Sexuality and Law: Key Cases & Theories

A set of principles that dictate that morality arises from a timeless and universal natural order.

The belief that adherence to the laws of nature is morally correct due to its connection to a divine source.

The 'basic good' of reproduction is prioritized within natural law, emphasizing the traditional understanding of procreation within a heterosexual marriage.

Clearly defined roles for men and women exist in the natural law framework, resulting in a binary understanding of gender identity.

Natural law provides a clear and easily understood set of rules for societal conduct.

A view that emphasizes individual autonomy and the right to self-determination, advocating for minimal state intervention unless harm to others is evident.

John Stuart Mill's principle that the state should only intervene to prevent harm to others, not to enforce moral or cultural norms.

A view that emphasizes the importance of natural basic goods and values, arguing that they should never be sacrificed or balanced for other principles.

Sexuality within marriage, aimed at bonding between husband and wife.

Sexuality that exists purely for pleasure, separate from the context of marriage or procreation.

A political philosophy emphasizing individual liberty, human equality, and the autonomy of the self.

An ethical framework that emphasizes the greatest good for the greatest number of people.

The idea that laws should serve the interests of the people, particularly those who are marginalized.

A social and political movement advocating for women's access to birth control and reproductive health services.

The idea that the state has no justifiable reason to deny women access to information and resources related to contraception.

A legal doctrine emphasizing the right to privacy in personal decisions, particularly those related to reproduction.

Physical acts of sexual behavior that are subject to societal norms, legal regulation, and moral scrutiny.

The idea that individuals have the right to make their own choices about their sexual identity and behavior.

A set of religious beliefs and practices that emphasize sexual morality within the framework of a specific worldview.

A legal framework that aims to eliminate discrimination based on sex by applying neutral laws to both men and women, treating them as fundamentally the same.

The legal principle that prohibits discrimination based on sex and aims to ensure equal treatment under the law.

The idea that women and men should be treated the same under the law, regardless of any perceived differences in abilities or roles.

A legal theory that recognizes women's unique experiences and needs, acknowledging that treating men and women the same can perpetuate inequality.

A concept that acknowledges the overlapping and interconnected nature of various social identities, such as race, class, gender, and sexuality.

The recognition that sexual dynamics and power imbalances play a crucial role in women's subordination and discrimination, even under seemingly neutral legal frameworks.

An approach to achieving gender equality that emphasizes the systemic and experiential differences between men and women, advocating for laws and policies that account for these differences.

A critique of liberal approaches to equality, arguing that treating men and women the same can inadvertently reinforce existing power imbalances and disadvantage women.

An approach that combines formal equality with an understanding of intersectionality, recognizing the diverse experiences of women within different social categories.

A critique of post-liberal approaches to equality, expressing concern that focusing on differences between men and women could create a fragmented feminist movement.

The idea that many aspects of reality, like gender, are not inherent but are created and maintained through social processes, cultural norms, and institutional practices.

Negative social perception or devaluation of individuals or groups based on perceived differences from societal norms.

A situation where a person is faced with two conflicting demands or expectations, where meeting one makes it impossible to satisfy the other.

The right to define and express one's gender identity without external validation or societal interference.

Michel Foucault's concept that modern governments regulate populations through the intersection of political power and control over biological life.

A framework that critiques systems of oppression and advocates for complete dismantling rather than reform.

A model by Gayle Rubin that shows how societies categorize sexual behaviors into a hierarchy of acceptable (inside the circle) and unacceptable (outside the circle).

Stigma specifically directed at transgender individuals, often rooted in transmisogyny and gender essentialism.

Stigma attached to LGBTQ+ individuals, stemming from societal discomfort with non-normative sexualities and gender identities.

The idea that gender is not a fixed or inherent attribute but is created and reinforced through repeated behaviors, societal expectations, and norms.

Stigma associated with sex work, often rooted in moral judgment and societal views of sex work as immoral or deviant.

Laws and policies that reinforce the charmed circle by privileging certain sexual behaviors while criminalizing others.

