Tag Archives: LGBTQ


Windsor, Federalism, and the Future of Marriage Litigation

Mark Strasser*

In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality.

Part II of this Article discusses Windsor. Part III examines that decision’s possible implications for section 2 of DOMA, including some possible constructions of the provision and some of the differing constitutional implications of these alternate constructions. Part IV analyzes Windsor’s possible implications for state same-sex marriage bans. The Article concludes that while Windsor could have been clearer with respect to its implications for section 2 and for some of the state same-sex marriage bans, the most plausible interpretation of Windsor establishes the constitutional invalidity of DOMA’s section 2 and of many state mini-DOMAs, in part if not in whole.

Article: Strasser, Windsor, Federalism and the Future of Marriage Litigation

Citation: Mark Strasser, Windsor, Federalism and the Future of Marriage Litigation, 37 Harv. J. L. & Gender Online 1 (2013).

* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.

[1] 133 S. Ct. 2675 (2013).



[2] 1 U.S.C. § 7 (1996).



[3] 28 U.S.C. § 1738C (1996).



[4] Justice Kennedy merely mentioned it in his opinion. See Windsor, 133 S. Ct. 2675, 2682–83 (2013) (“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”).



JLG:LAMBDA Retrospective

HLS Lambda/JLG 35th Anniversary Colloquium

HLS Lambda/JLG 35th Anniversary Colloquium: 
A Retrospective and a Way Forward:
LGBTQ Rights and Activism at Harvard Law School and Beyond
Friday, October 18, 2013, 2:00 p.m.
Austin Hall, North, Harvard Law School
1515 Massachusetts Ave., Cambridge, MA
Please RSVP HERE! Join the Facebook event here.
Come celebrate the 35th anniversary of an LGBTQ student group at HLS with Lambda and the Harvard Journal of Law and Gender!  The colloquium will open with an introduction by Dean Martha Minow and a conversation about being LGBTQ at HLS throughout the years between three former Lambda presidents (including the original founder of COGLI, Lambda’s predecessor), hosted by current president John Dey.  The colloquium will continue with a panel discussing the road to marriage equality, after which we will discuss what’s next for the LGBTQ movement.  A partial list of panel guests include:
  • Laurence Tribe, Carl M. Loeb University Professor, Harvard Law School (argued Bowers v. Hardwick)
  • Paul Smith, Partner, Jenner & Block (argued Lawrence v. Texas)
  • Prof. Jose Gomez, ’81, Founder, COGLI (Lambda’s predecessor)
  • Prof. Bradley Sears,’95, Director, Williams Institute at UCLA Law
  • Chai Feldblum, Commissioner, U.S. EEOC
  • Pat Brady, former Chairperson, Illinois GOP, currently consulting for the ACLU on marriage equality in IL

Dinner will begin at 6:30, and a keynote will be delivered by Roberta Kaplan, counsel for Edie Windsor in United States v. Windsor, which overturned § 3 of the Defense of Marriage Act.  See attached flier for details. 



Contact Addar Weintraub at aweintraub@jd14.law.harvard.edu for more information.


By Stevie V. Tran and Elizabeth M. Glazer

Legal protection from discrimination on the basis of gender identity has been reserved for perfect gender-nonconformists.  These are plaintiffs such as Jimmie Smith and Phelicia Barnes, who were able to state actionable claims under Title VII’s prohibition against employment discrimination on the basis of sex because they were perfectly gender-nonconforming men — that is, individuals who behave like women but who are “really” (according to the courts that decided their cases) men.  Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins — which expanded the scope of Title VII’s prohibition against sex discrimination to cases in which plaintiffs experienced discrimination for failing to conform to stereotypical norms about masculine and feminine behavior — the Barnes and Smith courts offered protection to transgender victims of employment discrimination.  The protection of what this Article calls “perfect” gender-nonconformists such as Smith and Barnes is an important step toward protecting transgender people from discrimination.

