, 2009

Va. court: upskirt photos are illegal peeping

I previously opined that existing invasion-of-privacy laws should suffice to address the problem of covert "upskirt" photography in public places, because even in public places an individual has a "reasonable expectation of privacy" (as that term has traditionally been defined by courts) under her skirt. I'm pleased to report that the Virginia Court of Appeals agrees (PDF). H/t The Legal Satyricon.

Virginia has a law that was drafted with this kind of peeping in mind, but did not specifically address public places:
It shall be unlawful for any person to knowingly and intentionally videotape, photograph, or film any nonconsenting person ... if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) the videotape, photograph, film or videographic or still image record is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person’s legs for the purpose of capturing an image of the person’s intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; and when the circumstances... are otherwise such that the person being videotaped, photographed, filmed or otherwise recorded would have a reasonable expectation of privacy.
The court concluded that:
Under our construction of the statute, a person may, in fact, possess a reasonable expectation of privacy when being victimized in public...
The...requirement that the victim otherwise have a “reasonable expectation of privacy”... is made applicable to both clauses (i) and (ii). Accordingly, the victim’s reasonable expectation of privacy under clause (ii) is in reference to the victim’s intimate parts or undergarments covering those intimate parts—not in reference to the victim’s actual physical location (as in clause (i)).
The court's analysis is quite sensible, though I would note that it is based on the textual structure of this particular law. While this does help to reinforce its conclusion, I would have liked to see the court recognize that that this structural reinforcement is not necessary to reach the conclusion that there is a reasonable expectation of privacy in one's beskirted undergarments. I have confidence, however, that courts would reach the same conclusion under a differently-worded statute, based entirely on this reasoning.

AVN reports on the case, and concludes:

The appeals opinion doesn't disclose what punishment Wilson actually got, but the case should serve as a warning to any adult [film] producer who still thinks this is a viable genre to get into.

By which they clearly mean "if you're really doing it with unconsenting subjects (which should have been obvious to begin with!)." Fake it all you want.

Friday, March 27, 2009

Reproductive rights news from Kansas

A Kansas grand jury has acquitted one of the nation's handful of late-term abortion providers of 19 charges of performing illegal abortions. State officials have been out to get the Wichita physician for some time now. These charges against George Tiller were pretty technical. Kansas law requires that a second physician sign off on late-term procedures. The prosecutor claimed that Tiller had an illegal financial connection to one of his second-opinion providers. The New York Times reports:

Dr. Tiller’s clinic is one of three in the United States that perform late-term abortions, and he has been reviled by anti-abortion forces for decades. In 1986, a bomb exploded on the roof of his clinic here, Women’s Health Care Services. In 1991, some 2,000 protesters were arrested outside during summer-long protests; in 1993, Dr. Tiller was shot in both arms by an anti-abortion activist while driving away from the clinic. Protests continue there almost daily....

The Rev. Patrick J. Mahoney, director of the Christian Defense Coalition in Washington, called the verdict “a setback.” Mr. Mahoney said that had jurors voted for conviction, “they would have put him out of business.” But Mr. Mahoney, who had predicted that the trial would “energize” anti-abortion forces, said it was a “very technical case” that was not relevant to other legal and legislative challenges to abortion.

Assistant Attorney General Barry Disney, who prosecuted Dr. Tiller, said the quick verdict probably resulted from the fact that the issue before jurors was clear and concise. “There wasn’t a lot for them to go back there and argue,” Mr. Disney said.

During testimony, both Dr. Tiller and Dr. Neuhaus, the only witness called by prosecutors, denied that there was anything improper about their financial relationship. Dr. Neuhaus testified that she misspoke during a 2006 deposition when she called herself a “full-time consultant” for Dr. Tiller.

The trial is not the end of Dr. Tiller’s legal problems. The state Board of Healing Arts is investigating a complaint that mirrors the accusations made in the trial.
Also in Kansas, Governor and Homeland Security Health & Human Services nominee Kathleen Sibelius has signed a law that will require that abortion clinics offer sonograms to patients. The Kansas City Star reports:

The new law also requires the state to make and distribute new pamphlets and a video about abortion and fetal development. And, it requires clinics to post signs telling patients that coerced abortions are illegal....