Refers to the ways in which schools, prisons, and healthcare systems discipline bodies to conform to societal norms, often through biopower.

The expectation that women should be successful in both professional and domestic spheres, leading to conflicting demands and potential criticism regardless of their choices.

Contradictory societal expectations regarding sexuality, where women are often judged as either too promiscuous or too reserved.

The legal framework that removes criminal penalties for consensual adult sex work, treating it as a personal choice rather than a crime. It aims to improve worker safety and rights by focusing on harm reduction.

A legal framework where sex work is regulated through governmental oversight, often involving licensing, zoning restrictions, and health checks. This system aims to control sex work, but may exclude those who cannot meet strict requirements, leading to a two-tier system.

This model criminalizes clients while decriminalizing sex workers, aiming to reduce demand for prostitution and protect workers. Critics argue that it pushes sex work underground, potentially increasing risks for sex workers.

A category or class, such as race, national origin, or sex, that triggers heightened judicial scrutiny when laws discriminate based on that classification.

The legal standard used to evaluate laws that discriminate based on suspect classifications. This standard requires the government to demonstrate a compelling interest and that the law is narrowly tailored to achieve that interest.

The legal standard used to evaluate laws that discriminate based on certain protected characteristics, such as sex. This standard requires the government to demonstrate an important government interest and that the law is substantially related to achieving that interest.

The lowest level of legal scrutiny used to evaluate laws. This standard requires the government to demonstrate a rational relationship between the law and a legitimate government interest.

The idea that laws discriminating against LGBTQ+ individuals should be subject to a higher level of scrutiny due to the historical discrimination and the immutability of sexual orientation.

A legal argument that laws that discriminate against gay individuals violate the constitutional prohibition on sex discrimination because they rely on a normative stereotype about sex and gender roles.

The gradual legal recognition of sexual orientation as a suspect classification, moving towards a level of scrutiny that protects LGBTQ+ individuals from discrimination.

The development of a person's understanding and expression of their sexual orientation, preferences, and self-conception. It encompasses both internal processes of self-recognition and external validation through community and legal acknowledgment.

Laws that target LGBTQ+ individuals based on their identity, not just their actions, violate equal protection principles. This shift in focus from conduct to identity recognizes that discrimination based on who someone is, rather than what they do, is unjust.

A historical approach to regulating sexuality that focused solely on acts, regardless of individual identities. Sodomy laws exemplify this by punishing actions without considering a person's sexual orientation.

Situations where discrimination occurs based on a person's sexual identity alone, even if their actions are private. This highlights how societal biases can target individuals based on who they are, not what they do.

The modern understanding of sexuality recognizes that sexual identity is separate from behavior, and that discrimination based on this identity is unjust.

A utilitarian approach supports decriminalizing or regulating sex work by arguing that it can improve public health, reduce violence, and ensure workers' safety. Making sex work a legitimate profession can maximize societal well-being by protecting workers' rights.

Utilitarianism supports contraception and abortion as they can reduce unintended pregnancies, improve public health outcomes, and promote family planning. This aligns with utilitarian goals of maximizing overall societal well-being.

A school of thought that evaluates policies by examining costs and benefits, emphasizing efficiency, productivity, and resource allocation. This approach sees individuals as rational actors who seek to maximize their own interests.

A laissez-faire approach to sexuality-related industries, treating them as legitimate market activities. This view emphasizes free market principles of deregulation, competition, and innovation.

This approach argues that investing in inclusive policies, such as anti-discrimination laws and health care access, leads to improved societal well-being and strengthens long-term economic growth.

An economic theory that combines an individual cost-benefit approach to sexual choice with a utilitarian framework for state regulation. It assumes that sexuality can be understood in market terms and that people make sexual decisions based on maximizing their own benefits.

This theory suggests that individuals form families because it increases their personal utilities, including emotional gains and economic benefits. It assumes that family is founded on heterosexual marriage and that specialization within a family is beneficial.

This approach challenges traditional gender roles by arguing that women's sexuality has been exploited by men due to societal structures shaped by patriarchy. It highlights the ways in which women's sexual autonomy is undermined.

