Libby Adler, Gay Priori: A Queer Critical Legal

Studies Approach to Law Reform (2018)

5
MAKING THE DISTRIBUTIVE TURN

Spotting Reform Opportunities

A few years ago, I joined forces with the Poverty Law Clinic at Northeastern
University School of Law, taught by my colleague Professor Jim Rowan, to put
on a training at an LGBTQ_youth center in Boston.The center serves predomi­
nantly homeless and marginally housed youth, largely of color and typically
hailing from the low-income Boston neighborhoods of Dorchester, Roxbury,
and Mattapan.The two of us, along with five law students, trained the staff and
youth at the center on the process for obtaining aid from the Supplemental
Nutrition Assistance Program (SNAP), also known as food stamps.The train­
ing covered how to complete an application, how awards are calculated, what
to do if your application is denied, and other basic matters.We sat together in
a roomy lounge with about a dozen youth, some of whom were transgender
or gender nonconforming and all of whom were familiar with survival on the
street. We began with the first line of the application: name. The youth im­
mediately ran into an obstacle. What ifmy name is not my legal name? What
if my name is not the same as it was on the SSI application Ifiled six months
ago? The application offers the option of"alias:' (Grumbling.) Next line: gen­
der, M or F? (Not grumbling-more lilce extreme irritation.) Farther down
the application, applicants must identify people with whom they live (again,
including name and gender).SNAP wants to know with whom applicants pre­
pare their meals.Some urban LGBTQ_youth are in and out of a parental home,
some couch-sur£ some live in ball houses or similar constellations.1 Housing
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I74 / CHAPTER 4
can be unstable; "family" can be a fluctuating concept; and meals can be hard Prior to the ascent of the Williams Institute, the National LGBT Task
to come by. One of the ways the youth center attracts kids is by having food Force was the movement's closest approximation to a think.-tank.2 The Task
around-there were cheese and crackers, fruit. The application asks about mi­ Force conducted a study of LGBT youth homelessness in 2006, before there
nors (not your children) living with you and about boarders. Many LGBTQ_ were a lot of studies documenting LGBT poverty. Together with the National
street youth sell sex to survive. Sometimes they sell it for cash; sometimes for a Coalition for the Homeless, the Task Force, led by the author Nicholas Ray,
place to sleep. How does one characterize a situation in which an adult houses produced the comprehensive report "Lesbian, Gay, Bisexual and Transgender
a young person in an informal, possibly affectionate, exchange of sex for food? Youth: An Epidemic of Homelessness" (known as the Ray report).3 It detailed
"What are the young person's earnings? How much is her rent? the best available empirical data on LGBT homeless youth, the causes of their
By sitting together in the youth center and listening to the youth react to the homelessness, the risks they face (including substance abuse, mental health
questions on the application we came to appreciate the complexities of low- or risks, sexual health risks, and risks of victimization), the resources available to
no-income LGBTQ_youth navigating what was supposed to be a simple benefits them, and some of the legal landscape against which they struggle to survive.
form. Food stamp application forms do not spring forth fully drafced from the While the nearly two hundred-page document does mention the bar to same­
head of Zeus; government agency regulators drafc them, and they do so within sex marriage-notably, as an obstacle to legal immigration-marriage is a bit
discursive confines of gender identity, sexuality, family, and race. Those applica­ player in the larger scene depicted in the Ray report.
tions and the resulting awards condition the availability of nutrition-to the Discrimination more generally does play a role in the hardship that the
detriment of people whose identities and social ties chafe against the norm. report depicts. Some shelters, especially those administered by faith-based
That experience led us to insight about counseling individual clients and sug­ organizations, have been sites of hostility and even violence rather than sol­
gested some reformist possibilities in as low-profile and rudimentary a site as ace or safety for LGBTQ_ youth. Some legal and human service professionals
an application form. remain oblivious about how to approach the topics of sexuality and gender
identity with their clients or how those features of identity may affect their
clients' interests. And obviously, family rejection, a particularly intimate form
ChangingPriorities of discrimination, plays a causal role in the homelessness of many of the youth.
A growing number of studies document LGBT poverty. The Williams Institute But the Ray report also stresses factors unrelated to discrimination and
at the University of California, Los Angeles, in particular, has been a source cultural competence that contribute to homelessness among LGBT youth and
of fresh and high-quality empirical data on hunger, homelessness, and other to the risks associated with that condition. Some of the factors that show up
incidents of economic marginalization in the LGBT population. in the report are the dearth of funding for programs for homeless youth (in­
One function that these studies perform is to support traditional facets of the cluding shelters, drop-in centers, street outreach, -and transitional living); lack
LGBT equal rights project. They bolster the case for counter-majoritarianism of affordable housing and rising rents brought on by gentrification; scarcity of
by combatting the stereotype of the white, wealthy homosexual exerting opportunities for adequately paying work; the "criminalization of homelessness"
outsized influence on the political system in service of a minority recognition through prohibitions against sleeping in public places, combined with the im­
project (see chapter r). They also provide evidence of the concrete economic pact of criminal records on prospects for obtaining jobs and housing; diffi­
injuries inflicted by employment discrimination and lack of access to marriage. culties obtaining documentation and photo identification that accurately and
The need for antidiscrimination protections as well as for relationship recogni­ uniformly reflect one's name and gender identity, which in turn make it hard to
tion is prominent in the conclusions of many of these studies. get a job; and barriers to accessing gender-appropriate medical screenings and
The studies may also be taken as an indicator of rising consciousness of a gender-affirming health care such as hormone therapy.
broader range of needs in the socially, economically, regionally, and racially di­ The report concludes with policy recommendations, several of which have
verse LGBT population than the mainstream LGBT equal rights movement has nothing whatsoever to do with equal rights or antidiscrimination. For exam­
addressed. Many of the studies highlight wage disparities as well as deficiencies ple, it proposes a reauthorization and increase in federal funding for homeless
in the social welfare net, suggesting the possibility of an expanding agenda. youth programs; it endorses legislation that would empower unaccompanied
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176 I CHAPTER s MAKING THE DISTRIBUTIVE TURN / 177
minors to consent to a wide range of medical services as well as a mandatory The chapter illustrates its method by weaving together two narratives. One
expansion of Medicaid coverage. for youth (up to age twenty-four) who do follows LGBTQ_ youth along a path that begins in their families of origin but
not live with their families or who have aged out of the foster care system; it too often continues with homelessness and a struggle to survive. It examines
urges a broadened definition of homelessness for U.S. Department of.Housing the legal conditions the youth face as they bargain with their parents, the foster
and Urban Development (HUD) programs so that people who live in motels care system, landlords, employers, police, and "johns:' These legal conditions
or sleep on friends' couches would qualify for services; and it calls for an end are disparate-they are not all incidents of discrimination. That is precisely
to the criminal prohibitions against sleeping, sitting, or lying down in pub­ the point. Highlighting obstacles faced by LGBTQ_youth navigating their legal
lic spaces that effectively render homeless people de facto criminals. Finally, environment makes evident that many of the reforms that could provide a real
the Ray report advocates an increase in the minimum wage that would enable benefit to a marginalized constituency are obscure, low profile, and not obvi­
more working people to afford housing. ously connected to one another.
Attacking the problem of LGBT youth homelessness from a wider angle At the same time, the chapter introduces a set of analytical tools drawn from
than an antidiscrimination lens affords yields insights and policy recommen­ American legal realism, a critical intervention into mainstream legal,.thought
dations well beyond those that have dominated the LGBT law reform agenda that began in the late nineteenth century and early twentieth century and
in recent decades. Low-income LGBTQ_people are contending with a vast array steered attention to law's distributive capacities. Methodological insights will
of disadvantageous legal conditions, well beyond those that sound in an equal slowly pour into the mix: the construction of bargaining endowments, the dis­
rights or antidiscrimination key. The slow opening of reformist eyes to a more tinction between rules of permission and rules of prohibition, the significance
expansive range of legal issues that have a considerable and daily impact on and dimensions of enforcement, the availability of official discretion, and the
marginalized members of the LGBTQ_ community is a salutary development, problem of unintended consequences of well-intended laws. As the need arises,
but there is much more to see. we will turn to the legal theory to make visible the legal obstacles that the youth
This chapter pries the angle wider still-busts it open, I hope. It prioritizes face, as well as alternatives that could improve their circumstances.
the distribution of income, housing, food, health, safety, and jobs as it endeav­ By examining, alternatively, a constituency's regular encounters with the
ors to step off of the path of LGBT equal rights discourse. To attend to those law and a set of theoretic tools for understanding and intervening in those en­
priorities, it will examine closely some of the low-profile but very concrete legal counters, the chapter will distill a process for generating fresh possibilities for
conditions that affect the daily lives of marginalized LGBTQ_ subpopulations. law reform that would not be self-evident from within the confines of LGBT
The effort requires a reconceptualization of the relevant constituency. This equal rights discourse. Attention to the legal background and to its distributive
chapter will not present LGBT people as an undifferentiated, rights-bearing effects can enable those who are concerned with economically marginalized
identity group seeking equality. Instead, the chapter examines vulnerable LGBTQ_ constituencies to identify new avenues to reform. Even a seemingly
LGBTQ_ subpopulations seeldng the best possible bargains for themselves minor adjustment to the kinds of legal conditions that are elucidated in this
in a world in which their prospects and decisions are heavily conditioned by chapter could meaningfully alter the position of a vulnerable population.
law. Myriad statutes, regulations, common law doctrines, and everyday routine The chapter concludes by moving beyond LGBTQ_ youth. It profiles other
practices and exercises of legal discretion together compose a legal landscape marginalized LGBTQ. subpopulations and imagines some possible starting
against which a situated constituency must make choices. A small adjustment points for bringing the same method to bear.
in the legal network, even one that is utterly illegible in LGBT equal rights
discourse, has the potential to improve the bargaining position of marginalized
LGBTQ.subpopulations, understood as differentially endowed players operat­ BackgroundRules and Legally ConstructedAlternatives
ing in an imminent legal and economic environment. This perspectival shift We begin with Robert L. Hale. A lawyer and economist, Hale wrote in the first
will fix the spotlight anew on under-examined legal conditions that may be half of the twentieth century, a period of struggle and reform in the industrial
amenable to change. labor market. His most widely read article, "Coercion and Distribution in a