Last year Sebelius vetoed abortion legislation that included the sonogram provision but also went much further. That bill would have also required the state to collect more data on late-term abortions, given prosecutors more authority to access state abortion reports, and allowed relatives of women receiving late-term abortions to sue the provider if they suspected the abortion was illegal.
Sibelius is pro-choice, but hoped to avoid another showdown with an overwhelmingly antichoice legislature.

NH Legalizing Same-Condiment Marriage

Or so state Rep. John Cebrowski has it:
"Creamy peanut butter and crunchy peanut butter can't be a peanut butter and jelly," said Rep. John Cebrowski, R-Bedford.
I think that means he opposed the bill. Nevertheless, the state House voted 186-179 yesterday to permit creamy and crunchy peanut butters to marry one another. Vermont is also close to legalizing these sticky, chewy unions, though Republican Governor Jim Douglas says he'll veto the legislation, apparently out of concern for the risk of salmonella.

Exempting minors from child pornography laws?

Following up on yesterday's post:

Thomas MacAulay Millar, whose post on the Wyoming County, PA case over at Yes Means Yes! I linked yesterday, suggests adding the following exemption to the federal child pornography law (18 USC 2252):
(d) Notwithstanding the foregoing, no person shall have committed a criminal act within the meaning of this section solely by reason of having possessed, transported, shipped, or received a visual depiction wherein the person himself or herself is the only minor depicted.
This makes sense to me. It means that a minor would never be prosecuted for "child pornography" based on depictions of him- or herself. Any adult involved in the production or distribution of that material could still be liable, and minors could still be liable for material featuring other minors. But it would eliminate situations like this, reported Wednesday in New Jersey (h/t DailyKos):

CLIFTON — A 14-year-old girl faces child pornography charges after she allegedly posted nearly 30 nude pictures of herself on a social networking site, authorities said.

Detectives with the Passaic County Sheriff’s Department’s Internet Crimes Unit arrested the teen Tuesday. The National Center for Missing and Exploited Children contacted sheriff’s detectives about someone posting photos of an underage nude girl on a MySpace profile. The center, which monitors social networking sites for illegal images of children, contacted county detectives through the State Police’s Internet Crimes Against Children Task Force, said Bill Maer, the sheriff’s department spokesman.

Following a month-long investigation, detectives discovered that the person posting the pictures was the same person featured in them — the 14-year-old girl. Anyone who was “friends” with the girl through MySpace or knew her full name could have accessed the photos.

The teen was charged with one count of possession of child pornography and one count of distribution of child pornography. She was released into her mother’s custody, Maer said.

The teen reportedly told police she posted the pictures into a photo album for her boyfriend’s enjoyment. More arrests may be forthcoming, Maer said.

It's worth noting that while the National Center for Missing and Exploited Children initially flagged these photos for police, an NCMEC attorney recently criticized the practice of prosecuting minors in cases like this. As these prosecutions and threatened prosecutions continue to multiply, I think the case is building for building exemptions into child porn laws for cases like this. Fixing the federal law would just be a start, however, since to date I believe all the reported cases of this phenomenon have been at the state level.

Thomas's proposed exception wouldn't entirely solve the problem, as I see it; in a case like the Pennsylvania one, where three girls took pictures together, the minors could still be charged based on one another's participation. Putting aside that the material in that case was clearly legal, such a scenario, where multiple minors are each charged with victimizing one another, seems equally unwarranted. This would call for a more complex exemption - one that still allows for prosecutions of minors who are truly exploiting other minors - and how to draft it isn't immediately obvious to me. Additionally, if an exception is warranted for the child porn laws in multiple-minors situation like this, you'd presumably need to write a similar one into "sexual exploitation of a minor" statutes, since there's significant overlap between the two sets of laws.

This could be a sticky wicket, but the issue does need serious consideration. Prosecutions like this are to my mind unconscionable. As Thomas wrote yesterday:

Let me say this loud and clear: charging young women with sex offenses for distributing photographs of themselves is social control by intimidation. It ruins young women's lives to make an example of them, to keep others in line.

(As a side note: where did the media come up with the term "sexting"? It's catchy in a garish soundbite sort of way, but it makes no sense: it's meant to refer to sending pictures, not text.)