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The Massachusetts Transgender Equal Rights Bill

By Jean Strout

When the Transgender Equal Rights Bill was introduced into the Massachusetts legislature in 2011, opposition emerged from a surprising source: Black and Pink, a Massachusetts-based radical “open family” of queer prisoners and their allies who “work toward the abolition of the prison industrial complex.”  Massachusetts’s Transgender Equal Rights Bill forbids discrimination based on “gender identity” in a variety of areas, including employment, housing, credit, and education.  However, Black and Pink’s opposition focused solely on the hate crime sections of the bill, which mandate enhanced sentences for crimes based on gender identity.  this is not the first time that groups representing queer and transgender communities have voiced opposition to transgender civil rights legislation.  Black and Pink drew inspiration for their letter of non-support from the response of a group of New York organizations against the 2009 Gender Expression Non-Discrimination Act (GENDA), a similar bill which passed New York’s State Assembly multiple times but stalled in the Senate.  Five organizations that “work to advocate for and increase the political voice” of transgender and gender non-conforming communities of color, most notably the Sylvia Rivera Law Project (SLRP), wrote a letter to the GENDA coalition asking them to strike the hate crime legislation attached to the bill.

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Lost in Transition

By Jason Lee

While few in the LGBT community would be surprised to learn that in this day and age transgender individuals still face intense, pervasive discrimination in the employment context, the statistics are still nothing short of astounding.  A recent national survey of almost 6,500 transgender individuals found that nearly half of respondents had experienced an adverse employment action — denial of a job, denial of a promotion, or termination of employment — as a result of their transgender status and/or gender nonconformity.  Fifty percent reported harassment by someone at work, forty-five percent stated that co-workers had referred to them using incorrect gender pronouns “repeatedly and on purpose,” and fifty-seven percent confessed that they delayed their gender transition in order to avoid discriminatory actions and workplace abuse.  It is little wonder that many in the transgender community feel that they have no choice but to suffer through this type of hostility, as transgender employees who lose their job due to workplace bias are six times as likely as the general United States population to be living on a household income under $10,000 per year, and four times as likely to have experienced homelessness as transgender individuals who did not lose a job due to workplace bias.

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Trans-cending Space in Women’s Only Spaces

By Katherine Kraschel

When Cerri Banks started as Dean of Mount Holyoke College in fall of 2011, “assess[ing] the campus climate to see how it can better support diversity and inclusivity” was high on her list of priorities.  This is not surprising considering that Mount Holyoke College students hail from forty-eight states and seventy countries, and twenty percent of its student body is international citizens.  What some may find surprising, however, is that the newest dean of the oldest women’s college in the world wants to ensure an inclusive environment for non-women; among her priorities is making the campus more inclusive for transgender individuals.

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A Non-Medicalized Medical Deduction?

By Lauren Herman

On January 4, 2006, Rhiannon O’Donnabhain experienced what nearly every American taxpayer dreads — she was informed she was being audited by the Internal Revenue Service (“I.R.S.”).  After a lengthy battle that affected much more than her tax liability, O’Donnabhain’s struggle was vindicated: on November 21, 2011, the I.R.S. released a simple one page advisory stating that it will permit medical deductions for transgender medical care.  In releasing this advisory, the I.R.S. adopted the reasoning and conclusions of the previous Tax Court decision.

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Gendered (In)security

By Pooja Gehi

Over the past decade, both immigrant rights and lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights have been key issues in United States political and legal debates.  Yet, the two issue areas have rarely publicly intersected within these debates.  The "war on terror" has heightened the public debate around immigration, national security, and border control; however, LGBTQ concerns and a discussion of LGBTQ immigrants continue to be rhetorically separate from these immigration-focused conversations.  This rhetorical separation is especially problematic for those living at the intersections of different identities, including LGBTQ immigrants of color who live in poverty.  As this Article will show, the separation ignores the ways in which individuals who do not fit the public description put forth by "rights-based" organizations are the most negatively impacted by the laws and regulations that are being publicly challenged by these mainstream groups.

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Book Review: The Right to Be Parents

Book Review

Jean Strout*

The Right to Be Parents: LGBT Families and the Transformation of Parenthood.  By Carlos A. Ball.  New York, NY.  New York University Press (2012).  239 pages.

Click here to access a PDF version of the book review.

If there is one word to describe Carlos A. Ball’s new book, The Right to Be Parents: LGBT Families and the Transformation of Parenthood,[1] it is humanizing.  The book is ostensibly meant to provide a history of LGBT parenting and the courts since the onset of the gay rights movement, from custody and visitation to reproductive technology and adoption.  However, as Ball acknowledges, family law is largely defined by state courts.[2]  The field has unifying themes—such as the focus on best interests of the child[3]—but the vast majority of cases turn on specific facts, not on challenges to the law.[4]  This exacerbates the problems that any fifty-state, forty-year survey of law would confront: the story of LGBT parenthood must be constructed by picking and choosing individual cases and weaving them together.