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178 / CHAPTER 5 MAKING THE DISTRIBUTIVE TURN / 179
 who
Supposedly Non-Coercive Sta te:' confronts a dogma adv anced by those but can refu se to do so unless the n on-owner succumb s to some wish of the
e labor m ket: th t lais sez-faire owner's, giving the non-owner two choices. I£ for example, the p roperty in
advocated minima l state int r usion into the wag
ar a

e employm ent market is riddled question is money, the non-owner must abstain from taking any of it or could
is a form of freedo m. Hale illustrated that th
"free" to
with coercion, revealing those who advocated that the market remain be relieved of that duty in exchange for performing labor :
be either disingenuous or naive.
4
was the In the case of labor, what would be the �onsequence of refusal to comply
All eyes, at this time, were on the dazzling spectacle of contract. It with the owner' s terms? It would be either absence of wages, or obedi­
n (s chap­
era of Lochner and Franklin D elano Roosevelt' s court-pac king pl a ee
ence to the terms of some other employer. If the worker has no money of
erfered
ter I), when the U.S. Supreme Court w as striking down laws that int his own, the threat of any pa rticular employer to withhold any p�rticular
t be p of genu­
with "freedom of contract:' The Court imagined contrac t o a s ace
amount of money would be effective in securing the worker' s obedience
d negotiate their b argains on
ine individual autonomy within which men coul in p roportion to the difficulty with which other employers can be in­
occupied
the basis of free will. The law that governed this ennobled endeavor duced to furnish a "j ob." . . .If the non-owner works for anyone, it is fo r
the foreg round. the purpose of warding off the threat of at least one owner of money to
nt of
Hale' s chief contribution was to draw attention away from the pagea withhold that money from him (with the help of the law).Suppose, now,
minim um
contrac t to background rules. In the absence of regulations such as a the worker were to refuse to yield to the coercion of any employer, but
loyee a re
wage or maximum hour rule, it may seem that an employer and emp were to choose instead to remain under the legal duty to abstain from
h w ed, how­
"free" to negotiate whatever contractual terms they choose. Hal e s o
any use of any of the money which anyone owns. He must eat. While
ever, that p roperty r ules operating unnoticed in
the bac kground limit the range
there is no l aw against eating in the abstract, there is a law which forbids
of choices available to ne gotiating par ties.Hi s crucial
insight into law's role in
ndi- him to eat any of the food which actually exists in the community-and
the construct ion of alternatives p rovides a new way to understand the co that is the l�w of prop erty.. ..There is no l aw to compel [the owners of
tions LGBTQ_young p eople face. food] to part with their food for nothing.Unless, then, the non-owner
p-
Hale inquired, "What is the government doing when it 'protects a pro can produce his own food, the law compels him to starve if he h as no
erty right'?...[I] t is forcing the non-owner to desis
t from handling [the thing
5 wages, and compels him to go without wages unless he obey s the behests
owned] unless the owner consents :' The non-o
wner, in other words, has a le­
to of some employer. It is the law that coerces him into wage-work under
gally enforceable duty to abstain from infringing on the owner's "sole right penalty of starvat ion-unless he can produce food.Can he? Here again,
n remove th [n n-own er 's]
enjoy the thing owned:' Of course, "The owner ca
e o
that there is no law to prevent the prod uction of food in the abstract; but in
legal duty" if he chooses, but he is li kely to do so only on some condition ever y settled country there is a law which for bids him to cultivate any
is to his advantage :
particular piece of ground unless he happens to be an owner. Thi s ag ain
The non-owner may be willing to obey the will of the owner, provided is the law of p roperty?

