Same-sex couples have won some victories at the state and local level, most notably in Goodridge v. Dept. of Public Health [798 N.E.2d 941 (Mass. 2003)] which granted marriage rights in Massachusetts. However, there are 1138 federal rights granted to married heterosexual couples that are still unavailable to same-sex couples. In light of this fact, this author advocates repealing the federal Defense of Marriage Act (DOMA), and passing legislation at the federal level which would make it illegal to discriminate against homosexuals in the workplace.

Baldacci examines the 1989 New York case that upheld the rights of same-sex partners (as members of “functional families”) against eviction from rent-controlled apartments in New York; and it scrutinizes the choices made by advocates and the Court in how they defined “family” in that case.

An unusual aspect to this review article of federal Title VII as well as state cases is the inclusion as Part III a discussion of the Solomon Amendment that withholds federal funding from schools that deny access to military recruiters (see Rumsfeld v. FAIR, 547 U.S. 47 (2006)). Given the exceptional status of the military, the decision to include this material here among "ordinary" employers can be questioned. Nevertheless, like the other articles in this special issue, the material is succinct, offering a good broad sweep of the field especially helpful to nonspecialists.

Incoming President Obama has promised to make a revision of the "Don't Ask, Don't Tell" policy that excludes open homosexuals from military service a top priority. Correales examines the legal infrastructure of the ban and its real-world consequences. This review leads him to believe that "the true last-remaining reason for the policy is a level of legislative and administrative animus toward homosexuals as a group," and thus serves as "the prototypical case of invidious discrimination against a politically unpopular group." As such, the policy should be revoked and U.S. military practice brought in line with that of the other civilized nations.

DeMitchell and Fossey explore the use of the Equal Access Act (EAA) to challenge a school board's refusal to allow a gay-straight alliance to meet at a public high school. The EAA was enacted in 1984 expressly to allow student initiated religious groups to meet on public high school campuses.The Act makes it unlawful for any public secondary school which receives Federal funds and which has a limited open forum to deny equal access on the basis of religious, political, philosophical, or other content of speech to any students who try to meet within that limited open forum; and defines "limited open forum" as allowing one or more noncurriculum related student groups to meet on school premises. After reviewing Bd. of Ed. of Westside Community Schools v. Mergens, 496 US 226 (1990), the case in which the U.S. Supreme Court denied a challenge to the constitutionality of the EAA and articulated a test for determining if a student group is noncurriculum related, this article goes on to summarize each of the half dozen decided district court cases in which the EAA was used to challenge a school board's refusal to allow a gay-straight alliance to meet on a high school campus.

This article examines the Supreme Court’s Oncale (1988) case and how lower courts have interpreted it in applying Title VII sex discrimination law to same-sex sexual harassment. It urges development of more evidentiary routes for proving discrimination “because of sex” in such cases, beyond the three explicitly enunciated in Oncale.

The rationale of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) that protects against sex stereotyping discrimination can protect a transsexual "experiencing discrimination based on the failure to conform to the employer's expectations of how stereotypical men and women act," it does not necessarily offer a useful precedent for a transsexual who in fact conforms to such stereotypes, but nonetheless suffers discrimination because gender identity does not match biological sex. The author reads Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) as filling this gap. (Later opinions in this case continued to favor the employee; see 525 F.Supp.2d 58 (D.D.C. 2007); 577 F.Supp.2d 293 (D.D.C. 2008)). This outcome promises to bring transsexuals fully within the protections of Title VII's "because of ... sex" rule, an achievement currently denied to other sexual minorities like gay men and lesbians because, as Eno notes, "Transsexualism is about being a man or a woman, not about being attracted to a man or a woman."

This short monograph examines leading cases concerning the rights of GLBT students to be free from harassment, the right to recognition under the Equal Access Act, First Amendment issues, and several curricular and programmatic issues. It includes a chapter with suggestions for school districts to protect students’ rights while avoiding litigation.

