Jeannie Suk Gersen

An op-ed by Jeannie Suk Gersen. During Kevin Steele’s successful election campaign for District Attorney of Montgomery County, Pennsylvania, in 2015, he attacked the longtime incumbent, Bruce Castor, for having “refused to prosecute Bill Cosby” and promised “tough sentences for sexual predators.” After taking office, District Attorney Steele immediately moved on his promise to vindicate Bill Cosby’s victims, arresting and charging Cosby for the sexual assault of Andrea Constand, one of nearly sixty women to have accused Cosby of sexual assault over several decades. But Cosby’s criminal trial, on three counts of indecent assault for the 2004 incident, ended in a mistrial due to a hung jury, after six days of deliberations produced neither conviction nor acquittal.

An op-ed by Jeannie Suk Gersen. Nearly a century ago, Oliver Wendell Holmes, Jr., famously suggested, in defense of free speech, that “every idea is an incitement.” But are words themselves violence? The striking acceptance of the notion that some speech can constitute violence—and therefore has no place on a university campus—has coincided, this year, with the eruption of actual physical violence over speech.

An op-ed by Jeannie Suk Gersen. With a one-sentence order last week, the Supreme Court dashed hopes of a big transgender-rights decision this term. The Court was supposed to review the case of Gavin Grimm, a transgender teen-age boy who sued the Gloucester County School Board for the right to use the boys’ bathroom and won, in the Fourth Circuit. But the basis of the Fourth Circuit’s decision was the Obama Administration’s view that Title IX, the 1972 law that prohibits schools that receive federal funding from discriminating “on the basis of sex,” requires schools to treat transgender students in a way consistent with their gender identity.

An op-ed by Jeannie Suk Gersen. Last week, the Trump Administration did exactly what many dreaded regarding transgender students. The Justice Department and the Education Department issued a letter that withdrew the Obama Administration’s letters directing schools to allow transgender students to use bathrooms consistent with their gender identity (rather than genitalia, chromosomes, or sex assigned at birth). The same day, the Office of the Solicitor General sent a letter asking the Supreme Court to take note of this about-face in the government’s position on what Title IX requires of schools. The Supreme Court was set to resolve two questions this term in the case of the Gloucester County School Board against Gavin Grimm, a transgender teen-age boy: first, whether the federal government’s view on transgender bathroom use was entitled to deference by courts; and, second, whether the government’s interpretation was correct.

The University of British Columbia plans to introduce a standalone sexual-assault and misconduct policy and establish a centre to support assault survivors, the latest Canadian postsecondary institution to respond to persistent calls for the education sector to address such incidents on campus...But UBC's experience developing the new guidelines also shows the challenges of designing a policy with more ambitious goals than those of a criminal proceeding, from identifying repeat offenders to educating the campus community. Getting it right is like balancing on a "knife's edge," wrote Harvard law professor Jeannie Suk Gersen in an essay in The New Yorker about the experience of American universities in this area.

First came the fashion police. Now come the fashion lawyers. While the fashion police playfully expose the dos and don’ts of style, fashion lawyers draft contracts and provide legal advice behind the curtains, far from the spotlight and glamour of the red carpet. Still, the job can be exhilarating. Students who took “Fashion Law Lab,” a nine-day course offered at Harvard Law School (HLS) during the January term, caught a glimpse of the allure of the fashion industry, and most couldn’t get enough of it...“It was mentally exerting but rewarding,” said J.D. student Keith Thomas. “It was … so different from other courses at HLS. It was so practically focused, and the skills we learned are transferable to other industries outside fashion. It was fantastic.” That was exactly what the instructors, Jeannie Suk Gersen, the John H. Watson Jr. Professor for Law, and Nana Sarian, general counsel of Stella McCartney, had in mind when they thought up the experiential course.

Dear Betsy: Even students who’ve been accused of sexual assault deserve the chance to defend themselves. Betsy DeVos is President-elect Donald Trump’s pick for secretary of education...In an information vacuum, all sexual assault cases look the same. As Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen declared in the Chronicle of Higher Education earlier this month, “In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms.”

...you’d expect the Obama Department of Education to be doing whatever it could to nurture, support, and protect colleges and universities. But instead, it seems to be acting almost as if it were controlled by . . . a cabal of its enemies. For example, in the area of Title IX enforcement Obama’s Department of Education has taken a statute that simply reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” and turned it into an Orwellian nightmare of what Harvard law professors Jacob Gersen and Jeannie Suk call bureaucratic sex creep.”

An op-ed by Jacob Gersen and Jeannie Suk Gersen. Often with the best of intentions, the federal government in the past six years has presided over the creation of a sex bureaucracy that says its aim is to reduce sexual violence but that is actually enforcing a contested vision of sexual morality and disciplining those who deviate from it. Many observers assume that today’s important campus sexual-assault debate is concerned with forcible or coerced sex, or with taking advantage of someone who is too drunk to be able to consent. But the definition of sexual assault has stretched enormously, in ways that would have been unimaginable just a few years ago. Indeed, the concept of sexual misconduct has grown to include most voluntary and willing sexual conduct.

In recent weeks, Casey Affleck’s performance in Manchester by the Sea has gone from acclaimed awards contender to near-Oscar lock. The soft-spoken, scraggly-bearded actor has taken the stage at a number of ceremonies already—the Critics’ Choice Awards, the Gotham Awards, the New York Film Critics Circle—ahead of what’s looking like an increasingly likely victory at the Academy Awards. The surge of publicity has brought renewed attention to two sexual harassment lawsuits filed against him in 2010 that alleged he had manhandled women, was verbally abusive, and generally behaved outrageously on the set of his film I’m Still Here, which he directed. Both cases were mediated and eventually settled out of court for undisclosed sums. ...“People carelessly conflate rape with the entire range of sexual misconduct that can occur,” the Harvard Law School professor Jeannie Suk Gersen told the Times. “It’s all repulsive. But both morally and legally there are distinctions—degrees of behavior. Parker was accused of something far more serious.”

