Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, November 25, 2015

For First Time Women Compose Majority of MDL Committee

NLJ, In a First, Women Compose Majority of MDL Committee

A federal judge has appointed the first plaintiffs steering committee in multidistrict litigation made up of a majority of women members, according to the lawyers in the case.


The appointments, which U.S. District Judge Kathryn Vratil of Kansas approved on Wednesday, come in lawsuits alleging that Ethicon Inc.’s power morcellators—medical devices used in laparoscopic uterine surgeries—have caused women to develop an aggressive form of cancer.


Vratil approved a proposed committee recommended by Paul Pennock, managing attorney at New York’s Weitz & Luxenberg and Aimee Wagstaff, founding partner of Andrus Wagstaff in Lakewood, Colorado. Pennock, now co-lead counsel with Wagstaff on the official committee, said he was inspired to create a leadership team of mostly women after hearing Vratil, a former member of the U.S. Judicial Panel on Multidistrict Litigation, talk at a conference on “best practices” in MDLs held by Duke Law School’s Center for Judicial Studies in September 2014.



November 25, 2015 in Courts, Women lawyers | Permalink | Comments (0)

The Elizabeth Cady Stanton Bicentennial

Ms. The Elizabeth Cady Stanton Bicentennial: A Missed Opportunity for Study and Reflection

November 12 was the bicentennial of the birth of Elizabeth Cady Stanton, one of America’s most prominent and extraordinary women’s right leaders. The event passed largely un-noticed. We missed a chance to pause and reflect on her leadership and also on the issues she wrestled with, some of which are still with us.


Stanton deserves more recognition. She was, of course, the main organizer of the famous Seneca Falls women’s rights convention in 1848, which issued a ringing declaration demanding the right to vote. But there are several other reasons for studying her career.

We didn't miss it at the Con Law Colloquium at Akron Law.  The entire colloquium featured Stanton scholars of law and history delving into Stanton's contributions to gender equality and constitutional thinking of the vote, political economy, marriage, the family, and religious liberty. 

Here's my prior blog post and all the details from the program.


November 25, 2015 in Conferences, Constitutional, Law schools, Legal History | Permalink | Comments (0)

Tuesday, November 24, 2015

Servant Leadership in Law Schools

I've stumbled across this notion of servant leadership.  It is prevalent in social justice and religious circles, but was not familiar to me.  I studied leadership in many classes in graduate school, but those all explored notions of power, control and personality rather than ideas of service.  

A servant-leader focuses primarily on the growth and well-being of people and the communities to which they belong. While traditional leadership generally involves the accumulation and exercise of power by one at the “top of the pyramid,” servant leadership is different. The servant-leader shares power, puts the needs of others first and helps people develop and perform as highly as possible.

The idea of servant automatically triggers my feminist flags as something sacrificial that would be required of women, but not men.  Something like the doormat theory of leadership.  Servant leadership sometimes appears, as in this article, as something kinder and gentler and more attuned to feminine values.  Ms. JD,  Women Leading Change.  But, the more I read, the more the idea is clearly gender neutral and derives from approach to both means and end.  It continues to appeal to me as better matching my own motivation for taking on and implementing administrative leadership.  

Women who are leading change also empower others to serve as leaders. A servant leader’s success is not measured by title, rank or position, instead the servant leader’s accomplishments are reflected in the sense of agency developed in the lives of others.

November 24, 2015 in Law schools | Permalink | Comments (0)

Mayeri on Marriage In(equality) and the Historical Legacies of Feminism

Serena Mayeri (Penn), Marriage (In)equality and the Historical Legacies of Feminism, 6 Cal. Law Rev. Cir. (2015):


In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage.Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.


November 24, 2015 in Constitutional, Family, Same-sex marriage | Permalink | Comments (0)

Monday, November 23, 2015

The Bad Mother: Stigma, Abortion and Surrogacy

Paula Abrams (Lewis & Clark), The Bad Mother: Stigma, Abortion and Surrogacy, 43 J. Law, Medicine & Ethics (Summer 2015).



Why do certain decisions about reproduction engender social support, other decisions social disapproval? Surrogacy and abortion represent two different facets of procreative liberty, the right to reproduce and the right to avoid reproducing, but these different experiences may carry similar stigmatic harm, for both disrupt traditional expectations of the pregnant woman. This article examines how stigma attached to abortion and surrogacy reveals similar patterns of gender stereotyping. It argues that evidence of stigma is relevant to determining whether laws regulating abortion or surrogacy are based on impermissible stereotyping. Stigma evidence is probative in determining whether gender stereotypes influenced legislative purpose and in assessing the degree of harm imposed by a regulation


November 23, 2015 in Abortion, Reproductive Rights | Permalink | Comments (0)

Saturday, November 21, 2015

"Stop Being Afraid of Saying You're a Feminist"

National Women's Law Center, My Feminism Is: Justice Everywhere.  Advice to high school seniors, and women, on embracing feminism.