Frank tells a story, the broad outlines of which will be familiar to anyone likely to be reading this comment. Certainly, the rich details and wealth of documentation should call it to the attention of anyone interested in the history and evolution of the U.S. military's ban against homosexuals. For me, at least, the value of this book lies rather in the starkness of the sheer and unapologetic prejudice expressed by ban supporters. That alone makes it a must read for anyone in danger of being lulled by jaded commentaries arguing that we are now in a "post-gay" era, where sexual orientation no longer has relevance. The sheer irrationality embraced in order to preserve this bigotry -- discharging qualified and highly trained gay men and lesbians, for example, and then having to admit drug abusers and felons in order to compensate for the recruitment shortfalls -- are astonishing, and a necessary reminder of what we are up against in this and all our efforts to obtain equality.

While courts--including the U.S. Supreme Court--have construed Title VII's "because of sex" language to include protections not explicit in the language of the statute, they have not exercised this same generosity to cover discrimination abased on sexual orientation. This reticence, seen by comparing the cases of Rene v. MGM Grand, 305 F.3d 1061 (9th Cir. 2002), and Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001), results in the line between gender stereotyping, which is prohibited, and sexual orientation discrimination, which is not, becoming "so thin that the distinction is confusing, unworkable, and must be wholly abandoned." These authors assert that the time has come to change this shortfall especially in the context of education.

This report of the Judiciary Committee, together with dissenting views, recommends passage of H.R. 1592 (short title—Local Law Enforcement Hate Crimes Prevention Act of 2007), a bill to “provide federal assistance to states, local jurisdictions, and Indian tribes to prosecute hate crimes…”. The bill would “provide assistance to state and local law enforcement in the investigation and prosecution of hate crimes, and would amend chapter 13 of title 18, United States Code, to make violent crimes against a person motivated by bias against characteristics for which there is a history of such bias-motivated violence a felony. It would also amend the Hate Crime Statistics Act to require the collection of data on violent crimes motivated by bias against the victim’s perceived gender or gender identity, as well as data on crimes committed by and directed against juveniles.”

This author voices skepticism concerning hate crime laws, which "appeal to the state with its alleged monopoly of violence to deploy the criminal law to control and punish violent acts by private citizens." The argument (if I understand it correctly) is that such approaches deflect attention from the broader structural and political origins of the inequalities hate crime laws are intended to punish, as well as trusting the very institutions that often inflict that oppression to now respond to discourage it: "The irony of expecting hate crime laws to remedy such inequality is that it looks to these very institutions for their implementation and focuses attention on individual bigots and their acts rather than on unresponsive institutions and unfair practices. Indeed, the prosecution of perpetrators of hate crime may implicitly legitimize current practice and deflect attention from ongoing inequities." The author notes that the killers of Matthew Shepard were not prosecuted for hate crimes yet were adequately punished for the crime, suggesting that the potential costs, both symbolic and actual, of hate crime laws may not be offset by any discernible benefits.

The author, finding the "formation of identity, sexual or otherwise, to be inherently a communicative process," suggests that the holding in Lawrence v. Texas, 539 U.S. 558 (2003) "implicates the First Amendment by the nature of the identity it seeks to protect," and thus may provide the wedge needed to overturn Don't Ask, Don't Tell.

Businesses which restrict their goods and/or services to same-sex couples do so on the basis of an “individualist paradigm.” Under an individualist paradigm, this author suggests that a travel resort which restricts access to opposite-sex couples seems no more discriminatory than a store which sells only women’s bras. This article advances a theory of couples’ aggregate rights, and proposes a model public accommodations law to govern couple-oriented business establishments. The model law would prevent businesses, such as dating services and resorts, from distinguishing between same-sex and opposite-sex couples.

Alaska Civil Liberties Union ex. rel. Carter v. Alaska [122 P.3d 781 (Alaska, 2005)] struck down a provision which limited public employee benefits to spouses. Carter is significant because it was the first state court decision which extended public employee benefits to same-sex couples in a state with a marriage amendment. Lobsinger first explores the history of Alaskan laws pertaining to same-sex couples. He then analyzes whether Carter may act as a model for other states who must navigate between rights for same-sex couples and state DOMAs.