Thursday, March 26, 2009

Spurious threat of prosecution used to shame teens

District Attorney George P. Skumanick of Wyoming County, PA isn't content to hop on the bandwagon of prosecuting teens for taking and sharing smutty pictures of themselves and one another under the child pornography laws. No, he's decided to use his legal muscle to put the fear of God (or more accurately, prison) in teens over material that is indisputably legal. Fortunately, these teens did the right thing: called the ACLU, who are helping the youngsters and their parents sue the local prosecutor.

Here's what happened, from the New York Times:

The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.

Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.

It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.

But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick.

They asked the court to stop the district attorney from filing charges against them, contending that his threat to do so was “retaliation” for the families asserting their First and Fourth Amendment rights to oppose his deal.

You go, girls. The ACLU of Pennsylvania's complaint (PDF) describes the content of the pictures:

One photo shows Marissa and Grace, from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign. The other photo shows Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts. The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania’s crimes code and, indeed, are images protected by the First Amendment.

I've posted about this topic before, and there's an excellent, excellent post about it over at Yes Means Yes!, so I'll just say a few things about this case.

First off, let's note that Skumanick threatened not only child porn charges but also charges of sexual abuse of a minor. The relevant Pennsylvania law makes it a second-degree felony to "knowingly photograph... a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act," including "nudity [that] is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." Pa. Stat. Tit. 18 s 6312. The laws's plain language doesn't exempt minors from prosecution. But the plaintiffs have it right here: while the definition of nudity-for-the-purpose-of-sexual-stimulation is potentially broad, it clearly requires actual nudity, not just topless or underwear-clad pictures.

Second, for basically the same reason, it's patently clear that these girls' pictures wouldn't be "child pornography," but in fact would be fully protected by the First Amendment. Simply put, teens showing a little skin isn't a crime, or the Delia's people would be in big trouble. Indeed, the complaint alleges that:

The plaintiff minors will in the near future want to be photographed in their bathing suits, for instance during the summer when they go to a swimming pool or the beach, to which the respective parents have no objection. They are, however, chilled in their ability to take such photographs because of concern whether Skumanick will find them “provocative.”

Even baring your breasts doesn't make it "pornography," even if the local D.A. thinks it's "provocative."

No, this is a transparent case of a law enforcement official threatening prosecution for plainly legal, indeed constitutionally protected, material, in an attempt to shame and frighten kids away from ever engaging in such constitutionally-protected experimentation again.

Interestingly, the girls' mothers are suing on their own behalf too; the suit frames Skumanic's threats as a threat to parents' constitutional right to direct their children's upbringing and education by forcing them into "a re-education program wherein the girls must discuss why their conduct was wrong and what it means to be a girl."

Finally, it strikes me as more than a little suspicious that Skumanic's spate of prosecutorial threats targeted girls by a 4:1 margin. I doubt this merely reflected which local students were taking, posing in, or passing around racy pictures. More likely, girls were targeted because the main point of the exercise was to enforce traditional notions of female modesty.

OT: The unbearable luridness of abstinence ed

There's much to be said about stuff like this:

I'll only add: that looks more than a little kinky to me.

Tuesday, March 24, 2009

OTC restriction for emergency contraception overturned

In 2006, the FDA approved the emergency contraceptive Plan B for over-the-counter sale for adults, but required that all minors obtain a prescription. Yesterday, a federal judge in Brooklyn, NY ruled that the FDA's decision to restrict sale of Plan B to minors was invalid (PDF), because it was politically oriented, ignored scientific expertise, and violated basic principles of federal rulemaking. The court (1) required the agency to reconsider its decision regarding OTC access for women under 17, and (2) ordered that Plan B be made immediately available over the counter for woman 17 and up.

Quick background for non-lawyers: The federal Administrative Procedure Act requires that all federal agency decisions be developed through a good-faith process of reasoned decisionmaking. Rules that are "arbitrary and capricious" can be challenged in court - which is just what a group of parents, teens and reproductive rights groups did. The teens were clearly injured by the decision, the court found, because getting a prescription and going to a pharmacy can make it much harder to obtain Plan B within its 72-hour effectiveness window. As the court rightly noted, "Any delay encountered during this process may render access to Plan B useless." Additionally, the organizations were prevented by the rule from distributing Plan B to minors.

The court held that the FDA's decision was arbitrary and capricious because the agency overrode its own scientific experts on purely political grounds. Here's the court's summary of its findings:
The FDA repeatedly and unreasonably delayed issuing a decision on Plan B for suspect reasons and, on two occasions, only took action on Plan B to facilitate confirmation of Acting FDA Commissioners, whose confirmation hearings had been held up due to these repeated delays. ...