Ball does a surprisingly good job creating a cohesive and moving narrative.  However, The Right to Be Parents suffers from his attempt to streamline the story of LGBT parenting law into a manageable package.  Some of the most vital chapters of the story, from the influence of the AIDS crisis to the multifaceted struggles of LGBT parents of color, are not given the attention they are due.  These omissions prevent The Right to Be Parents from offering a complete picture of LGBT parenting law.

The Right to Be Parents necessarily leaps across space and time in an effort to capture important and poignant moments in LGBT parenting law.  The first chapter alone visits 1970’s Washington,[5] Texas[6] and Virginia[7]; Alabama,[8] North Dakota[9] and Mississippi[10] in the new millennium; and several other times and places along the way.  The setting shifts seamlessly from trial, to appellate, to supreme courts.  Ball has chosen some of the most compelling cases in this area, telling story after story of good, loving parents whose children are taken away from them solely because of their sexual orientations.  The book’s emphasis is always on the injustice of destroying or preventing loving relationships between parents and children.  Ball further humanizes LGBT families by including photos and details of their lives that rest far outside the facts of any given case.[11]  This structure makes for very interesting reading; The Right to Be Parents often reads like a collection of particularly heart-rending short stories.

Unfortunately, in Ball’s descriptions of cases, the law sometimes seems like a side note to the stories themselves.  Although I greatly appreciate Ball’s departure from abstract and unmoving legal scholarship, his legal analysis can be simplistic.  The book’s conclusion seems to be that before the 1970s, LGBT people nearly always lost their parenting cases because of their sexualities; now, they only sometimes lose.  Drawing more specific conclusions is, of course, extremely difficult when analyzing such a breadth of state case law.  However, Ball seems to shy away from a more complex exploration of why case law has changed.  His explanation seems to be that both laypeople and jurists are coming to their senses and becoming more tolerant of LGBT parenting.

Although this is certainly true, there are also many people, events, and statutory changes that reflected and reinforced this process.  For instance, issues like gay marriage,[12] sodomy laws,[13] the influence of religion on the views of gay parenting,[14] the AIDS epidemic,[15] and the tender-years doctrine[16] pop in and out of sight throughout the book.  Ball does make an attempt to exposit the major gay rights organizations that have emerged in the last few decades.  However, the connections between political advocacy and legal results are often obscured.  For example, we do not learn why sodomy laws were repealed or how that affected LBGT parenting cases.  We do not learn how the rampant fear of HIV-positive parents gradually faded, or see the fall of the tender-years doctrine.  A more thorough exploration of the rise and fall of legal concepts and cultural moments that embodied prejudice would have been helpful in understanding the interaction between LGBT law and culture over the past forty years.

The organization of the first two chapters offers an example of the void in exposition.  These chapters describe the struggles of LGBT parents to maintain custody and visitation with their children after divorce from heterosexual spouses.  The first chapter is devoted to lesbians and the second to gay men, but the takeaway is the same: the presumption that homosexuality, or at least open homosexuality, harms children has gradually eroded.[17]  Both chapters help reveal the court’s historical preference for “discreet” homosexuality; in many cases, the decisions hinged on whether the parent was willing to give up living with a same-sex partner in exchange for contact with the child.[18]  Both chapters also capture the fascinating idea that it is not being raised by a gay or lesbian parent, but being exposed to the homosexual lifestyle that is harmful to the child—and the court’s belief that living as an open homosexual was a selfish choice that good parents would not make.[19]  Given all of these similarities, it is unclear why Ball separates the two chapters based on gender.  Mention of the AIDS crisis[20] somewhat distinguishes the chapter about fathers, and because of the tender-years doctrine, the lesbian cases generally focus on custody while the gay cases center on visitation.[21]  Still, in a book that ultimately argues for more fluid and less gendered parenting roles, more discussion of how lesbian and gay parenting cases are viewed differently legally and culturally is warranted before dividing parents based on gender alone.

