Gender and the Law Prof Blog

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

Tuesday, November 10, 2015

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)

Transgender Students in High School Locker Rooms

Discussion happening at the NYT: 

Federal education officials have ruled that an Illinois school would illegally discriminate against a transgender student if they did notlet her use the girls’ locker room without restrictions, rejecting a plan to have her change beyond privacy curtains. Students leda walk out of a Missouri school earlier this year when a transgender girl started using the girl’s locker room. “Some girls already have insecurity problems getting dressed in front of other girls as it is,” one student said.

Can transgender equality be protected while still recognizing student concerns about privacy in a locker room, or do such accommodations create inequality?

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

"Strategies for Sex Equality: Points Taken and Missed in Postwar Legal Feminism"

Smita Ghosh: It was my pleasure to spend the early hours of Friday morning in a panel called "Strategies for Sex Equality: Points Taken and Missed in Postwar Legal Feminism," with Katherine Turk, Leandra Zarnow and Mary Ziegler, and Serena Mayeri as the commentator. Live-blogging a panel is not as easy as the experts make it look, so I may have missed something, hopefully others will feel free to correct/comment/commence a firing squad.

In “Gendered Skill, Labor Politics, and Legal Politics in the New York Hotel Industry,” Katherine Turk took the history of labor feminism into the 1980s.

Leandra Zarnow‘s presentation--“A Lawyerly Congresswoman: Bella Abzug and the ‘Deliberate’ Legal Feminist Edge of 1970s Congressional Reform”-- focused on Abzug’s time in congress. 

In the final paper, “From Choice to Constraint: Reproductive Liberty Organizing in the Shadow of Roe”, Mary Ziegler challenged that traditional story that feminists, clinging to the language of Roe, developed a myopic view of abortion as a negative right, ignoring issues like access to health care and sterilization abuse. 

This effect of neoliberalism was the main jist of Mayeri’s comments, too.  All three panelists, she noted, deal with the ironic convergence of feminism and the rise of the New Right and neoliberal economics. Their papers coincide to tell the history of the 1970s: the demise of postwar prosperity, the retrenchment of liberal courts and the growth of single-issue politics that put feminist groups on the defensive.




November 5, 2015 | Permalink | Comments (0)

"Because it's 2015"

Slate, Canada's Justin Trudeau's Gender Equal Cabinet "Because it's 2015"

Trudeau on Wednesday continued his hot streak by introducing his 30-person cabinet that had just as many women as men—a first for the country.


Justin Trudeau is ushering in a new era in Canadian politics with a cabinet that is reflective of the country’s ethnic diversity, peppered with rookie politicians, and composed of more women than ever before… After the swearing-in ceremony, Mr. Trudeau addressed reporters and other members of the public outside Rideau Hall saying he was proud to “present to Canada a cabinet that looks like Canada.”

When asked why he opted for gender equity, Trudeau responded: “Because it’s 2015.” The current 16-person cabinet in the Obama administration, by comparison, is made up of just 25 percent women.


November 5, 2015 in International | Permalink | Comments (0)

Tuesday, November 3, 2015

Lochner's Gendered Legacy


(Muller v. Oregon, 1908)

At the NE Ohio Faculty Colloquium last week, I presented on the topic derived from my forthcoming book chapter on the long history of the ERA. 

For this presentation, I focused on the early history of ERA, introduced by Alice Paul in the midst of the Supreme Court's detour into Lochnerism.  A close review of the Lochner cases on maximum hours law, shows how gendered these cases were.  The Court struck down laws like that in Lochner limiting men's work, while easily upholding the same limitation for women.  The advent of the Brandeis Brief (or more appropriately the Kelley Brief since it was mostly written by Florence Kelley) in Muller v. Oregon (1908) added sociological facts of women's weakness, primary material function, and need for protection research designed to justify the rationality of the state legislature's determination that women needed protection.

My takeaways on looking at Lochner through the gendered lends were:  

1.  It explains some of the flip-flops and seeming inconsistencies of Lochner to understand legalistic exceptions were made for women.


