The Yale Law Journal

Gender and Sexual Orientation


“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws

David Cole

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws. 



Protecting Transgender Youth After Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection

Erik Fredericksen

This Note argues that Bostock v. Clayton County’s holding under Title VII—anti-LGBT discrimination is sex discrimination—applies under equal-protection analysis. It then combines Bostock with sex-stereotype reasoning to argue that recent laws and policies targeting transgender minors unconstitutiona…


Sex Equality’s Irreconcilable Differences

Courtney Megan Cahill

Sex equality assures us that laws based on real biological differences between the sexes are not sex stereotypes about the sexes. This Feature uses LGBTQ equality to show why sex equality is wrong: laws based on real differences are sex stereotypes, all the way down.



Weaponizing Fear

S. Lisa Washington

Governor Abbott’s directive that the Texas Department of Family and Protective Services should investigate so-called “abusive sex change procedures” fits within a broader project of weaponizing fear to control marginalized families. The issue is not primarily the directive’s misuse of the family reg…


The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

David Horton

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.


Sex as a Pedagogical Failure

Amia Srinivasan

This Feature offers an account of what is wrong with consensual professor-student sex. Such sex constitutes a failure, on the professor’s part, to satisfy the duties that arise from the practice of teaching. It often also feeds on and reinforces women students’ second-class standing in the universit…


Sex in Public

Elizabeth Sepper & Deborah Dinner

This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to sig…


Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism

Jean Galbraith & Beatrix Lu

This Essay discusses the inclusion of gender-identity protections in the Trump Administration’s “new NAFTA,” hypothesizing that these provisions were initially included without consulting important executive-branch stakeholders. Intriguingly, these protections demonstrate that trade agreements can l…


While They Waited: Pre-Obergefell Lives and the Law of Nonmarriage

Michael J. Higdon

This Essay looks at married same-sex couples who, pre-Obergefell, spent time in nonmarital relationships while awaiting the right to wed. In discussing how courts now count those pre-equality years toward the length of couples’ relationships—a decision relevant to adjudicating many benefits—the Essa…


The Claims of Official Reason: Administrative Guidance on Social Inclusion

Blake Emerson

Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally…


Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn

Kate Redburn

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood,…


Sexual Privacy

Danielle Keats Citron

New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy …


Ending the Incarceration of Women and Girls

Andrea James

Drawing on the author’s experience as a formerly incarcerated mother and advocate, this Essay challenges the reader to consider whether incarceration generally—and incarceration of women and girls specifically—is a fundamentally misguided response to violence and poverty that we must retire.


Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop

Douglas NeJaime & Reva Siegel

Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial an…


Reconceptualizing Sexual Harassment, Again

Vicki Schultz

The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz’s previous work to explore those institutional drivers of harassment.


Queering Sexual Harassment Law

Brian Soucek

Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.


Of Power and Process: Handling Harassers in an At-Will World

Rachel Arnow-Richman

Pressure is mounting on companies to take swift disciplinary action regarding alleged sexual harassment. But our employment law incentivizes employers to tolerate high-ranking harassers while cracking down on inappropriate behavior by the rank-and-file. This Essay suggests a better path forward.


Sexual Harassment Law After #MeToo: Looking to California as a Model

Ramit Mizrahi

The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.


Was Sexual Harassment Law a Mistake? The Stories We Tell

Tristin K. Green

Does our sexual harassment law hinder the larger project of reducing harassment? This Essay demonstrates that the law constrains stories of harassment and hamstrings our calls for reform. Ultimately, the law, not just public perception, must change if this movement is to have a lasting effect.


What About #UsToo?: The Invisibility of Race in the #MeToo Movement

Angela Onwuachi-Willig

The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.


Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections

William N. Eskridge, Jr.

In light of HivelyEvans, and Zarda, this Feature argues that Title VII’s bar to discrimination “because of sex” applies to LGBT individuals. This interpretation follows from Title VII's ordinary meaning, particularly in light of its purpose to entrench a merit-based workplace, in addition to its s…


The Nature of Parenthood

Douglas NeJaime

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary…


Prosecuting Gender-Based Persecution: The Islamic State at the ICC

Emily Chertoff

Reports suggest that Islamic State, the terrorist “caliphate,” has enslaved and brutalized thousands of women from the Yazidi ethnic minority of Syria and Northern Iraq. International criminal law has a name for what Islamic State has done to these women: gender-based persecu…


Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws

Graham White

Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting th…


Campus Sexual Assault Adjudication and Resistance to Reform

Michelle J. Anderson

The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. Tha…


Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students

Adele P. Kimmel

LGBT students are bullied at dramatically higher rates than other students. School bullying generally, and the targeting of LGBT students in particular, has recently garnered national attention as a serious problem that needs to be solved. Just as society is increasingly re…