MacKinnon's perspective on pornography argues that it is a form of gender-based oppression that normalizes violence, objectification, and exploitation of women. It is not merely free speech but perpetuates systemic male dominance.

The idea that biological sex is a fixed and unchanging binary of male and female, determined by physical attributes like chromosomes, hormones, and anatomy.

Individuals with variations in their sex characteristics that don't fit neatly into the male or female categories.

The idea that biological sex is not simply determined by biology, but also shaped by social norms and expectations.

Judith Butler's theory that gender is not a fixed identity but a performance, constantly constructed through our actions and behaviors.

Michel Foucault's theory that power operates through the regulation of bodies and behaviors, shaping the way we understand and categorize biological sex to enforce norms.

The challenge to the universal application of feminist theories by recognizing that the experiences of women of color are distinct and intersectional.

The theory that social norms and laws operate differently for individuals based on their intersectional identities, creating unique forms of oppression.

The historical shift from viewing same-sex sexual acts as deviant behavior to understanding homosexuality as an intrinsic identity.

The idea that homosexuality became a subject of scientific inquiry in the 19th century, leading to its medicalization and pathologization.

The legal principle protecting individuals from unwarranted state intrusion into their personal lives, including their sexual and reproductive choices.

The legal case that expanded the right to privacy to include marital relationships and access to birth control.

The legal case that extended the right to privacy from marital relationships to encompass individual rights and access to contraception.

The legal case that affirmed a woman's right to privacy in relation to reproductive autonomy, including the right to abortion.

The legal case that limited the scope of privacy rights in matters of sexual orientation, upholding the criminalization of sodomy.

The legal case that overturned Bowers v. Hardwick, reaffirming and expanding the right to privacy to protect LGBTQ+ relationships and autonomy in intimate relationships.

The legal case that recognized same-sex marriage as a fundamental right under the Fourteenth Amendment, grounded in concepts of dignity, autonomy, and privacy.

The legal case that overturned Roe v. Wade, narrowing the right to privacy and returning abortion regulation to individual states.

Laws enacted in several states that immediately ban abortion after the Dobbs decision, often with harsh penalties for providers and those who assist in obtaining abortions.

The concern that pregnancy-related outcomes, such as miscarriages or stillbirths, will be criminalized in restrictive abortion states, leading to investigations and prosecutions.

The legal uncertainty faced by healthcare providers in restrictive abortion states, making it difficult to determine when and how to intervene in pregnancies with complications.

The fear among healthcare providers of facing prosecution for providing abortion care, leading to delays, denials, and limited access to necessary medical services.

A legal strategy for achieving social change that focuses on incremental, step-by-step reforms, rather than sweeping, radical transformations. It emphasizes building upon small victories to create lasting change over time, often working within existing legal frameworks.

The idea that sexuality is not an inherent or fixed aspect of human identity, but is shaped by cultural, historical, and social contexts. It rejects the notion that sexuality is a natural, universal, and biologically determined feature.

The tendency to ignore, dismiss, or de-legitimize bisexuality as a valid sexual orientation. It manifests in cultural, legal, and social contexts where bisexual individuals are perceived as "really" straight or gay, or as being in a transitional or experimental phase.

A framework that views homosexuality as relevant only to a specific minority group, framing queer experiences as marginal or exceptional. It confines homosexuality to those who explicitly identify as homosexual, thereby limiting its significance to the broader population.

A framework that challenges the notion of homosexuality as an exceptional or marginal experience, instead seeking to understand it as a universal human experience that is integral to the overall spectrum of human sexuality. It emphasizes the intersectionality of sexuality and other identities.

The devaluing and marginalization of people with disabilities in terms of their sexuality. This includes the perception of them as asexual or incapable of engaging in or desiring sexual relationships.

The legal and cultural phenomena that reinforce ableist assumptions about sexuality by restricting the sexual rights and autonomy of individuals with disabilities.