The book is at its best in chapters three and four, when it confronts situations where LGBT parties are on both sides of parenting cases.  In these cases, LGBT families have been planned through sperm donation and surrogacy; the main issue is whether biology or intentionality should predominate in making parental rights decisions.[22]  These chapters examine the interesting ethical dilemma that arises for LGBT advocates when a client’s legal goals conflict with the best interests of the greater LGBT community.[23]  In chapter three, “Breaking Up is Hard to Do,” Ball describes the horrifying results of some lesbian breakups.  In these cases, despite deciding to conceive and raise the child as a couple, biological mothers attempted to keep their former partners from having any contact with the child because the partners had no biological link to him.[24]  The LGBT legal community largely sided with the non-biological parents, since relying on biology alone would prevent children from having two gay or two lesbian parents.[25]

Even more interesting is the case of Ry in chapter four.  Ry was a child parented by two lesbians and conceived with sperm donated by a gay friend.[26]  When Ry was nine years old, the sperm donor began a long legal battle for parental rights.[27]  Both parties fought to be defined as the rightful members of the two-parent, nuclear family—the sperm donor by emphasizing his biological role, and the mothers by emphasizing his lack of a parent-child relationship.[28]  Both parties relied on an “all-or-nothing” approach to parenthood.[29]  Ball argues that this approach actually undermines LGBT rights by reinforcing the traditional family model.[30]  The parties missed an opportunity to redefine parenting in a more balanced and diverse way, advocating that adults can have a multiplicity of legally protected roles in a child’s life.[31]  This process has begun in some states with the advent of equitable or ‘de facto’ parenthood, a legal doctrine giving some protection to non-biological parents who have played a role in raising the child.[32]  Chapters three and four are the highlight of The Right to Be Parents because they reveal an underlying tension: whether LGBT parents should attempt to fit their families into the existing heteronormative framework, or expand it to encompass a more diverse definition of “parent.”

Ball himself missed an opportunity in neglecting to address intersectional identities in his book.  Although the principal cases overtly used gender and sexual identity as primary factors, child custody cases usually involve a wide-ranging look at the parties’ entire lives.  Family history and support, finances, racial identity, work, character, criminal records—many of these factors come into play in a custody decision.  In adoption cases, financial ability and racial and cultural matching have been particularly important issues.  By focusing only on sexuality and gender identity, Ball missed an opportunity to explore how race and class impact the court’s perspective on a case.  This may have been an attempt to simplify an already complicated issue.  However, it ended up minimizing or even erasing the stories of LGBT people who are not white and middle or upper class.

The Right to Be Parents purports to explore LGBT parenting law.  However, only one case mentions bisexuality,[33] and the sixth chapter discussing transgender parenting cases seems strangely tacked on.  While the rest of the book is divided by gender, all transgender parents are lumped together; where other chapters focus on a certain type of parenting case, several types are represented in the chapter on transgender parents.  Although this chapter is an admirable effort at inclusiveness, especially given the small pool of transgender parenting cases, the chapter feels incomplete.  The truth is that only the “L” and the “G” get any real traction in The Right to Be Parents.

Ball’s book does not go as far in illuminating the evolution of LGBT parental rights as one might wish.  Still, it is extremely valuable as a summary of a vast area of law and as a storytelling device.  Ball skillfully brings together the stories of gay and lesbian families spanning the country and the decades.  The Right to Be Parents is a poignant look at the way the law has and continues to devalue and destroy the relationships between LGBT parents and their children.


Cite as: Jean Strout, Book Note, Harv. J.L. & Gender, (Aug. 2012) (reviewing Carlos A. Ball, The Right to Be Parents: LGBT Families and the Transformation of Parenthood (2012)), www.harvardjlg.com/2012/08/book-review-right-to-be-parents.

* J.D. Candidate, Harvard Law School, Class of 2014.

[1] Carlos A. Ball, The Right to Be Parents: LGBT Families and the Transformation of Parenthood (2012).

[2] See id. at 15.

[3] Id. at 23.  The “best interests of the child” is the standard used in custody and visitation cases.  It “purposefully grants trial judges broad discretion to take many different factors into account.”  Id.

[4] Id. at 13.  “Even though the law of LGBT parenting also frequently addresses big questions . . . they arise mostly in highly individualized litigation, as parties go before the courts to determine whether the best interests of particular children will be promoted by creating or maintaining a relationship with a particular LGBT person or couple.”  Id.

