New issue now available online!
University of Toronto Law Journal
Volume 68, No. 1
UTLJ Online: http://bit.ly/utlj681
Special Issue: Transfiguring Justice: Trans People and the Law
Articles:
Don’t be so hateful: The insufficiency of anti-discrimination and hate crime laws in improving trans well-being
Florence Ashley
The question of judicial protection of trans people has come to the fore in recent years, culminating in Bill C-16 which added gender identity and gender expression to the federal anti-discrimination and hate crime laws. In this article, the author contests the notion that anti-discrimination and hate crime laws are effective in mitigating anti-trans harassment, discrimination, and violence. Suggesting that the model of anti-trans acts which underlies anti-discrimination and hate crime laws is erroneous, the author argues that the law’s impact on trans well-being will be modest and that a careful analysis of anti-trans attitudes enables us to identify a number of more effective governmental avenues toward trans emancipation. http://bit.ly/utlj681a
Gender identity, gender pronouns, and freedom of expression: Bill C-16 and the traction of specious legal claims
Brenda Cossman
Bill C-16, An Act to Amend the Canadian Human Rights Code and the Criminal Code was a government bill intended to provide equal protection of the law to trans and gender non-binary Canadians. It protects individuals from discrimination within the sphere of federal jurisdiction, as well as protecting against hate propaganda and hate crimes, on the basis of gender identity and gender expression. The opposition to previous legislative attempts to protect trans rights focused on questions of sex-segregated spaces such as public bathrooms. In the course of the debate over Bill C-16, however, a new discourse of opposition emerged: Bill C-16 was said to be a fundamental threat to freedom of expression. http://bit.ly/utlj681b
The origins of gender identity and gender expression in Anglo-American legal discourse
Kyle Kirkup
Anglo-American lawmakers are in the midst of introducing a series of anti-discrimination protections for trans people. By and large, they are making this change by adding the terms ‘gender identity’ and ‘gender expression’ to a variety of human rights law instruments. In June 2017, for example, the Parliament of Canada passed Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code. The legislation adds the terms ‘gender identity or expression’ to the Canadian Human Rights Act, along with the hate crimes provisions of the Criminal Code. Similar pieces of legislation have been introduced in the United States and the United Kingdom. While legal scholarship has spent considerable time debating the merits of such legislation, comparatively less attention has been paid to the plural, and often contradictory, history of ‘gender identity’ and ‘gender expression.’ This article traces the origins of these terms, arguing that ‘gender identity’ is the product of mid-century psychiatric discourses that constructed trans people as a narrow class of persons. http://bit.ly/utlj681c
The banishment of Isaac: Racial signifiers of gender performance
Ido Katri
This article suggests that a performative reading of discrimination cases allows for the recognition of intersectional harms and facilitates a broader systemic account of exclusion from resources and opportunities. Revealing the protected category of sex as a prohibition against discrimination on the basis of gender performance, the article considers how signifiers marked on the gendered body shape the protected categories relating to race and ethnicity. The article suggests that racial/ethnic signifiers and sex/gender performance function reciprocally to construct material realities of exclusion from resources and opportunities. Drawing on the trans position in anti-discrimination, the article offers a nuanced reading of discrimination suffered by Jews of Arab decent, the Mizrahim, under Israeli law. http://bit.ly/utlj681d
Review Articles:
The definitive article
Alice Ristroph
Professors teach, and scholars theorize, something called ‘the’ criminal law. A new book by Lindsay Farmer is ostensibly about criminal laws in England over the past two centuries, but it shows that in that place and time there developed a concept of criminal law as a singular, cohesive, and enduring institution that can and should be theorized independently of any particular jurisdiction, statute, case, or code. The grip of this concept is powerful, this review essay argues. This way of thinking about criminal law now spans national borders – and it creates significant obstacles to penal reform in the United States and elsewhere. This review essay focuses on two implications of the modern understanding of ‘the’ criminal law: the claim that criminal law has some extra-legal nature, core, or essence and the conceptual divide between substance and procedure. http://bit.ly/utlj681e
Thinking like a private lawyer
Christopher Essert
In this review essay of their books, Private Wrongs, Corrective Justice, and The Idea of Private Law, I discuss some aspects of the approach to private law (and, in particular, tort law) taken by Arthur Ripstein and Ernest Weinrib. Among the elements of their view that I highlight are: the role of a ‘form of thought’ and its relation to questions of ‘fit’; the centrality of correlative or relational normativity; the particular kind of justification that they take to be appropriate in the context of private law; and the importance of indeterminacy. http://bit.ly/utlj681f
The University of Toronto Law Journal has taken a broad and visionary approach to legal scholarship since its beginnings in 1935. Its first editor, Professor WPM Kennedy, hoped that the journal would foster a knowledge of law “as [the] expression … of organized human life, of ordered progress, and of social justice.” The University of Toronto Law Journal has since established itself as a leading journal for theoretical, interdisciplinary, comparative, and other conceptually oriented inquiries into law and law reform. The Journal regularly publishes articles that study law from such perspectives as legal philosophy, law and economics, legal history, criminology, law and literature, and feminist analysis. Global in relevance, international in scope, it publishes work by highly regarded scholars from many countries, including Australia, Israel, Germany, New Zealand, the United States, and the United Kingdom.
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