The double discrimination faced by bisexual people, who may be excluded or questioned by both heterosexual and LGBTQ+ communities.

Refers to individuals born with sex characteristics (chromosomes, gonads, hormones, or genitalia) that don't fit typical definitions of male or female.

Medical procedures performed on intersex infants and children to align their bodies with societal norms of male or female.

The legal challenge of regulating sex characteristics in sports, particularly when they fall outside typical male or female ranges, as in the case of Caster Semenya.

Advocates for an end to non-consensual medical interventions on intersex children, considering them human rights violations.

A law is underinclusive when it doesn't apply to all similar situations. It excludes people who should logically be included, even though they share the same characteristics as those covered by the law.

A law is overinclusive when it applies to more people than necessary to achieve its goal. It unnecessarily includes people who are not problematic or who shouldn't be subjected to the law.

The right to expressive association is the freedom to join groups and organizations to express shared beliefs, promote causes, and advocate for viewpoints. The First Amendment protects this right.

A law is both underinclusive and overinclusive when it doesn't cover all similar situations AND it also covers people who don't need to be covered. This makes the law inefficient and potentially unfair.

Courts use the concept of 'fit' to determine if a law's means match its goals. If the fit is too loose, the law may be either underinclusive or overinclusive.

The government has to show that a law is necessary to achieve its goal, or that the law uses the least restrictive means possible. This means the law shouldn't be overinclusive or underinclusive.

Courts balance the right to expressive association with anti-discrimination laws. This is especially important when organizations claim that anti-discrimination laws interfere with their right to express their beliefs.

The legal right of LGBTQ+ individuals to marry, ensuring equal access to the benefits and protections of marriage.

The idea that all families, regardless of their structure or makeup, should be treated equally under the law. This challenges traditional definitions of family and calls for recognition of diverse family forms.

The overlapping of discrimination based on identity categories, such as sex, gender, sexual orientation, race, and disability.

A concept that describes a broader network of relationships formed through blood, marriage, adoption, or chosen affiliations. It encompasses extended family ties, communal bonds, and non-biological relationships based on care and shared experiences.

A legally and socially sanctioned union, typically between two individuals, often associated with romantic or sexual relationships. It serves as a foundational institution for regulating kinship and providing legal rights.

The practice of using a surrogate mother to carry a pregnancy created through IVF, where the surrogate has no genetic connection to the child. It is a common form of surrogacy in many jurisdictions.

Legal arguments drawing parallels between historical struggles for racial justice and the current fight for LGBTQ+ rights. It highlights the universal pursuit of equality and freedom from discrimination based on identity.

Cases challenging laws that discriminate based on sexual orientation or gender identity, often drawing on arguments related to discrimination based on sex under the Equal Protection Clause.

Legal arguments asserting that denying same-sex couples the right to marry caused tangible harm, such as unequal access to healthcare, inheritance, and parenting protection.

Arguments that same-sex couples sought the same benefits and responsibilities as heterosexual couples, emphasizing the universal and relatable desires of marriage.

Arguments rejecting the notion that marriage's primary purpose is procreation, highlighting that marriage increasingly focuses on love and partnership.

Surrogacy where the surrogate mother also provides the egg for conception, making her both the gestational carrier and biological mother.

Arguments asserting that states should maintain control over marriage regulations. Supreme Court rulings rejected this, emphasizing that states cannot deny fundamental rights.

Laws governing surrogacy vary greatly between jurisdictions, creating uncertainty for intended parents and surrogates.

Legal disputes over custody and parentage can arise if the surrogate changes her mind or if intended parents refuse custody due to factors like disability or relationship breakdowns.

Arguments claiming that legalizing same-sex marriage would lead to the erosion of societal norms, such as polygamy or bestiality. Courts generally dismissed these claims as speculative and discriminatory.

Criticisms of gay marriage arguing that it assimilates LGBTQ+ individuals into heteronormative institutions instead of challenging those structures.

Commercial surrogacy is criticized for potentially reducing women's reproductive labor to a commodity, especially when surrogates come from economically disadvantaged backgrounds.

