Sexuality, Gender, and the Law

This casebook offers professors and students a doctrinally comprehensive, theoretically ambitious, and up-to-date exploration of the treatment of sexuality and gender issues in American public law. The Fifth Edition opens with the historically grounded first chapter from earlier editions, which maps the three primary constitutional themes of liberty, equality, and expression through the end of the twentieth century. Throughout, the book fully integrates the ramifications stemming from the latest court decisions, including Dobbs v. Jackson Women's Health Organization and new religious liberty decisions and debates. Highlights of the Fifth Edition include: A probing of where the Court's turn in recent years toward an equal liberty analysis stands in the wake of Dobbs, including threats posed by the reversal of Roe v. Wade and Planned Parenthood v. Casey to the doctrinal foundations of Lawrence v. Texas and Obergefell v. Hodges. The increasing prominence of the argument that discrimination against lesbian, gay, bisexual, transgender and queer-identified persons constitutes discrimination "because of sex," as recognized by the Supreme Court's opinion in Bostock v. Clayton County, Georgia, interpreting Title VII, and the related question of how Bostock will affect interpretation of the Equal Protection Clause and other antidiscrimination statutes. Increased coverage of how the First Amendment and the Religious Freedom Restoration Act are being deployed aggressively by the Supreme Court to carve out exemptions and allowances for individuals, companies, and religious institutions to discriminate against women and LGBTQ persons. Examples include questions such as whether Fulton v. Philadelphia limits or partially overrules Obergefell by requiring a government program to discriminate against same-sex married couples and the extent to which expansion of "the ministerial exception" undermines workplace protections. The book's distinctive fourth chapter introduces the student to natural law theory (which is on the upswing in federal courts), feminist and other liberal theories, and postmodern theories claiming that what many people treat as inflexible and natural are actually contingent, socially constructed, and dynamic. Increased coverage of issues related to transgender people in a range of contexts, including custody and visitation actions involving transgender parents or transgender children, schools and the workplace, on athletic teams, in the military, and in prisons. The Fifth Edition expands upon the book's distinctive integration of sexuality and gender issues and increases coverage of the racialization of these dynamics in American law. From its first edition, this casebook has prioritized inclusion of the perspectives of transgender and intersex persons, as well as lesbians and straight women, gay men, and bisexuals of different races and ethnicities. In addition to the opening segments focused on constitutional law and theory, the remaining chapters contain the most comprehensive and deepest coverage available of sexuality and gender issues in the workplace, the family, schools, the armed forces, and prisons.