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Where Do We Go from Here? Lesbian, Gay, Bisexual And University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1999 Roundtable Discussion: Where Do We Go From Here? Lesbian, Gay, Bisexual and Transgendered Civil Rights Into the Next Millennium Matt olesC UC Hastings College of the Law, [email protected] Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Recommended Citation Matt oC les, Roundtable Discussion: Where Do We Go From Here? Lesbian, Gay, Bisexual and Transgendered Civil Rights Into the Next Millennium, 27 Fordham Urb. L.J. 285 (1999). Available at: https://repository.uchastings.edu/faculty_scholarship/1609 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. QUEER LAW 1999 CURRENT ISSUES IN LESBIAN, GAY, BISEXUAL AND TRANSGENDERED LAW THIS CONFERENCE IS A JOINT EFFORT OF. THE LESBIAN AND GAY LAW ASSOCIATION FOUNDATION OF GREATER NEW YORK (LEGAL FOUNDATION) AND THE GAY AND LESBIAN LAW ASSOCIATION (GALLA) OF FORDHAM UNIVERSITY SCHOOL OF LAW 279 280 FORDHAM URBAN LAW JOURNAL [Vol. XXVII QUEER LAW 1999 CURRENT ISSUES IN LESBIAN, GAY, BISEXUAL AND TRANSGENDERED LAW This Conference is a Joint Effort of The Lesbian and Gay Law Association Foundation of Greater New York (LeGaL Foundation) and the Gay and Lesbian Law Association (GALLA) of Fordham University School of Law LIST OF PARTICIPANTS ALEXIS BADEN-MAYER KATE DIAZ, ESQ. CYNTHIA R. KERN 1998 Associate CUNY Law School Dr. M.L. "Hank" Henry Fellow Walker, Morgan & Finnegan Class of '99 JACK BATTAGLIA LAURA EDIDIN PROF. BRIAN LEVIN Professor Managing Attorney Director, Center on Hate and Touro Law School New York City Gay and Lesbian Extremism at Cal. State, Antiviolence Project San Bernardino HON. DEBORAH A. BATTS PAULA ETIELBRICK, ESQ. SCOTT LONG U.S. District Court Judge Empire State Pride Agenda; Director, International Gay and S.D.N.Y. National Gay & Lesbian Lesbian Task Force Human Rights Commission DAN BROOK, M.D. HON. PAUL G. FEINMAN PATTY PENELOSA Fordham University School of Law Civil Court Judge Chair Class of '00 New York City Marriage Equality MA'ITHEW CARMODY, ESQ. KATHERINE FRANKE MILDRED PINOT, ESQ. Brooklyn Legal Services Professor Legal Aid Society Fordham University School of Law JACK CHEN, ESQ. SUZANNE GOLDBERG, ESQ. PETER SHERWIN, ESQ. Associate Lambda Legal Defense and Associate Sullivan & Cromwell Education Fund Proskauer, Rose, Goetz & Mendelson LORI COHEN, ESQ. HALEY GORENBERG, ESQ. HON. MICHAEL H. SONBERG Cohen & Funk HIV Coordinator Bronx Criminal Court Judge Legal Services of New York City MAT COLES, ESQ. CATHERINE HANSSENS, ESQ. TIM SWEENEY Lesbian and Gay Rights Project, Lambda Legal Defense and Deputy Executive Director ACLU Education Fund Empire State Pride Agenda ELIZABETH COOPER PROF. NAN HUNTER DANA TURNER Professor Professor Director Fordham University School of Law Brooklyn Law School International Conference on Transgender Law and Employment Policy PAISLEY CURRAH, PH.D. EVAN WOLFSON, ESQ. Professor Lambda Legal Defense and Brooklyn College Education Fund 1999] QUEER LAW 1999 QUEER LAW 1999 CURRENT ISSUES IN LESBIAN, GAY, BISEXUAL AND TRANSGENDERED LAW This Conference is a Joint Effort of The Lesbian and Gay Law Association Foundation of Greater New York (LeGaL Foundation) and the Gay and Lesbian Law Association (GALLA) of Fordham University School of Law* TABLE OF CONTENTS INTRODUCTION ................................................ 283 Prof. Katherine Franke ROUNDTABLE DISCUSSION: WHERE Do WE Go FROM HERE? LESBIAN, GAY, BISEXUAL AND TRANSGENDERED CIVIL RIGHTS INTO THE NEXT M ILLENNIUM ............................................. 285 Hon. Deborah A. Batts (Moderator) Matt Coles Paula Ettelbrick Evan Wolfson Prof. Nan Hunter SEXUAL/GENDER IDENTITY IN THE CRIMINAL COURTS ...... 313 Alexis Baden-Mayer (Moderator) Hon. Paul G. Feinman Lori Cohen Hon. Michael H. Sonberg MARRIAGE: WINNING AND KEEPING THE FREEDOM TO MARRY NATIONALLY AND IN NEW YORK ............... 332 Evan Wolfson (Moderator) Peter Sherwin * This conference has been edited to remove the minor cadences of speech that appear awkward in writing. 282 FORDHAM URBAN LAW JOURNAL [Vol. XXVII Tim Sweeney Patty Penelosa Is SEXUAL ORIENTATION IMMUTABLE?: PRESENTING SCIENTIFIC EVIDENCE IN LITIGATION TO GAIN STRICT SCRUTINY ................................................ 348 Dr. Dan Brook (Moderator) Suzanne Goldberg Kate Diaz GENDER THEORY AND LESBIAN, GAY, BISEXUAL AND TRANSGENDERED EMPOWERMENT ....................... 365 Cynthia R. Kern (Moderator) Prof Paisley Currah Dana Turner Prof Katherine Franke Scott Long STICKS AND STONES: THE NEXUS BETWEEN HATE SPEECH AND VIOLENCE ........................................... 