Katherine M. Franke

What's Wrong with Sexual Harassment?

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as sex discrimination, she traces the theoretical arguments advanced by feminist scholars on behalf of a cause of action for sexual harassment under Title VII: I) it violates formal equality principles; 2) its sexism lies in the fact that the conduct is sexual; and 3) sexual harassment is an example of the subordination of women by men. Professor Franke provides a critique of each of these accounts of sexual harassment, in part, by showing how each is unable to provide an account of whether same-sex sexual harassment should be actionable under Title VII. She argues thatflaws in both the theory and the doctrine are amplified in the marginal cases of same-sex harassment. Professor Franke then argues that the discriminatory wrong of sexual harassment, between parties of different or same sexes, should be understood as a technology of sexism. That is, the sexism in sexual harassment lies in its power as a regulatory practice that feminizes women and masculinizes men, renders women sexual objects and men sexual subjects.

The Domesticated Liberty of Lawrence v. Texas

In this Commentary, Professor Franke offers an account of the Supreme Courts decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Courts earlier reproductive rights cases, but instead announces a kind of privatized liberty right that allows gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke expresses concern that Lawrence risks domesticating the gay and lesbian civil rights movement. She argues that the limited scope of the Lawrence opinion, as well as the gay communitys reaction to it, can be traced, in large part, to the palimpsestic presence of Bowers in the opinion and in the political organizing that has followed it.

The Politics of Same-Sex Marriage Politics

In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and Connecticut have enacted Civil Union laws for same-sex couples, the Commonwealth of Massachusetts now allows both same and different sex couples to marry, and, in the last year, trial courts have found unconstitutional the exclusion of same-sex couples from the institution of marriage in New York and California. Spain has now joined some of its fellow EU members in the Rhine Delta by allowing same-sex couples to marry, and the Constitutional

The Curious Relationship of Marriage and Freedom

This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are articulated in and through the institution of marriage? What kind of freedom and what kind of equality does the capacity to marry bring forth? In important ways, what we are witnessing today with same-sex couples echoes the experience of another group of new rights-holders almost 150 years ago. To better understand how the gay rights movement today has collapsed into a marriage rights movement, and what the costs of such a strategy might be, the essay looks backward in history to another time when marriage rights intersected with the rights of freedom, equality and dignity of a marginalized population: newly emancipated Black people in the mid-nineteenth century.

Eve Sedgwick, Civil Rights, and Perversion

It is hard to imagine where queer theory would be without Eve Sedgwick. Indeed, I can’t imagine where my own thinking would be had it not been informed, enriched, challenged, repulsed, and seduced by Sedgwick’s writing. Between Men: English Literature and Male Homosocial Desire1 and The Epistemology of the Closet,2 the early work, gave me the tools to think about the fundamental landscapes of my intellectual world in ways that decoupled and reconfigured the binaries of male/ female, heterosexual/homosexual, friend/lover, and public/private. Sedgwick gave us the idea of homosociality and a critique of identity and identification that exploded the male/female and homo/hetero divide. From that point forward our previous work undertaken without the benefit of these ideas seemed pathetically naive and, well, modernist (not that!) for their absence. Stopping myself from lapsing into the bromides of hagiography, I’ll resist elaborating further on the debt I owe to Eve Sedgwick’s intellectual estate, except to offer some thoughts on her short essay, A Poem is Being Written,3 when held up against Freud’s important tract on female psychic development, A Child Is Being Beaten.4 As a lawyer and law professor, I must confess great delight in returning to Freud’s A Child Is Being Beaten, even though it is a la mode to mock Freud’s rigid, structural approach to psychic development in which the father figures, somehow inevitably, as the hero in every story. In so many familiar ways, A Child Is Being Beaten reads like a legal text. Its rigid formalism, its three-part structure, and its master narrative in which law—the law of the father, which produces the Oedipal complex—is used to explain and give order to the problem at hand. This approach struck me as a kind of adjudication of female disorder that is methodologically familiar turf to a lawyer. Freud’s essay recounts the diagnosis and treatment of a female patient who suffers from sexual neurosis, which he traces back to childhood sexual

Rosa v. Park West Bank: Do Clothes Really Make The Man?

What is a question of gender discrimination a question of? How is gender-based discrimination to be differentiated from sex-based discrimination? Or is Justice Ruth Bader Ginsburg correct in using these two terms interchangeably? Why are some courts so obstinate in confusing gender bias with sexual orientation bias? What, in the end, do sex, gender and sexual orientation based discrimination have to do with one another? How do gender, sex and sexuality norms get enforced through sartorial conventions? In the Summer of 1998, Lucas Rosa was denied a loan application by a loan officer at Park West Bank in Western Massachusetts. Rosa was told that she was denied an application because she failed to dress in sufficiently masculine clothing - given that she was a biological male. Rosa, a cross-dressing male, brought a sex discrimination action in federal court under the Equal Credit Opportunity Act, however her complaint was dismissed by the trial court on the grounds that clothing had nothing to do with sex discrimination. On appeal, the First Circuit reversed, finding that Rosa has stated a cause of action under the ECOA. The Michigan Journal of Gender & Law has published the principal and amicus briefs to the First Circuit in Rosas case - as well as an introduction to the case and conclusions about the First Circuits opinion.