that the obedi ence is not in itself mo re unpleasant than the conse­ Hale's analytical triumph was in refuting the convention that ba rgaining fo r a
ay­
quences to be avoided.Such obedience may tal<e the trivial form of p contrac t without gove rnmentally imposed terms (e.g., a minimum wage) meant
ing five cents for legal permission t o eat a particular bag of peanuts, or it that the parties were "free" -that is, not subject to coercion.Coercion h ere means
may take the more significant form of working for the owner at disagree­ something less than brute force and is more like having one's choices power­
able t oil for a slight wage. In either case the cond
uct is motivated , not
fully influenced by legal conditions. One chooses from among alternatives that
by any desire to do the act in question, but by a desire to escape a more have been constructed in pa r t by background leg al rules.A wor ker is coerced
disagreeable alternative. 6 into working fo r an owner/ employer on undesirable t erms by facing alterna­
The construction ofalternatives is cr ucia l to Hale's argument: Property law vests tives that are worse. Similarly, the owner is "counter-coerced" into paying fo r
a "right" in an owner o f proper ty and a "duty" in the non-owner to avoid in­ l abor if he requires it to con duc t his business. The range and desirability of al­
terference with that right. The owner may relieve the non-owner of his d uty ternatives available to each party determine the rel ative b argaining power each
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r&o / CHAPTER , MAKING THE DISTRIBUTIVE TURN / 181
brings to negotiating the employment contract. Each "coerces" the other by
pressing him with demands that are only incrementally preferable to his other Permission and Prohibition
options.8 The lives of LGBTQ_youth begin under a legal regime that concedes tremen­
It is crucial that these background rules are neither "neutral" nor "natu­ dous deference to their parents to raise them in accordance with parental val­
ral:' Realist property law professors instruct their students that property is "a ues. This deferential posture has constitutional roots. Parental autonomy, an
bundle of rights:' The phrase fragments property ownership into constituent incident offamily privacy, was elevated to the level of constitutional principle
strands rather than conc�ptualizing it as a natural whole. For example, if you in the early twentieth century, in the middle of the Lochner era and around the
own a plot of land, do you own the sky above it? May airplanes pass through same time that Hale and his contemporaries were critiquing the allegedly
the airspace above your parcel unhindered by your wish that they would not? free market to which that Supreme Court was devoted. The court decided a
Can you build on your land as high as you like, even if you block your neigh­ pair of cases on the heels of World War I that established what came to be
bor's view of the ocean? Can you dump your trash into the creek that runs known as the "fundamental right to parent:' 10 In each case, a state law forbade
through your land and continues into the neighboring parcel? Ifyou lease your a choice that parents might make with respect to their children's education-to
parcel t;,a tenant, can you enter the premises at will? Can you use your parcel send them to parochial rather than public school and to seek instruction in a
to open an all-night tavern? A noxious chemical plant? A porn shop? Can you foreign language, respectively. In each case, the Supreme Court struck down the
build a high-rise condominium complex on your eroding beachfrom? Do your challenged law as an unconstitutional restraint on parental liberty under
neighbors have an_ easement that entitles them to cross your land to get to the the due process clause "to direct the upbringing and education of children:'11
road? In each of these cases, there may be a limit-whether contained in a zon­ The twin cases are often cited as antecedents to the modem right to privacy.12
ing ordinance, in the common law, or in a deed-on the right to enjoy or the The parenting right is not, however, without limits. California made news
right to exclude, both of which are critical features of property ownership. in 2012 when it enacted a statute outlawing the use of "conversion therapy"
Courts, legislatures, agencies, and zoning boards answer questions regularly on minors-a psychotherapeutic practice discredited in all but cultural con­
about the exact ambit of particular instances of property ownership or about servative circles-that is alleged to relieve patients of"unwanted" homosexual
which rights one holds in the "bundle. " These choices do much of the work of desire or gender deviance. (Presumably when minors are involved, "unwanted"
shaping a parcel's market value. The rules or restrictions may look like givens, refers to the wishes of the parents.) The law was challenged in federal court
but someone decided them, allocating an advantage somewhere and a disad­ on constitutional grounds-specifically, that it infringed on parental rights as
vantage somewhere else. In this way, background conditions are distributive.9 well as on the speech rights of the therapists. The U.S. Court of Appeals for the
Employment contracts, Hale showed, result in part from distributions that Ninth Circuit upheld the law, finding that parental rights were not unlimited
appear to be ex ante but are actually products of property law and the· range and that the therapy was professional conduct rather than speech.13 Since then,
of alternatives into which it coerces employer and employee. The analytical New Jersey, Oregon, Illinois, and the District of Columbia have enacted simi­
method Hale used to illustrate the importance of background rules to com­ lar bans (New Jersey's has been upheld by the Court of Appeals for the Third
prehending what may seem to be the outcomes of freely niade choices, has ap­ Circuit); more than a dozen states have introduced legislation; and President
plicability beyond the employment contract. In what follows, LGBTQ_youth Barack Obama, responding to an online petition, expressed his disapproval
will be understood as bargain-seekers, navigating legal conditions as they of the practice and called for its end. A jury in New Jersey found that a con­
negotiate the terms of their lives with other-competing-bargain-seekers, version therapy center's promises of heterosexuality were fraudulent in viola­
including family members, employers, landlords, police, and others. This will tion of consumer protection law and awarded damages to plaintiffs who had
influence where and how they live, whether they are safe, what they have to undergone the treatment. 14 Federal legislation was introduced in 2015 (but never
eat, as well as what kind of sex they have and with whom. At each tum, it will passed) that would have approached the issue similarly, treating it as consumer
pay to be mindful of the legally constructed alternatives the youth have at their fraud and granting enforcement authority to the Federal Trade Commission.15
disposal. Oldahoma briefly considered a bill that would protect the practice of conver­
sion therapy, but it did not get far. LGBT advocacy organizations are, of course,
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182. / CHAPTER 5 MAKING THE DISTRIBUTIVE TURN / 183
deeply engaged in the controversy and working toward the eradication of the mythically private in its natural state, or"free" of the state's presence.The state
faux-therapeutic practice. may"intervene" to protect a weaker party-for example, by prohibiting abuse.
Outlawing conversion therapy is a big win for kids who might otherwise be Olsen illustrated, however, that the family is never really free of the state's pres­
exposed to it, but what about gay and trans kids who are regularly subjected to ence.To begin with, to know precisely what sphere it is supposed to stay out
lower-profile practices that discourage or even punish them for their emerging of, the state must define the contours of the family and insulate the family from
identities? It is difficult to imagine a federal court decision coming along and outsiders: "Imagine ...if the state stood idly by while ... neighbors prepared
curtailing homo- or transphobic parenting per se. to take [a] child on their vacation against the wishes of the parents, or if the
The real effects of the conflict between the parenting right and the protec­ child decided to go live with his fourth grade teacher. Once the state under­
tion of gay and trans kids are felt in routine decisions by lower courts and ad­ takes to prevent such third-party action, the state must make numerous policy
ministrative agencies and even in parenting practices in which law appears not choices, such as what human grouping constitutes a family and what happens
to tread.If a parenting approach rises to a level that would be considered child if parents disagree:' 18
abuse or neglect, then the child welfare system could take an interest.Actively Furthermore, the concept of"nonintervention" in the family lacks the ca­
discouraging homosexuality or gender nonconformity through ordinary pacity to determine a logical outcome: "Suppose a good-natured, intelligent
discipline or religious instruction, however, has not been classified as abuse or sovereign were to ascend to the throne with a commitment to end state inter­
neglect and is generally permitted.This legal condition has tremendous impli­ vention in the family....Is she intervening if she makes divorces djfficult, or
cations for LGBTQ_youth whose parents employ permissible practices to pro­ intervening if she makes them easy? Does it constitute intervention or nonin­
hibit or condemn the youths' emerging identities. tervention to grant divorce at all? If a child runs away from her parents to go
The significance of this condition may, however, go under-recognized live with her aunt, would nonintervention require the sovereign to grant or to
because-unlike bans on conversion therapy-the absence of a rule against deny the parents' request for legal assistance to reclaim their child?"19 Olsen
homo- or transphobic parental discipline or religious instruction is permissive. concludes,"Because the state is deeply implicated in the formation and func­
As Duncan Kennedy has written, "We don't think of ground rules of permis­ tioning of families, it is nonsense to talk about whether the state does or does
sion as ground rules at all, by contrast with ground.rules of prohibition.... not intervene in the family.Neither 'intervention' nor 'nonintervention' is an
[T ]he legal order permits as well as prohibits, in the simple-minded sense that accurate description of any particular set of policies, and the terms obscure
it could prohibit:'16 W hen the law permits, it may seem absent, but just like rather than clarify the policy choices that society malces."20
prohibitions, permissions help to establish the range of alternatives available Permissions appear at first blush to be noninterventionist, or pre-regulatory,
to bargainers. but one way to reveal their regulatory nature is to examine them in conjunction
The presence of law in permitting as well as prohibiting was a key insight of with accompanying prohibitions.In the I98os, when Olsen wrote her seminal
the American legal realists. For Hale, the absence of regulatory prohibitions articles, for example, opponents of domestic violence reforms "argue[d] that
was mythologized as "free:' Political opponents still debate the extent to which the state should not interfere to prevent wife abuse." 21 The family, they ar­
the state should intervene in the market for fairness, with laissez-faire enthu­ gued, should remain private, and the state should maintain a nonintervention­
siasts arguing for minimal governmental intrusion and reformers advocating ist stance.But what about wives who kill their battering husbands? Should.they
greater regulation.But Hale showed that regardless of how many (or how few) be subject to criminal prosecution?22 Would an unswervingly nonintervention­
regulatory prohibitions were enacted, the market could never be"free:' ist approach permit both the husband's beating of his wife and the wife's killing
Law professor Frances E. Olsen, a feminist and devotee of critical legal of her husband? If the state permits the former but criminalizes the latter, is the
studies (a "fem-crit"), adapted Hale's analysis of laissez-faire to the family.In first instance fairly understood as nonintervention? When these possibilities
her widely cited article "The Family and the Market" and her follow-up piece, are considered together, it becomes clear that a policy of"nonintervention" in
"The Myth of State Intervention in the Family;' Olsen drew an analogy between spousal abuse presses wives into a tight range of alternatives while putting the
laissez-faire and the allegedly private family.17 Like the market, the family is power of the state behind husbands.Similarly, if the law tolerates homo- and

