Sexuality and the Law

W74 LAW 602D 01 - Sexuality & the Law: Theory & Practice

Spring 2006

Washington University School of Law

Wednesdays, 3 p.m. - 5 p.m.

Room 201

Instructor: Denise Lieberman

Office: Law School, TBA; Eliot Hall, Room 317

Office Hours - Law School: M/W 1-2:30 p.m.

Office Hours - Eliot Hall: T/Th 10-11:30 a..m.; 2:30-4 p.m.


Phone: (314) 935-9010

Course Website:


This course examines sexual orientation, sexuality, gender and the law. The course will introduce students to existing and emerging jurisprudence in these areas by examining the theory in the context of current debates. Students will examine caselaw with an eye toward how holdings in specific cases can be expanded or restricted in future litigation, and will address the value of test cases to push jurisprudence towards new outcomes. The course begins by looking at foundations in constitutional law, specifically the right to privacy of sexuality. The course then addresses foundations of equal protection jurisprudence, suspect classes, and how this impacts discrimination based on gender and sexual orientation. We then look at how social constructions of sexuality, sexual orientation and gender identity have impacted the development of law in areas employment, speech, education, marriage, parenting, violence and military service. Each topic area will incorporate current debates to the study of the caselaw, and students will be challenged to assess how cases could be expanded or restricted in future litigation, the risk of loss in test scases, the educational value of test cases, and the impact of test cases to the broader civil rights movement. The final grade will be based on attendance and participation, a case memorandum and presentation of the

case to the class.


William Eskridge and Nan Hunter, Sexuality, Gender and the Law, 2d ed. (2003), Foundation Press, ISBN: 1-58778-335-5 &  its 2005 Supplement, Foundation Press, ISBN: 1-58778-981-7. The text will be  supplemented with articles and pleadings relevant to the topics being covered. Students are expected to check the course website

for these materials.


30% Class Attendance and Participation: You are expected to be prepared to discuss the cases and readings with your fellow classmates in class each week. We will discuss how court decisions relate to current controversies and engage in debates on constitutional issues. Discussion and debate on issues raised in the readings is critical to your understanding of the issues in this class. Attendance and participation at each class meeting is expected. Each student will also be expected to assist in informally leading discussion in one class session by presenting a current debate within the framework of assigned materials that day. This will account for 1/3 of your attendance and

participation grade.

50% Case Memorandum: Students will be asked to assess real or potential test cases as if they are lawyers reviewing the cases for their law firms or organizations. Students will analyze the possibilities of potential litigation outcomes and asked to prepare a detailed legal memo of approximately 15 pages assessing the legal theories, legal arguments on both sides, possible litigation strategies, and potential outcomes of those strategies. Students will be expected to turn in a one paragraph proposal by week three, and a

1-2 page revised proposal by week seven.

20% Oral Argument/Presentation: Students will asked to present the competing issues in their test case to the class as if in a strategy meeting to discuss the merits of taking the case. Students will present the arguments on both sides, the potential legal strategies in the case, and its potential to serve as a test case or set precedent. Students will be expected to respond to questions or concerns raised by the class about the case. Students can incorporate feedback from these presentations into their final case memorandum.

These presentations will occur during the final class sessions.

Policy regarding academic dishonesty: This course will follow Washington University's policies concerning academic dishonesty. Academic dishonesty will result in failure for the assignment in question and/or referral to the college's Academic Integrity Office, which has discretion to impose a stricter penalty. While academic dishonesty includes cheating on exams and quizzes, it also includes plagiarism in written assignments. Plagiarism is not only passing off someone else's work as your own, but also giving your work to someone else to pass off as their own. It also includes submitting work from another course. While I strongly encourage you to discuss your work with each other in and out of class, your writing must be your own. The papers you submit must be your work alone, and must include citations

to all references in your work.

Accommodation of disabilities: Washington University is committed to providing accommodations and/or services to students with documented disabilities.  Students who are seeking support for a disability or a suspected disability should contact the Disability Resource Center (DRC) at 5-4062 in Gregg Hall. ( The DRC is responsible for approving and arranging all accommodations

for University students.

Important Dates:

Fri, Jan. 13 - Last day to add most upper-level courses without professor permission

Fri, Feb. 3 - Last day to drop most upper-level courses without a PW on your transcript

Fri, March 3 - Last day to drop most upper-level courses without the professor's permission

Mon, March 13 - Sun, March 19 - Spring Break (no classes)

April 21 – Last Day of Classes

April 24-May 5 – Exam Period


I.  The Right to Sexual Privacy

II.  Equal Protection

III.  Sexual Orientation

IV.  Gender Identity & Transgender Issues

V.  Employment

VI.  Speech

VII.  Education

VIII. Marriage

IX.  Parenting

X.  Violence

XI.  Military Service

Course Sequence

Week 1 (Jan. 11): Introduction, Right to Sexual Privacy (Ch. 1)

Introduction & Overview of Course

Constitutional Foundations: Right to Privacy & Substantive Due Process

Current Litigation Trends & Political Context

The Right to Sexual Privacy (Chap. 1)

