Friday, March 31, 2017

Two by George on LGBT Rights

Marie-Amelie George, currently a fellow at Columbia Law School and soon to be the Berger-Howe fellow at Harvard Law School, has posted two articles.

"Bureaucratic Agency: Administering the Transformation of LGBT Rights" appears in Volume 36 of the Yale Law & Policy Review (2017). Here's the abstract:
In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in scientific developments that influenced the decisions of social workers and other bureaucrats working in the administrative state. This phenomenon continues today, with educators resisting laws that limit bathroom access for transgender students. The bureaucratic resistance this Article uncovers demonstrates the dynamism of the administrative state and how bureaucracy is important site of legal change.

Using this untold history of LGBT rights, this Article identifies when bureaucratic resistance is a permissible means of protecting minority rights. Resistance as a mechanism of legal change raises separation of powers and democratic legitimacy concerns, since administrative agencies are charged with executing enacted legislation. However, the very structure of administrative bureaucracies gives rise to this problem, as civil servants are hired for their professional knowledge and abilities, yet are also responsible for complying with legislative mandates that may contradict that same expertise. This Article argues that this type of bureaucratic resistance can be both permissible and desirable. It presents parameters for when bureaucrats may legitimately resist legislation based on their expertise so as to allow bureaucrats to introduce viewpoint diversifying scientific developments that promote minority rights, while mitigating the potential for harm.
The second article, "Expressive Ends: Understanding Conversion Therapy Bans," appears in Volume 68 of the Alabama Law Review (2017). Here's the abstract:
LGBT rights groups have recently made bans on conversion therapy, a practice intended to reduce or eliminate a person’s same-sex sexual attractions, a primary piece of their legislative agenda. However, the statutes only apply to licensed mental health professionals, even though most conversion therapy is practiced by religious counselors and lay ministers. Conversion therapy bans thus present a striking legal question: Why have LGBT rights advocates expended so much effort and political capital on laws that do not reach conversion therapy’s primary providers? Based on archival research and original interviews, this Article argues that the bans are significant because of their expressive function, rather than their prescriptive effects.

The laws’ proponents are using the statutes to create a social norm against conversion therapy writ large, thus broadening the bans’ reach to the religious practitioners the law cannot directly regulate. LGBT rights groups are also extending the bans’ expressive message to support the argument that sexual orientation is immutable and to reverse a historical narrative that cast gays and lesbians as dangerous to children. These related claims have been central to gay rights efforts for much of the twentieth century and continue to shape LGBT rights battles.

While the expressive effects of the bans are important, the laws and the campaign around them may have a negative effect. LGBT rights organizations working on the laws do not distinguish between conversion therapy efforts aimed at changing sexual orientation and those targeting behavior. This is troubling, not only because it fails to acknowledge the needs of same-sex attracted individuals who wish to live in accordance with their religious beliefs, but also because it reinforces a limited view of gay identity. Many within the LGBT movement contest the identity model that legal advocates have championed, and that conception of sexual orientation may in fact hinder the movement’s long-term goals. Differentiating between the various types of conversion therapy would help remedy this by emphasizing the law’s need to respect and protect sexual decisions and expressions, as well as create a platform from which to promote a more expansive vision of LGBT rights.
Full text is available on SSRN.