 2.  It shows how grounded Lochner was in masculinity: real mean don’t need “protection.”  Men were tough, strong, and could withstand or counter the abuse of workplace.  (Except maybe in the case of coal mining, see Holden v. Hardy, 1898)..


3.   And perhaps most importantly, it reveals the historical depth of what Joan Williams calls the “ideal worker.”  The ideal worker since industrialization was male, able to work unlimited hours at a moment's notice, needed the job as a family breadwinner, and never needs any accommodations like pregnancy leave, nursing breaks, or family leave.  Women are defined as "other" than the ideal, or even regular work.  Women themselves defined female workers this way, attuned to the realities of women's working class experience.  



November 3, 2015 in Constitutional, Courts, Equal Employment, Gender, Legal History | Permalink | Comments (0)

Affirmative Consent of "Yes Means Yes" as Nothing New

I had the pleasure of hearing Jonathan Witmer-Rich (Cleveland State) speak last Friday at the NE Ohio Faculty Colloquium, a twice-annual lunch with the faculties of Akron, Case, and Cleveland State. 

He previewed his thesis that the new legislative movement of "Yes Means Yes" doesn't actually change the existing legal standard of consent, for good or for bad.  He wove in the recent discussion draft of recommended changes to the Model Penal Code. 

You can hear more on this from Jonathan at AALS on January 9, 2016 on Panel 1 of the Symposium on Violence Against Women.


November 3, 2015 in Conferences, Violence Against Women | Permalink | Comments (0)

Sunday, November 1, 2015

A Disadvantaged Start Hurts Boys More Than Girls

So reads a NYT Op-Ed: 

Boys are falling behind. They graduate from high school and attend college at lower rates than girls and are more likely to get in trouble, which can hurt them when they enter the job market. This gender gap exists across the United States, but it is far bigger for poor people and for black people. As society becomes more unequal, it seems, it hurts boys more.

November 1, 2015 in Manliness, Masculinities | Permalink | Comments (0)

South Korean Court Recognizes No-Fault Divorce

A court has granted a divorce to a man who was responsible for the breakup of his marriage by cheating on his wife, overturning the lower court's ruling.

It is the first court decision that allowed a divorce sought by a cheating spouse after the Supreme Court's ruling in September that expanded the grounds for divorce in limited cases, although it largely upheld the legal principle that bans a party responsible for destroying the marriage from filing for divorce.

Following the ruling, similar divorce requests are expected from estranged couples who have been barely maintaining a paper-only marriage relationship.

November 1, 2015 in Family, International | Permalink | Comments (0)

Law, Gender & Halloween

Bridget Bishop Hanged at Salem

Which means the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

November 1, 2015 in Courts, Legal History | Permalink | Comments (0)

Friday, October 30, 2015

Originalism and the Gender-Neutral Constitution

An Op-Ed in WaPo.....

Indeed, the argument is made that under originalism it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as “he,” and the framers clearly intended that they be male.

— Erwin Chemerinsky, Constitutional Law: Principles and Policies (3d ed. 2006) (citing Richard B. Saphire, Judicial Review in the Name of the Constitution, 8 U. Dayton L. Rev. 745, 796-97 (1983)

October 30, 2015 in Constitutional | Permalink | Comments (0)

Thursday, October 29, 2015

Gendering the Marriage Penalty in Tax

Stephanie Hunter McMahon (Cincinnati) has posted Gendering the Marriage Penalty, in Controversies in Tax Law (Ashgate 2015):