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184 / CHAPTER 5 MAKING THE DISTRIBUTIVE TURN / I8S
transphobic parenting but treats running away and chronic disobedience as an iors are acceptable comes into view. The law's acquiescence to some parenting
offense,23 the law can hardly be said not to be intervening. It is putting the practices and not others forms the background of the parent-child relationship
power of the state behind the parents. and the range of options available to each-in other words, their respective
One of the reforms to domestic violence law instituted in many U.S. juris­ bargaining positions.
dictions since the .time of Olsen's writing is mandatory arrest-that is, police
must make an arrest on every domestic violence call.24 One consequence of
this policy has been increased arrests of trans youth who are in violent conflict Bargaining
with their parents. In the typical scenario, a neighbor hears fighting and calls Bargaining does not refer strictly to financial matters. Family members con­
the police. When the police arrive on the scene, uncertain who the aggressor is, stantly bargain with one another over a vast array of issues. Can Johnny ex­
they arrest the person who looks fishy: the awkward young person in the midst periment with mascara? Can Sally be seen in public holding hands with her
of a gender transition.25 This effectively puts the power of the police behind the girlfriend? Law is one factor in the bargaining environment in which parents
parents, with potentially severe consequences for transgender youth, including and ldds understand their power to determine the answers to these questions.
a criminal record and all of its ramifications (discussed later). The more parenting behaviors the law permits, the greater the bargaining en­
Another way to express Olsen's critique of "nonintervention" is that the dowment parents enjoy.
state cannot be "neutral" toward the family: "For example, if a court were to In 1979, a decade afi:er California first adopted a no-fault divorce regime
allow a child to recover in tort damages from her parents for confining her to and as the no-fault model swept through the rest of the nation, two law pro­
her room as punishment, most people would consider this a serious state intru­ fessors, Robert H. Mnookin and Lewis Kornhauser, published "Bargaining
sion in the family, even though the parents' act would have been false imprison­ in the Shadow of the Law;' an article that became essential reading in family
ment had it been committed by a third party. The notion of noninterference law and beyond. They observed what few would guess from watching televi­
in the family depends· upon some shared conception of proper family roles, sion legal dramas but lawyers know very well: Most lawsuits are not resolved
and 'neutrality' can be understood only with reference to such roles:' 26 In this in courtrooms. Most divorces, for example, are settled over a conference table
scenario, the parent is permitted to confine the child to her room-that is, no and finalized with a judicial stamp of approval that is ofi:en all but pro forma.
legal cause of action arises. Put in the language of Hale, the child has no "right" Mnookin and Kornhauser offered a theory about what influences the bargains
against being sent to her room, and the parents have no corresponding "duty'' struck at those tables: settling property distribution, child custody and visita­
to abstain from sending her there. tion, alimony, and child support.27
Parents are not, of course, free to do anything at all in the name of disci­ To understand Mnookin and Kornhauser's argument, it helps to take a visual
pline; they may not, for example, confine a child to her room for days without cue from the title. Imagine a conference room in a private law office, far from
food or water. That would be deemed abusive or neglectful and would be pro­ any courthouse. Even there, as the parties negotiate the terms of their divorce,
hibited. Once these situations are viewed in juxtaposition, the state's presence the law casts its shadow. As the parties negotiate, the thought of what could
comes into relief: It is the entity responsible for drawing the line between ordi­ happen if they do not come to a resolution outside the courtroom looms: "The
nary discipline and abuse, permitting conduct it deems to belong in the former outcome that the law will impose if no agreement is reached gives each parent
category. certain bargaining chips-an endowment of sorrs:'28
It is obvious that the state "intervenes" in the parent-child relationship To illustrate these endowments, Mnookin and Kornhauser discuss custody
when it statutorily prohibits parents from subjecting their children to conver­ rules. An old rule known as the "tender years doctrine" provided that in the
sion therapy, but it also "intervenes" when it merely permits parents to threaten case of young children, courts were to favor mothers over fathers as sole physi­
their children with eternal damnation or to punish them for exhibiting homo­ cal cust.odians. In cases in which both mother and father wished for a share of
sexual desire or for dressing in attire thought to be inconsistent with their the custodial privilege, the mother began with a bargaining advantage: If the
assigned birth sex. Once prohibition and permission are understood as a set, couple could not reach an agreement and resorted to judicial resolution, the
the state's role in determining which homo- or transphobic parenting behav- mother could usually be confident that she would prevail regarding custody.
77
r86 / CHAPTER 5 MAKING THE DISTRIBUTIVE TURN / 187
In negotiations, therefore, the mother did not have to agree to share custody. gay adoption any longer. The parenting rights oftransgender people are less set­
She might, however, decide to give up all or some custody if she got some­ tled.LGBT advocacy organizations have litigated a number of cases seeking to
thing in return.If the husband agreed to grant her more property than a court eradicate the use of sexual orientation and gender identity as formal obstacles
would be likely to order, for example, she would have an incentive to grant him to adoption. Cultural conservative adversaries ofLGBT adoption, meanwhile,
more time with the children. The tender years doctrine, therefore, endowed have attempted to exempt religious social service organizations from having
the mother with a chip that she could use at the bargaining table. W hat a court to place children with same-sex couples, even where s.tate law protects those
would have done was important even in those cases that barely involved a court. couples from discrimination. The exemptions have been dubbed comcience
The parties "bargained in the shadow" of their expectations of how the law clauses by their proponents.This clash between LGBT equality and religious
would be applied ifthey wound up before a judge. freedom is a classic conflict of rights (see chapter r).
Mnookin and Kornhauser wrote their article in the I97os, by which time A route from a punitive homo- or transphobic home into the arms ofLGBT
the tender years doctrine was already largely outdated. The ostensibly gender­ caretakers would represent an alternative for youth, as would an assuredly
neutral "primary caretalcer" presumption, however, continued to favor mothers LGBT-positive environment provided by straight foster or adoptive parents.
over fathers in the majority of custody determinations for the next couple of Youth in the foster care system do not, however, exert control over their place­
decades. The current trend is toward shared custody. From a human services ment. They risk winding up in the homes of foster or adoptive parents whose
perspective, there are psychological advantages in most cases to children main­ attitudes are more homo- or transphobic than those of their original· parents.
taining strong ties with both parents after a divorce. From the perspective of a To alleviate that risk would require grappling with another policy problem:
legal realist, however, another consequence ought to be considered. The trend whether homophobia and transphobia ought to constitute a bar to foster and
in favor of shared custody withdraws a key bargaining chip from mothers, adoptive parenting.
who are vulnerable to losing out not only on the custody side, but also on the Foster parents and petitioners for adoption do not benefit from the consti­
property or support side of a negotiated settlement because they have less with tutional pedigree of biological parenting and therefore do not enjoy parental
which to bargain. rights.29 Fostering and adoption are public acts; petitioners entering those
W hat would improve the bargaining position ofLGBTQ_youth in relation processes voluntarily submit themselves to state investigation and oversight.30
to their parents? Many face a choice among self-abnegation, enduring whatever States typically require foster parents or people who seek to adopt through the
discipline their parents decide to mete out, running away, or suicide. To help, child welfare system to express a willingness to cultivate a positive racial
we would need to expand the array of alternatives available to them. One pos­ identity in the child, just as international adoption agencies often seek affir­
sibility is a more aggressive child welfare system. mation of an applicant parent's willingness to create positive encounters for
a foreign-born adopted child with the culture of his or her national heritage.
It is less common, however, to find a rule like the one in Massachusetts that
Enforcement provides that to qualify for licensure as a foster/pre-adoptive parent, a per­
If the child welfare system were to protect LGBTQ.kids with greater zeal, re­ son "must demonstrate ...the ability ...to promote the physical, mental, and
sponding to a wider array of homo- and transphobic parenting practices, some emotional well-being of a child placed in his or her care, including supporting
parents would curb their injurious behavior. Some would not, resulting in and respecring a child's sexual orientation or gender identity:'31
more removal of children. Would this improve the lot ofLGBTQ.kids? Could This n;le is obviously designed to protect LGBTQ_ foster youth from
the child welfare system actually provide a viable alternative for children of homo- or transphobic prospective foster or adoptive parents. The degree of
homo- or transphobic parents? enfo rcement that one can expect of such regulatory protections, however, will
The major advocacy organizations see LGBT fostering and adoption as a prove as significan,t as the regulation itself The legal realist and Supreme Court
matter ofequal rights not only for the LGBT adults who wish to adopt but also Justice Oliver Wendell Holmes Jr.famously wrote that the study oflaw is about
for LGBTQ.kids who would benefit from having LGBT parents as particularly learning to malce predictions: "The prophecies of what the courts will do i.p.
empathetic role models.Domestically, no jurisdiction maintains a total ban on fact, and nothing more pretentious, are what I mean by the law:'32 Courts and
78
188 / CHAPTER 5 MAKING THE DISTRIBUTIVE TURN / 189
other legal authorities do not always do what they say they will do. If social ser­ sexual orientation and gender variance, as they already do for financial and emo­
vice officials and juvenile courts do not regularly mandate that would-be parents tional security and-in Massachusetts-for attitudes regarding corporal pun-
"demonstrate" their "ability" to support a gay or trans identity, the regulation - ishment. The Massachusetts regulation requiring foster and adoptive parents
will offer youth little protection. A report released in 2,015 by the Urban Institute to be willing and able to affirm a child's sexual orientation or gender identity
suggests that, while the child welfare agency in New York City maintains poli­ rises and falls on the willingness of every social worker in the commonwealth
cies designed to protect LGBTQ_youth ("to respect preferred pronouns, pro­ to actually vet all prospective parents and of every juvenile court to insist on it
vide gender-appropriate placement and clothing, and maintain confidentiality when it reviews the agency's work.
of youths' gender identity and sexual orientation"), youth reported a lack of Consistent enforcement, however, may run counter to the interests of the
conformity with such policies, including placement in hostile foster homes. 33 agency, which is hardly looking for obstacles to placement. In fact, federal law
Law professor Marc Galanter refers to the phenomenon of rule changes creates incentives for adoption with rewards to states. Adoptions of children
made at a high level actually effectuating change at the "field level" as penetra­ older than nine result in higher rewards.35 The social service agency, a "repeat
tion.34 Despite the formal hierarchy, rule changes made in the higher echelons player" in Galanter's schema, is in a good position to know the extent of juve­
do not always make an impact on ground-level practice. Galanter raises the nile courts' insistence on compliance with the regulation. The youth, of course,
issue of penetration as part of an effort to distinguish the capacities of two are not likely to have the wherewithal even to be aware of the regulation, much
different kinds of litigants: "repeat players" and "one-shotters." Repeat players less to ensure its enforcement, and there is no reason to think that their lawyers
are regular users of forums for resolving legal disputes; examples include pros­ will reliably attend to the issue, particularly when it comes to preadolescent
ecutors and insurance companies. One-shotters are more lilcely to be ordinary clients.
individuals facing a one-time legal problem. Numerous advantages accrue to Moreover, even if there were universal vetting for the "demonstrate[d] .. .
the repeat players, from easy access to legal counsel to the ability to play a "long ability" to support a non-normative sexual or gender identity, that could eas­