Foundations of the Right to Privacy, Substantive Due Process (Ch. 1, § 1)

Griswold v. Connecticut (p. 13-16)

Notes on Griswold & the Right of Sexual Privacy (p. 16)

Roe v. Wade(p. 31-33)

Note on the Abortion Right from Roe to Casey (p.33-35)

Eisenstadt v. Baird

Planned Parenthood v. Casey (p.35-40)

Notes on Roe, Casey and the right to abortion (p.40)

Week 2 (Jan. 18): Sexual Privacy (Ch. 1)

The Right to Sexual Privacy, cont'd

Regulation of Private Sex (Sodomy laws) (Ch. 1, § 2)

Sodomy, the “utterly confused category” p. 44

Pre-Bowers (p.45)

Bowers v. Hardwick (p.52-60); Notes (p. 61)

Rubenfeld, The Right of Privacy (p. 68-73)

Lawrence v. Texas (p. 74-91)

Week 3 (Jan. 25): Equal Protection (Ch. 2, §1)

Understanding the Equal Protection Clause & Suspect Classes

Sex Discrimination (Ch. 2, § 1) (pp. 177-179)

Fronterio v. Richardson (pp. 179-183)

Craig v. Boren (pp. 188-190)

U.S. v. Virginia (pp.192-202)

Should Sexual Orientation be a Suspect Classification? (pp.227-246)

Week 4 (Feb. 1): Equal Protection (Ch. 2, §2)

Sexual Orientation Discrimination (pp. 259-297; 1523-1531)

Romer v. Evans

Lawrence v. Texas

Kansas v. Limon (supp. p.15-18)

Week 5 (Feb. 8): Gender Identity & Transgender Issues (Ch. 12)

cross dressing statutes (Ch. 12, §1, pp. 1423-1432)

challenges to core meanings of sex  and gender (Ch. 12, §3, pp. 1461-1504)

sex binaries and the law (Ch. 12, §3A)

employment: discrimination "because of sex" (Ch. 12, §3B)

Oiler v. Winn-Dixie

Week 6 (Feb. 15): Employment (Ch. 6)

State Discrimination on the Basis of Sexual Orientation (Ch. 6, §1C, pp. 771-781; 787-800)

Sharar v. Bowers

Weaver v. Nebo School District

Gender & Sexual Orientation Discrimination under Title VII

Price Waterhouse v. Hopkins & notes(pp. 600-607; 826-27)

Sexual Harassment

Oncale v. Sundowner & notes (pp. 853-858)

ENDA (pp. 865-70)

Week 7 (Feb. 22): Speech (Ch. 3, §2)

First Amendment and Coming Out Speech pp. 321-339

Weaver v. Nebo Sch. Dist. (pp. 345-351)

Freedom of Association (pp. 383-418)

Hurley v. Irish American GLBT Group of Boston

Boy Scouts v. Dale

Week 8 (March 1): Education (Ch. 7)

Academic Freedom

Solomon Amendment

FAIR v. Rumsfeld (supp. p. 18-26)

Student Expression (pp. 915-918)

Harassment & Title IX (Ch. 7, §2B, pp. 943-967)

Nabozny v. Podlesny

No Promo Homo Education Policies (pp. 1010-1014)

Equality: GSAs, Prom

Week 9 (March 8): Marriage (Ch. 8)

Read: Ch. 8, § 2 (pp. 1063-1104; pp. 1132-36; supp. pp. 27-38)

Loving v. Virginia (p. 166)

Baehr v. Miike

Baker v. Vermont

Goodridge v. Dept. Of Public Health (p. 1553)

Interstate Recognition


March 15: No Class - Spring Break

Week 10 (March 22): Parenting (Ch. 9)

Families of Choice (pp. 1139-42)

custody (Ch. 9, § 1B, pp. 1161-81)

adoption, second parent adoption, foster parenting (Ch. 9, § 2) (pp. 1189-97; 1210-1216)

Lofton v. Sec'y of Dept' of Children and Social Services et al.(supp. p. 1-14)

Week 11 (March 29): Violence (Ch. 10)

Rape & Consent (1239-42)

Martha Chamallas, Consent, Equality & the Legal Control of Sexual Conduct

Sexualized Violence (Ch. 10, §2 , pp.1295-1330)

Hate Crimes – Teena Brandon v. County of Richardson

Anti-Violence Projects

Week 12 (April 5): Military (Ch. 5)

Racial Segregation in the Military & Truman Order (pp. 666-673)

Exclusion of Women from Combat (676-680)

Exclusion of Gays, Lesbians, Bisexuals (Ch. 5, §3)

Origins of Armed Forces Exclusion of Gay People, (pp. 707-713)

Don't Ask, Don't Tell (p. 729-749)

Cook v. Rumsfeld

Able v. U.S.

Week 13 (April 12)

Student presentations & group work

Week 14 (April 19)

Student presentations & group work

Outlook for the future

Wrap up

Final Papers Due by April 26.

Denise 2004 small: Denise