Public Accommodations Research Articles

Crisis at the hospital and the hospice, same combat: Break down the walls!

The crisis in public hospitals and accommodation facilities for the elderly (EHPAD) focuses on issues of governance and internal resources (including financial ones), while the responses should be found in an organized and consolidated fluidity between the world of hospital or medico-social institutions and the usual living spaces of the population. At the hospital level, the main difficulties are due to a regularly announced, but incomplete, transfer between the activities of these institutions and outpatient medicine. The solution is certainly in a single governance of health policy, currently shared between the state and health insurance. For the EHPAD, the institutionalization of frail elderly people and/or those in the process of dependence, as well as the unsuccessful proliferation of multiple experiments in their care at home, lead, on one hand, to an increasingly complex offer, not understandable for everyone, and secondly, to rely mainly on the general practitioner for the coordination of this care. The solution is certainly in a universal offer, under common law, which would allow the elderly population to stay as long as possible at home, which is what they wish the most.

Babies, Bodies, and Buyers

In the thirty-five years since I began my career in legal education, much about the status of women, gender and sexuality has changed. There are the obvious triumphs: more female students, faculty and deans--as well as more bathrooms for more kinds of people than just "men." Life is less lonely now, and conversation more intersectional. There is more openness about LGBT issues. There is marriage equality, however contested. And there is less general tolerance for open forms of harassment. But challenges remain. While reproductive rights have always been at the center of women's work in the academy, that conversation has changed in complex ways in recent years--in no small part because of revolutionary new assisted-reproductive and genetic technologies. From oosplasmic transfer (1) to pre-implantation genetic diagnosis (2) to the precise gene-editing capabilities of Crispr-cas9, (3) these technologies can facilitate quiet forms of eugenic natalism. Increasingly, consumerist rather than dignitary notions of choice have been deployed to chase non-medical, cosmetic notions of human perfectibility. I worry that this shift signals an ever-more pervasive styling of bodies--including future bodies--as private property, and as inert clay-for-the-molding. I am hardly alone in my concern that the ultra-contractarianism of our neo-liberal moment is not such a good thing when it dominates all crannies of human endeavor. Its narrowed understanding of corporeal integrity compromises many of the erstwhile goals of public accommodation for all. Below are three stories in which the personal is short-circuited as exclusively private rather than politically expressive as well. The first story is about surrogate pregnancy--by now a comparatively old-fashioned technology of assisted reproduction, but one rife with the ethical challenges and cultural incoherence to which I allude. In late January of 2014, Kansas State Senator Mary Pilcher-Cook introduced a bill that would have criminalized the use of surrogate contracts in pregnancy and imposed a $10,000 fine and up to a year in jail for anyone participating in such a transaction. (4) The effort was quickly abandoned amid a blizzard of publicity that included pro-lifers battling pro-lifers; Republicans battling Republicans; invocations of God having hired the Virgin Mary as a surrogate; vaginal sonograms broadcast live in a Senate committee; and by a host of other posturing too easily dismissed as risible. (5) If the bill hadn't been body-slammed into the dust by some of the sillier assertions of its chief proponent (Pilcher-Cook asserted, for example, that surrogacy creates children that are "not going to have either a biological mother, biological father or both" (6)), the discussion might have garnered more attention. The laws regarding surrogacy are a national jumble of inconsistent public policies, extra-legal technological engineering, free-market contracting, civil interventions, and criminal sanctions. However incoherent the Kansas attempt, there was a serious question at its center: whether individually-drafted private contracts are sufficient to settle questions of intended parenthood, or whether the "best interests of the child" standards governing custody, adoption, and other realms of family law should have greater sway. While some states have long found surrogate contracts not in the public interest, at least ten already criminalize them. (7) Many of those laws were passed in the very early days of ovum transplantation and have not been reviewed in the decades since. Hence, what laws are in place have not nearly kept up with the explosive technological revolution in assisted reproduction. Even in states that purport to regulate, it is largely doctors and IVF technicians who call the shots as to what's acceptable in the realm of surrogacy and reproductive techniques. (8) There is deep conceptual confusion, as well as outright conflict, about what is at stake in surrogacy. …

LaSalle Leffall: groundbreaking American surgeon and educator

Picture credit: LaSalle Leffall/NLM/NIM Racism was a fact of life in the southern US in the mid-20th century. There were stores downtown that you knew you couldn’t go in as...