[Moreover,] the record is clear that the FDA’s course of conduct regarding Plan B departed in significant ways from the agency’s normal procedures regarding similar applications to switch a drug product from prescription to non-prescription use, referred to as a “switch application” or an “over-the-counter switch.” For example, FDA upper management, including the Commissioner, wrested control over the decision-making on Plan B from staff that normally would issue the final decision on an over-the-counter switch application; the FDA’s denial of non-prescription access without age restriction went against the recommendation of a committee of experts it had empanelled to advise it on Plan B; and the Commissioner – at the behest of political actors – decided to deny non-prescription access to women 16 and younger before FDA scientific review staff had completed their reviews.

In light of this evidence, the FDA’s denial of the Citizen Petition [for OTC approval] is vacated and the matter is remanded to the FDA for reconsideration of whether to approve Plan B for over-the counter status without age or point-of-sale restrictions. While the FDA is free, on remand, to exercise its expertise and discretion regarding the proper disposition of the Citizen Petition, no useful purpose would be served by continuing to deprive 17 year olds access to Plan B without a prescription. Indeed, the record shows that FDA officials and staff both agreed that 17 years olds can use Plan B safely without a prescription. The FDA’s justification for this age restriction, that pharmacists would be unable to enforce the prescription requirement if the cutoff were age 17, rather than 18, lacks all credibility.
So, the agency could still decide to restrict sale for some teens, but it will have to base that decision on science, not politics.

(As is often seen on this blog, unjustifiable government decisions beget risible legal arguments. One of the FDA's arguments here was that the minor plaintiffs here lacked standing to sue because they had the support of their parents, and their parents could get Plan B for them without a prescription. The court pointed out the problem with this: under the 2006 rule, a lay person giving Plan B to a minor is illegal. The Government nevertheless argued that this was not a problem because prosecution would be very unlikely - which, the court responded, is hardly the point. You can't justify a law by saying that well, individuals can always break it. Nice try, guys.)

Wednesday, March 18, 2009

TSA wants to know your gender

Late last year, the Transportation Security Administration finalized regulations for its soon-to-be-launched "Secure Flight" program, intended to streamling the vetting of passengers and eliminate false matches with its watch list for terror suspects. Under the program, TSA rather than airlines will do the matching, but airlines will be required to obtain and pass along a new set of information from passengers, including their full name, date of birth, and gender. Privacy groups, naturally, oppose the program, which TSA has declared exempt from the federal Privacy Act (PDF). Transgender individuals are also understandably worried by any suggestion of collecting and "matching" gender information.

It's important to note that in this case the purpose is not to match the individual's declared gender against, say, their own passport or birth certificate, but instead to match it against TSA'a watch list for terror suspects. In the new federal rules for Secure Flight (PDF), TSA explains why it is asking about gender:
Many names are gender neutral. Additionally, names not derived from the Latin alphabet, when translated into English, do not generally denote gender. Providing information on gender will reduce the number of false positive watch list matches, because the information will distinguish persons who have the same or similar name. Consequently, TSA is including gender as a required element of the SFPD, which covered aircraft operators must request from individuals and which individuals must provide to the covered aircraft operator.
Thus, TSA has no reason to care about your gender as such - it wants to quickly and efficiently tell whether you might be the same "Lee Anderson" or "Alex Parker" as the one on its list. In its explanation of the program for travel agents (PDF), TSA says that "Aircraft operators will collect gender based on the declaration of the individual making the booking." Thus, according to the way the program is supposed to work, they are just comparing the passenger's declaration to the watch list.

In practice, it's not likely to be that simple. As the Human Rights Campaign noted in its opposition to the proposed regulations (PDF), it's not clear whether enhanced screening of an individual will, in practice, result if airline staff happen to notice a discrepancy with the passenger's identity documents. Airlines may feel it's simply the right thing to do, because gender discrepancies are viewed as suspicious - and the regulations give them authority to decide that. Likewise if an individual declines to make a declaration about gender. Moreover, the regulations provide for hefty fines for those making a false statement about any required data, including gender. How will it be decided if someone's declaration regarding their gender is "false"? Even if no transgender folks are ever fined, they have reason to fear the process.