Feminism isn’t always an easy road, but you are going to be so glad you pulled out of the metaphorical driveway.


To me and you, feminism is justice – people are being mistreated and oppressed and kept down, in direct and institutionalized ways. There has to be something we can do has always been our refrain. In feminism, we’ve found tools to make the world fair, and friends and colleagues to work with through it.


There is so much inside of you right now, Sam. Your strength is in correcting injustice and the determination your legacy offers....


So stop being afraid of saying you’re a feminist. You know who you are.



November 21, 2015 in Theory | Permalink | Comments (0)

Farewell to Editor John Kang

Today co-editor of the Gender & the Law blog John Kang steps down.  As a founding editor of this blog, Kang helped build a new venue and new readership for issues of law and gender.  His particular contributions on manliness and masculinity expanded the scope of the discussion and raised the level of debate.  Here's wishing him all the best on future endeavors!


John Kang

November 21, 2015 | Permalink | Comments (0)

US Law Reviews' Dirty Game

Times Higher Education, US Law Reviews' Dirty Game: Review by Student

Submissions for almost all American general law reviews and for more than half of the specialised ones are reviewed by law students, selected by more senior law students based on their first-year academic performance. Unfortunately, however intelligent and ambitious they are, students just don’t have the expertise to judge the quality of submissions. As a result, an article’s fate is determined by the application of several superficial criteria.

First is the author’s name and affiliation. If she is unknown to the students and either does not teach (but, for example, works at a law firm) or teaches at an institution that places lower in U. S. News and World Report’s most recent annual rankings of law schools, they generally disregard her submission. Never mind that the U. S. News rankings are based on algorithms that embed highly subjective and controversial judgements.

Second, if an author’s obligatory CV indicates prior publications in journals at schools ranked lower in U. S. News, many students will deem her current efforts to be unworthy of consideration.

Third, students feel obliged to accept submissions by their own professors. This much is forgivable, I suppose. What is less forgivable is the professors’ willingness to put them in this position to begin with. They are in effect compelling the students to publish their work, no matter how weak it may be, thereby monopolising the few available slots in their own schools’ journals. This is just one more reason to doubt the common assumption that the most original and insightful legal scholarship can be found in the highest-ranked law reviews.

Fourth, students typically prefer some areas of law over others, based not so much on informed legal judgement as on the politics of the day and what they happen to perceive as simpler, more “colourful” topics.

November 21, 2015 in Scholarship | Permalink | Comments (0)

Wednesday, November 18, 2015

Obama supports altering Civil Rights Act to ban LGBT discrimination

From WaPo: 

The White House endorsed legislation Tuesday that would amend the 1964 Civil Rights Act to ban discrimination on the basis of sexual orientation or gender identity.

White House press secretary Josh Earnest said the Obama administration had been reviewing the bill “for several weeks.”

“Upon that review it is now clear that the administration strongly supports the Equality Act,” he said. “That bill is historic legislation that would advance the cause of equality for millions of Americans.

“We look forward to working with Congress to ensure that the legislative process produces a result that balances both the bedrock principles of civil rights . . . with the religious liberty that we hold dear in this country,” Earnest added.

November 18, 2015 in LGBT | Permalink | Comments (0)

Tuesday, November 17, 2015

Colloquium on the Origins of Gender Equality

I had the fortune to participate in The Center for Constitutional Law at Akron's Colloquium last week, The Origins of Gender Equality.  The Colloquium scheduled for the 200th Anniversary of Elizabeth Cady Stanton's birth celebrated Stanton's vast intellectual and political contributions to the law. 

The New York Times Book Review often asks authors, if you could have dinner with any writers, who would it be?  Well the participants at the colloquium were my list of ideal dinner guests.  These scholars to me represented the best of the work on Stanton in law and history, characterized by original thinking, impeccable and thorough research, and ideas found nowhere elsewhere in the literature. It was a privilege to engage in conversation with these women and deepen our understanding of the legacy of women's rights still so unknown and unappreciated.

The papers from the Gender Equality Colloquium will be published in the spring in ConLawNOW.

