Could a state enforce a law that establishes a definition of &quot;biological sex&quot;? There appears to be no federal law establishing a definition of &quot;biological sex&quot;, according to an earlier Law SE question: Is there a definition of &quot;biological sex&quot; in U.S. law? Currently, there is a bill in the Montana legislature that seeks to create a strict definition for ‘sex'. The law would &quot;create a rigid definition of “sex,” boxing out legal recognition of intersex, nonbinary and transgender people in far-flung references across state law...&quot; Excerpt of the bill itself https://trackbill.com/bill/montana-senate-bill-458-define-sex-in-montana-law/2377583/ SB 458... would define sex as “the organization of the body and gametes for reproduction in human beings and other organisms,” specifying that humans have “exactly two sexes, male and female, with two corresponding gametes. The sexes are determined by the biological indication of male or female, including sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.” If that bill became state law, could it be enforced - by that I mean the non-recognition of intersex, nonbinary and transgender people - by the state of Montana absent a federal law, or until a federal court struck it down? Or would this be simply a case of the Supremacy Clause? https://en.wikipedia.org/wiki/Supremacy_Clause
There are several dozen federal case precedents addressing the rights of transgender individuals under existing federal laws. The cases most squarely on point and binding on the U.S. District Court for the District of Montana are Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. Feb. 29, 2000) (holding that the Gender Motivated Violence Act (GMVA) applied to targeting of a transgender person) and Parents for Privacy v. Barr, No.18-35708 (9th Cir. Feb. 12, 2020) (rejecting arguments that a school policy protecting transgender students violated other students' rights). To the extent that the Montana law was used in an attempt to do an end run around existing federal law protections of transgender individuals, it would probably be struck down as applied under the supremacy clause. Various other federal courts have found that transgender individuals are protected under: The Equal Protection Clause of the 14th Amendment to the U.S. Constitution Title VII of the 1964 Civil Rights Act, Title IX of the Education Amendments Act of 1972, The Equal Credit Opportunity Act, Title VII, Section 1557 of the Affordable Care Act, Title IX of the Affordable Care Act, The Fair Housing Act, and The Eighth Amendment to the U.S. Constitution. The U.S. Supreme Court has repeatedly declined to grant certiorari to review or overturn these decisions protecting transgender rights (which isn't to say that it couldn't adopt new precedents overruling these decisions in the future). So, in almost all areas where sex discrimination is prohibited under federal law, the Montana statute would have to yield to federal law. Federal law protections against sex discrimination aren't all encompassing, but the federal courts have not hesitated to invoke the Equal Protection Clause of the 14th Amendment when no statutory protections apply. So, there probably aren't many circumstances in which this law could have a meaningful effect. The fact that a Montana state law might say otherwise is irrelevant. The U.S. Supreme Court has recently specifically made clear to the Montana Supreme Court that it may not enforce state laws that violate federal law stating: The Supremacy Clause provides that “the Judges in every State shall be bound” by the Federal Constitution, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. “[T]his Clause creates a rule of decision” directing state courts that they “must not give effect to state laws that conflict with federal law[ ].” Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015). Espinoza v. Montana Dept. of Revenue, 207 L. Ed. 2d 679 (June 30, 2020). Similarly, in another not too ancient case, the U.S. Supreme Court held that: The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U.S. Const., Art. VI, cl. 2. Am. Tradition Partn., Inc. v. Bullock, 567 U.S. 516, 516 (2012). Another older and emphatic provision making clear that state officials must follow federal law from the U.S. Supreme Court is as follows: Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as ‘the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, ¶3 ‘to support this Constitution.’ Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' ‘anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. * * *’ Ableman v. Booth, 21 How. 506, 524, 16 L.Ed. 169.1112 No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: ‘If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery * * *.’ United States v. Peters, 5 Cranch 115, 136, 3 L.Ed. 53. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, ‘it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases * * *.’ Sterling v. Constantin, 287 U.S. 378, 397–398, 53 S.Ct. 190, 195, 77 L.Ed. 375. Cooper v. Aaron, 358 U.S. 1, 18–19 (1958) Any Montana government official who tried to enforce that law that has been held to be overridden by federal law in sheer defiance of federal law would end up like Rowan County, Kentucky Clerk Kim Davis: in jail for being in contempt of court in short order.
In the US, it stems from some statute, such as RCW Ch. 71.05 in Washington state, which starts by stating the rationale for the law, and which are to protect the health and safety of persons suffering from behavioral health disorders and to protect public safety, and prevent inappropriate commitment of persons living with behavioral disorders and to eliminate legal disabilities that arise from involuntary commitment etc. The various laws in this chapter make it possible to commit a person to a mental institute or to undergo involuntary therapy. There is a separate chapter, RCW 71.34, applicable to minors. In general, this law calls for professional evaluation and treatment, without legislating science. The trigger is generally evidence of a tendency towards serious harm or grave disability, with a requirement that the action be requested by a certain kind of behavioral professional. There are not many hard-coded limits on what can be ordered: while RCW 71.05.215 &quot;has a right to refuse antipsychotic medication&quot;, that right is overridden when &quot;it is determined that the failure to medicate may result in a likelihood of serious harm or substantial deterioration or substantially prolong the length of involuntary commitment and there is no less intrusive course of treatment than medication in the best interest of that person&quot;. Along with the legislation cited, there are also regulations which don't require legislative action (they are &quot;empowered&quot; by the statutes), which could specifically forbid a treatment, but again choice of treatments are left to the professional. In some other jurisdiction, it's possible that a certain treatment would be explicitly outlawed.