While TSA's makes a logical argument that gender data would be helpful to them in streamlining the process, they haven't and can't make the case that it's necessary. If this requirement helps prevent harassment and inconvenience for some travelers by eliminating erroneous matches, it will simultaneously cause the same and potentially even worse problems for transgender travellers.

The Obama administration wasn't in on the process of writing these rules, which were finalized last October. It's not clear if these are among the regulations the administration is reviewing and may reverse, but TSA appears set to go ahead with rollout of the program.

Tuesday, March 17, 2009

Australian commission releases amazing report on gender diversity

As I documented in my article "Against the Surgical Requirement for Change of Legal Sex," Australia has in some respects been a global leader on transgender rights. A 2001 Australian Family Court decision is one of the leading cases on legal recognition of gender transition. In 2004, that court favored access to puberty-delaying hormone treatment for trans adolescents, and called into question the wisdom of requiring reassignment surgery as a prerequisite for legal recognition.

Yet in some ways Australian law is still strict when it comes to gender. Throughout the country, changing your sex on government documents is only possible if you are unmarried and have had reassignment surgery. Now the Australian Human Rights Commission has released a fantastic report entitled Sex Files: The legal recognition of sex in documents and government records. The Commission consulted with trans advocates and individuals through meetings, written submissions and a special blog. It arrived at the following recommendations:

1. Access to the system for having sex legally recognised to accord with sex
identity should be broadened. Specifically,

  • marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex
  • the definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex
  • the evidentiary requirements for the legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex
  • the special needs of children and young people who wish to amend their documents and records should be considered
  • a person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records.

2. The process for amending documents and records to legally recognise sex
identity should be streamlined and user-friendly. Specifically,

  • information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly
  • documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex
  • laws and processes for the legal recognition of sex should use empowering terminology
  • where possible, sex or gender should be removed from government forms and documents
  • the federal government should consider the development of national guidelines concerning the collection of sex and gender information from individuals.

The report correctly notes that eliminating the surgical and marital-status restrictions would simply reflect the reality of people's daily lives. Notably, the Commission is agnostic on whether this would conflict with the current ban on same-sex marriage in Australia, but points out that it would only affect a small number of people who regardless are already legally married and living as same-sex couples as far as they and the general public are concerned.

Perhaps even more remarkable is the reccomendation that individuals be able to have their sex listed as unspecified. Australia is already the first nation to permit an X in lieu of an M or F on passports, but currently this is only for intersex individuals. Under the Commission's proposal, this would be a matter of individual choice, without the need for medical or other evidence.

I have no sense of whether the current Labor government in Australia is likely to implement any of these recommendations, but the report itself is a remarkable accomplishment.

H/t Questioning Transphobia

Monday, March 16, 2009

Racy texts don't kill people, sexual shaming does

I've previously discussed the unsurprising trend of teens sharing racy pictures of themselves and each other via email and cell phones (and the rather more surprising trend of teens being prosecuted under the child porn laws for it). The topic is getting a lot of sensationalistic coverage - complete with the trendy moral-panic-tastic term "sexting" - right now because of the suicide of a young Ohio woman.

Elizabeth at Sex in the Public Square has this to say:

I'm furious about the way this young woman's story is being reported. Jesse Logan killed herself last July not because of the "dangers of sexting" but because of the dangers of sex stigma and "slut shaming." She had sent some naked photos of herself to her boyfriend by cell phone. When they broke up he showed those photos to other people at their high school. Some of those people then visciously shamed and bullied Jesse. But to read this MSNBC story you would think that it was her sending of the photos that was so dangerous.

Slut shaming works because girls are told to be sexy but not sexually active. I don't know whether Jesse had ever even had sex with the boyfriend to whom she sent the pictures. It doesn't matter. What matters is that words like "slut" and "whore" were hurled at her and that those words are understood to be condemnations. They should not be, yet they are, and the shame attached to them caused Logan such pain that she began skipping school, spiraled into a deep depression and, after a friend of hers committed suicide, she did the same, hanging herself in her closet. What a tragically symbolic end for someone whose privacy had been so violated.

There will no doubt be pressure on wireless providers to somehow crack down on racy content, which they either can't or shouldn't do. There will also be a temptation to ramp up the use of the child porn laws against teens, despite the life-wrecking effects thereof.