In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education

Catharine A. MacKinnon

The treatment of sexual harassment victims by their schools, and of schools by courts, under the institutional liability standard of deliberate indifference for damages in private suits is inconsistent with Title IX’s guarantee of equal educational outcomes on the basis of sex.…


Gender Violence Costs: Schools’ Financial Obligations Under Title IX

Dana Bolger

The last two years have witnessed a surge in attention to the issue of sexual assault in higher education. Campus rape has become the subject of new legislation, inspired a White House task force, and dominated news headlines. Yet largely neglected in this growing national conver…


A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints

Alyssa Peterson & Olivia Ortiz

Although gender-based violence has long been recognized as a form of sex discrimination prohibited under Title IX, many survivors receive little to no support from their college or university after experiencing violence. In response, an increasing number have sought redress by …


Transformation Requires Transparency: Critical Policy Reforms To Advance Campus Sexual Violence Response

Zoe Ridolfi-Starr

This Feature discusses the lack of transparency in campus adjudication of gender violence reports. It examines the harms caused by this procedural opacity to both accusing and accused students alike, including pervasive mistrust in the system and decreased reporting rates. The pi…


Complicated Process

Nancy Gertner

Introduction I come to this important Title IX Conversation from a unique perspective. This is not because I was a federal judge for seventeen years. Rather it is because before my judgeship, I was a feminist litigator and a criminal defense lawyer. And from this vantage point, my concern…


For the Title IX Civil Rights Movement: Congratulations and Cautions

Nancy Chi Cantalupo

On September 25, 2015, the Yale Law Journal held a “Conversation on Title IX” that confirmed the existence of a new civil rights movement in our nation and our schools. The movement’s leaders are smart, courageous survivors of gender-based violence—virtually all of whom are current un…


Perfect Plaintiffs

Cynthia Godsoe

Brown. Roe. Loving. These names evoke seminal Supreme Court decisions that instituted massive social and legal shifts.1 While it may not roll off the tongue quite as easily, Obergefell is poised to join this pantheon. Jim Obergefell and the twenty-nine other men and women named in Obergefell…


Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality

Katie Eyer

Introduction Nearly fifty years ago, in the 1967 case Loving v. Virginia, the Supreme Court struck down bans on interracial marriage.1 This Term, the Court seems poised to further expand marriage equality by holding that same-sex couples, too, are guaranteed the constitutional right to mar…


How Conflict Entrenched the Right to Privacy

Reva B. Siegel

We are about to mark the fiftieth anniversary of Griswold v. Connecticut,1 a 1965 case in which the Supreme Court struck down a Connecticut law that criminalized the use of contraception, in the process giving birth to the modern right to privacy. From Griswold’s understanding of “libert…


Overlooking Equality on the Road to Griswold

Melissa Murray

This year marks the fiftieth anniversary of Griswold v. Connecticut,1the Supreme Court decision that famously articulated a right to privacy.2 As we celebrate Griswold, it is easy to overlook what preceded it—and what was surrendered in Griswold’s embrace of the right to privacy. In 1960,…


Griswold and the Public Dimension of the Right to Privacy

Cary Franklin

Fifty years ago, the Court in Griswold v. Connecticut1 invalidated Connecticut’s ban on birth control. The various opinions in Griswold were in many ways products of their time. For instance, none of the Justices focused on the implications of the Connecticut law for women’s equality. Con…


Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality

Douglas NeJaime

In Griswold v. Connecticut,1 the Supreme Court ruled that a Connecticut statute criminalizing the use of contraception violated married couples’ privacy rights. On the decision’s fiftieth anniversary, this brief Essay takes cues from a principle at stake in Griswold—that procreative li…


Contraception as a Sex Equality Right

Neil S. Siegel & Reva B. Siegel

“Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s socia…


Roundup: Should We Treat Pregnant Workers Like Disabled Workers?

Claire Michelle Simonich

On December 3, the Supreme Court heard arguments in Young v. United Parcel Service, a case that asks if the Pregnancy Discrimination Act (PDA) entitles pregnant workers to receive the same accommodations as disabled workers.1 Already, the EEOC has issued Enforcement Guidance explaining that d…


Sex Without Consent

Deborah Tuerkheimer

Modern rape law lacks a governing principle. In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Jed Rubenfeld contends that the most obvious candidate—sexual autonomy—is inadequate. I agree, though for vastly different reasons. Rubenfeld advances a conception of rape as a violation …


Delineating the Heinous: Rape, Sex, and Self-Possession

Gowri Ramachandran

In this Essay, Professor Ramachandran examines Professor Rubenfeld’s concept of self-possession, which Rubenfeld presents as a helpful way to define the harm of rape. She argues that if the concept represents exclusive physical control over one’s body, it is an elusive and undesirable ideal, and as …


Lower Court Popular Constitutionalism

Katie Eyer

Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors—social movements, the federal political branches, state and local political entities—play an important role in shaping constitutional meaning. To date, the accounts of such scholars have largely focuse…