The closest possible prohibition is found in s. 286.1 of the Criminal Code, which makes it an offence to pay for the &quot;sexual services of a person.&quot; &quot;Sexual services&quot; is not a defined term. The Department of Justice provides its opinion about what this term might cover, but that is not determinative. In relation to a charge of the previous version of this prohibition (which also used the term &quot;sexual services&quot;), counsel was unable to direct the judge to a definition of the term, and the judge was unable to find one (2015 ABPC 241). The judge adopted a test that requires the service to include &quot;some sexually suggestive physical act on the part of the person providing the sexual service&quot;. This is a test somewhat stricter than the one proposed by the Department of Justice in that in addition to merely being &quot;sexually stimulating or gratifying,&quot; there physical act itself must be &quot;sexually suggestive.&quot; [50] What is a “sexual service”? Counsel have not directed me to, nor have I been able to find a definition of the term “sexual services”. [51] Sexual services” would clearly include any type of sexual intercourse, or physical contact for purposes of masturbation. It would also include posing for nude photographs. A request “to touch or feel the breasts of the [female] complainant” is an attempt to obtain the sexual services of the complainant. In my view, “sexual services” would also include dancing in a sexually provocative or stimulating fashion. In terms of a general definition, I think the phrase “sexual favours rendered ...for the sexual gratification of the customer” is sufficient. [52] However, I am of the view that the “sexual services” or “sexual favours for the sexual gratification” of a person requires that there be some sexually suggestive physical act on the part of the person providing the sexual service. The sexually suggestive physical act may be many things, such as posing nude, or sexually suggestive dancing, or suggestively removing clothing. That list is not exhaustive, and, with the creativity of the human mind, I doubt one could ever create an exhaustive list. However, the common element is that some sort of sexually suggestive physical act is necessary to constitute the sexual service. [53] In the case at bar, the accused had M.C. engage in what one might call “fantasy role playing”. If the role playing involved M.C. performing a sexually suggestive physical act, then the definition of “sexual service” might well be satisfied. However, in the case at bar, M.C. took on the fantasy role of being the slave in a master/slave relationship. M.C. did not perform any acts as a slave. The “slave role” was one in the mind of the accused (and perhaps M.C.), and had its expression in the content of emails and text messages between Mr. Peterson and M.C., but M.C. did not engage in physical acts for the sexual gratification of the accused. ... [54] M.C. was cast in the role of a slave in fantasy role playing, but the playing really only occurred in the heads of Mr. Peterson and M.C. That does not constitute the act of Mr. Peterson obtaining the sexual services of M.C. [citations removed] But this was a lower trial court's reasoning that has not been adopted by others yet, and no other court has needed to develop the definition at the margins.
I think you misunderstand some of the relationships between laws, decisions, and justifications, and you're conflating two separate areas of jurisprudence. The linked real-world example you provide is happening in the employment context, but also in a government context (since it is a public school). But all the examples in your list have nothing to do with employment law and would be purely statutory/regulatory prohibitions. I will attempt to answer broadly enough to cover both domains. Laws and regulations can be challenged as discriminatory The things you have listed under &quot;decency law&quot; would be criminal or regulatory matters. A preliminary question would be whether the laws as written even capture the behaviours you've described. To the extent that they result in discrimination, the laws could be challenged as breaches of s. 15 (right to the equal protection and equal benefit of the law without discrimination) of the Canadian Charter of Rights and Freedoms. There may be other Charter arguments too, if the laws affect expression or life, liberty, or the security of the person. (Public decency / nudity laws are more frequently challenged on grounds of free expression.) Decisions of school boards are subject to the Charter The Charter almost certainly applies to decisions of public school boards and schools. See Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, paras. 39-41. These decisions could be challenged by judicial review (i.e. court review of an administrative decision-maker's decisions) and would be analyzed for reasonableness, including whether the decision strikes a proportionate balance between the Charter right and the statutory objectives (Doré v. Barreau du Québec, 2012 SCC 12). Even if there is an infringement, the government gets a chance to justify it If you're looking for some sort of a &quot;line&quot; it is found in the justification or reasonableness analysis. Where a law or regulation is challenged, and if a breach of s. 15 is established, then the onus is on the government to justify the breach as a reasonable limit as allowed by s. 1 of the Charter. This will depend on the importance of the government objective, whether there is a rational connection between the objective and the law, whether the law is minimally impairing, and whether the impact on the claimant is proportional to the salutary effects of the law. When a court reviews an administrative decision for reasonableness, it is &quot;engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited&quot; (Doré, para. 6). In each of your examples, the judgments would be highly fact-based and it is fruitless to speculate about what the evidence might show. Relevance of association with minors You ask whether it would matter &quot;if the person in question was primarily associating with minors.&quot; This likely would not matter if a law was challenged, because such challenges are about the validity of the law, not the factors that might render its applicability to a particular person to be more or less justified. But if the law itself had the purpose of protecting children, or if the law itself was targetted solely at those associating with minors or those in positions of authority over minors, this would be a factor weighing in favour of justification of the infringing law (Irwin Toy, R. v. Sharpe). Whether the person in question was primarily associating with minors would matter in the context of an administrative decision, because these decisions are case-specific. Some anti-discrimination statutes provide more protections Ontario's Human Rights Code potentially contains even further protections. Section 5 says that every person has a right to equal treatment with respect to employment without discrimination because of sex, gender identity, gender expression, and other enumerated factors. Section 24 provides for exceptions to that right in educational settings (and some others) where what would otherwise be discrimination is actually a bona fide qualification of the employment and if it cannot be accommodated without undue hardship on the employer. These judgments are also highly fact-based and it would be fruitless to speculate about what the evidence might show.
