Papers by Danielle Weatherby
N.Y.U. Review of Law & Social Change, 2014
In recent years, transgender adults in the entertainment world have capitalized on their public p... more In recent years, transgender adults in the entertainment world have capitalized on their public platform to advocate for and increase awareness about issues affecting the transgender community. Yet even with the emerging cultural understanding of this community, there is a noticeable absence of a voice for transgender youth, a particularly vulnerable segment of this misunderstood population. Children-often as young as four or five-are more commonly proclaiming to be "born in the wrong body." In addition to being subject to intolerable bullying and harassment by their peers, transgender youth face an uphill battle in public schools because educators are unprepared to handle the logistics of their transition process, which includes a prolonged period of living in all aspects as the opposite sex. First, this article acknowledges the quagmire plaguing public schools that serve a transgender population. When and to what extent should schools intervene when children in their care are confronted with gender identity issues? What responsibilities do schools have to protect and educate both those children facing gender identity issues and those children who are impacted by their peers' non-conforming gender expression? Finally, and most significantly, how should schools address the daily logistics affecting transgender students, including bathroom and locker room designation, which have historically been determined by a student's biological sex? Second, this article analyzes the current legal landscape governing issues affecting transgender youth in public K-12 schools. Although there is a burgeoning recognition in the law of rights for sexual choices and identities that are non-traditional, the current law is insufficient in dealing with the practical and logistical concerns that schools serving transgender students face on a daily basis. Next, the article advances a novel argument that demands more robust protections for a transgender student's gender expression. It submits that a transgender student's expressive conduct (including her desire to use the restroom that corresponds with her gender identity) is speech that falls within the protective umbrella of the First Amendment. Since a transgender student's outward expression of gender conveys an important message to others about that student's identity, and because fitting in and being accepted are so vital to a transgender youth's psychological well-being, a transgender student's
This jointly-authored essay is a conversation about the Supreme Court's recent and groundbreaking... more This jointly-authored essay is a conversation about the Supreme Court's recent and groundbreaking decision (Bostock v. Clayton County) that held that discrimination based on sexual orientation or gender identity is discrimination based on sex, and therefore prohibited by Title VII of the Civil Rights Act of 1964. While many scholars are writing about this case, we are doing something unique. We are analyzing this decision from feminist perspectives. We are the editors and four of the authors of a book recently published by Cambridge University Press: Feminist Judgments: Rewritten Employment Discrimination Opinions. This book contains fifteen Supreme Court and Courts of Appeals employment discrimination cases that have been rewritten using feminist perspectives, along with commentaries for each of the rewritten opinions. Two of those rewritten opinions are Courts of Appeals cases involving gender identity (Etsitty v. Utah Transit Authority) and sexual orientation (Hively v. Ivy Tech Community College). Because the book was already in production when Bostock was decided, we were unable to incorporate this momentous case into our book. And yet, given our experiences rewriting and editing opinions from feminist perspectives, we have something to say about Bostock and its significance for LGBTQ+ employment cases and employment discrimination law more broadly. Accordingly, we wrote this essay, which has three goals: first, to introduce our book; second, to analyze the Bostock case and its effect on employment discrimination law as it relates to sexual orientation and gender identity; and third, to discuss more broadly the effect of Bostock on employment discrimination jurisprudence through a feminist lens. Throughout the essay, we are attempting to answer the question of whether Bostock is a feminist opinion. Our answers are varied and even uncertain; but ultimately, we conclude that even though we, as feminists, might have written it differently, the LGBTQ+ community deserves to celebrate this momentous victory.
From its embryonic stage during the civil rights era to its modern-day presence on college campus... more From its embryonic stage during the civil rights era to its modern-day presence on college campuses, the political correctness movement has undergone an extreme metamorphosis. In the university setting, it was originally intended to welcome diverse views by encouraging minority students to feel part of the learning environment and to contribute to the “marketplace of ideas.” Recently, however, as students more frequently demand trigger warnings and safe spaces in response to speech that they deem personally offensive, the use of political correctness measures on college campuses has had the unintended consequence of chilling speech. Contrary to longstanding First Amendment principles, college campuses are becoming environments in which the most vulnerable among the student population can exercise a “heckler’s veto,” silencing speech that is subjectively offensive to the most sensitive students. During the 2016 presidential election, Trump supporters praised his unfiltered campaign r...