game" that is attentive to the evolution of rules. One-shotters are unlikely to ily give rise to a legal challenge after a few conservative religious couples were
be invested in what happens after the outcome of their individual cases. To a deemed ineligible to become foster or adoptive parents. A coexisting regula­
repeat player, however, any single case may be of less importance than a rule tion in Massachusetts prohibits the denial of eligibility to foster or adopt based
change that, over the course of many cases, could provide an advantage. Repeat on religion,36 setting up a conflict within the regulatory scheme. Even with­
players may settle or not depending on their long-term interests. Moreover, out this regulation one could imagine a maximally enforced exclusion against
repeat players are better positioned to predict which rule changes are valuable homo- and transphobic applicants facing a challenge under the Free Exercise
to them (or, alternatively, pose a risk to their interests) due to the likelihood Clause of the First Amendment. The devotion to fostering and adoption preva­
that a rule change willpenetrate-that is, actually make a difference in practice. lent among evangelical Christians makes such a clash especially plausible.
Social service professionals may easily undermine a regulation that governs Nonenforcement of a rule protecting LGBTQ_youth and the expectations
them in theory by inconsistently ascertaining at the case level that prospec­ that nonenforcement engenders are effectively an intervention on behalf of
tive foster or adoptive parents are indeed prepared to support non-normative would-be parents. The right to foster or adopt a child while maintaining one's
sexual and gender identities. If juvenile courts that oversee foster care cases and homo- or transphobic attitudes requires neither a copy of the rule nor a moral
finalize adoptions do not hold social service agencies accountable, they are in compass; rather, it requires the capacity to anticipate official response to one's
effect reversing a rule over which they have no formal authority. actions. As Holmes urged, to acquire "a businesslike understanding of " the law,
Even if social workers reliably enforce the regulation in cases of adolescents, one should approach it "as a bad man, who cares only for the material conse­
an infant or young child placed in a foster or adoptive home before sexual ori­ quences which . .. [studying the law] enables him to predict, not as a good one,
entation or gender identity becomes perceptible may run into trouble down who finds his reasons for conduct ...in the vaguer sanctions of conscience;'37
the road if the parents were not vetted. Preventing those less foreseeable clashes If prospective parents who hold an antigay / anti-trans bias are routinely permit­
would require a high level of enforcement: The child welfare agency would ted to foster and adopt notwithstanding the apparent conflict between their
have to vet all prospective foster and adoptive parents for their attitudes on attitudes and regulatory policy as written, such would-be parents would have
79
ICJO / CHAPTER 5 MAKING THE DISTRIBUTIVE TURN / I9I
all of the information they need to proceed as they wish. Navigating the law is the moniker "criminalization of homelessness:' because the barest act of sur­
an exercise in"avoid[ing] an encounter with the public force"38-not an exer­ vival in public space, resting, subjects a person to criminal sanction.
cise in compliance with the law's purpose or letter. The expectation of enforce­ For some youth, arrest may come as a relief in that it brings with it free
ment is crucial to a law's efficacy. meals and a cot, but it is not all perks. In many states, for example, juveniles
The leeway that the law invisibly grants to prospective foster and adoptive are routinely shackled.44 Moreover, depending on the reason that a police of­
parents to express and enforce their disapproval of homosexuality or gender ficer takes a minor into custody, the.first preference is typically to release the
nonconformity is part of the background against which original parents and child to his or her parents or foster parents.45 Youth fleeing abusive hom�s are
their children are situated in the struggle over youths' sexual and gender iden­ not likely to find that placement viable. A young person may also be placed in
tity. In the absence of any cause for reassurance that the child welfare system of­ a jail or juvenile lockup facility. There, a number of specific rules may deter­
fers a better alternative for ldds suffering at the hands of homo- or transphobic mine the degree of tolerability, and ldds who have been in lockup before or
original parents, kids have one less alternative to which they might turn. have heard about it from peers will be familiar with the details. For example,
Predictably, the homo- and transphobia left undisturbed by constitutional Massachusetts recently began assigning juveniles to facilities based on gender
and child welfare norms result in elevated rates of running away by LGBTQ. identity (rather than assigned birth sex),46 but that is unusual: Many youth are
youth. Some youth are forced out, as well. Religious parents, unsurprisingly, placed in settings inconsistent with their gender identities. In addition, many
are more. likely than nonreligious parents to ldck their gay or trans kids out jurisdictions mandate strip searches upon admission to a youth detention fa­
of the house.39 Even as the country witnesses increasing visibility and toler­ cility. Obviously, for any young person who has already endured her share of
ance for homosexuality, the average age of"coming out" has dropped, and the trauma, this can be painful, but for youth grappling with gender transition,
number of youth being kicked out by their parents has increased.40 The result it can be especially humiliating. If a young person is moved from one facility
is continuing extreme overrepresentation of LGBTQ.youth in the population to another, she could undergo the.search at each entry. For many youth, the
of homeless minors-as high as 40 percent.41 According to a report from 2.013 streets are preferable.
co-written by more than a dozen advocacy organizations, 44 percent of LGBT­ Youth shelters are available to homeless youth in some places. A decent shel­
identified homeless youth identify as black and 2.6 percent as Latino.42 These ter may provide a young person living on the street with a place to sleep, shower,
young people predict that being at home with their original families or taking eat, and obtain counseling or referrals to a range of services, including medical
their chances with the child welfare system are worse than life on the streets. care. Some shelters have earned appalling reputations for discriminatory be­
havior, religious moralizing, and even abuse of youth. The Ray report discusses
youth shelters extensively, singling out for criticism Covenant House in New
Bargaining in the Street York City, which is operated by a faith-based organization. Stories of antigay
Once LGBTQ_youth are living on the street as runaways or"throwaways;' they and anti-trans discrimination and harassment at Covenant House were once
face a fresh array of conditions. Like Hale's non-owner, they must eat; they also legion, although its leadership has since met with LGBT advocates in an effort
must sleep. to become more hospitable. The Ray report highlights the good work of Urban
Peak in Denver and Ozone House in Ann Arbor, both of which have dedicated
WHERE TO SLEEP? themselves to providing positive shelter environments to LGBTQ.youth.
Many homeless youth sleep outside, literally under bridges, in parks, on subway Short-term shelters typically rely on federal grant: funding, the terms of
trains, on benches, on heat grates, and in doorways. In a growing number of which are governed by statute and regulation. The Senate defeated S. 2.62., the
locales, however, sleeping in public places, including on public transportation, Runaway and Homeless Youth and Trafficking Prevention Act.47 This biparti­
is illegal and could subject a person to arrest. The sit-lie ordinance in San Fran­ san legislation would have reauthorized the Runaway and Homeless Youth Act
cisco is_ part of that trend (see the introduction). Parks often simply close­ (RHYA), which expired in 2.013.48 The RHYA funded so-called basic centerpro­
at dusk or at an appointed hour-rendering nighttime presence an offense, grams, which provide temporary shelter for minors for up to twenty-one days
whether sleeping or waking. 43 These ldnds of laws have collectively earned (the period would have been increased to thirty days by the proposed legislation)
80 MAKING THE DISTRIBUTIVE TURN / 193
192 / CHAPTER 5
and emergency a ssistance such as food, clothing, and access to health care. The in his right mind enter into a lease with a minor-a lease to which the landlord
same law also dedicated funding to street outreach programs and transitional is bound but that the tenant may void?
living programs.49 Some landlords may be willing to rent to a minor without a lease; most low­
The U.S. Department of Health and Human Services (HHS) administered income tenants do not h ave the protections of a lease anyway. Tenants with
the RHYA. According to HHS regulations, funding decisions under the stat­ le ases are difficult and costly to evict. Landlords must have "cause" (generally
ute were based on a number of factors, including "plans for meeting the best a violation of the terms of the lease such as nonpayment of rent). Many there­
interests of the youth involving, when possible, both the youth and the family. fore prefer to offer what is called a "tenancy at will;' meaning that either the
These must include contacts with the families. This contact should be made landlord or the tenant can terminate the tenancy at any time without a reason.
within 24 hours, but must be made no more than 72 hours following the time of In most jurisdictions, landlords not bound by a lease must still send a proper
the youth's admission into the runaway and homeless youth project. The plans notice and obtain a court judgment to evict a tenant- at-will, which does take
must also include assuring the youth's safe return home or to local government some time. The more knowledgeable about that process a tenant-at-will is, the
officials or law enforcement officials and indicate efforts to provide appropri­ more empowered he is to delay his eviction, although in most cases he probably
0
ate afternative living arrangements:' 5 Some youth do not consider returning cannot prevent it.
home a viabkalternative and would be unwilling to remain in the shelter long Given th,e constricted range of places to sleep for youth who h ave run away
enough to trigger the parental notification requirement. The shelters are de­ or been kicked out of their homes, whatever a landlord offers will probably
signed to be temporary, in any event, and cannot serve as a long-term housing h ave to do. Other terms of the rental agreement (price, repairs, pets, and so on)
option. will be negotiated under the same bargaining conditions.
In some places, temporary shelter is available for womeri fleeing intimate Let us return now to the bracketed question of how to pay the rent. How
partner violence. Shelters designed for adult women, however, typically do not can a minor obtain an income?
accept minors who are not with their mothers. Many are also notoriously ex­
clusive when it comes to transwomen, regardless of age. IN SEARCH OF A LEGAL INCOME STREAM:
In New York City, youth who test positive for HIV are eligible for a range THE FORMAL ECONOMY
of services that are unav ailable to HIV-negative people, including substantial Can a minor borrow money to pay for her housing and other necessities? The
housing assistance and free medical care. As a result, there have been reports dis affirmance doctrine affects not only leases but also just about any effort by a
for years of homeless people "bug chasing"-that is, intentionally seeking out minor to obtain an extension of credit. No commercial lender, such as a credit
infection-to become eligible for a subsidized apartment.51 card company or bank, would knowingly permit a minor to take out a line of
What about entering into an ordinary apartment lease? Setting aside for credit without an adult co-signer because the minor can disafE.rm the debt.52
the moment the question of how to procure money for rent, young people face As a result, a minor would not be able to secure a car loan, or gain use of a
a legal hurdle in trying to enter a le ase or any other contract. Minors are credit card to respond to emergencies or to manage a la rge purchase, such as
not entirely lacking in contractual capacity, but they are effectively limited by a refrigerator.
a common law doctrine called thepower ofdisaffirmance. This doctrine permits In the adult context, the significance of full contractual autonomy and the
minors to void their contracts unilaterally for any reason or no reason. The capacity to bind oneself to a promise of performance can hardly be overstated
power resides exclusively with the minor; an adult with whom a minor has in Anglo-American law. It is generally regarded as a right-leaning value, which
entered a contract may not void the contract on the grounds that the other competes with a left-leaning value of protecting weaker parties from the dan­
party is a minor. In some U.S. jurisdictions, the power stays with the person gers of bargaining autonomy. For example, should borrowers of subprime
into adulthood with regard to any contracts entered into while still a minor, mortgages have been more cautious and face foreclosure if they are unable to
and in some jurisdictions even the fact that the minor falsely represented her­ pay, or did more informed and powerful lenders prey on them, entitling them
self as an adult is no bar to her exercise of the power. Why would any landlord to protection against loss of their homes? Is exorbitant credit card debt the