In the United States, the mentally disabled cannot be sentenced to capital punishment. (Atkins v. Virginia 536 U.S. 304 (2002)) Many states treat the display of female breasts differently than the display of male breasts. For example, see Minnesota Statutes 617.292 which deems the "showing of the female breast" to be nudity.
As for the ex post facto question, an ex post facto law is one that makes an act illegal when it was legal at the time of the commission. Let's now look at the clause: (b) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment. What amendment is made in section subsection a? Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e)) is amended by adding at the end the following: “(5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit— “(A) any claim in a civil action brought under section 1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 1591 of that title; “(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18, United States Code; or “(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, United States Code, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.”. This does not make any act illegal. It say "we don't mean by this that...", and does not make any act illegal. The basic definition of the crime is here: §2421A(a) Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both likewise §2421A(a). The bold part is standard language invoking the Commerce Clause, which is the source of federal authority in what would otherwise be a state matter. The italicized part, referring to intent, indicates that the website owner/operator has to have a wrongful intent, so it's not just a penalty against those who own or operate a website for content produced by the users of the site, if those users advertise prostitution or sex trafficking. The First Amendment has a number of limits, for example you are not free to threaten or defraud, or advertise murder for hire, of advertise employment, housing or lodging (etc) discriminatorily (e.g. "Women need not apply" is illegal). The question would be whether the government has a compelling interest in limiting free speech (I think the court would say yes), and is this the narrowest restriction possible that accomplishes that interest (again, yes). So it would probably pass strict scrutiny. The purpose of the act is both to tune up the Communications Decency Act and to extend the Mann Act, which makes certain forms of interstate sex a crime. So, 18 USC 2422 (a)Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both"; (b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. This expands the federal limits on prostitution in a standard way.
Yes, this is legal in many US states, perhaps most. Search for "adult adoption". For instance, here is the procedure in Colorado. Also, another article on the topic. Before the advent of same-sex marriage, this used to be a technique for a same-sex couple to legally formalize their relationship; one partner would adopt the other. Here is a New York Times Magazine article about the practice. Here is another article, from The Atlantic. They even refer to a case in which the parent was younger than the child.
The legal responsibility to support a child arises from &quot;parentage&quot; and not &quot;genetic relatedness&quot;, therefore one of two identical twins will not be assigned such responsibility simply because of genetic relatedness. However, genetic facts can enter into a legal proceeding for support, and can be evidence to establish parentage. In the US, the rules for determining parentage are generally established by the Uniform Parentage Act, instantiated for instance in Washington state RCW Chapter 26.26A. RCW 26.26A.100 spells out the full set of rules: A parent-child relationship is established between an individual and a child if: (1) The individual gives birth to the child, except as otherwise provided in RCW 26.26A.700 through 26.26A.785; (2) There is a presumption under RCW 26.26A.115 of the individual's parentage of the child, unless the presumption is overcome in a judicial proceeding or a valid denial of parentage is made under RCW 26.26A.200 through 26.26A.265; (3) The individual is adjudicated a parent of the child under RCW 26.26A.400 through 26.26A.515; (4) The individual adopts the child; (5) The individual acknowledges parentage of the child under RCW 26.26A.200 through 26.26A.265, unless the acknowledgment is rescinded under RCW 26.26A.235 or successfully challenged under RCW 26.26A.200 through 26.26A.265 or 26.26A.400 through 26.26A.515; (6) The individual's parentage of the child is established under RCW 26.26A.600 through 26.26A.635; or (7) The individual's parentage of the child is established under RCW 26.26A.705 through 26.26A.730. §§300-355 govern the use of genetic tests in determining parentage, according to which genetic test results can be evidence of parentage, but §§600 ff specifically address assisted reproduction and surrogacy agreements – RCW 26.26A.610 for example specifically assigns &quot;parentage&quot; to a person who consents to assisted reproduction by a woman with the intent to be a parent of a child, and under §605, a donor is not a parent of a child conceived by assisted reproduction.