[5] Id. at 21.

[6] Id. at 25.

[7] Id. at 39.

[8] Id. at 56.

[9] Id. at 51.

[10] Id. at 56.

[11] E.g., id. at 31.

[12] See, e.g., id. at 125.

[13] E.g., id. at 23, 75.

[14] E.g., id. at 105.

[15] E.g., id. at 70.

[16] Id. at 61, 192.  The tender-years doctrine is a presumption that it is in a young child’s best interests to be cared for by the mother, rather than the father, after divorce.  Id. at 61.

[17] See id. at 34, 47, 79.  Now, courts generally must find a ‘nexus’ between the parent’s sexual orientation and the harm to the child before LGBT status can be considered in a custody or visitation decision.  Id. at 47.

[18] See, e.g., id. at 56.

[19] See, e.g., id. at 68.

[20] Id. at 70.

[21] Id.

[22] See id. at 89–90.  Biology consists of a genetic connection between parent and child.  Intentionality focuses on whether the biological parent consented to a parenting relationship between the child and a third party, and whether and for how long the third party functioned as a parent.  Id. at 100–01.  Intentionality is reflected in the equitable doctrine of ‘de facto’ parenthood.  See infra note 30.

[23] Id. at 89.

[24] Id.

[25] Id.

[26] Id. at 115–16.

[27] Id. at 117.

[28] Id. at 120–21.

[29] See id. at 132.

[30] Id. at 124.

[31] Id.

[32] Id. at 98–99.  The Wisconsin Supreme Court identified four elements of equitable de facto parenthood: “(1) that the legal parent consented to and fostered the relationship between the petitioner and child; (2) that the petitioner and child lived together in the same household; (3) that the petitioner functioned as parent ‘by taking significant responsibility for the child’s care, education, and development’; and (4) that the petitioner had a ‘parental role for a length of time sufficient to have established with the child a bonded, dependent relationship.’”  Id. at 98, quoting In re Custody of H. S. K.-H., 533 N.W.2d 419, 428 (Wisc. 1995).

[33] Id. at 70.


Book Review: Normal Life


Review by Alexandra St. Pierre*

Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law.  By Dean Spade.  Cambridge, MA.  South End Press (2011).  256 pages.

Click here to access a PDF of the book review.

Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law takes a radical view of the current movement for trans and gender nonconforming rights.   Dean Spade not only questions the current trajectory of the trans right movement, but also the effectiveness and widespread use of rights-based law reform in general.  Spade critiques the condition of current state-based inequality and discrimination in all forms throughout the United States and calls for a return to the more grassroots-based organizations of the 1960s and 70s, where the movements were spearheaded by members of the discriminated group and the goal was transformative change.  The language in Normal Life is somewhat provocative, for example using “criminal punishment system” instead of “criminal justice system.”[1] Combined with the radical positions espoused, the book will not convince anyone who is not already in agreement with Spade’s views—and Spade is probably fine with that.  Nevertheless, even without subscribing to Spade’s far-reaching ideas, one can see that there is a lot of work to be done in the area of trans rights and that current reform strategies are not sufficient by themselves to address existing problems.

This book review will first consider Spade’s discussion of the politics of neoliberalism and its effect on the formation of institutions and creation of laws, setting the foundation for his later arguments about rights-based strategies.  It will then discuss Spade’s argument about the ineffectiveness of these strategies and other factors that have contributed to a disconnect between the needs of the community and the efforts at reform.  The review then outlines Spade’s  reframing of the pertinent issues and the application of this new framing to current laws.  Lastly, this piece walks through some of the solutions Spade offers, specifically member-based organizations.  This review ultimately concludes that Normal Life is more informative than truly persuasive, at least for those who do not come to this book already conceptualizing rights-based reform as ill-equipped to effect true reform.

