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104 Calif. L. Rev. 881 (2016)
The Sex Bureaucracy

handle is hein.journals/calr104 and id is 913 raw text is: The Sex Bureaucracy Jacob Gersen & Jeannie Suk* We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself We call this bureaucratic sex creep-the DOI: http://dx.doi.org/10.15779/Z38HV80 Copyright © 2016 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Professors of Law, Harvard Law School. We thank the following students for excellent research assistance over several years: Elizabeth Bewley, Kelsey Bleiweiss, Peter Bruland, Alison Burton, Thomas Chapman, Ryan Cohen, Elena Davis, Sean Driscoll, Nicholas Dube, Sophie Elsner, Timothy Goh, Joseph Goldstein, Shane Hunt, Rauvin Johl, Carys Johnson, Maria Lacayo, Blake Lanning, J. Harold Lee, Andrew Lewis, Ezra Marcus, Courtney Millian, Michael Mullan, Justin Patrick, Sheri Pan, Lauren Ross, Nicholas Ruge, Lauren Schloss, Clara Spera, Mary Schnoor, Ben Schwartz, Elizabeth Stork, Anna Vinogradav, Virginia Williamson, and Amy Zhang. We are grateful for very useful comments from Paul Abramson, Ian Ayres, Elizabeth Bartholet, Gabriella Blum, Jessica Bulman-Pozen, Kristen Carpenter, Jennifer Chacon, Adam Cox, Justin Dillon, Rosalind Dixon, Elizabeth Emens, Charles Fried, Nancy Gertner, Abbe Gluck, John Goldberg, Jamal Greene, Aya Gruber, Janet Halley, Stephen Henrick, Dan Ho, Bert Huang, Vicki Jackson, Duncan Kennedy, Issa Kohler-Hausmann, Anna Lvovsky, Michael McConnell, Melissa Murray, Robert Nagel, Anne Joseph O'Connell, Ruth Okediji, David Pozen, Jed Rubenfeld, David Schraub, David Sklansky, Holger Spamann, Matthew Stephenson, David Strauss, Julie Suk, Cass Sunstein, Nirvana Tanoukhi, Amanda Tyler, John Witt, and Emily Yoffe. We benefited from critiques raised in presentations at Columbia Law School, Colorado Law School, Harvard Law School, Sciences Po Law School, Stanford Law School, Thursday Morning Talks for Mt. Auburn Hospital, University of California, Berkeley, School of Law, University of New South Wales Faculty of Law, University of Wisconsin-Madison Center for the Humanities, and Yale Law School. 881

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