81
194 / CHAPTER S
MAKING THE DISTRIBUTIVE TURN / ICJ<;
responsibility of careless spenders who have not exercised their contractual au­ themselves unable to manage. The risk is compounded for LGBTQ..kids, who
tonomy judiciously, or is that debt the product of exploitative banks eager to are overrepresented not only among the homeless but also in the foster care
lure people of modest means into such a hole that they never have the chance system.53 A stunningly high number of youth who come through that system
to diminish their principal balances? The prior framings in each pair are argu­ are victims of identity theft, probably because their names and Social Security
ments from the right, while the latter echo left-leaning Senator Elizabeth Warren numbers have been in the hands of so many people.54 Thieves open credit card
(D-MA). and utility accounts in the names of foster kids and then leave the accounts de­
In the case of minors, however, even rightist legal thinkers agree that deny­ linquent so that by the time the youth reach the age of majority, their credit
ing paternalistic protection against misspent bargaining autonomy is unjusti­ histories are already in ruins. While technically they should be able to disaf­
fied. The competence of the parties to a contract is an essential ingredient to fum debts incurred before age eighteen, repairing a credit history is costly
its legitimacy. The law does not treat a person who has not yet attained the age and time-consuming and may be a more onerous bureaucratic task than most
ofmaturity as it does a mentally competent adult. Incompetence and infancy, in young people emerging from foster care are prepared to navigate. If they were
the law's charming terminology, undermine the general principle that binds a fully responsible for their debts even as minors, the challenge of repairing that
person to perform his end of bargains to which he agreed. history would be made even more daunting.
Is this protective consensus a good one, however, for homeless youth? Limits Enabling young people to accrue debt, of course, is not our main objective;
on youths' capacity to enter contracts are designed to safeguard those who are we are looking for access to any legal means of self-support. By what methods
not mentally equipped to exercise it, but it also erects hurdles to self-support, could a minor obtain an income stream?
and some of those hurdles do not disappear even after the young person has Child sµpport law requires parents to support their children even when
reached eighteen. The inability to gradually develop a positive credit history those children are not in their physical custody. This includes circumstances
may mean that even a newly minted adult faces obstacles to obtaining a lease such as divorce, where physical custody may be divided between parents or
or a loan. rest entirely with one parent. A residential parent or guardian may receive
Where the power of disaffirmance presents youth with a legal disability, support on the child's behalf If the family receives public assistance, the state
however, emancipation provides an alternative. Emancipation is a status de­ reimburses itself for those expenditures from child support collected. Child
clared by a court after a minor, his parents, or his representative petition for support law also requires parents of children in the foster care system to pay
it. The law governing this status varies considerably from state to state, but in support into state coffers to reimburse the state for the support of the child.
general, an emancipated minor gains many of the rights and responsibilities of (Foster parents receive a small allowance from the state for providing care.) De­
adulthood. Not every privilege of adulthood comes with emancipation-not, pendent minors, however, are not themselves eligible payees-that is, they may
for example, the right to drink alcohol or the right to vote. Still, the usual litany not receive child support on their own behalf even if they live apart from their
of acquired rights includes full contractual capacity and the right to man­ parents or guardians.55 That rule cuts off one avenue to youths' self-support.
age one's assets, along with the right to sue (and be sued) and the right to What other routes are there to accessing a stream of income?.Could a homeless
make one's own medical decisions. While standards governing emancipation gay or trans young person do what Hale's non-owner does: work at "disagree­
are not uniform (e.g., the age at which a minor is eligible varies from state to able roil" to pay for her necessities? The law erects a number of obstacles.
state), judges are generally less than freewheeling in doling out emancipation For starters, youth who are not living with their parents may not have
declarations-and with good reason. Emancipation means permanently giving documentation that establishes who or how old they are. Employers need to
up the right to be talcen back in or supported by one's parents. Moreover, once see ID to comply with Social Security and other requirements, so the lack of
one is vested with contractual autonomy, the power of disaffirmance evapo­ ID impedes access to wage work. Moreover, as law professor Dean Spade has
rates forever. The minor must be prepared to face fully the consequences of his described, for transgender people of any age, identification that consistently
bargains. reflects one's name and gender may be difficult to obtain, Different ID-issuing
The responsibilities of contractual autonomy are great and have serious and agencies (e.g., motor vehicle registries, the State Department, the Social Security
long-lasting consequences that sometimes even fully competent adults find Administration) vary widely in their policies regarding gender reclassification
82
196 I CHAPTER s MAKING THE DISTRIBUTIVE TURN / Ta'7
 so that the same person may carry a driver's license identifying a male and a most vulnerable people in the country have for self-support. A legal realist
passport identifying a female or may present a driver's license identifying him analysis of child labor law would steer our attention toward those effects.
as male at the time of hire, only.to have the Social Security Administration This was a key point in Karl Llewellyn's classic article ''A Realistic Juris­
send a letter to the employer indicating that the gender in the hiring paperwork prudence-The Next Step" (1930).62 Llewellyn picked up on Holmes's admoni­
does not match the gender associated with the person's Social Security num­ tion regarding prediction and tried to draw attention away from the "words on
ber.6 5 This creates real problems (ranging from outing and discrimination to the statute books" or even their underlying purposes, and toward what actual
violence) not only in obtaining employment but also in applying for benefits. practices result-"on the level of isness and not of oughtness:'63 A contract, for
Minors, meanwhile, may have no identification at all, maldng job prospects example, is thought to give each party a right to the other's performance. One
even dimmer.Some employers run credit checks to assess the character of job really "ought" to perform one's voluntarily undertaken contractual duties: "It
applicants, which puts former foster youth who have been subjected to iden­ is a heresy when [the British jurist Sir Edward] Coke or Holmes spealcs of a
tity theft at a disadvantage even into adulthood. (In Massachusetts, a bill was man having liberty under the law to perform his· contract, or pay damages, at
proposed in 2,016 that would have made that practice illegal, but the legislature his option."64 In reality, if a party to a contract would rather pay damages than
did not act on it.) 75 perform his obligation, nothing stops him from electing to breach the contract
Beyond the ID problem, the law restricts minors' ability to support them­ and pay the damages instead.
selves through wage work in a number of ways.An exception to federal mini­
It would likewise be a heresy to argue that ...the right could rather more
mum wage requirements applies to workers younger than twenty during their
accurately be phrased somewhat as follows: if the other party does not
first ninety days of employment; employers need only pay them an hourly wage
perform as agreed, you can sue, and ifyou have a fair lawyer, and nothing
of $4.2-5.58 Proponents urge that this "opportunity wage" creates incentives to
goes wrong with the witnesses or the jury, and you give up four or five
hire young people, but it also seems to be premised on the assumption that the
days of time and some ten to thirty percent of the proceeds, and wait tw:o
pay is not for self-support.
to twenty months, you will probably get a judgment for a sum consider­
Federal law also generally prohibits employing a person younger than four­
ably less than what the performance would have been worth-which,
teen (with a few exceptions, such as babysitting and delivering newspapers).95
if the other party is solvent and has not secreted his assets, you can in
It further imposes limits on the number of hours a person younger than sixteen
further due course collect with six percent interest for delay.65
may work-for example, a fifteen-year-old may work no more than eighteen
· hours per week while school is in session (even if she is not attending school By shifting from ought to is, we can see that while the existence of a contract
because she lives on the street).60 Exemptions to some of these rules apply where should enjoin the parties to perform their promises, the law in effect gives them
minors work for their parents, but that will not help our constituency.Federal the option to perform or be liable for damages. No matter how ironclad a con­
law also imposes prohibitions on employing minors in jobs that involve driv­ tract may be, the option not to perform one's obligation is always available.
ing and jobs performed in hazardous conditions.61 State laws vary in the ex­ What the contract really does is create alternatives for an obligated party.
tent to which they prohibit people younger than twenty-one to serve alcohol, "The question;'Llewellyn urged, "is how, and how much, and in what direc­
with some permitting it in restaurants but not bars and others prohibiting it tion, do the accepted rule [the ought] and practice [the is] diverge? ...You can­
altogether. not generalize on this, without investigation:'66 Llewellyn was proposing a shift
The legal obstacles to wage work in the formal economy for minors and in focus from what the contract says a party should do to an investigation of the
young adults are substantial. A number of these barriers to work were erected actual effects of a contract, including the choices it establishes, the law govern­
with child welfare in mind. Child labor and compulsory schooling reforms ing its enforcement, judicial willingness to enforce, and the resultant conduct
were advanced during the Industrial Revolution in part by children's advocates. of the parties.
Few among us would wish to return to the days before these reforms.Still, one Llewellyn's expansion of the Holmesian kernel forms the basis of what is
of the effects of these reforms has been to eliminate options that some of the now referred to in legal theory as consequentialism, a stance from which one