In 1969 Congress amended the Internal Revenue Code to create a marriage penalty. The penalty was not felt by all married couples: Only those couples in which spouses earned roughly equal amounts and who filed joint tax returns paid a penalty. Thus, the 1969 change in law had a gendered effect of discouraging some wives from earning income, but the alternative was not without its own gendered results. If gender marks the impact of the 1969 legislation, was gender what motived the change in law? It would be easy to assume that at the end of the 1960s, a socially conservative legislature reacted to a developing women’s movement. From the legislative debates, sexism certainly pervaded congressional discussion of women’s role in the family and the economy. However, this only tells part of the story and does so by focusing on the result that remains of interest today. Economic forces were a larger part of the story. The context of the 1969 revision shows it as part of an economic movement evolving since the end of World War II as policymakers adopted tax legislation in an attempt to improve the economy and fight the Cold War. Not only policymakers in Washington but also many women’s groups shared this focus on national economics. The focus on economic issues resulted in a lack of analysis of how this change in tax policy would affect various groups of women. The development of the marriage penalty highlights the need to consider the consequences of legislation prior to its enactment. In this case, particular concerns (largely economic) drove legislation that imposed most of its cost on a segment of society that was not focused on this issue.

October 29, 2015 in Family, Legislation, Scholarship | Permalink | Comments (0)

Wednesday, October 28, 2015

UAE imprisoning rape victims under extramarital sex laws – investigation

From the Guardian UK: 

Hundreds of women, some of them pregnant or domestic servants who are victims of rape, are being imprisoned in the United Arab Emirates every year under laws that outlaw consensual sex outside marriage, according to a BBC Arabic investigation.

Secret footage obtained by BBC Arabic show pregnant women shackled in chains walking into a courtrooms where laws prohibiting “Zina” – or sex outside marriage – could mean sentences of months to years in prison and flogging.

“Because the UAE authorities have not clarified what they mean by indecency, the judges can use their culture and customs and Sharia ultimately to broaden out that definition and convict people for illicit sexual relations or even acts of public affection,” said Rothna Begum, women’s rights researcher at Human Rights Watch in London.

While both men and women could in theory be imprisoned for having sex outside marriage, the investigation – which will air at the opening of BBC Arabic festival on 31 October – found that in reality pregnancy is often used as proof of the “crime”, with domestic female migrant workers – numbering about 150,000 in the UAE – left most vulnerable.

October 28, 2015 in Courts, Human trafficking, International, Work/life, Workplace | Permalink | Comments (0)

No ‘Appreciable Progress’ for Women in Partnership Ranks

From Bloomberg News: 

It's back to the future — and not in a good way for women seeking equity partnership in the nation’s 200 largest law firms.

Women have not made “appreciable progress” since 2006 in either attaining equity partnership or increasing their pay to be on par with their male colleagues once they grasp the brass ring, according to a study by the National Association of Women Lawyers released on Tuesday.

The results: Women represent 18 percent of equity partners, an increase of two percent since 2006, according to NAWL’s findings. Even after they’ve made it into the equity ranks, they make about 80 percent of what their male colleagues bring home. In 2006, women had made 84 percent.

October 28, 2015 in Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Tuesday, October 27, 2015

Temple Law Prof Marina Angel Awarded AALS Lifetime Achievement Award

The AALS Women in Legal Education Section announced that Professor Marina Angel (Temple University Beasley School of Law) will be awarded the 2016 Ruth Bader Ginsburg Lifetime Achievement Award.

Her bio details her extensive accomplishments and leadership of women in the profession. "A Temple law professor for nearly 40 years, Professor Angel’s scholarship, teaching, advocacy, and service truly embody the spirit and purpose of this distinction."  

My favorites of her work are:

 Susan Glaspell's Trifles and A Jury of Her Peers: Woman Abuse in a Literary and Legal Context, 45 Buffalo L. Rev. 779 (1997) 

Criminal Law and Women: Giving the Abused Woman Who Kills A Jury of Her Peers Who Appreciate Trifles, 33 AM. CRIM. L. REV. 229 (1996).  


Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. of Legal Education 548 (2003)


Prof. Angel will be honored at the AALS meeting Saturday, January 9th, 2016, 12:15-1:30 p.m. in New York City. 

October 27, 2015 in Education, Law schools, Women lawyers | Permalink | Comments (0)

Remembering the Battle for Women's Suffrage

Lots in the media with the advent of the release of the movie Suffragette on the British women's suffrage movement.