Brooklyn law review, 2016
Part I of this article frames the historical backdrop that built momentum for the civil rights mo... more Part I of this article frames the historical backdrop that built momentum for the civil rights movement affecting the LGBT community. Part II describes efforts to limit LGBT rights, including laws like Hester’s Law and similar legislation in other southern states that restrict cities and local governments from creating nondiscrimination protections for LGBT residents and employees. Part III of this article explains the political process doctrine, which dictates that laws that restructure the political process to obstruct the ability of minorities to enact legislation violate the Equal Protection Clause. While the application of the political process doctrine has been limited to race-based conduct and conduct restricting voting rights, Part IV considers the equal protection implications of laws like Hester’s Law that aim to preempt intrastate civil rights laws.In conclusion, this article suggests a novel analytical framework for analyzing the constitutionality of laws like Arkansas’s...
Connecticut Law Review, 2015
In the aftermath of the horrific school shooting at Sandy Hook Elementary School in Newtown, Conn... more In the aftermath of the horrific school shooting at Sandy Hook Elementary School in Newtown, Connecticut, parents, students, and school administrators began to fear the unthinkable-that a violent, ruthless criminal could invade their school campuses and randomly target innocent youth. Even though statistics show that violent crime in elementary and secondary schools is on the decline, trepidation and anxiety on school campuses across the country is at an all-time high.In response to this perceived threat, in 2013, lawmakers in over thirty states proposed bills that, if passed, would authorize school officials to carry weapons on their persons during the school day. Currently, at least eleven states have adopted this “armed-teachers” approach in fighting the war against school violence.This Article explores the potential § 1983 liability that the armed-teachers approach could create. Historically, § 1983 shields public schools from liability for the injuries resulting from the unfore...
The State of Education Reform
SSRN Electronic Journal
In recent years, transgender adults in the entertainment world have capitalized on their public p... more In recent years, transgender adults in the entertainment world have capitalized on their public platform to advocate for and increase awareness about issues affecting the transgender community. Yet even with the emerging cultural understanding of this community, there is a noticeable absence of a voice for transgender youth, a particularly vulnerable segment of this misunderstood population. Children-often as young as four or five-are more commonly proclaiming to be "born in the wrong body." In addition to being subject to intolerable bullying and harassment by their peers, transgender youth face an uphill battle in public schools because educators are unprepared to handle the logistics of their transition process, which includes a prolonged period of living in all aspects as the opposite sex. First, this article acknowledges the quagmire plaguing public schools that serve a transgender population. When and to what extent should schools intervene when children in their care are confronted with gender identity issues? What responsibilities do schools have to protect and educate both those children facing gender identity issues and those children who are impacted by their peers' non-conforming gender expression? Finally, and most significantly, how should schools address the daily logistics affecting transgender students, including bathroom and locker room designation, which have historically been determined by a student's biological sex? Second, this article analyzes the current legal landscape governing issues affecting transgender youth in public K-12 schools. Although there is a burgeoning recognition in the law of rights for sexual choices and identities that are non-traditional, the current law is insufficient in dealing with the practical and logistical concerns that schools serving transgender students face on a daily basis. Next, the article advances a novel argument that demands more robust protections for a transgender student's gender expression. It submits that a transgender student's expressive conduct (including her desire to use the restroom that corresponds with her gender identity) is speech that falls within the protective umbrella of the First Amendment. Since a transgender student's outward expression of gender conveys an important message to others about that student's identity, and because fitting in and being accepted are so vital to a transgender youth's psychological well-being, a transgender student's
Obergefell v. Hodges, 1 the country braced itself for the next wave of an ongoing "kultur kampf"-... more Obergefell v. Hodges, 1 the country braced itself for the next wave of an ongoing "kultur kampf"-the cultural war-in the name of religion and against LGBT rights. 2 On June 26, 2015, the Court issued an historic decision, which extended the constitutionally protected fundamental right to marry to same-sex couples. 3 Although LGBT advocates and legal scholars cheered the Court's landmark holding, the social, religious, and moral debate is far from over. 4 In fact, the Court's decision brought a new brand of anti-same-sex marriage activism. Kentucky clerk, Kim Davis (Davis), became the face of this movement. 5 Davis made headline news when she refused to issue marriage licenses to same-sex couples. 6 Rather than follow the Court's order to issue marriage licenses to all couples, she opted to spend five days in jail for contempt of court. 7 At a press conference following her release from jail, Davis was hailed as a hero. 8 Flanked by her attorney and Republican presidential candidates, former Arkansas Governor Mike Huckabee and Texas Senator Ted Cruz, Davis thanked the crowd for supporting her and promised to continue the fight for religious freedom. 9 Davis is not the only government official defying the Obergefell decision through civil disobedience. Others echo her battle cry for religious freedom. Texas Attorney General Ken Paxton declared that "no court, no law, no rule, and no words will change the simple truth that marriage is the union of one man and one woman." 10 He encouraged 1. 135 S. Ct. 2584 (2015). 2. See, e.g., Laura Meckler & Ana Campoy, Arkansas Governor Calls for Changes to 'Religious Freedom' Bill, WALL ST. J., http://www.wsj.com/articles/arkansas-governor-calls-forchanges-to-religious-freedom-bill-1427904740 (last updated Apr.