Tracy Thomas, Introduction: The Origins of Gender Equality in the Life and Work of Elizabeth Cady Stanton

Lisa Tetrault (history, Carneige Mellon):  On the Meaning of the Vote

Felice Batlan (law, Chicago-Kent): Manhood Suffrage at the New York Constitutional Convention of 1867

Lisa Hogan (women's studies, Penn State):  Unveiling Gendered Notions of Marriage and Women's Sexuality

Kathi Kern (history, Kentucky): Religious Liberty Claims: From Kim Davis to Elizabeth Cady Stanton


November 17, 2015 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Remembering the Story of Woman's Suffrage

Huff Post, The Importance of Telling the Story--Crusade for the Vote

As we work to inspire, educate and empower others by integrating women's history as part of the distinctive culture of the United States, we applaud the writers and producers of Suffragette who recognized the need to expand awareness about this significant moment in Britain's history. Director Sarah Gavron, in a recent interview, talked about the timing for the movie, which had been six years in the making.


This story had never been told, the reason it's never been told before is because women keep being marginalized. What was on our side was there's a conversation now happening about the inequity in the film business, so people were aware. The story we wanted to tell had become more timely.

 Her explanation is not surprising. We know that for most Americans, their knowledge of how U.S. women won the right to vote is limited to major personalities like Susan B. Anthony and Elizabeth Cady Stanton. But the campaign stretched from the East to the West Coast, with dozens of women doing their part as local canvassers, state campaigners, White House picketers, and filling many other roles. The breadth of the suffrage story is still largely unknown.

November 17, 2015 in Constitutional, Legal History, Pop Culture | Permalink | Comments (1)

Monday, November 16, 2015

"Men's Lib!"

From a NYT Op-Ed: 

SO far the gender revolution has been a one-sided effort. Women have entered previously male precincts of economic and political life, and for the most part they have succeeded. They can lead companies, fly fighter jets, even run for president.

But along the way something crucial has been left out. We have not pushed hard enough to put men in traditionally female roles — that is where our priority should lie now. This is not just about gender equality. The stakes are even higher. The jobs that many men used to do are gone or going fast, and families need two engaged parents to share the task of raising children.

As painful as it may be, men need to adapt to what a modern economy and family life demand. There has been progress in recent years, but it hasn’t been equal to the depth and urgency of the transformation we’re undergoing. The old economy and the old model of masculinity are obsolete. Women have learned to become more like men. Now men need to learn to become more like women.

November 16, 2015 in Manliness, Masculinities | Permalink | Comments (0)

Sunday, November 15, 2015

Utah Judge Drops Order on Lesbians’ Foster Child

From the NYT: 

Under fire from critics including gay rights activists and the state’s Republican governor, a judge in Utah on Friday reversed, at least temporarily, his order that a foster child be taken away from a lesbian couple because it was “not in the best interest of children to be raised by same-sex couples.”

While the child may remain with the couple for the moment, Judge Scott N. Johansen signaled that the matter might not be settled. He continued to question the placement of children with same-sex parents, a matter that will be taken up at a Dec. 4 hearing on what is in the best interests of this child, a 9-month-old girl.

The judge’s actions, coming after the Supreme Court this year established a right to same-sex marriage, put him at the center of another front in the nation’s legal and culture wars: the question of whether gay men and women can get, and keep, custody of children under various circumstances.

November 15, 2015 in Family, LGBT | Permalink | Comments (0)

Thursday, November 12, 2015

Detroit business women raise money to test backlog of rape kits

NYT, Detroit Businesswomen Team Up to Get Rape Kits Tested

But she was facing a major financial challenge. Typically, the cost of processing one rape kit is $1,500; testing 11,341 kits would cost about $17 million. That did not include the expense of hiring more investigators and then prosecuting the cases, a process that would most likely cost at least $10 million more. At the time, the Wayne County Prosecutor’s Office only had three sex crimes investigators on staff.


“We had no resources, no money and no support from the county of Wayne,” Ms. Worthy says. She swung into action.


“I asked everybody for money,” she says, “foundations, people, groups, organizations.” She was able to secure federal grant money to test 2,000 kits and to conduct a study on how sexual assault victims are treated in the criminal justice system. Several years later, the state of Michigan provided $4 million to cover the testing of 8,000 more kits. By then Ms. Worthy had been able to negotiate the cost of the testing down to $490 a kit. But there were still 1,341 untested kits and just two investigators dedicated to the new cases.


In early 2013, a Detroit businesswoman named Joanna Cline saw Ms. Worthy discussing the untested rape kits on a national news program. “I was and am furious” at the oversight, says Ms. Cline, who is the chief marketing officer of Fathead, which manufactures and sells wall decals. When she learned that Ms. Worthy’s office didn’t have enough funding to test the kits and prosecute the resulting cases, she became convinced that this was a solvable problem.