'‘Male Chauvinism’ Is Under Attack from All Sides at Present': Roberts v. United States Jaycees, Sex Discrimination, and the First Amendment

Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the force of the race discrimination-sex discrimination analogy. The parties and their amici invoked NAACP v. Alabama (1957), a significant root of the constitutional right to freedom of association, in strikingly different ways, and strenuously disagreed about how to compare the Jaycees to the NAACP. How did the parties frame the evident conflict between promoting sex (or gender) equality—women’s full participation in society—and protecting freedom of association? What was at stake for women in being excluded from full membership in organizations, like the Jaycees and all-male private clubs, that provided members an entree to the “Old Boys Network”? What was at stake for the Jaycees and similar organizations in a climate in which (as one amicus put it) “‘male chauvinism’ is under attack from all sides”? In Jaycees, even as the Supreme Court elaborated upon the values advanced by the First Amendment’s protection of freedom of association, it upheld the application of Minnesota’s public accommodations law to the Jaycees’s exclusion of women from regular membership despite the Jaycees’s freedom of speech and association claims. Both aspects of Jaycees live on, as was evident in arguments made in Masterpiece Cakeshop v. Colorado Civil Rights Commission that related sexual orientation discrimination to other forms of “invidious” discrimination that government may prohibit. This article argues that the relationship between freedom of association and gender equality is double-edged. It concludes by returning to the present day, asking whether the Old Boys Network is simply a relic of the past or has continuing potency. It reflects on some present-day controversies over freedom of association and single-sex organizations.

Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights

Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights

Immigration and Asylum for Lesbian, Gay, Bisexual, and Transgender Individuals

Lesbian, gay, bisexual, and transgender (LGBT) individuals do not have equal or full human rights when compared to heterosexual individuals, families, and couples. In many countries around the world, LGBT individuals do not have a legal right to safety, to engage in consensual sex, get married, have children, or to be free of discrimination in housing, work, or public accommodation. In several countries, the governmental response to LGBT individuals is to jail or sentence them to death as a consequence. LGBT individuals may apply for asylum to the United States (U.S.), Canada, and the United Kingdom (U.K.) for these reasons. Frequently, applications to the U.S. are denied because the U.S. continues to discriminate against LGBT individuals. In addition, the U.S. discriminates against international LGBT couples and their children by denying their children U.S. citizenship. The aim of this paper is to present the global context regarding discrimination and immigration as a base to examine the impact of discrimination, immigration, and asylum requests in the U.S. This paper will review major legal cases involving LGBT individuals in order to recommend best ethical practices for social and political action. The role of social workers as change agents is explored.

Internet Architecture and Disability

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet, including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach for fully facilitating Internet accessibility. The prevailing doctrinal approach to Internet accessibility seeks to treat websites as metaphorical “places” subject to Title III of the ADA, which requires places of public accommodations to be accessible to people with disabilities. While this place-centric approach to Title III has succeeded to a significant degree in making websites accessible over the last two decades, large swaths of the Internet — more broadly construed to include Internet technologies beyond websites — remain inaccessible to millions of people with a variety of disabilities. As limitations of a place-based approach to Title III become clearer, a new framework for disability law is needed in an increasingly intermediated Internet. Leveraging the Internet law literature on perspectives, this article recognizes the place-centric approach to Title III as normatively and doctrinally “internal,” in the terminology of internet law scholars It offers a framework for supplementing this internal approach with an external approach that contemplates the layered architecture of the Internet, including its constituent content, Web and non-Web applications, access networks operated by Internet service providers, and devices and the role of disability and other bodies of law, particularly including telecommunications law and attendant policy issues, such as net neutrality, in making them accessible.

Algorithmic Disability Discrimination

Prior to the Digital Age, disability-related information flowed between people with disabilities and their doctors, family members, and friends. However, in the 21st century, artificial intelligence tools allow corporations that collect and analyze consumer data to bypass privacy and antidiscrimination laws, such as HIPAA and the ADA, and infer consumers’ disabilities without their knowledge or consent. When people make purchases, browse the Internet, or post on social media, they leave behind trails of digital traces that reflect where they have been and what they have done. Companies aggregate and analyze those traces using AI to reveal details about people’s physical and mental health. I describe this process as mining for “emergent medical data” (EMD) because digital traces have emergent properties; when analyzed by machine learning, they reveal information that is greater than the sum of their parts. EMD collected from disabled people can serve as a means of sorting them into categories that are assigned positive or negative weights before being used in automated decision making. Negatively weighted categories can stigmatize disabled people and contribute to the narrative that disabilities are bad. Moreover, by negatively weighting categories into which disabled people are sorted, algorithms may stigmatize disabled people and screen them out of life opportunities without considering their desires or qualifications. This chapter explains how AI disrupts the traditional flow of disability-related data to promote algorithmic disability discrimination. It presents and analyzes four legislative solutions to the problem: Amend Title III of the ADA to include internet business within the law’s definition of places of public accommodation, expand the scope of HIPAA’s covered entities to include companies that mine for EMD, impose fiduciary duties on internet platforms and other businesses that infer health data, and establish general data protection regulations in the US inspired by the EU’s General Data Protection Regulation (GDPR) and the California Consumer Protection Act of 2018 (CCPA). Regardless of the regulatory path chosen, we must evolve our understanding of health information and disability-related data. Whether it is exchanged between patients and doctors or pieced together by AI from the digital traces scattered throughout the Internet, the data of people with disabilities deserves protection. Health data has the potential to harm people if used to exploit rather than to heal, and companies can increasingly mine EMD and use it to reduce the autonomy of people with disabilities. Members of this group should be able to control when and how their data is used to draw conclusions about them and make decisions for them. Otherwise, AI-based inferences will contribute to the obstacles that people with disabilities must overcome in their daily lives.