  1. I. Neoliberalism

Normal Life begins with a discussion of the rise of “neoliberalism” in the United States.  Spade uses the term to mean the trend in U.S. “policy changes like privatization, trade liberalization, labor and environmental deregulation, the elimination of health and welfare programs, increased immigration enforcement, and the expansion of imprisonment.”[2]  This chapter is quite expansive in scope, including a short yet broad criticism of U.S. free trade agreements, [3] media and governmental policies of racialized control,[4] the increase in private non-profits,[5] and the rise in the number of people imprisoned in the United States as a result of the creation of new criminal laws and enhanced sentencing.[6]  According to Spade, these changes have resulted in a decrease in real wages and redistribution of wealth that expanded the gap between rich and poor.[7]  This disparity and resulting lack of opportunities helps provide the basis of his later claims that, as activists for social change, advocates for trans rights need to recognize that values have shifted.  Thus, they should demand a change in, or even abolishment of, the institutions that perpetuate these unfair circumstances.[8]

However, if the reader is not already convinced of the violence and oppression that occurs at the hand of the state, the discussion here of neoliberalism likely will not convince her. While Spade provides a lot of factual support for the claims about imprisonment from which his claims seem logically drawn, many of Spade’s sources for information about free trade agreements and the non-profit industrial complex come from self-described radical organizations that create their own media to help spread their story.[9]  While I in no way mean to impugn the journalistic integrity of these organizations or of Spade’s book, I simply mean to point out that the story he is telling comes from a positional view and is supported by others with similar views and, as a result, is less likely to persuade those who are not already like-minded.  This is unfortunate because, as Spade mentions, trans issues are often lumped into the same category as lesbian and gay issues, and the lesbian and gay movement has focused on a rights-based strategy.  A more neutral story-telling device might have convinced new minds that a structural problem exists and that change is necessary on this other level, furthering the debate even more.

  1. II. The Problem with Current Legal Reform Movements—Specifically the LGBT Movement

As told in Normal Life, in the fight for trans equality, the most common legal struggle has been to secure two types of legislation: antidiscrimination and hate crime laws aimed at protecting people based on their gender identity and/or expression.[10]  However, Spade points out that these laws have been ineffective at ending negative behavior and attitudes towards people of color, women, lesbians and gays, and people with disabilities; he sees no reason why such laws would be, or even have been, effective for trans people.[11]  With respect to race and antidiscrimination laws, he calls into question the constitutional framework of equal protection doctrine that advances what Critical Race Theorists call a “perpetrator perspective,” “imagining that the fundamental scene is that of a perpetrator who irrationally hates people on the basis of their race and fires or denies service to or beats or kills the victim based on that hatred.”[12]  In promoting a perpetrator perspective of racism, a number of problems occur with the antidiscrimination laws that inherently promote such a view, including disallowing programs aimed at remedying discrimination, such as affirmative action, ignoring conditions that “stem from and reflect long-term patterns of exclusion and exploitation” rather than individual conscious bias, and reinforcing the status quo by requiring claims to be framed in such a way that the plaintiff complaining of discrimination is exactly the same as the discriminating party, save for one characteristic that is different and gives rise to the discrimination.[13]  These ideas are not new, as evidenced by their adoption by Critical Race Theorists, and they have been advanced by feminist scholars as well.[14]  In this tradition, Spade argues that not only would discrimination laws be ineffective if applied in the same manner to trans individuals, this past history of failure makes it unreasonable to think it would have more than a marginally beneficial effect on trans individual’s lives, given that trans people usually have “more complicated relationships with marginality.”[15]

Spade’s arguments against hate crime laws are slightly more unconventional, and also slightly less persuasive.  His first argument is that hate crime laws have no deterrent effect.[16]  While this seems intuitively true on the basis of the fact that “people do not read law books before committing acts of violence and choose against bias-motivated violence because it carries a harsher sentence,”[17] Spade provides no statistics or other type of support to reinforce this point.  His next argument decries the strengthening and legitimization of the criminal punishment system that he claims hate crime laws necessarily entail.[18]  I understand the legitimization argument in the abstract sense that advocating for laws that entrust the existing criminal punishment system to recognize trans and gender nonconforming individuals and defend them is essentially adopting the position that the system itself is trustworthy and capable.  However, the fact that hate crime laws actually strengthen the criminal punishment system is not as clear.  In the case of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, a federal hate crime law that specifically addresses violence against trans people, it provided “enormous resources to the criminal punishment system.”[19]  I agree that bestowing additional resources on the criminal punishment system increases its clout generally and reinforces the idea of the system as a legitimate authority, a frightening possibility if one believes “the criminal punishment system is the most significant perpetrator of violence against trans people.”[20] But Spade does not discuss whether all hate crime laws come with similar funding structures or whether the funds have any specific restrictions on them in terms of how they can be used.  Absent such resources, the argument that the system is strengthened by such laws is less persuasive when the only real change is enhanced sentences for violators of statutes that supposedly are underenforced.