83
I98 / CHAPTER S MAKING THE DISTRIBUTIVE TURN / I99
views the desirability of some law (contractual or otherwise): What will be its offense in many locales. While absolute bans run into First Amendment ob­
consequences once we account for the behavior of the relevant decision makers stacles, aggressive panhandling or panhandling in certain places (such as within
and actors ?67 This is to be distinguished from assessing a law for the good or a perimeter around ATMs or on traffic medians) is increasingly prohibited. To
ill intentions of its proponents or for the law's symbolic value or logical consis­ circumvent the free speech issue, some localities have attacked panhandling by
tency.with an overarching set of principles.68 forbidding passersby from giving anything to panhandlers rather than prohib­
The policy makers who gave us child labor restrictions, along with those iting the panhandling request itsel£
who promulgated a child support rule establishing a limited range of eligible Finally, some homeless youth engage in criminal activity, including drug
payees, had largely beneficent purposes in mind. These laws serve the interests dealing, robbing people, or shoplifting, thereby subjecting themselves to the
of the vast majority of children-those who reside at home with a parent or possibility of arrest. And a high percentage of LGBTQ_ homeless minors and
young adults, as has now been compendiously documented, trade sex for what
guardian, free of abuse and adequately supported until they develop the skills
necessary to live independently. they need to survive.72 African American and Latino/a youths are vastly over­
Still, the consequences of these well-intended laws radically restrict the abil­ represented within this population.73
ity of homeless youth to support themselves. Framed as an ought, this should According to one study, between a quarter and half of homeless youth
inure to the objective of parents maintaining their children at home until they engage in sex work during their period of homelessness.74 LGBT-especially
develop into self-sufficient adults, but with our population, that is not the is. T-youth are statistically more likely than straight ldds to sell sex, but straight
Instead, the laws conditioning parenting practices combined with the laws kids (including boys) do it, too. Some hustle or trick in swift and transient
conditioning youth self-support structure survival alternatives for youth. The encounters, while others exchange sex for food and a warm place to sleep in the
real consequence of these restrictions on youth is to push them into the infor­ context of a longer-term, sometimes affectionate, relationship. Legal rules asso­
mal, or underground, economy. ciated with sexual exchange form a complex background againsr-which youth
bargain with their customers to meet their basic needs. The array of rules, the
IN SEARCH OF AN INCOME STREAM CONTINUED: degree to which they are enforced, and the extent of predictability they afford
THE INFORMAL ECONOMY all contribute to structuring the bargaining environment.
What does one do if one cannot find wage work? As Duncan Kennedy ex­ As discussed in chapter 3, prostitution-free zones can force sex workers (of
plained, "In our system, there are well-established alternatives to wage labor, any age) to more remote (and therefore more dangerous) areas of a city, and
and each has a legal structure that affects how available and desirable it is:'69 the use of condoms as evidence of prostitution can create disincentives for sex
For example, working in the "gig economy" -that is, engaging in a string of workers to carry a supply. In Canada it was illegal before 20I4 to solicit, which
short-term contracts or freelance jobs, often via an Internet platform such as put street sex workers at risk of arrest as they hung in car windows, negotiating
TaskRabbit or Uber-is one alternative to wage work. Other "examples in­ terms and assessing their safety with prospective customers. By criminalizing
clude welfare; criminal activity; independent petty commerce, from the corner solicitation, Canada effectively rushed street sex workers into cars, disabling a
store to the street vendor; the status of franchisee; independent professional key self-protection mechanism.75 It is no longer criminal to negotiate the sale of
activity, from the therapist to the real estate broker working on commission, sex, but its purchase remains illegal. This strategy takes its cue from the "Swedish
to the 'consultant'; and providing household services in a marriage, or equiva­ Model;' according to which customers are treated as criminals, but sex workers
lent form, in exchange for supporC:'70 Most of these options are unrealistic for are understood to be victims of exploitation. This approach offers lessons about
homeless young people for legal reasons (e.g., limits on contractual capacity to the construction of a bargaining relationship in which sex workers seek both
secure loans and insurance) and for reasons of education and training. Many to maximize their income and protect themselves from violence. Sex workers
homeless LGBTQ_young people therefore turn to the informal economy. living under a regime that criminalizes their customer base report that it pushes
Some, for example, engage in under-the-table but otherwise noncriminal the phenomenon underground and impedes their safety.76 In the United
enterprises, such as braiding hair, babysitting, or sewing.71 Others panhandle. States, the FBI's decision to raid online escort services such as Rentboy.com
Panhandling, like other incidents of homelessness, is a criminal or ticketing impaired the bargaining position of some sex workers. When it was active, the
84 MAKING THE DISTRIBUTIVE TURN / 20I
200 / CHAPTER 5
 orded erce" the buyer as well as the se ller of sex, although this is n ot to assert that their
se t of male sex workers
to raise their rates and aff 7 bargaining power is equal.
bled a sub ety .7 The
website ena nts ab out thei r s af
ity to mak e deliberate assessme Youth on the street, whether or not they engag e in the sex trade, must rou­
them the opp ormn ag ainst such web
platforms probably
fl e nfo rcement resources tinely interact with the p olice, and that r elationship, too, is one of bargain­
pushing them in the direc-
chann el ing o aw
f vi o l ence a gainst sex worker s by ing that is structured in part by law. How deferentially must the youth behave
incr eases the ri sk o