Since the passage of the federal Defense of Marriage Act in 1996, same-sex couples have been excluded from federal benefits, even if their union is recognized by the state in which they live. This article advocates extending rights granted under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code to same-sex couples “where their respective states have legally recognized their relationship under civil marriage, civil union, or domestic partnership laws.”

Written as a guide for Colorado practitioners who represent gay, lesbian, bisexual or transgender clients, with workplace discrimination claims, this article presents legal strategies which may be used in support of such claims (not necessarily limited to Colorado). Strategies explored include gender non-conformance, Title VII retaliation, same-sex harassment, local non-discrimination ordinances, and wrongful discharge in violation of public policy. The article was presented by the Colorado Bar Association Labor and Employment Law Section.

Pugh serves up an engrossing argument for improving state prosecution of hate crimes. The touchstone account reappearing through the text is the story of Megan Williams, who, for more than a week in September 2007, was beaten and sexually abused by six men and women. Although at least two abusers admitted that the fact that Williams was black as an precipitating cause of the attack, only one defendant was charged with a hate crime. While the prosecutor may wish to avoid the added complications of proving a hate crime motive, and be satisfied that the defendants earn stiff penalties on other charges, Pugh believes this deprives the victims and society in general of valuable closure on the hate motivations of the crime. Among her suggested improvements in hate crime legislation is the removal of the "double-intent" requirement that limits concurrent jurisdiction over hate crimes (i.e., "Under current law, to establish a 245(b) violation, the government must prove beyond a reasonable doubt (1) the intent to commit a crime of violence that was motivated by racial, ethnic, or religious hatred, and (2) the intent to interfere with a victim's enjoyment of at least one enumerated federally protected activity." It was the lack of the second element that prevented federal involvement in the Williams case.). She also favors including Victim-Offender Mediation procedures in any new legislation, which in some cases can circumvent the problem of proof in a courtroom, and allow catharsis through confrontation between the victim and the offender, which benefits both parties as well as society.

The authors analyze date from three sources: a "Climate Survey" administered to 3,205 first year students at 37 law schools; a second survey targeting open LGBT law students, which netted 302 responses from 79 different law schools; and narratives collected from focus groups with eleven LGBT law student organizations across the country. While conditions for LGBT law students have improved since similar research ten years earlier, "this group still encounters substantial discrimination on law school campuses and in law school classrooms. This discrimination may result from overt acts, thoughtlessness, and/or neglect on the part of various actors in law school communities."

Transcript of proceedings from March 2007 Harvard conference on legal issues related to the “Don’t Ask, Don’t Tell” policy regarding military service members. There were several panel discussions among activists, legal scholars, military veterans and advocates. Topics include the impact of Lawrence v. Texas and the degree of judicial deference to the military concerning personnel policies.

This collection of four pieces was originally presented as an AALS Workshop on the Solomon Amendment in the aftermath of Rumsfeld v. FAIR, 547 U.S. 47 (2006). Martha Ertman begins with a brief introduction to the issue. Joan Schaffner next uses events at the George Washington University Law School to ask "To what extent should student organizations be bound by the regulations that govern the GW placement office regarding military recruitment?" She believes that the "student interest in equal protection outweighs the student interest in employment," and that the FAIR decision "requires that law schools provide equal access but not equal treatment." James G. Leipold, Executive Director of NALP, reports results of a survey of law school responses, and offers three suggestions "for what law schools can and should do." Finally, the most personal account comes from Shalanda H. Baker, who tells of her expulsion from the military under DADT and being ordered to repay the costs of her Air Force Academy education.

If Title VII were amended to prohibit sexual orientation discrimination, this action would "prevent employers from developing unrestricted affirmative action programs for LGBT employees and unduly discriminate against straight employees" -- although the author offers little evidence that such programs are a serious likelihood. Nevertheless, such an outcome should make the change to the law attractive to conservatives.

An exploration of the history of discrimination against homosexuals, this article also warns of history’s nature of repeating itself. The author begins with discrimination against homosexuals in the Progressive Era (1886-1915), then shifts to the Cold War Era (1946-1961), in which homosexuals faced “unprecedented discrimination in the name of national security.” After laying the historical groundwork, the author demonstrates how all of the old arguments used to justify discrimination against homosexuals (particularly those of familial sanctity) have been revived. The author explains that we are witnessing this re-emergence of discrimination as a backlash in the wake of Lawrence v. Texas, and subsequent legal victories.

