Of the many adverse outcomes that may result from the spread of the severe acute respiratory syndrome coronavirus 2, known as COVID-19, one stands out as particularly vile: the experience of dying alone. Many healthcare facilities in the US and elsewhere adopted ‘No-Visitor Rules’ in an effort to contain the virus, but these rules mean that the countless people in nursing homes and hospital wards were isolated during their final hours of life. There is no epidemiological or US federal or state requirement to prohibit visitation to (and thereby isolate) dying patients—even those with COVID-19. Instead, constructing pandemic-specific visitation policies is usually left to the discretion of hospitals and healthcare providers. Such policies aim to limit the risk of exposure but fail to account for the individual and social costs associated with dying alone for patients, families, and frontline healthcare workers. As a result, the policies may be overly restrictive and actively cause harm. This article argues that US hospital visitation policies need to be democratised to include the perspectives of community members and patients. By drawing on existing patient rights frameworks, this article outlines several legal strategies to reconceptualise hospital visitation policies as a civil rights issue.

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Researchers should be aware of how sex-difference science is (mis)applied in legal and policy contexts

Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.