Rogue Corporations: Unlawful Corporate Conduct and Fiduciary Duty

On February 28, 2018, Dick’s Sporting Goods announced that it would no longer sell long guns to 18- to 20-year-olds. On March 8, 2018, Dick’s was sued for violating the Michigan Elliott-Larsen Civil Rights Act, which prohibits discrimination on the basis of age in public accommodations. Dick’s and Walmart were also sued for violating Oregon’s ban on age discrimination. In addition to corporate liability under various state civil rights acts, directors of Dick’s and Walmart face the threat of suit for breaching their fiduciary duties—suits that may be much harder to defend than the more usual breach of fiduciary duty suit. Delaware corporation law appears to have an underappreciated per se doctrine where the board directs the corporation to violate the law. A knowing violation of positive law is bad faith, which falls under the duty of loyalty. The business judgment rule will not apply and exculpation will not be available under Section 102(b)(7). The shareholders may not even need to show harm. This paper examines the relevant legal doctrine but also takes a step back to consider what the rule should be from an ethical and a moral standpoint. To do so, rather than apply traditional corporate governance arguments, this paper considers broader moral theories. In addition to the utilitarian calculus that is so ubiquitous in corporate governance scholarship via the law and economics movement, this paper considers the liberalism of both John Rawls and Robert Nozick. But liberalism may seem less persuasive given the rise of illiberalism politically on both the American right and left. Given that, this paper also considers two non-liberal models: one a populist modification of Charles Taylor’s democratic communitarianism and the other Catholic Social Thought. Unsurprisingly, the proper rule depends on which moral theory is applied. If that theory is liberalism (of either form covered), then a per se approach is troubling. Harm to the corporation must be shown, and either the Delaware legislature or the corporate players, depending on the form of liberalism, must acquiesce to a per se rule. Counterintuitively, it is the per se rule that runs counter to basic democratic norms. It gives the power to litigate in response to harm not to the party harmed but to a third party. Given the divergent results from applying different moral theories, and given the democratic difficulty, the Delaware legislature should clarify the standard. It will likely find that a harsh, per se standard is unjustified.

Sociopolitical change and transgender people's perceptions of vulnerability and resilience.

Transgender and gender nonconforming (TGNC) people have gained visibility in public discourse leading to greater awareness, understanding, and social change. However, progress made in policies to combat stigma and improve public accommodation and healthcare for this minority population have been targeted for reversal, particularly since the 2016 presidential election. This study investigated the impact of changes in sociopolitical climate on perceptions of vulnerability and resilience among participants of a longitudinal study of transgender identity development. We randomly selected 19 TGNC participants in New York, San Francisco, and Atlanta, and conducted in-depth interviews about their perceptions of societal progress and setbacks, community engagement, and desired future change. Participants ranged in age from 18 to 68; half (47.4%) identified their gender identity along the feminine spectrum (male assigned at birth) and the other half (52.6%) along the masculine spectrum (female assigned at birth). Content analysis revealed that greater media visibility was perceived as both positive (improved awareness of needs) and negative (increased vulnerability to stigma). Setbacks included concerns about personal safety, the safety of others (particularly those with multiple stigmatized identities), healthcare access, and policies regarding public accommodation and nondiscrimination protections. Coping strategies included social support, activism and resistance, and an enduring sense of optimism about the future. TGNC Americans, in spite of a long history of adversity, are resilient. Participants demonstrated unwavering motivation to create a better future for themselves, other minorities, and society. Research is needed to quantify the impact of policy changes on health and wellbeing, and identify moderators of resilience amenable to intervention.