382 Jack Chen (Moderator) Laura Edidin Prof Brian Levin Prof Jack Battaglia NAME REPORTING AND PARTNER NOTIFICATION LEGISLATION ............................................. 404 Prof Elizabeth Cooper (Moderator) Catherine Hanssens Matthew Carmody Haley Gorenberg Mildred Pinot ACKNOWLEDGEMENTS ........................................ 433 1999] QUEER LAW 1999 INTRODUCTION With this conference entitled "Queer Law 1999: Current Issues in Lesbian, Gay, Bisexual and Transgendered Law," the Fordham Urban Law Journal has undertaken an important responsibility and met a critical need in both the academy and bar. There are few areas of law that are as dynamic and fast-changing as that concern- ing the rights of sexual minorities. As I have observed elsewhere,' we stand at a critical moment of field formation, alternatively called "Sexual Orientation and the Law," "Lesbian and Gay Law," "Sexuality and the Law" or "Queer Law." Why might the proceedings contained in this issue comfortably fit under the moniker "Queer Law," rather than one of the other flags under which this legal movement has marched from time to time? The answer is revealed in a perusal of not only the impres- sive participants in this symposium, but of the categories into which their remarks are organized. Ten, or even five, years ago, a confer- ence such as this would have been constructed around topics such as "lesbian and gay adoption," "gays in the military," "discrimina- tion against lesbians and gay men in the workplace," and similar sites in which "our" constituency has encountered bias and struc- tural stigma. The Queer turn that this conference reflects is one that rejects the building of a social movement or legal strategies around static identities such as lesbian, gay, bisexual or heterosexual, but rather regards the interrogation of those categories of identity themselves as one of its equality commitments. Framed in this way, a Queer legal movement wants to keep alive a set of questions with respect to the ways in which certain identities, like straight, gay or lesbian, are shaped by the homophobic and heteronormative world in which we live. It is for this reason that a Queer legal conference sets its focus on the places where and means by which homophobic and/or heteronormative power is at work in the service of normal- izing heterosexuality and objectifying homosexuality, bisexuality and transgenderism. Thus, you do not see "Lesbian" or "Gay" figure in the title of any of the panels that these papers were part of, although the pan- elists may at times speak in terms of the rights of gays, lesbians, 1. Katherine M. Franke, Homosexuals, Torts, and Dangerous Things, 106 YALE L.J. 2661 (1997) (reviewing WILLIAM N. ESKRIDGE, JR. & NAN D. HUNTER, SEXUAL- Ir'e, GENDER, AND THE LAW (1997); WILLIAM B. RUBENSTEIN, CASES AND MATERI- ALS ON SEXUAL ORIENTATION AND THE LAW (2d ed. 1997)). 284 FORDHAM URBAN LAW JOURNAL [Vol. XXVII bisexuals or transgendered people. This is the narrow line queer theorists must nimbly traverse: to at once recognize the ways in which people experience their own identities and are discriminated against as lesbians and gay men, etc., while leaving open a route by which we can renegotiate the meanings and experiences of those identities as a significant part of our struggles to greater freedom and equality. The contributions that follow represent a rich array of expertise that has been brought to bear on this vital and difficult project. 1999] QUEER LAW 1999 ROUNDTABLE DISCUSSION: WHERE Do WE Go FROM HERE? LESBIAN, GAY, BISEXUAL AND TRANSGENDERED CIVIL RIGHTS INTO THE NEXT MILLENNIUM MR. HARMAN: Judge Batts is a District Court Judge in the Southern District of New York and is the first openly lesbian mem- ber of the federal judiciary. She was appointed in 1994 by Presi- dent Clinton. Formerly a full- time professor at Fordham University where she taught Domestic Relations, Pretrial Federal Practice and Family Law, Judge Batts is now an adjunct professor at Fordham and teaches Trial Advocacy and Domestic Relations. Judge Batts is a tireless contributor to the University, to GALLA (Fordham's Gay and Lesbian Law Association) and to the gay and lesbian community in general. JUDGE BATTS: Thank you very much. Look at this panel. If we only had one of these people on this panel, this would be a panel rich in experience, knowledge and information. When I first looked at the list of panelists, my first reaction was, "Are you kid- ding me? How can we possibly let each one of these people give to the attendees of this conference what they have to give? There are too many. Cut them in half." They did not say anything until I got over that little hissy-fit. So I said, "Alright, we
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