Windsor’s Right to Marry

Douglas NeJaime

In this Essay, Professor Douglas NeJaime reads United States v. Windsor, which technically rested on equal protection grounds, through the lens of the fundamental right to marry. The Windsor Court absorbed decades of LGBT rights advocacy by situating same-sex couples within a contemporary model of m…


Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument

Lawrence G. Sager

My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of …


Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s

Craig J. Konnoth

119 Yale L.J. 316 (2009). 

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially…


Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large American Law Firms

Christen Linke Young

118 Yale L.J. 1182 (2009).

In a fiercely competitive labor market, large American law firms universally offer some paid leave to attorneys after the birth of the child. This Note offers an empirical investigation of those policies, finding that all firms offer paid leave to new mothers, and many fi…


Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment

Julia Simon-Kerr

117 Yale L.J. 1854 (2008).

This Note demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman’s “honor,” and thus her credibility, with her sexual virtue. The idea that a woman’s chastity informs her credibility did not originate in …


Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart

Reva B. Siegel

117 Yale L.J. 1694 (2008).

This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes de…


To Young People, Don't Ask, Don't Tell Means Don't Enlist

P. Casey Pitts

In the next few months, the First Circuit will consider Cook v. Rumsfeld, the first post-Lawrence v. Texas legal challenge to the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy. Given the deference that federal courts afford to congressional judgments about military pol…


Why (and When) Cities Have a Stake in Enforcing the Constitution

David J. Barron

115 Yale L.J. 2218 (2006)

This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argu…


Gender and Constitutional Design

Paula A. Monopoli

115 Yale L.J. 2643 (2006)


What the Internet Age Means for Female Scholars

Rosa Brooks

As a female law professor, I can’t help asking: is the Internet-driven transformation of legal scholarship good for the girls, or bad for the girls? Will it remove some of the handicaps that have dogged women’s efforts to join the ranks of scholarly “superstars”? Or will it only increase th…


Lawrence and the Right to Metaprivacy

Jamal Greene

Americans take seriously the difference between acts and ideas. We remain mystified, for example, by the to-do about the cartoons depicting the Prophet Muhammad. The act-idea distinction is alive and well in our culture, and it remains largely intact in American law. No store owner puts up a sign sa…


What the Court Said in Lawrence

Paul M. Smith

The Supreme Court in Lawrence v. Texas held that same-sex couples have a constitutional right to engage in sexual intimacy, free of regulation by the state. It seems to me that Mr. Greene ignores the actual rationale underlying the substantive due process ruling in Lawrence v. Texas—the rationale …


The Meta-Nonsense of Lawrence

Edward Whelan

Jamal Greene’s interesting essay deals not with Justice Kennedy’s actual majority opinion in Lawrence v. Texas but with an opinion of Greene’s own imagining. This is not surprising, since Justice Kennedy’s actual opinion reads like a cruel parody of the modern make-it-up-as-you-go-along judi…


Beyond Lawrence: Metaprivacy and Punishment

Jamal Greene

115 Yale L.J. 1862 (2006)

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the ga…


Immoral Purposes: Marriage and the Genus of Illicit Sex

Ariela R. Dubler

115 Yale L.J. 756 (2006)

In Lawrence v. Texas, the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence, however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illi…


Divorcing Marriage from Procreation

Jamal Greene

114 Yale L.J. 1989 (2005)

Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashio…


Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts

Jennifer L. Peresie

114 Yale L.J. 1759 (2005)

This Note finds that the gender composition of the bench affected federal appellate court outcomes in Title VII sexual harassment and sex discrimination cases in 1999, 2000, and 2001. An empirical study (n = 1666) shows that female judges decided for plaintiffs more often …


"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII

Ramit Mizrahi

113 Yale L.J. 1579 (2004)

When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all l…


The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action

Brianne J. Gorod

113 Yale L.J. 939 (2004)

Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held …


The Sanitized Workplace

Vicki Schultz

112 Yale L.J. 2061 (2003)

One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come …


In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State

Ariela R. Dubler

112 Yale L.J. 1641 (2003)

This Article argues that the law has constructed marriage as an institution capable of regulating the rights and responsibilities of even unmarried women. In various ways, the law has constructed the rights of certain groups of unmarried women "in the shadow of marriage": Th…


Same-Sex Privacy and the Limits of Antidiscrimination Law

Amy Kapczynski

112 Yale L.J. 1257 (2003)

Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can …


Queer Brinksmanship: Citizenship and the Solomon Wars

Amy Kapczynski

112 Yale L.J. 673 (2002)

In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the …



Kenji Yoshino

111 Yale L.J. 769 (2002)

In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory…


Categorical Federalism: Jurisdiction, Gender, and the Globe

Judith Resnik

111 Yale L.J. 619 (2001)

An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…


Dialectics and Domestic Abuse

Katharine K. Baker

110 Yale L.J. 1459 (2001)