Resisting “Law and Order” in California: Howard Moore Jr., Angela Davis, and the Politics of Prison Radicalism

Resisting “Law and Order” in California: Howard Moore Jr., Angela Davis, and the Politics of Prison Radicalism

Toward a Crypto-friendly Index for the APEC Region

This paper presents a new index concerning the extent of public policy accommodation towards usage of blockchain technology. The coverage of the index is for the 21 Asia-Pacific Economic Cooperation (APEC) member states, representing a significant bloc of global production, trade and economic development. The crypto-friendly index includes indicators related to four general categories of blockchain policy: (i) extent of policy restrictiveness toward cryptocurrency initial coin offerings; (ii) extent of policy restrictiveness toward cryptocurrency exchanges; (iii) taxation treatment toward cryptocurrencies; and (iv) type and extent of general public policy interest in blockchain-related activity. Based on data and information available as at October 2018, the index results reveal considerable diversity exists amongst APEC countries in terms of their degree of crypto-friendliness. Jurisdictions such as Hong Kong, Singapore, Australia, the United States and Canada are seen as relatively crypto-friendly locations, whereas jurisdictions such as China, Vietnam and Peru have the greatest scope for pro-blockchain policy improvement. This paper suggests future avenues for index refinement, as well as the potential for additional research into the concept of crypto-friendliness using this and similar policy indexes.

“Good Orthodoxy” and the Legacy Of Barnette

This Essay applies the much-revered case of West Virginia Board of Education v. Barnette, which held that public school students may not be forced to stand and salute the American flag, to what I call the “good orthodoxy” context. In so doing, I hope to build a bridge between partisans on issues of free speech. In good orthodoxy cases, the individual claiming a right against compelled speech seeks to overturn a law or policy that was designed to remedy the harms committed against or to otherwise benefit historically marginalized groups. These good orthodoxy cases are both similar to and different from Barnette, where the Supreme Court held that the state cannot compel “unanimity of opinion” in support of patriotism or nationalism. Using examples such as public accommodations laws that compel production of expressive goods, union dues for public sector unions, and diversity statements at public law schools, I will demonstrate how new groups of dissenters are created in response to policies designed to protect historically marginalized or disadvantaged groups — instead of laws designed to compel respect for authority. Because of the differences between Barnette and the good orthodoxy cases, I argue that courts should be cautious before holding that the modern cases implicate pure speech, as opposed to expressive conduct or unprotected conduct. However, when pure speech is implicated, these laws or policies should be generally overturned as failing to satisfy strict scrutiny. Specifically, dignitary interests designed to protect individuals’ sense of acceptance in the community should generally not be considered sufficient to compel unanimity of opinion, and indeed, dignitary interests often indicate that what is being imposed is conformity to particular values.

William D. Green, Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865–1912. Minneapolis: University of Minnesota Press, 2015. Pp. 392. $32.95 (cloth).

William D. Green, Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865–1912. Minneapolis: University of Minnesota Press, 2015. Pp. 392. $32.95 (cloth).

Public Library Programs and Accommodations for Deaf and Hard-of-Hearing Children in the United States†.

In today's public libraries, children's librarians are challenged to provide inclusive programming that welcomes all individuals, including deaf and hard-of-hearing children at risk for delayed reading and literacy development. This study, using quantitative survey data and qualitative interview methods, investigated the programs and accommodations public libraries provide for deaf and hard-of-hearing children, the impetus for providing these programs, and the training required. Nearly 500 public libraries in the United States with service areas greater than 100,000 patrons were invited to participate in an online survey. Fifty-nine librarians completed the survey and 11 participated in an additional telephone interview. Results indicated less than half of the libraries surveyed provided services for deaf and hard-of-hearing children. Nearly all of the programs offered were inclusive; among the accommodations provided were books with sign language and sign language interpreters. Training was the most common limitation facing librarians in their role as community partners in the literacy development of deaf and hard-of-hearing children.

Brief of Amicus Curiae Adam J. MacLeod in Support of Petitioner, No. CV-18-0176-PR, Arizona Supreme Court

Every person has the ancient and fundamental right to equal treatment under the law. And every person has the ancient and fundamental right not to communicate a message they think is false. These rights are central to our legal and constitutional heritage. Far from competing with each other, they are mutually-reinforcing structural elements of American ordered liberty. The lesson of Masterpiece Cakeshop and Ashers Baking is that the common-law doctrine of public accommodations which the U.S. Supreme Court endorsed in Bell and Hurley remains the preferred means to avoid constitutional conflict between religion and expression liberties on one hand and rights of equal protection on the other. When a proprietor declines to provide a service, which would communicate a message that she wishes not to communicate, the reason for her declining—the reason because of which she declines in the language of public accommodation laws—is the message, not necessarily the person requesting the service. The qualified duty of proprietors not to discriminate in places of public accommodation is a duty not to discriminate intentionally, for an unlawful reason. It is a duty not to decline service because of a person’s status in a protected class. It is not a duty to prevent all undesirable consequence of one’s business decisions.