According to Spade, the rise of the non-profit industrial complex has contributed to this misplaced emphasis on certain types of legal reform.[21]  In Spade’s narrative, the shift in politics during the growth of neoliberalism and the dismantling of governmental service programs in the 1960s and 1970s led to an increase in non-profits, whose leadership was made up of white, upper-class individuals who, with their specialized graduate degrees, focused on business management models and efficiency.[22]  As a result, there was a significant shift in priorities toward stabilizing “structural inequality by legitimizing and advancing dominant systems of meaning and control rather than making demands for deeper transformation.”[23]  This has the effect of “marginalizing or overtly excluding the needs and experiences of people of color, immigrants, people with disabilities, indigenous people, trans people, and poor people.”[24]  This shift to a focus on inclusion and incorporation into the mainstream led to the focus on marriage equality for same-sex couples as a way to provide more benefits and services to their constituencies; however, Spade argues that it “ignores how race, class, ability, indigeneity, and immigration status determine access to those benefits and reduces the gay rights agenda to a project of restoring race, class, ability and immigration status privilege to the most privileged gays and lesbians.”[25]

Spade seems to strongly disapprove of organizations such as Gay and Lesbian Advocates & Defenders and the Gay and Lesbian Association Against Defamation; however, even after reading Normal Life I am not ready to decry the work of such organizations nor dispose of the current non-profit model altogether.  Nevertheless, I found the critique of the non-profit sector refreshing.  There is a tendency in the public interest community at large to assume that efficient, well-run non-profits that secure considerable grant funding are automatically providing beneficial services.  Spade’s assessment offers an important reminder that non-profits exist to help the people who are marginalized and that it is their experiences that should inform the running of the organization, regardless of who is in charge and what their background entails.  Spade also provides some interesting ideas about new ways to structure non-profits, discussed below, that demonstrate promise.

  1. III. A New Way of Thinking

So if marriage equality, hate crime laws, and antidiscrimination legislation are not the answer, where should the trans movement turn to effect changes in the lives of trans individuals?  Citing Michel Foucault, Spade argues that we should look to laws and policies that effect “disciplinary” and “population management” modes of power to identify ways to create more transformative change.[26]  Disciplinary modes of power enforce norms that create notions about different types of people and how they should behave.[27]  “Population management” modes of power have to do with the distribution of services and opportunities to a particular swath of the community that give one a better chance at life.[28]  According to Spade, the analysis as applied to trans issues occurs less often at the population level, and looking at the governmental institutions and policies in this way opens up a new analytical framework and exposes many questionable practices.[29]

One such question that arises after reevaluating the laws and policies at a population management level, as filtered through a viewpoint of trans concerns, is the collection of gender data in almost every type of government and commercial setting where identity verification is necessary.[30]  Conflicts arise when the identification document of a trans person varies from the outward manifestation of their sexual identity or a separate identification document.[31]  These conflicts occur despite the fact that almost every state and federal agency has slightly different requirements for how or whether one can change their different identification documents to accord with their understanding of themselves.[32]  The effort to classify them into one category or another makes trans people vulnerable when exposed to gender segregated facilities and when attempting to access health care.[33]  However, these kinds of problems are less susceptible to rights-based reform and the “emergence of politics and resistance strategies that understand the expansion of identity verification as a key facet of racialized and gendered maldistribution of security and vulnerability” are necessary.[34]

It is hard to imagine a society where we are not asked to provide our gender to fly on planes, get a driver’s license, and apply to college; declaring our gender has become such a pervasive part of our everyday experience that we have stopped questioning why the information is really necessary.  Even when not required to give the information, we provide it at every opportunity, from decorating our children in colors that—per societal constructs—designate their gender to correcting people via email when they mistakenly use the dis-preferred pronoun of Mr. instead of Ms., and vice versa.  Spade recommends a wholesale reevaluation of the need of the government for gender identifying information, but I am curious as to which instances, if any, Spade believes it is appropriate to require someone to disclose such information.  Even though in the end the exercise will still essentially be one of line-drawing, an examination of the reasoning behind the line will provide insight into our views about gender and their place in society.