This Article focuses on the tension and interplay between those advocating for LGBT-inclusive law... more This Article focuses on the tension and interplay between those advocating for LGBT-inclusive laws and those seeking protection under state, mini RFRAs from what they characterize as religious discrimination to resist the trend toward LGBT equal rights.
This article considers the First Amendment implications of the 2009 Family Smoking Prevention and... more This article considers the First Amendment implications of the 2009 Family Smoking Prevention and Tobacco Control Act's mandate that cigarette packages display one of nine color graphic images, depicting the negative health consequences of smoking. The graphic images chosen by the FDA for publication on all cigarette packages this Fall elicit a strong physiological and emotive response, which the government hopes will drive people to stop smoking. Under Supreme Court precedent, factual disclosures on consumer products are subject to limited judicial review. Because this mandate compels private entities to adopt and express government's highly-subjective, controversial speech, it does not fall within the confines of the Central Hudson commercial speech doctrine, which generally tolerates compelled commercial speech disclosures that are purely factual and non-controversial. As such, this lower standard of review should not apply. A recent Supreme Court case held that strict sc...
Student Discipline and the Active Avoidance Doctrine
SSRN Electronic Journal
Bleeeeep! The Regulation of Indecency, Isolated Nudity, and Fleeting Expletives in Broadcast Media: An Uncertain Future for Pacifica v. FCC
... FCC. Terri R. Day* & Danielle Weatherby**. ... Fox. 144 In a divided opinion, JusticeScal... more ... FCC. Terri R. Day* & Danielle Weatherby**. ... Fox. 144 In a divided opinion, JusticeScalia, writing for the majority, overruled the Second Circuit Court of Appeals' holding that the FCC's change in policy was arbitrary and capricious. ...
Pepperdine Law Review, 2015
Earlier this term, the United States Supreme Court heard oral argument in the consolidated case o... more Earlier this term, the United States Supreme Court heard oral argument in the consolidated case of Burwell v. Hobby Lobby Stores, Inc., the first of a litany of cases in which for-profit business entities are invoking the Religious Freedom Restoration Act (RFRA) in support of their claims that the Affordable Care Act's Health and Human Services (HHS) mandate (the Mandate) violates their freedom of religion. In particular, these plaintiffs argue that the Mandate's requirement that employer-provided health insurance cover the costs of contraceptives, the "morning after" pill, and other fertility-related drugs conflicts with their deeply held religious belief A Primer on Hobby Lobby PEPPERDINE LAW REVIEW 56 that life begins at conception and is, therefore, unconstitutional. While the Mandate does exempt religious employers from this requirement, it does not excuse all secular, for-profit corporations from complying simply because their officers, founders, or directors may have religious beliefs that conflict with the Mandate's provisions. Authors Day and Diaz were sitting just feet away from the advocates during the riveting Hobby Lobby oral argument. One question by Justice Kennedy piqued their interest in the nondelegation doctrine and the principle of separation of powers as they apply to the Mandate. As the first academic article authored during the crucial time between oral arguments and the Court's decision, this Article breaks down the complex legal issues and provides a solid dose of common sense in analyzing what will ultimately be a decision with momentous and far-reaching consequences.
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Papers by Danielle Weatherby