This was supposed to be the awards season when Hollywood, having been scorched by consecutive #OscarsSoWhite years, avoided tumult over race. Not so. ... Jeannie Suk Gersen, a professor at Harvard Law School who teaches criminal law and sexual harassment law, said the reason could be far simpler: Mr. Parker’s case was criminal and Mr. Affleck’s was civil. “People carelessly conflate rape with the entire range of sexual misconduct that can occur,” Ms. Suk Gersen said. “It’s all repulsive. But both morally and legally there are distinctions — degrees of behavior. Parker was accused of something far more serious.” (Ms. Suk Gersen is particularly attuned to Mr. Parker’s case, having contributed an article in September to The New Yorker, “The Public Trial of Nate Parker.”)

An op-ed by Jeannie Suk Gersen. President Obama’s mantra for the past year has been that Congress is broken, so the executive will act. And now, as the stage is set for the new executive, it is dawning on Democrats that living by that sword may mean dying by it. A President can unilaterally revoke prior Presidents’ unilateral actions, and we may soon see just that, in response to Obama’s moves on immigration, climate change, and gun control. Among the myriad areas subject to upheaval is the President’s administration of Title IX, the 1972 law that prohibits schools that receive federal funding from discriminating “on the basis of sex.” The civil-rights statute has been the primary federal guarantee of equality in educational opportunity for male and female students.

...What is an adequate solution for the dark and persistent threat of sexual violence on campus? And what should colleges and universities expect from a very different administration, headed by a president who has himself been accused of sexual assault?...But the Obama approach has its critics. Harvard Law professors Jeannie Suk and Jacob Gersen say it resulted in a “sex bureaucracy,” placing more and more ordinary behavior under federal oversight. And feminist legal theorist Janet Halley, their colleague who has contested the OCR's process in the Harvard Law Review, describes the “Dear Colleague” letter as a case of “administrative overreach.” Halley, who has participated in sexual-violence cases at Harvard, has had concerns about their fairness from the beginning. She took pains to say that she cares deeply about sexual assault, but she worries about an overcorrection, prompted by OCR, that moves universities from ignoring the rights of accusers to trampling on those of the accused.

A Northeastern University student has sued the school and several administrators, alleging they failed to prevent her rape on campus by another student, and that the school failed to protect her rights. ... Harvard Law School Professor Jeannie Suk Gersen said Title IX can cut both ways, as it’s been used around the country in the last year both by alleged victims and by those accused of sexual assault.

An article by Jeannie Suk Gersen: In a strange triumph for feminists, the election that may give us our first female President has brought extraordinary attention to women’s sexual victimization. The election turned in Hillary Clinton’s favor, perhaps decisively, when footage emerged of Donald Trump bragging about assaulting women.

An op-ed by Jeannie Suk Gersen. Last year, in holding that states must allow gay and straight couples alike to enter civil marriage, the Supreme Court extolled the “transcendent importance of marriage,” its beauty, nobility, and dignity. That was the fulsome culmination of the decades that led to marriage equality. But, just as two people must enter marriage with the law’s blessing, they need the law in order to exit it. As legal marriage is now universally available, so, too, is legal divorce. Marking the start of a period in which divorce may well get more attention is the new HBO series “Divorce,” which began airing this month. Sarah Jessica Parker, the show’s star and executive producer, has explained that her desire to tell the story of an ordinary suburban couple’s divorce was motivated by fascination with the inside of a marriage. The show, written by Sharon Horgan, of “Catastrophe,” understands that how people divorce can reveal more about a marriage than anything one could see before its unravelling.

A Q&A with Jeannie Suk Gersen...I have taught a course at Harvard on Performing Arts and Law, with my friend Damian Woetzel, Director of the Vail Dance Festival and former Principal Dancer of the New York City Ballet. We were both students at the School of American Ballet, though of course he continued dancing and I did not. For years I watched his incredible performances at Lincoln Center – I thought he was a god. When I was teaching law students with Damian, I had to pinch myself. The course actually had a lot of law, and also involved Damian teaching the students the steps of certain dances. I remember Judge Michael Boudin ofthe First Circuit, who’s a ballet fan, came to class one day, and I loved seeing him join in to dance the beginning of Balanchine’s Serenade. That has been one of my favorite teaching experiences.

The transgender debate has never been confined to public restrooms. And a recent federal lawsuit filed against the Department of Health and Human Services by five states and two faith-based organizations shows how far-reaching the government's interpretation of the word "sex" could be. The lawsuit filed Aug. 23 alleges that a newly adopted regulation intended to prevent discrimination based on sex in federally funded health care programs "would force doctors to ignore science and their medical judgment and perform gender transition procedures on children."...The dispute over the latest HHS mandate is latest example of how the government's interpretation of Title IX could go beyond the scope of federally funded education programs, legal experts say. "Any government action that depends on interpretation of the word 'sex' in any federal statute, regulation, or policy could be affected by the Department of Education's interpretation of 'sex' in Title IX," Harvard Law School professor Jeannie Suk Gersen told Deseret News. "Even if one agency’s interpretation is not binding on other agencies for the purposes of other statutes, it may still be influential on other agencies."