But trying to regulate or criminalize the circulation of words and images here misses the point. If the law offers any help here, it is tort law and not criminal law, directed at the shaming and bullying rather than teen sexual speech and experimentation. Schools, parents and even teens themselves should be held accountable for the vicious bullying that causes tragedies like this - and indeed (as noted in the MSNBC article), Jesse Logan's mother is apparently trying to hold her school accountable in court.

Update: Some other interesting takes on the subject.

Friday, March 13, 2009

Trans murder trial faces hurdle; media makes a sideshow of pronouns

A Colorado man is set to go on trial next month for the murder of 18-year-old Angie Zapata - though that trial is now facing a potentially serious snag after the judge ordered the defendant's confession thrown out because of overreaching by police. The local Greeley Tribune has covered the story extensively; the quality of their coverage has been mixed. (Compare this to a very professional and respectful profile of the case by ABC News.) Today they an unfortunately sensational article devoted to the use of pronouns in the case.

All of this is quite beside the point of this case, a tragedy shockingly similar to the murder of Gwen Araujo in California in 2002. But the issue is not without some news value, if not, as the paper's approach suggest, simply because it's "odd." As National Center for Transgender Equality director Mara Keisling hints in the article, the contestation of trans identities themselves is invariably a strong undercurrent in these cases, and here as elsewhere the defense has to some extent tried to dehumanize the victim by invalidating her identity. Even as the prosecution and defense are contesting the guilt of the accused, they are also, with each reference to the victim, contesting who she was. While the article suggests that the court may address this linguistic issue before trial, I expect this will not be the subject of any ruling; the lawyers will just keep using their contrasting language.

Unusually, the article makes a point of its own journalistic conventions by pointing out that the AP stylebook directs reporters to use language consistent with individuals' gender identity and expression. Many reporters don't know that this guidance exists or choose not to follow it, and I have periodically taken it upon myself to point it out in letters to the editor.

Wednesday, March 11, 2009


This week in Washington:
- Obama reverses Bush's ban on federal funding for embryonic stem cell research
- A provision of the just-passed budget bill will help make contraception more affordable for many
- Today the White House launches a Women & Girls' Council, which hopefully will be more than symbolic

In Saudi Arabia, a 75-year-old widow has been sentenced to four months in prison, forty lashes, and deportation for having two unrelated men in her home. The two men -- one of whom is her deceased husband's nephew, and both of whom have also been sentenced -- were apparently bringing her some bread. Her lawyer plans to appeal. More at Religion Clause.

On a much less weighty note, a law professor at the University of Montana complains that the student newspaper's sex advice column "affects my reputation as a member of the faculty" -- no, really --and has suggested the state legislature should tighten restrictions on student publishing. According to the paper in question, the prof complained that legislators should set "criteria for giving someone a job as a columnist writing in an area of 'alleged expertise' or for reviewing objectionable material." Being a law prof, she's come up with proposed restrictions that just pass the First Amendment red-face test, but something tells me this isn't going anywhere. Are authors in student papers really expected to be experts? And what standards should the legislature set to qualify as a sex columnist?

Finally, Cook County, Ill. Sheriff Tom Dart is suing Craigslist, claiming its "erotic services" ads are a public nuisance. Sex worker rights advocates have, naturally, criticized the suit, which probably amounts to little more than a publicity stunt. Craigslist says it's "mystified" by the suit, pointing to its cooperation with law enforcement in Illinois and elsewhere to minimize use of the site to violate the law. One Internet law expert has opined that the lawsuit can't stand, because under federal law Craigslist can't be held liable for users who seek to violate the law unless it actively helps them do so. (Said lawyer also wonders whether there are actually many "erotic services" posts on Craigslist that are only advertising legal services, but a quick search of the many postings specifying "no sex" suggests that yes, there are; most of them are for pro-Dommes.)