November 12, 2015 in Violence Against Women | Permalink | Comments (0)

Survey Finds People Believe in Women's Equality, But Don't Understand It

Americans Believe in Women's Equality, But Don't Understand It

A new survey finds that while most of the public knows society has a long way to go before women will be fully equal, people are poorly informed about feminism and key women’s issues.


The poll, conducted by Perry Undem Research/Communication for the Ms. Foundation for Women, surveyed a representative sampling of adults nationwide. The poll over-sampled people of color in order to get better data on certain demographic groups.


The survey has both good and bad news for feminists. It found that while respondents believe in equality for women, many have a negative view of the word “feminism,” are divided on whether women of color face more barriers to equality than white women, and have a narrow idea of what “women’s issues” means.

November 12, 2015 in Gender | Permalink | Comments (0)

Wednesday, November 11, 2015

Veterans' Day and Gender

Happy Veterans' Day to all the vets and their loved ones.  

Here's something from the Human Rights Campaign Blog: 

Veterans Day is a day set aside for Americans to honor all those who have served our great nation, and HRC is incredibly thankful for the service and sacrifice of all our nation’s veterans. As the nation’s largest lesbian, gay, bisexual, and transgender (LGBT) civil rights organization, we’re also especially proud of our nation’s LGBT veterans, many of whom for years were forced to hide something as fundamental as who they are in order to be able to serve.

And from a HuffPost Op-Ed entitled "Do You Know What a Woman Veteran Looks Like?"

In honor of Veteran's Day, thank you to all the veterans and active-duty women, men and their families who proudly serve and protect our great nation! I recently met Melissa Washington, U.S. Navy veteran, Marine Corps wife, founder of Women Veterans Alliance and the creator of the Sacramento, CA-based campaign "What Does a Woman Veteran Look Like."It was interesting to learn that the civilian population commonly thinks of a veteran as being a man who served in one of the wars like Vietnam, Korea,     or the Gulf. When most people hear the word "veteran," a woman never seems to come to mind.

November 11, 2015 | Permalink | Comments (0)

Tuesday, November 10, 2015

SCOTUS Grants Cert (again) on Contraception Mandate and Accommodating Religious Exemptions

The Supreme Court granted cert last Friday in Little Sisters v. Burwell consolidating several cases raising religious objections to filing paperwork in order to trigger the religious exemption to providing employees with contraception as otherwise required by federal healthcare law. 

 Prior to the grant, Caroline Corbin (Miami), explained the circuit split and the issues in Paperwork as a Substantial Religious Burden, Jurist

Hobby Lobby focused on for-profit companies because non-profit organizations were already exempt. Under Department of Health and Human Services regulations, religious non-profits need not include contraception in their health care plans. Instead once a religious non-profit declares its religious opposition, it can have its health care insurer or, if it is self-insured, a third party administrator, provide coverage instead. Indeed, the Hobby Lobby court pointed to this accommodation as a reason why the contraception mandate's application to religious for-profits was not narrowly tailored. If this accommodation worked for non-profits, the court reasoned, then why not for for-profits?


Nonetheless, some non-profits have complained that the religious accommodation itself violates their religious rights. They argue that filing the paperwork that grants them their exemption imposes a substantial burden on their religious practice. According to these religious non-profits, signing a two-page form or sending a letter facilitates the provision of contraception, thus making them complicit in sin.


Although multiple courts (including the US Court of Appeals for the Third Circuit [PDF], the US Court of Appeals for the Sixth Circuit [PDF], the US Court of Appeals for the Seventh Circuit and the US Court of Appeals for the DC Circuit [PDF]) have rejected this claim, the US Supreme Court has stayed these decisions. Mere days after writing in Hobby Lobby that the accommodation for non-profits "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty," the court granted an emergency injunction against that very alternative in Wheaton College v. Burwell [PDF]. In her Wheaton dissent, Justice Sotomayor lamented that "[t]hose who are bound by our decisions usually believe they can take us at our word. Not so today."


Setting aside the court's mixed messages, the non-profits' claim should fail. At the most basic level, it misunderstands how the contraception mandate works. The religious organizations believe that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act, passed by a democratically-elected Congress, does.