tion ofstreet hustling. e ri sk becomi ng

toward the police ? How great is the pressure to grant the ·p olice sexual favors
n C o nn o r h as explained
, youth in the U.S. sex trad or to act as informants ?
As Brenda tates have enacted
about halfo f the s
th rimi nal j ustice system, b ut r As Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock have written, a high
ave been arrested fo
cau g h t in e c
ert minors who h
Saf e Harb o r pr ovisi ons that div are deg ree of"discretionary policing" characterizes the enforcement of "q uality of
so-called sion as child welf
y p ro cee ding s to s tate supervi
prostitution from delin q u enc life offenses i ncluding 'lewd conduct: 'public indecency; and 'loitering with
new laws is that you
th should be treated
8 The concept underlying these the intent to solicit : "80 Police campaigns against homeles s young people who
cases.7
th an as criminals .
That sounds well intended,
it a ti on ra th er s pend time in pu blic sp aces are often designed to accommodate the needs of
as victims ofexplo not b e en­
y th subj ected to this
diver sionar y approach may gentrification and respond to complaints from more establi shed mem bers of
y f th e ou alty
but man York, fo r example, the pen
o
b o ut it s co nse q uences . In New an urban communiry.81 The discretion vested in p oli ce to enforce laws ag ainst
tirely sanguine a e supervision
n is p t o ninety days in
j ail, while a minor under th loitering, p ublic urination, and "obscen ity;' as well as ag ain st incident s of
for p r c;i stitu ti o u ity until he
an appro priate facil
w e lfa r e sy s tem m ay be det ained in homelessness such as sleeping on sidewalks, endows the police with immense
of the child e criminal penalty
would
ch longer than th
ch es ei ght ee n, which could be mu p ower. Ifa rigorous judicial check were in place, the youth would be in a stron­
rea
have been.7
9
e factors ger p osition not only to resist p olice abuse but also to rein in the latitude of
ers, law is one of th
k er s bar g ain with custom police di scretion. But to the extent that p olice operate with l ittle sense that
When youth s ex wor
array of additional
e to them, b ut an
tur es th e al ternatives availabl nsive their discretion to enforce minor offenses will be subj ect to any accountabilit y
that st ruc
ability of comprehe
ng fr o m th e w eather to the avail (e.g., for profiling or harassment), youth are r adica lly disempowered in their
conditions-rangi oney, fo od, and a p
lace
eless youth need m
di al c ar e -al so factor in. Hom p ys ical relations with police.
m e c onal h
ch imposes an additi
m y be a ddi c t ed to drugs, whi Enhancing that dis parity in bargaining p ower even more are the r amifica­
to sleep. Som e a
ans it ion may
bur den. Those youth w
ho are making a gender t r tions ofh aving a criminal record. For star ters, a criminal record can interfere
and fin anc ial or s ilicone
ncluding hor mones
p a y fo r asso ciated expenses, i with future employment prospects, introducing another steep obstacle to suc­
require funds to
me may be s av­
can be dangerous if
purchased on the st reet). So cess in the formal economy for many LGBTQ_people of any age. While st ates
(e ith er o f w hi ch n is will
er v ention. Just h o w des
perate any one young perso often limit information about criminal records that is available to employers
ing fo r a s urgi c al int ces she
ar t icular sexual servi
g to accept for sex, the p
affect the price she is willin and where she is
willi ng to g o (cars ? (e.g., blocking information about juvenile offenses or arrests that did not result
t p er fo r m, th e use ofcondoms, in convictions), agencies that maintain criminal records sometimes send unau­
is willi n g o

homes ?) with a cus

tomer. efits of peer
thorized recipients too much informat ion or incorrect information. Moreover,
g a g ed in the sex t ra
de, however, re port the ben criminal re cord sheets may be difficult for a person who does not work in the
y th en
Man y ou
t of a " st reet sen se"
that enable them to mini­
he d e v e l o pm en field of criminal j ustice to read and under stand, and a prospe ctive employer
networks and t e y empower
Th resources are endo
wment s of sorts in that th c an mistakenly read an arrest as a conviction. "Banning the box" would elimi ­
miz e d ang ers . ese
er s ofsex face
on. Moreove r, b uy
y g ot i ate pric e, locat ion, and so nate inquiries about an applicant's criminal record on j ob applications, and
youth as th e ne
ing in unwanted
rang e o f choices that may
include forgoing sex, invest the effort to bring about that reform h as had some limited success. In Novem­
lim it ed using a high­
aying more fo r sex
a
al i ons t o obtain sex for free, p ber 2015, President O bama directed feder al agencies to eliminate the box from
inter per son relat n sex.
e or work to ob tai
t veli n g farth er away from hom
end escort ser vice
,o r ra j ob applications, and a handful of s tates have done the same for p ublic and
nction, public hum
iliation, and being
als fa ce th e risk of legal sa p rivate employers.
Custom ers o
and other conditio
ns "co-
r l o v er if th e y a re found out. L egal
left by a spouse o
85 MAKING THE DISTRIBUTIVE TURN / 20:,

202 / CHAPTER S
 Criminal records can also interfere with access to public housing and certain We shoµld engage not only prohibitions on homo- and transphobic par­
public assistance benefits, and the problem ofmisreading exists in this context, enting (such as the spreading prohibition against subjecting youth to conver­
too.82 Moreover, judges are sometimes reluctant to a grant a name change to sion therapy) but also those untold permissions that empower parents in the
someone pursuing a gender transition if that person is saddled with a criminal struggle over their children's sexual and gender identity. We should reconsider
record. Possible consequences for immigration include denial of a green card rules and practices that denyLGBTQ_youth any recourse in the face ofordinary
and even deportation. discipline.
This snowball effect ofarrest slants powerfully against those who are vulner­ More parents might think twice about forcing their children to live outside
able to even minor criminal charges. Police discretion along with the subsistence the home if we were to modify the child support payee rule so that minors
needs ofhomeless youth, compounded by the severe consequences ofa criminal could receive their own support directly. This would put a powerful enforce­
record, radically weight the bargaining relationship in favor of the police. This ment apparatus-including wage garnishment-at the disposal of a young
may affect everything from how polite the youth must be in the face of harass­ person.84 For those youth who.found themselves on the street despite the dis­
ing treatment to having to perform sexual favors to avoid arrest. The heightened incentive provided to parents by the expanded rule, the change would provide
vulnerability ofpeople ofcolor to arrest is widely recognized. The elevated police a source ofincome.
attention to lesbians is less well lmown but has been documented.83 High rates On the street, neither full contractual autonomy nor the protections oflegal
of incarceration among transgender people, as well as the personal testimony of infancy are ideal for young people trying to gain access to apartments or credit.
individual transwomen, especially of color, attest to extreme over-policing Getting rid of the power of disaffirmance would have benefits but also come
of that population. with real risks. It would enable accrual of a positive rental or credit history,
which in turn would further enhance access to housing and credit. However,
it would also leave youth vulnerable to all of the consequences of ill-advised
Changing the Landscape bargains. While the responsibilities ofadulthood and the disabilities ofinfancy
Homeless LGBTQ_youth are ensnared in a web of conditions that create a very present difficulties, intermediate or partial adjustments to the status of minors
constricted range of legal and extralegal options for survival. Some of these could make a real impact. An exception to the power ofdisaffirmance for apart­
rules affect adults and straight youth, as well, while some allocate effects more ment leases, not unlike those that apply in the context ofeducational loans, for
often or more severely to youth living on the margins of sexuality or gender example, would help some young people. Minors could be held fully liable for
and to youth of color. To see these.legal conditions requires a cognitive shift: lines ofcredit capped at a low sum to prevent debt spirals. It seems entirely pos­
Rather than understandingLGBTQyouth as an identity group in need of equal sible to require free and accelerated credit history repair for young adults. We
rights, we have to envision them as vulnerable subpopulations navigating a should push for exceptions to existing law governing minors' access to credit
multitude oflegal and nonlegal conditions. They may contend with parents, and to wage labor so that youth can pay for necessities without being forced
foster parents, landlords, sex purchasers, police, and others, all of whom are into the underground economy.
endowed with bargaining strengths and weaknesses. Law does a lot ofthe work The status of emancipation could be reformed to grant some contractual
of constructing those bargaining relationships and therefore is at least partially rights while protecting against some ofthe losses. In the arena ofmedical decision­
responsible for the distribution ofincome, safety, housing, and nutrition. Stat­ making, the "mature minor doctrine" enables minors who can establish their
utes, regulations, common law doctrines, and exercises of discretion together maturity to acquire some control over medical treatment without input from
constitute a complex landscape against which LGBTQ_youth fight to survive. their parents or guardians. A similar doctrine could be instituted for limited
Broad latitude for parents, coupled with the lack of any guarantee that the financial purposes. Emancipation could also be reformed so that an emancipated
child welfare system offers a better alternative, results in high rates ofhomeless­ minor does not instantly lose the right to child support.
ness amongLGBTQ_youth. The life on the street that awaits these young people Youth shelters should not only be fully funded but should be relieved of the
after running away or being kicked out is an experience of hunger and violence. uniform obligation to notify parents of a child's whereabouts when the child is
What should law reformers who are conc�rned about these kids do? opposed. T ime periods for shelter stays could be extended and a modest amount
86
204 / CHAPTER 5 MAKING THE DISTRIBUTIVE TURN / 205
of rent could be charged after a certain length of time to allow minors to de­
velop a rental history.
If sex work were decriminalized, including on web platforms, sex workers
(minors and adults) could engage in that enterprise more safely.Decriminal­
ization of homelessness (including panhandling, sitting down on sidewalks,
sleeping on park benches, and so on) and "ban the box" should be considered
LGBTQ_ issues. Highly discretionary petty offenses such as loitering and lewd­
ness should be amended to reduce police discretion.
These "rule ticks," as Janet Halley dubs them, may seem like small potatoes
compared with the big news of constitutional protection for same-sex mar­
riage, 85 but they would intervene in the very immediate conditions facing
LGBTQ_young people as they negotiate with parents, landlords, the police, and
so on.Once we turn our attention to these legal conditions and their distribu­
tive effects, we can develop more and more reformist ideas that would shift the
bargaining weight in LGBTQ_young people's favor and secure for some of them
an income, a safe place to sleep, and something to eat.
W hatever reforms are implemented will not be without costs; existing law
is in place to serve sound policy purposes.The question is the extent to which
some cost might be bearable in exchange for an expected benefit-and our
best predictions may not pan out or may have effects we did not anticipate.We
should be prepared, therefore, to assess and reassess the consequences of any
reforms we undertalce.

87
206 / CHAPTER 5