Tuesday, March 10, 2009

Another sign of change in Argentina

This one has been making the blog rounds and is not law-related, but I just couldn't resist. I recently noted that Argentina is lifting its ban on out gay and lesbian members in the military, as is the Philippines. Here's another sign that Argentina, like Latin America generally, is seeing leaps and bounds of progress in LGBT activism and acceptance. There's a long way to go for trans people in Argentina and neighboring countries, but it's a pretty big deal when a bank uses a message of trans acceptance to advertise itself:

I can't imagine any financial institution in the U.S. doing a similar ad. In fact, I can't really imagine any major corporation selling itself with this kind of message of inclusion. Not only that, this ad is a thousand times better than most depictions of trans people in the media anywhere. Instead of treating a trans person like a spectacle or a joke, and making the fact of her gender history a laugh line or a dramatic reveal, here we see it treating in a matter-of-fact, unsensational way. Indeed, the story isn't that this woman is trans, but that her neighbor is sorry for making it a big deal. Depicting a trans woman as an apparently successful business owner is just icing. Yes, as one blogger put it, Banco Provincial is "Pro-Transgendered People, Pro-Little Old Men."

If only getting a loan made people rethink their prejudices in real life!

Monday, March 9, 2009

OT: A paean to the New York City subway

A federal appeals court ruling issued today contains an interesting tribute to New York City's transit system:
The question presented in this case—whether a manufacturer who likely misappropriated trade secrets may be preliminarily enjoined from (a) entering into contracts that will cause it to use those trade secrets and (b) disseminating further those trade secrets—concerns a rarely celebrated but instantly recognizable feature of everyday life in New York City: subway brakes. To the parties in this case, subway brakes are known as “Brake Friction Cylinder Tread Break Units” (“BFC TBU”). For the rest of us, BFC TBU are “that loud squeaking, sparking braking system that so reliably stops the New York City Transit subway system.” In re Faiveley Transp. Malmo AB, 522 F. Supp. 2d 639, 640 (S.D.N.Y. 2007). Twenty-four hours a day and 365 days a year, the City’s subway cars safely stop at 468 passenger stations—and, as any straphanger knows, many times in between—depositing riders of all classes and descriptions at homes, workplaces, ballparks, and every other destination imaginable. See generally MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006) (“The New York City subway system . . . is an icon of the City’s culture and history, an engine of its colossal economy, a subterranean repository of its art and music, and, most often, the place where millions of diverse New Yorkers and visitors stand elbow to elbow as they traverse the metropolis.”).

The subway is an indelible feature of the City’s culture. Its legend and lore fascinate locals and visitors alike. See, e.g., Carrie Melago, It’s the Rail Thing: Subway Ride Record is Official, N.Y. Daily News, Aug. 8, 2007, at 24 (reporting that six alumni of Regis High School set a new world record for stopping at all 468 stations on a single fare: 24 hours, 54 minutes, and 3 seconds). A point of personal pride for many New Yorkers, the City’s subterranean transit has appeared in song, on stage and screen. See, e.g., Leonard Bernstein, et al., “New York, New York,” from On the Town (“New York, New York—a helluva town, / The Bronx is up but the Battery’s down, / And the people ride in a hole in the ground; / New York, New York—It’s a helluva town[!]”), as quoted in The Oxford Dictionary of Humorous Quotations 329 (Ned Sherrin, ed., 1995) (attributed to Betty Comden and Adolph Green, lyricists). The subway’s rhythm and sound have also rumbled into the canon of American literature. See, e.g., Tom Wolfe, The Bonfire of the Vanities 36 (Farrar Straus Giroux 1998) (1987) (“On the subway, the D train, heading for the Bronx, Kramer stood in the aisle holding on to a stainless-steel pole while the car bucked and lurched and screamed.”).

Moving forward, our next stop is the trade secret dispute concerning the distinctive brakes used by the New York City subway system.
The plaintiff in this case is the new owner of the company that initially developed MTA's noisy but effective braking technology. The company they originally licensed to produce and market that technology is now under a contract with MTA to use that know-how to overhaul the system. The plaintiff claims this company is misappropriating its trade secrets, and sought to stop them from disclosing or even using this technical knowledge - and ultimately to substitute itself in the MTA contract. The U.S. Second Circuit Court of Appeals held that while the contractor probably was misusing trade secrets, it was not appropriate to order them to cease work for MTA using the knowledge, because there was not proof the secrets themselves were likely to be disclosed in the course of carrying out the contract.

If you think maintenance on the MTA is a pain in the ass now, just imagine if this decision had gone the other way. H/t How Appealing.

Wednesday, March 4, 2009


Via Bilerico, Argentina is ending its ban on gay and lesbian folks serving openly in the military. If they can do it, we can do it.