  1. IV. The Solution

The last segment of the book is where Normal Life is at its best.  In this portion of the book, Spade (somewhat) stops reiterating the problems with non-profits and reform strategies he has outlined so far and offers concrete solutions and changes to the rights-centered law reform stance.  He advocates for a culture of non-profits that are willing to recognize multiple areas of need and collaborate where necessary to meet those needs, including advocating for policy change at the legislative and institutional levels, changing public opinion through the creation of independent media and educating the public, and providing critical services such as food, legal assistance, and medical and mental health care.[35]  The most important recognition the non-profit community needs to make is that community power and autonomy is the only way to ensure that the community’s needs are not forgotten and sacrificed to the ideals of the current leaders of the movement.[36]

Most of Spade’s suggestions involve mobilizing the trans community, beginning by getting people in touch with others who have similar stories and backgrounds.  The most interesting of his solutions was the creation of membership-based organizations.[37]  These organizations offer leadership development models and programs to members to teach them community activism and help them become effective advocates in their own lives and the community in general.[38]  While I am sure this model might be too radical for some, it seems to me like a unique way to empower members of the community to help themselves and each other.  The model also allows the community itself the ability to reevaluate the impact and desirability of the organization’s efforts on the lives of those who it aims to assist.

  1. V. Conclusion

Regardless of whether one buys into Spade’s radical reframing of the current state of inequality in the United States, there are obviously many issues surrounding discrimination against trans individuals, and these conditions are exacerbated by the intersection of multiple vectors of race, poverty, and disability.  The reform strategies in place today to eradicate such barriers are at least to some degree ineffective and yet perpetuated on a regular basis.  Again, this book is not likely to convince anyone that prisons should be abolished; to the extent that Spade is looking first to promote awareness and empowerment in his constituency of trans and gender nonconforming people who are poor, disabled, and/or of color, I think he is unbothered by that result.  However, Normal Life highlights many problems with the current rights-based model and provides some forgotten and unique solutions, none of which needs to be taken wholesale to be informative or effective.

* J.D. Candidate, Harvard Law School, Class of 2013.


[1] Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law 90 (2011).


[2] Id. at 33–34.


[3] Id. at 52–53.


[4] Id. at 53.


[5] Id. at 59–61.


[6] Id. at 53–54.


[7] Id. at 50.


[8] Id. at 69.


[9] Id. at 72 n.6 (citing books published by INCITE! Women of Color Against Violence); id. at 73 n.15 (citing an article published by Toward Freedom).


[10] Id. at 79.


[11] Id. at 81–83, 94 n.7 (listing cases that have interpreted restrictive behavior, such as limiting bathroom use for trans people to the bathroom corresponding to their birth sex, as nonviolative of antidiscrimination laws protecting trans individuals). 


[12] Id. at 84, 95 n.11 (citing Alan David Freeman, Legitimizing Racial Discrimination Through Anti-Discrimination Law: A Critical Review of Supreme Court Doctrine, in Critical Race Studies: The Key Writings That Formed the Movement 29–45 (Kimberlé Crenshaw ed., 1996)).


[13] Id. at 86–88.


[14] See Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 6 (2011) (“The point is, because sex is conceived as a difference, and equality is understood as based on sameness in the Aristotelian approach of  ‘likes alike, unlikes unalike,’ the worse the inequality gets, the more disparate its social reality becomes, the less this legal approach can do about it, hence the more equal protection doctrine operates to institutionalize it.”).


[15] Spade, supra note 1, at 87.


[16] Id. at 82, 87.


[17] Id. at 87.


[18] Id. at 87–89.


[19] Id. at 162.


[20] Id. at 90.


[21] Id. at 59.


[22] Id. at 59–60.


[23] Id. at 59.


[24] Id. at 65.


[25] Id. at 62.


[26] Id. at 105.


[27] Id. at 104.


[28] Id. at 110.


[29] Id. at 128.


[30] Id. at 142.


[31] Id. at 144–45.


[32] Id.


[33] Id. at 146–50.


[34] Id. at 154.


[35] Id. at 180–81.


[36] Id. at 181.


[37] Id. at 188–89.


[38] Id. at 190–91.