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Volume 114 - Issue 3


Framing Trans Rights

Marie-Amélie George | November 1, 2019

In the wake of marriage equality, opponents of LGBT rights refocused their attention, making transgender rights their main target. To persuade voters to maintain gender identity antidiscrimination protections, LGBT rights campaigns presented trans identity in a specific, but limited, way. These campaigns emphasized gender-conforming transgender individuals—those who adhere to male and female stereotypes—and thereby implicitly reinforced the gender binary. Although LGBT advocates have largely succeeded in their efforts to preserve LGBT rights, their messaging may undermine the movement’s broader litigation strategy and subject nonbinary members of the transgender community to greater discrimination and persecution. The trans rights framing choices thus raise questions about how the LGBT movement’s advocacy decisions blur the lines between success and failure, advancement and retrenchment. To explain this tension, this Article details the history of marriage equality campaign strategies, drawing on primary source campaign materials to identify how and why LGBT rights groups applied those frames to trans rights, as well as the consequences of those framing choices. This Article then analyzes the motivations behind social movements’ framing decisions more broadly to argue for an alternative approach to trans rights advocacy. Framing trans rights is a significant issue that extends far beyond whether a specific city or state maintains or eliminates its gender identity protections. Although framing in an electoral campaign may seem far removed from the work of courts, legislatures, and administrative agencies, this Article demonstrates how porous the boundaries are, such that the frames of the former have a substantial impact on the latter. Drawing on the scholarly literature on acoustic separation, popular constitutionalism, and slippery slopes, this Article explains why LGBT state and local ballot measure contests cannot be separated from the movement’s broader strategies. It therefore demonstrates that electoral frames are integral to legal advocacy writ large.

Passive Voter Suppression: Campaign Mobilization and the Effective Disfranchisement of the Poor

Bertrall L. Ross II,Douglas M. Spencer | November 1, 2019

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws. We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression—one that operates to effectively disfranchise an entire class of people, just as the old form did for African Americans. This form of suppression excludes the poor. To account for the effective disfranchisement of the poor, we develop a more robust theory of voting than currently exists in the legal literature. Drawing on rational choice and sociological theories of voting, we show how information, affiliation with formal organizations, and integration into social networks of politically active individuals are far more important to the decision to vote than the tangible costs of voting associated with the new voter suppression. Using this expanded account of voting, we identify the role of political parties and their mobilization activities in the effective disfranchisement of the poor. Relying on the same proprietary data as the Obama campaign in 2008 and 2012 (and hundreds of campaigns since), along with other public sources of data, we show how campaigns employ a “calculus of contact” to decide whom to mobilize. That calculus leads campaigns to disproportionately neglect the poor when canvassing, calling, and sending political mailers to potential voters—mobilization activities that have a sizeable turnout effect. In our view, the most significant voter suppression tactics of the twenty-first century are therefore not what legislatures are doing, but what campaigns are not doing. We argue that a first step in combating this passive voter suppression should involve changing the information environment of campaigns: the amount and type of information about potential voters that the state makes available to campaigns. Such a change could force campaigns to adjust their calculus of contact and contact more low-income people during election season. Including the poor as targets of campaign mobilization would be an important first step toward a more egalitarian democracy.

Bankruptcy’s Cathedral: Property Rules, Liability Rules, and Distress

Vincent S.J. Buccola | November 1, 2019

What justifies corporate bankruptcy law in the modern economy? For forty years, economically oriented theorists have rationalized bankruptcy as an antidote to potential coordination failures associated with a company’s financial distress. But the sophistication of financial contracting and the depth of capital markets today threaten the practical plausibility, if not the theoretical soundness, of the conventional model. This Article sets out a framework for assessing bankruptcy law that accounts for changes in the technology of corporate finance. It then applies the framework to three important artifacts of contemporary American bankruptcy practice, pointing toward a radically streamlined vision of the field. Bankruptcy’s virtue, I contend, lies in its capacity to replace “property rules” that may protect investors efficiently when a company is financially healthy with “liability rules” more appropriate for distress. In domains where investors are unable to arrange state-contingent toggling rules, bankruptcy law can do it for them. This agenda plausibly justifies two important uses of Chapter 11—to effect prepackaged plans of reorganization and conclude going-concern sales—but casts doubt on what many suppose to be the sine qua non of bankruptcy, the automatic stay. More broadly, the analysis suggests that an “essential” bankruptcy law would look very different, and do much less, than the law we know.


The Transgender Military Ban: Preservation of Discrimination Through Transformation

Michele Goodwin,Erwin Chemerinsky | November 1, 2019

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in reports or court documents proof of its claims that transgender service members undermine combat readiness and thus pose a risk to the military. Given this, the authors argue, the Supreme Court’s intervention to lift the preliminary injunctions bodes poorly for how the Court will address this issue and other LGBTQ rights issues to come. The Essay identifies several problems with the Trump Administration’s policy to ban transgender individuals from serving in the U.S. military. First, the policy is unjustifiably discriminatory on the basis of gender identity. Second, it perpetuates harmful stereotypes and stigmas that have serious consequences in society generally, and specifically, for transgender service members and their families. Third, the policy singles out transgender members of the military through what ultimately can be understood as coercion and shaming, forcing trans military service members to obtain a psychological diagnosis of gender dysphoria and to do so rather abruptly in order to continue in their military employment. The Essay shows how the transgender military ban perpetuates historical patterns of discrimination in the military, which reach back to race- and sex-based discrimination. The authors conclude that promoting equality in the military will only occur when those who wish to, and are qualified to, serve are permitted to do so with dignity and respect.

Notes and Comments

Matter of A-B-, LGBTQ Asylum Claims, and the Rule of Law in the U.S. Asylum System

Nora Snyder | November 1, 2019

On June 11, 2018, then-Attorney General Jeff Sessions released his decision in a case called Matter of A‑B‑, purporting to eliminate domestic violence and gang violence as grounds for asylum. The decision also cast doubt on the continued viability of asylum claims predicated on non-state actor violence, which alarmed LGBTQ advocates, whose asylum claims often involve non-state actor persecutors. In making this change, Sessions used a previously rarely used feature of the asylum system, the Attorney General’s self-certification power. This Note analyzes the potential impact of Matter of A‑B‑ on LGBTQ asylum seekers. Based on the text of the decision, Matter of A‑B‑ should have a less extreme impact on LGBTQ and other asylum seekers than advocates initially feared. But the actual impact of the decision is nonetheless alarming. Statistical and anecdotal evidence indicates that Matter of A‑B‑ contributed to record high denial rates in 2018, and some asylum seekers denied as a result identified as LGBTQ. This discrepancy between the text of the decision and its practical impact highlights several deeply troubling features of the U.S. asylum system, including the broad discretion afforded to adjudicators and lack of judicial independence. Because of these factors, when the Attorney General uses his self-certification power in the asylum context, one person has vast power to make sweeping changes to a process with life and death stakes, a level of power that is contrary to the norms of checks and balances that underpin our democratic system. This Note argues that the case study of Matter of A‑B‑ and its impact on LGBTQ asylum claims reveals serious problems with the rule of law in the U.S. asylum system.