A new study shows "red" states lead in online porn subscriptions. This strikes me as raising interesting questions about "local community standards" in obscenity cases. (Indeed, I recall that at least one defendant has recently tried to use data on risque Google searches to establish the relevant standard.)

Gay & Lesbian Advocates and Defenders (GLAD) has filed a challenge to the federal Defense of Marriage Act on behalf of married Massachusetts couples seeking marriage-related federal benefits. This seems to mark a shift in strategy from the LGBT legal movement, which heretofore has tried to keep suits regarding marriage and DOMA out of the federal courts for fear of a) setting bad precedent without first building a firmer foundation in state courts and in non-marriage cases, and b) reviving the proposed Federal Marriage Amendment. I'd guess that (b) is now seen as much less of a concern, and (a) is seen as a manageable concern if cases are brought and framed selectively. Here, no state would be forced to accept the plaintiffs' marriage; rather, they are seeking federal recognition of a state-recognized marriage for the purpose of specific tax, Social Security and other benefits. Balkinization has a preliminary assessment of the case.

Finally, Senate Republicans are apparently trying to use the current Omnibus Appropriations bill to eliminate federal Title X funds for Planned Parenthood clinics across the country. An amendment will be introduced today, so folks should call their Senators forthwith.

Tuesday, March 3, 2009

Censoring sexual orientation "equally"

Consumerist reports that Microsoft will ban anyone who mentions their sexual orientation on the XBox Live site. Microsoft's official policy is to prohibit anything suggesting "content of a potentially sexual nature," and to them that includes "expression of any type of orientation, be that hetero or other." Thus, Microsoft has it that its policy is non-discriminatory: straight and queer people alike are forbidden from mentioning their sexual orientation. (H/t feministing.)

As recently reported by the Washington Blade, the Washington Post continues to take a similar approach to discussion of sexual orientation in its reporting. The Post believes that all subjects of their journalism are "entitled" to make their sexual orientation "a private matter," whether they are straight or queer; accordingly, the paper will not discuss orientation unless it is "relevant."

The problem with both of these policies is that not talking about sexual orientation does not treat everyone equally. In a society where most people identify as heterosexual, and more importantly, where heterosexuality is ubiquitously assumed, heterosexuals have no need to identify their orientation: the default assumption has done it for them.

Moreover, given the strong default assumption of heterosexuality, a policy that nominally limits all discussion of sexual orientation is almost certainly to be applied selectively. The Blade story notes that the Post has come in for particular criticism regarding its failure to mention surviving same-sex partners in obituaries. Yet the Post's obits routinely mention different-sex spouses in passing - precisely because the fact of being in a different-sex relationship is not thought be a reference to sexual orientation, while being in a same-sex one is.

NYPD targeting gay men, pro Dommes

New York City police are being accused of targeting gay men for false and/or entrapment-based arrests for prostitution/solicitation in the city's sex shops. From The Advocate:
The Gay City News reports that at least 27 men were arrested for prostitution in eight porn shops in Manhattan in 2008. Since 2004 there have been 52 such arrests in eight difference businesses.

According to a statement by [Coalition to Stop the Arrests], the arrest is usually set up so that an attractive younger officer is sent out to approach middle-aged gay men. The officer allegedly entices the man to have sex. If the man agrees, the undercover officer says he wanted to pay the man for sexual favors, and then, before the man can accept or reject the transaction, he is surrounded by police to make an arrest.

Simultaneously, the city is being criticized for targeting the lawful work of professional dominatrices, twisting the prostitution laws to apply to non-sexually-explicit conduct. The only judicial decision on the subject, from 1994, held that NYC's prostitution law doesn't cover BDSM activities that don't involve actual genital contact. Yet in a recent meeting with reps from the National Coalition for Sexual Freedom, a prosecutor said that the city interprets the law expansively, based not on a limited set of acts but on "what is arousing to the participants." So, if spanking turns you on, paying someone to spank youis prostitution. This is questionable as a matter of the definition of "sexual conduct," not to mention policy and constitutional concerns. NCSF is currently planning a campaign to protest this policy.

I'm guessing from all this that NYC has finally run out of real crime to fight. Or maybe Bloomberg is hoping to follow in the footsteps of his predecessor and try to spin a reputation as The Man Who Ran Sex Out of NYC into a losing, but highly entertaining, presidential bid.