November 10, 2015 in Constitutional, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Recognizing Gender as a Basis for Asylum

Melanie Randall (W. Ontario), Particularized Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognize Gender and the Legal Reception of Gender Persecution Claims in Canada, the United Kingdom, and the United States,   23 American J. Gender, Social Policy & Law 529 (2015)


The difficulties establishing effective legal remedies for gendered harms and gender inequalities are perhaps nowhere more starkly evident than in refugee law, where women’s appeals for safe refuge from gender persecution continue to face formidable legal obstacles.  In spite of significant jurisprudential advances in recent years, these obstacles to women’s claims for asylum persist at a time when the world’s refugee crisis is exploding.  Roughly half of the world’s refugees are women and girls who face particular vulnerabilities and violations as a result of their gender.
There have indeed been important and positive advancements in the reception of women’s asylum claims in many of the main refugee-receiving countries, including interpretive guidelines allowing adjudicators to be more gender sensitive in deciding refugee cases. But a fundamental and persistent problem with the adjudication of women’s gender persecution based refugee claims still lies in the byzantine set of definitional hurdles imposed by asylum decision makers trying to fit claimants who have suffered gender persecution into “particular social groups.” This problem always circles back, in part if not exclusively, to the failure to name gender as a ground on which the persecution can be named and recognized.
This legal absence, in and of itself, represents a state failure to protect refugee women seeking asylum in these countries.  This is also a failure of each state’s purported commitment to gender equality.  This failure persists in Canada, which prides itself as a nation whose identity is founded upon migration and refugee flows, as well as in other commonwealth countries such as the United Kingdom, Australia, and New Zealand.  It is perhaps most sharply evident in the United States, where gender is not only absent as a ground upon which to claim persecution, but where the requirements of fitting gender asylum claims into the membership in a “particular social group” category, are arguably the most detached from the guidance offered by the United Nations High Commissioner for Refugees (UNHCR), and most at odds with more progressive developments in other jurisdictions.
Gender’s absence as a ground of persecution is obviously not the only procedural or definitional obstacle to women’s asylum claims. Among other problematic elements of the refugee process for women who have suffered gender persecution, one glaring area of difficulty (among others) is the set of issues surrounding the analysis of state protection.  Adding gender to the statutory definition of a refugee and recognizing it statutorily as a ground of persecution is not a panacea, merely a foundational step forward.  As Deborah Anker has persuasively observed, “gender, properly understood, should pervade the interpretation of every element of the refugee definition.”
In order to avoid these well documented and persistent taxonomies of gender, to comply with international human rights norms, and to achieve consistency and justice, gender must become an independently recognized and identified ground of persecution in the statutory refugee law of receiving states such as Canada, the United States, and the United Kingdom.  While this is certainly not a sufficient solution to the multiple barriers too often facing women’s gender persecution asylum claims, it is certainly a necessary and overdue one.

November 10, 2015 in Gender, International | Permalink | Comments (0)

Law prof says proposed rape definition would lead to "disturbingly arbitrary" prosecutions

ABA J, Proposed Rape Definition Would Lead to "Disturbingly Arbitrary" Prosecutions, Law Prof Says

A proposed definition of rape being considered by the American Law Institute could lead to “disturbingly arbitrary” prosecutions and convictions if adopted by the states, according to a Harvard law professor who is an adviser on the project.


The draft definition would define sexual consent as a positive, freely given agreement to engage in a specific act of sexual penetration or sexual contact, according to a New Yorker article by Harvard law professor Jeannie Suk.


“If sex that doesn’t meet these criteria becomes criminal, a lot of people will be committing sexual assault even when they have mutually desired sex,” Suk writes. Prosecutions under this standard “will feel disturbingly arbitrary. But we will continue to have these scapegoats for a sexual culture that we increasingly reject,” she says.


The prior legal definition of rape was intercourse accomplished by force and without consent. Many states no longer require proof of force, and no longer require the victim to physically resist. The new definition is the law in New Hampshire.

November 10, 2015 in Violence Against Women | Permalink | Comments (0)

Thursday, November 5, 2015

How Bathroom Fears Conquered Transgender Rights in Houston

From the Atlantic: 

A city ordinance protecting residents from discrimination based on sexual orientation and gender identity is defeated after a fierce campaign.

The nation’s fourth-largest city has elected a lesbian mayor three consecutive times without much controversy, and in 2014, its city council approved an ordinance protecting residents from discrimination based on sexual orientation, gender identity, and 13 other factors. But when that same proposal came before the electorate on Tuesday, it lost out to an opposition campaign armed with a startlingly simple message: “No men in women’s bathrooms.” Opponents led 61 to 39, with 66 percent of the precincts reporting on Tuesday night.

November 5, 2015 in Legislation, LGBT | Permalink | Comments (0)