Contested Identities: A History of LGBT Legal Mobilization and the “Ethics of Impact”
Forty years ago, “LGBT Rights” did not exist as a legal category and lawyers lost their jobs and were even disbarred for being lesbian or gay. Today, many elite law firms happily provide pro bono litigation support for LGBT Rights. How do we explain this dramatic shift? My dissertation tells this story by focusing on the history of the major LGBT legal organizations: Lambda Legal, the National Center for Lesbian Rights, National Gay Rights Advocates (closed in 1991), Gay & Lesbian Advocates & Defenders, and the ACLU’s LGBT Project. I describe the key debates and decisions that went into securing greater recognition and protection of LGBT Rights. Drawing on interviews with key lawyers, organizational records, and case law research, I analyze key debates over legal strategy. I argue that internal organizational debates played a key role in shaping legal strategies.
Law Review Articles
Kosbie, Jeffrey. 2013. “(No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech.” William and Mary Journal of Women and the Law 19 (2): 187-254.
This article focuses on the government’s alleged interests in regulating gender nonconformity. Using a First Amendment analysis, I reveal how seemingly neutral government interests are used to single out conduct because it expresses messages of gender nonconformity. While recognizing government interests in privacy and safety, I argue that the government may not suppress gender nonconformity as the means of achieving these ends.
Kosbie, Jeffrey. 2011. “Misconstructing Sexuality in Same-Sex Marriage Jurisprudence.” Northwestern Journal of Law and Social Policy 6 (1): 238-78.
This article uses textual analysis of state same-sex marriage opinions, identifying four analytic models of sexuality: sexuality consists only of behaviors, sexuality belongs to lesbians and gays, society should regulate sexuality, and marriage forms a normatively desirable model for sexuality. The article identifies judicial failures to understand the diversity of sexuality and argues for an equal protection analysis to protect same-sex marriage.
Kosbie, Jeffrey. 2013. “Beyond Queer vs. LGBT: Discursive Community and Marriage Mobilization in Massachusetts.” Pp. 103-31 in The Marrying Kind? Debating Same-Sex Marriage Within the Lesbian and Gay Movement, edited by Mary Bernstein and Verta Taylor. Minneapolis, MN and London: University of Minnesota Press.
As queer activists criticize same-sex marriage and straight allies increasingly mobilize in support of it, how and when can diverse coalitions mobilize around the issue? This chapter addresses this question, using interviews with activists in Massachusetts who mobilized to defend Goodridge. The chapter argues that activists formed a discursive community of “marriage supporters” despite fundamental disagreements over the meaning of marriage and lesbian and gay identities. I use this case study to advance our understanding of the role of identity in social movements.
Kosbie, Jeffrey. “Sodomy Reform, the Right to Be Sexual, and the Emergence of LGBT Rights.”
Most histories of LGBT Rights describe sodomy reform based on the right to be left alone. Eliminating sodomy laws required only that the state leave LGBT people alone. But I argue that these histories miss a crucial motivation for sodomy reform. Lawyers involved in these early cases were also deeply invested in a “right to be sexual.” As opposed to the right to be left alone, the right to be sexual demands state recognition for autonomy over sexual conduct. This article analyzes debates over legal strategy in these early cases to show how the tension between the right to be sexual and the right to be left alone shaped what we think of as LGBT rights.