Transgender Criminal Justice: Ethical and Constitutional Perspectives

People identifying as transgender or gender nonconforming (TGNC) face increased discrimination, harassment, and victimization compared to cisgender individuals (whose experienced gender matches their sex assigned at birth). Despite these increased discriminatory experiences, TGNC populations report hesitance to seek assistance from the criminal justice system due to concerns regarding revictimization and criminalization. TGNC individuals face an increased risk for interacting with the criminal justice system as a result of homelessness, socioeconomic status, and historical criminalization of their identities. Many TGNC individuals who experience incarceration report not only discrimination and verbal harassment but also physical and sexual abuse at the hands of criminal justice employees and other inmates. Thus, the incarceration experiences of TGNC individuals differ substantially from those of cisgender individuals. The negative implications of this differential are further exacerbated by a noteworthy lack of structured protocols regarding treatment of TGNC inmates. Existing policies violate the Eighth Amendment to the U.S. Constitution. The present article examines these arguments in relation to the American Psychological Association’s ethics code and relevant specialty guidelines and proposes ways that psychologists working with these institutions could apply their knowledge and skills to reduce human rights violations.     

Psychological Illness in Presidents: A Medical Advisory Commission and Disability Determinations

Although the 25th Amendment is intended to provide for instances of presidential disability, critics claim that it is impractical since it requires vice presidents and cabinet members to move overtly against the president—which they are unlikely to do. Also, they warn that medical information about the president is likely to be concealed. To overcome these problems, they recommend that a Medical Advisory Commission be established at the outset of every presidential administration to examine the president annually and then provide formal medical input so that the vice president and cabinet would be "compelled" to act in the presence of medically determined "inability," whether physiological or psychological. This paper argues, however, that such a proposal is badly flawed and quite unworkable, particularly in the case of psychological illness where accurate diagnosis typically depends on long-term, continuous doctor-patient interaction rather than through sporadic and superficial interchange. It concludes that less draconian measures in implementing the Amendment are far more sensible, such as those proposed by the Working Group on Presidential Disability which are discussed here.     

In re Edna MF: Case Law Confusion in Surrogate Decision Making

I review the recent case of Edna Folz, a 73 year-old woman who was suffering through the end stages of very advanced Alzheimer's dementia when her case was adjudicated by the Wisconsin Supreme Court. I consider this case as an example of how courts are increasingly misinterpreting the ethical and legal decision-making standards known as substituted judgment and best interests and thereby threatening individuals' treatment decision-making rights as developed by other courts over the past two decades and creating serious roadblocks to health-care providers' ability to render appropriate patient care. The Wisconsin Supreme Court held that Edna's legal guardian could not authorize withdrawal of Edna's treatment, ruling that as a matter of law, if an incompetent person is not in a persistent vegetative state, it is not in his or her best interests for life-sustaining treatment to be withdrawn unless (s)he has executed an advance directive or other statement clearly indicating his or her desires.     

Articles of Faith: Freedom of Expression and Religious Freedom in Contemporary Multiculture

ABSTRACT

This article examines the relationship between freedom of religion and freedom of speech and expression within contemporary multicultural liberal democracies. These two fundamental human rights have increasingly been seen, in public and political discourse, in terms of tension if not outright opposition, a view reinforced by the Charlie Hebdo killings in January 2015. And yet in every human rights charter they are proximate to one another. This essay argues that this adjacency is not coincidental, that it has a history and that, in illuminating this history, it is possible to explore how the contemporary framing of these two rights as being in opposition has come about. Looking back to the framing of the First Amendment of the US Constitution, the essay offers an historical perspective that, in turn, facilitates a reappraisal and re-evaluation of these two liberties that is the necessary, albeit insufficient, predicate to the task of addressing the problematic of multicultural ‘crisis' in the contemporary liberal democracies of Western Europe, North America and Australasia, in which the presence of certain religious communities (Muslims, in particular) and the role of religion in public and political life more generally (and, conversely, of secularism) has assumed a central importance.     

Cruelty and kinds: Scalia and Dworkin on the constitutionality of capital punishment

I here revisit a debate between Antonin Scalia and Ronald Dworkin concerning the constitutionality of capital punishment. As is well known, Scalia maintained that the consistency of capital punishment with the Eighth Amendment can be established on purely textualist principles; Dworkin denied this. There are, Dworkin maintained, two readings of the Eighth Amendment available to the textualist. But only on one of these readings is the constitutionality of capital punishment secured; on the other, ‘principled’, reading (favoured by Dworkin) it is not. Moreover, breaking the stalemate in favour of the former reading cannot be decided on textualist principles alone. To resolve the issue, Scalia (Dworkin argues) is forced to appeal to interpretive principles he has explicitly disavowed – principles that permit us to go beyond the text and invoke the framers’ intentions. In this paper, I argue that Dworkin has misdescribed the situation: there is in fact a plausible textualist argument that favours Scalia’s reading – one that, as per its textualist credentials, makes no reference to the framers’ intentions or expectations.