Public Accommodation Laws and Gender Panic in Clinical Settings.

Public accommodation laws (PALs) are used to address discrimination against minorities. There is broad discussion about using such laws to either protect or prohibit access to sex-segregated spaces for transgender people. Health care facilities are subject to PALs, which affect rooming assignments and access to sex-segregated environments. Around the time that a Massachusetts transgender PAL went into effect in October 2016, the first author (EB) facilitated 18 professional trainings at 5 health care facilities in greater Boston. During these trainings, staff repeatedly brought up 2 areas of moral concern reflecting public conversations about transgender rights: risk posed by the presence of transwomen in sex-segregated spaces and feelings of unpreparedness for dealing with anti-trans bias. This article discusses the role of education in responding to gender panic in inpatient settings.

"We don’t treat your kind": Assessing HIV health needs holistically among transgender people in Jackson, Mississippi

HIV disproportionately impacts transgender communities and the majority of new infections occur in the Southern United States. Yet, limited data exists on contextual realities of HIV vulnerability and healthcare needs among transgender individuals in the Deep South. Addressing this gap in the literature, we assess the health needs, including barriers and facilitators to accessing healthcare, including and beyond HIV, from the perspective of transgender men and women in Mississippi. Between June-August 2014, in-depth, semi-structured qualitative interviews (n = 14) were conducted with adult transgender persons at an LGBT healthcare setting in Jackson, Mississippi. In-depth interviews lasted between 60–90 minutes and followed semi-structured format (themes probed: HIV vulnerability, healthcare needs, and availability of gender-affirming medical care). Audio files were transcribed verbatim and analyzed using Dedoose (v.6.1.18). Among participants (mean age = 23.3 years, standard deviation = 4.98), 43% identified as a transgender man or on a transmasculine spectrum, 43% as Black, and 21% self-reported living with HIV. HIV-related services were frequently described as the primary gateway to accessing healthcare needs. Nonetheless, participants’ primary health concerns were: gender affirmation processes (hormones, silicone, binding/packing); mental health; and drug/alcohol use. Stigma and discrimination were commonly reported in healthcare settings and health-related information was primarily attained through social networks and online resources. Results highlight gender identity alongside race and pervasive marginalization as key social determinants of transgender health in Mississippi. As Mississippi is one of several states actively debating transgender access to public accommodations, findings underscore the need to treat transgender health as a holistic and multidimensional construct, including, but moving beyond, HIV prevention and care.

Toward a Crypto-Friendly Index for the APEC Region

This paper presents a new index concerning the extent of public policy accommodation towards usage of blockchain technology. The coverage of the index is for the 21 Asia-Pacific Economic Cooperation (APEC) member states, representing a significant bloc of global production, trade and economic development. The crypto-friendly index includes indicators related to four general categories of blockchain policy: (i) extent of policy restrictiveness toward cryptocurrency initial coin offerings; (ii) extent of policy restrictiveness toward cryptocurrency exchanges; (iii) taxation treatment toward cryptocurrencies; and (iv) type and extent of general public policy interest in blockchain-related activity. Based on data and information available as at October 2018, the index results reveal considerable diversity exists amongst APEC countries in terms of their degree of crypto-friendliness. Jurisdictions such as Hong Kong, Singapore, Australia, the United States and Canada are seen as relatively crypto-friendly locations, whereas jurisdictions such as China, Vietnam and Peru have the greatest scope for pro-blockchain policy improvement. This paper suggests future avenues for index refinement, as well as the potential for additional research into the concept of crypto-friendliness using this and similar policy indexes.

Brief of Amici Curiae Scholars of The Constitutional Rights and Interests Of Children in Support of Respondents in <i>Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission</i>

Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere. In fact, children are already bearing the brunt of exclusionary practices in the public marketplace because of their relationship to or association with their LGBT parents. In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational private school rejected enrollment for a pre-kindergartener and his 8-month-old sister after discovering that the children had two dads. In this brief, we argue that an expressive or religious exemption to sexual orientation discrimination prohibitions will deny children of LGBT parents equal access to the public sphere, inflict upon them psychological harm, and interfere with the “integrity and closeness” of their families — contrary to the aims of public accommodation and anti-discrimination law, and LGBT equality principles advanced in United States v. Windsor and Obergefell v. Hodges.