Compared to What? Menstruation, Pregnancy, and the Complexities of Comparison

This piece explores the complexities of the comparative model as applied to sex discrimination claims that are connected to female biology. On the one hand, comparisons can be a useful and precise way to pinpoint discrimination. The notion that bandages and adult diapers are tax-exempt, while tampons and pads are not, brings the unfairness of the tampon tax into sharp relief: Why are those products for absorbing bodily fluids tax-free, when menstrual products are not? The same is true for a pregnant employee who can show that her request for a light-duty accommodation was denied while the identical light-duty request by another similarly-situated, non-pregnant employee was granted. But the model also contains two traps. First, almost no comparison is perfect. There is often some potential for distinguishing and line-drawing, some way to argue that the comparison does not fully hold up. Second, the comparative model is itself inherently limiting. The biological processes of menstruation and pregnancy (along with menopause and breastfeeding, which this piece does not address) are closely intertwined with female sex and have no obvious analogues. Indeed, these processes impose specific challenges and needs that are not borne equally across the sexes. Yet the comparative model reductively suggests that if no products receive tax-exempt status, or if no employees receive accommodations for their inability to work, there is no sex discrimination issue at all. Although advocates cannot escape the current comparative framework within which they must work—and indeed should use it to their advantage when possible—we should all remain mindful of the framework’s ultimate limitations. The piece begins by analyzing Young v. United Parcel Service, Inc., the 2015 Supreme Court case that grappled with how to apply the PDA’s comparison-based standard. I discuss how Young illustrates the complexities of comparison and unpack the compromise approach that emerged. I then consider the potential usefulness of the Young approach to the tampon tax cases, while acknowledging that they arise under the Equal Protection Clause rather than Title VII. I conclude with some broader reflections.

Living Freely Behind Bars: Reframing the Due Process Rights of Transgender Prisoners

Federal constitutional jurisprudence, as it stands today, provides insufficient protections for transgender individuals who are incarcerated. Transgender prisoners face high rates of physical and sexual assault, harassment, and other mistreatment by state and federal prison officials and individuals incarcerated with them. Commonly pursued avenues for relief—namely the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the right to privacy—present hurdles in the form of too-hard-to-meet legal standards, and they perpetuate harmful stereotypes and cultural norms that should occupy no place in modern constitutional law. This Note proposes that, instead of relying on these inadequate constitutional claims to vindicate their rights, transgender prisoners and their advocates should consider litigating under the Due Process Clause of the Fifth and Fourteenth Amendments, articulating a right to live freely in accordance with one’s gender identity. Recognition of such a right would enable plaintiffs to utilize more favorable substantive due process legal standards and eschew perpetuating outdated notions of gender within the law.

Personalized Law and Equal Protection

This chapter examines personalized law from the perspective of the Equal Protection Clause in the United States Constitution. Some classifications of people, when made for the purpose of differentiated treatment, are subject to stifling doctrinal constraints. Could such classifications be made under personalized law? The chapter argues that personalized law mitigates the constitutional concerns relating to suspect classifications. Treating people as individuals, using multi-attribute data-weighed tailoring, and not as identical members in a certain class, is permissible because members of the class are not singled out for class-specific uniform treatment. The chapter examines landmark Supreme Court cases on sex and race classifications, showing that the limits set by the Court and the narrow permission it granted for some uses of classifications, all fit well within a scheme of personalized law. In addition, the chapter examines problems of unintended disparate impact that could arise under personalized law, and demonstrates the unique advantage of the algorithmic methods fueling personalized law in reducing and eliminating such effects.

Conflict of Laws, Choice of the Forum Court in the us, and the Due Process in Family Law Disputes

Summary In the United States (US) the family law litigant will have to consider the implications of laws that are federally recognised and those which the state embodies in its own family law statutes. The function of the equal protection clause and due process clause of the Fourteenth Amendment of the Constitution protects the parties in family disputes that reach the court. The operation of the Full Faith and Credit Clause is an important consideration and is central to the question if the court can apply the law of the forum court (lex fori) or that of the state where the dispute emanated. The federal constitution allows the state courts to apply marriage laws of another state. If the issue is procedural, then the law of the state will be applied where the dispute that gave rise to the litigation (lex loci). This paper examines the interstate in family law by considering marriages, child custody, and adoption rules and it enquires whether the courts have been sufficiently consistent in interpreting family law of the state in accordance with Article IV, Section 1. There is also a section that compares the law in the US with the application of the lex fori rules in family cases in the Scottish jurisdiction and how that influences parties in family law disputes.

Family Law and Inheritance

Family law in Japan has been democratised after the Second World War. There are two recent cases where a provision of the Civil Code (family law part) was found to be unconstitutional for the breach of the equal protection clause of the Constitution. One involved the share of inheritance of illegitimate children, and the other on the prohibition of remarriage for six months for females. The Civil Code was duly amended in 2013. The constitutionality of the requirement that a married spouses share the same family name is still held by the Supreme Court to be constitutional.

Municipal Reparations: Considerations and Constitutionality

Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow political branches to rectify vestiges of past discrimination and ongoing inequities through reparations plans such as the hypothetical Philadelphia City Council resolution. With these suggestions in mind, municipalities must boldly imagine and extend reparations to marginalized groups that have suffered harms. Similarly, the Court must reimagine its constitutional doctrine.

From ’48 to ’68

In the 1996 case Romer V. Evans, the United States Supreme Court struck down a Colorado state constitutional amendment that had prohibited municipalities and local governments within the state from enacting ordinances grant- ing special treatment to“homosexual persons.”The Court deemed the initiative to have been driven by “animus” toward an identifiable minority class, i.e., those characterized as having or engaging in “homosexual, lesbian, bisexual orientation, conduct, practices or relationships,” and thus ran afoul of the Equal Protection Clause found in the Fourteenth Amendment to the U.S. Constitution.

Murray, J., concurring.

Today, a majority of the Court strikes down laws banning the performance and recognition of same-sex marriages on the ground that such laws constitute caste or class legislation in violation of the Equal Protection Clause of the Fourteenth Amendment. In so doing, the Court reiterates that the right to marry is a fundamental right and denominates sexual orientation a quasi-suspect classification subject to heightened scrutiny....

Alvaré, J., dissenting.

The majority claims that it has not adopted a definition of “marriage” for purposes of the Due Process Clause. Nonsense. It did so when it concluded that states do not have sufficient reasons under the Equal Protection Clause to deny a pair of human beings access to something it called “marriage.” It did so when it claimed that the pair has been irrationally denied a “fundamental” interest in marriage....

NeJaime and Siegel, JJ., concurring.

Today the Court holds that laws banning same-sex marriage are a form of caste or class legislation that violates the Equal Protection Clause. The Court recognizes the right of same-sex couples to marry under the suspect classification and fundamental rights strands of our equal protection case law. We join the majority opinion holding that equal protection guarantees the right of same-sex couples to marry....