The financial disparity between surrogates and intended parents raises ethical concerns about consent and agency, especially in international or domestic arrangements.

Judith Butler's critique of marriage as an institution that regulates and normalizes relationships, arguing that its expansion doesn't dismantle systemic oppression but rather integrates LGBTQ+ people into existing power structures.

Michael Warner's argument that the focus on marriage reinforces heteronormative ideals and diverts attention from broader social and political change.

Family structures where more than two individuals share legal, social, or caregiving responsibilities for a child.

Multiparentage is common in LGBTQ+ families, where a child may have biological and non-biological parents who all play active roles in their life.

Discrimination based on specific behaviors, primarily targeting marginalized identities, such as same-sex relationships or gender expression.

Discrimination rooted in inherent characteristics, such as sexual orientation, gender identity, or race, leading to marginalization and unequal treatment.

Historically, legal systems were often hostile to LGBTQ+ individuals in adoption and custody cases, associating LGBTQ+ identity with moral unfitness.

Discrimination targeting the way individuals express their identity, beliefs, or values, often challenging societal norms and potentially implicating First Amendment rights.

The Supreme Court's 2015 decision legalizing same-sex marriage indirectly strengthened LGBTQ+ adoption rights, as married couples gained equal legal protections as heterosexual couples.

While most states allow LGBTQ+ individuals and couples to adopt, some states still permit discrimination under the guise of religious freedom laws.

Legal cases that have shaped the trajectory of discrimination based on sexual orientation, gender identity, and related conduct.

The Supreme Court case addressing interracial custody emphasized that societal biases should not influence custody decisions, a principle later applied to LGBTQ+ parents.

Affirmed that married same-sex couples must have equal access to parental rights, including being listed on birth certificates.

Some states allow private adoption agencies to refuse placement with LGBTQ+ parents based on religious beliefs, limiting access for LGBTQ+ adoptive parents.

Pauli Murray, a legal scholar and civil rights activist, argued the Equal Protection Clause should apply to sex-based discrimination, laying the groundwork for gender equality.

Murray's research on segregation and equal protection influenced the NAACP Legal Defense Fund's strategy in the landmark Brown v. Board of Education case.

A perspective on homosexuality that emphasizes its unique challenges and the need for specific legal protections for LGBTQ+ individuals.

A perspective that highlights how heterosexuality and homosexuality are deeply interwoven within societal structures, affecting everyone.

Utilizes the lens of homosexuality to critique binary understandings of sexuality, identity, and relationships.

The critique of same-sex marriage within queer theory, arguing that it reinforces existing societal structures rather than dismantling them.

Advantages and societal acceptance enjoyed by cisgender individuals simply due to their alignment of gender identity with assigned sex at birth.

A deeply ingrained sense of one's own gender, often described as an internal and subconscious understanding of self.

The legal challenge to the denial of same-sex marriage in 1971. Deemed not a substantial federal question by the Supreme Court.

A 1993 Hawaii Supreme Court ruling that denying marriage licenses to same-sex couples might violate the state constitution unless the state could provide a compelling reason.

A 1996 federal law that allowed states to refuse recognition of same-sex marriages performed elsewhere and defined marriage federally as between one man and one woman.

A 2003 Massachusetts Supreme Court decision recognizing marriage as a fundamental right, making it the first U.S. state to legalize same-sex marriage

2013 Supreme Court ruling that invalidated DOMA's definition of marriage, requiring the federal government to recognize same-sex marriages legally performed in states where it was legal.

The 2015 landmark Supreme Court decision that legalized same-sex marriage nationwide, ruling that marriage is a fundamental right protected under the Equal Protection and Due Process Clauses of the 14th Amendment.

The argument that denying same-sex couples the right to marry violates the Equal Protection Clause of the 14th Amendment, ensuring equality under the law.

The argument that denying same-sex couples the right to marry stigmatizes and devalues their relationships, failing to recognize their dignity and humanity.

A theoretical framework for understanding the complexities of sexuality and how power, identity, and desire are interwoven within social structures.