How much money does it cost to replace homosexual service members who are separated under the military’s homosexual conduct policy? Two recent reports attempted to answer this question, and drew dramatically different conclusions. The Comptroller General of the United States, David M. Walker, prepared this report to explain the difference between the two reports. The first report, released in 2005 by GAO, estimated the costs from 1994-2003 at $190.5 million. The second report, released in 2006 by the University of California Blue Ribbon Commission, estimated costs for the same period at $363.8 million. Mr. Walker explains that the Commission’s estimate was larger because it included training costs for Marines, medical workers, and officers, and the cost of separation travel. Also, the Commission included infrastructure costs, which the GAO claims is a constant figure regardless of the number of enlistees who complete their contracts.

This article provides an overview of the DADT policy, emphasizing its practical impact on gay service members and their families. It addresses questions of employee benefits, recognition of same-sex relationships, adoption of children and same-sex marriage in Massachusetts. It argues that DADT damages LGBT service members, their units and the nation’s security.

This article considers sexual orientation harassment of student athletes in high school and college, and examines cases decided under Title IX and the Equal Protection Clause. Given the limited protection afforded by federal law, the author urges use of state laws and institutional policies to combat sexual orientation discrimination and harassment.

The Matthew Shepard Act seeks to amend the federal hate-crime law to include sexual orientation and gender identity. Although the act passed the Congress in 2007, then-President Bush threatened to veto the Defense appropriations bill to which it was attached if it came to his desk including that section. Hopes are high that the bill will become law early in the Obama administration. Woods argues that the constitutional authority to pass such a law is to be found not in the Commerce Clause -- an increasingly sketchy basis on which to exert Congressional power -- but in the Fourteenth Amendment's Section 5 enforcement power. He reaches his result by pointing out that the effect of the hate crimes is to prevent victims "from reporting their crimes to the police, influence police officers not to categorize or investigate their crimes as bias crimes, and prevent prosecutors from prosecuting their crimes as bias crimes," the remedy for which falls to Section 5 "to ensure a right of access to the courts."

As a category, hate crimes have had a hard row to hoe on the way toward acceptance by the general citizenry. The enhanced punishments attached to bias crimes are, however, argued to be worth any likely costs due to the broad and detrimental social impacts of allowing discrete groups to be targeted for violence. Backgrounding this thesis is that attackers act out of an antipathy toward the minority group, and even that a dominant motivation for the attack is to communicate this animosity to other members beyond the one actually attacked. Woods would contrast this prototypical hate crime scenario with another, one in which minority groups are targeted not out of animus, but out of convenience. "Consider a man who robs gay men cruising in public parks because he believes homosexual victims who seek anonymous public sex are less likely to report the crimes. Or, imagine a man who is looking to prove his masculinity to his friends and chooses to assault an Amish man because he believes that the Amish will not fight back by virtue of the pacifist commitments. Finally, consider a white man who is not racist, but only robs black men and women because he believes that racist attitudes will prevent the local police from investigating the crimes." These criminals do not themselves hold the hate typically underpinning bias crimes, but are aware of its existence and take advantage of that fact in planning their own misdeeds. The question is whether these, too, should be liable for the enhanced sentences meted out to prototypical perpetrator of hate crimes? Woods says, yes, and then attempts to justify this position. One could wonder, though, whether expanding the category to embrace these types of crimes could not weaken the rationale for the hate crime category as a whole.

Arguing for a political (or social) solution to the issue of same-sex sexual harassment in the workplace, this author contends that courts are ill-equipped to understand the sexuality inherent in sexual harassment. Rather, the courts have gone out of their way to avoid arguments of sexuality, relying instead on a “false binarism.” The author argues that “the courts’ inability to adequately theorize sexuality precludes an equitable approach to adjudication of sexual harassment claims.” The article begins with a review of sexual harassment law and traces its progression over the past quarter-century.