Faculty Publications

Ageism is an unseen bias. It thrives on stereotyping that justifies stigma and discrim
ination against older people. The public sees older people as burdensome. The views of
older people are often not “heard” or respected. Even if they are heard, ageist biases de
value those views. The law has been of limited use in responding to ageism.
The term “ageism” was used first by Robert Butler in the mid-twentieth century.1
He used it in reference to “prejudice by one age group toward other age groups, or as any
form of stereotyping and discriminating [against] people based on their chronological
age.”2 Ageism is widespread—in politics, law, medicine, and society broadly.3 It is harm
ful to elderly people, their families, their caregivers, and, ultimately, to everyone.4 Despite
the harm ageism creates, society views it less seriously than other biases.5 In contrast to a
broad understanding that stereotyping people based on race, ethnicity, religion, disability,
and gender are inappropriate, society too often assumes that ageism is justifiable—even a
source of humor.6

During the last half-century, a complicated set of political disagreements, new economic options, socio-cultural transformations, and shifts in responses to the use of medical technology in patient care have re-shaped the physician-patient relationship and the character of medical care, more broadly. Social respect for both physicians and for governmental agencies working to improve individual and public health declined. At the same time, medical ethics and the law seemed committed to protecting patient autonomy in medical ethics and the law seemed committed to protecting patient autonomy in medical decision making. Some cases have challenged this commitment.

"This Article focuses on sociocultural shifts from the mid-twentieth century through the present. These shifts offer a lens through which to examine underlying forces that have encouraged many people, most recently in response to COVID-19 vaccines, to adamantly reject vaccinations for themselves and their children."

Successive editions of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) have provided a useful, if challenging, reference for courts in cases that require assessments of mental health.1 Most of those cases involve criminal defendants.2 This Article considers judicial reliance on DSM diagnostic categories in cases involving matters of personal status.3 It examines the potential benefits as well as the disadvantages of that reliance. The Article explores two substantive domains. The first includes cases in which transgender people have sought the right to be identified legally in harmony with gender identity rather than the sex assigned to them at birth and to be treated fairly as members of the gender conforming with their identity rather than their sex at birth. The second domain includes cases implicating parental status.

In the spring of 2020, the Idaho legislature passed a bill that effectively precludes transgender girls and women (from kindergarten through college) from joining female athletic teams. Idaho Governor Bradley Little signed the Fairness in Women’s Sports Act into law in late March 2020. The law’s title suggests that it should be understood as an effort to expand “fairness.” The presumptive beneficiaries are cisgender (i.e., nontransgender) girls and women on school athletic teams who, the law suggests, should not have to compete against transgender girls and women. However, the assumptions underlying the law’s responses to transgender women and girls hoping to join sports teams are so flawed as to suggest animus. The right of girls and women to fairness in school sports is protected by Title IX of the Education Amendments of 1972. Protecting fairness for cisgender females cannot, however, serve as a pretext for excluding transgender athletes from sports teams, especially if fair accommodations can be crafted.

Bioethics and the Law takes a multidisciplinary approach that combines legal discussion with jurisprudential, philosophical, and sociological materials. Strong expressions of different points of view highlight debates about bioethical issues. The text underscores the need to mediate between the law's focus on broad rules and the bioethicist's concern with context and detail. Students are required to consider the ethical implications of health care as a business, face the shifting parameters of the provider/patient relationship in healthcare, and understand the role of government in designing and implementing healthcare programs such as Medicaid and Medicare. Bioethics and the Law supplements the traditional focus of bioethics on the interest of the individual with a second focus on the socio-economic developments that shape healthcare. Connecting broad public healthcare issues to concerns of the individual patient/healthcare consumer, the text promotes understanding of unsettling and complex situations and shows the implications of bioethical developments for understandings of personhood. A helpful glossary defines basic terms and several short appendices summarize recent developments in science and technology.