Time, The Real Women's Suffrage Milestone that Just Turned 100

Remembering the mammoth women’s suffrage parade of October 1915

They came on horses and carriages. They marched on foot. There were old women with canes and young mothers with babies. They dressed in white and carried banners with phrases like “A vote for suffrage is a vote for justice” and “You trust us with the children; trust us with the vote.” It was Oct. 23, 1915, and tens of thousands of women flooded Fifth Avenue in a spectacular, five-mile suffrage parade that all but shut down New York City.

Pop quiz: when did women in the United States get the right to vote?

If you answered June 4, 1919, or Aug. 18, 1920 — the dates on which the 19th Amendment was passed and ratified — then you’re almost right. Yes, the Amendment guaranteed that the right to vote could not be denied on account of sex. But the right wasn’t fully secured until this day, Feb. 27, in 1922. That’s when the Supreme Court decided Leser v. Garnett.

Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.

NPR, American Women Who Were Anti-Suffragette


As the 19th century ended and the 20th began, the American wave of women pushing for access to the ballot box gathered momentum. But it wasn't until the 19th Amendment to the Constitution was ratified in 1920 that voting rights were guaranteed for all women.


Hard as it is to imagine today, there were certain women — mostly forgotten — during that period of duress who did not believe that women deserved the right to vote. Some called these naysayers "anti-suffragettes" or "anti-suffragists." Some called them "remonstrants" or "governmentalists." Some called them just plain "antis."



October 27, 2015 in Legal History, Pop Culture | Permalink | Comments (0)

Lawwsuit for Denial of Intersex Passport

Reuters, Navy Veteran Sues US State Department for Denying Intersex Passport

A Navy veteran from Colorado who identifies as neither male nor female has sued the U.S. Department of State after being denied a passport for refusing to select a gender on the application, court documents showed on Monday.


Dana Zzyym claimed in a federal discrimination lawsuit filed in the U.S. District Court in Denver that it was a constitutional violation to force an “intersex” person to pick either a male or female when seeking to travel abroad.


“I am not male, I am not female, I am intersex, and I shouldn’t have to choose a gender marker for my official U.S. identity document that isn’t me,” Zzyym said in a statement.


The lawsuit names U.S. Secretary of State John Kerry and the director of the Colorado passport agency as defendants.


The State Department did not respond immediately to a request for comment.

October 27, 2015 in Constitutional, Gender | Permalink | Comments (0)

Monday, October 26, 2015

NY transgender protections rely on 1945 law

The story from NY: 

ALBANY -- Gov. Andrew Cuomo’s move to provide legal protections to transgender New Yorkers hinges on interpreting the word “sex.”

Cuomo late Thursday introduced regulations that would legally prevent New York employers, businesses and housing providers from discriminating against transgender individuals and those with gender dysphoria.

Within hours of Cuomo’s proposal, conservative groups pushed back, questioning whether the governor has the legal authority to install such rules. The Cuomo administration has stood its ground, with one official calling the plan a “progressive interpretation” of a law that first took effect in 1945.

October 26, 2015 in LGBT | Permalink | Comments (0)

Saturday, October 24, 2015

The Day Iceland Women Went on Strike for Equality -- 40 Years Ago Today

BBC, The Day Iceland's Women Went on Strike

Forty years ago, the women of Iceland went on strike - they refused to work, cook and look after children for a day. It was a moment that changed the way women were seen in the country and helped put Iceland at the forefront of the fight for equality.


When Ronald Reagan became the US President, one small boy in Iceland was outraged. "He can't be a president - he's a man!" he exclaimed to his mother when he saw the news on the television.


It was November 1980, and Vigdis Finnbogadottir, a divorced single mother, had won Iceland's presidency that summer.  The boy didn't know it, but Vigdis (all Icelanders go by their first name) was Europe's first female president, and the first woman in the world to be democratically elected as a head of state.


Many more Icelandic children may well have grown up assuming that being president was a woman's job, as Vigdis went on to hold the position for 16 years - years that set Iceland on course to become known as "the world's most feminist country".


But Vigdis insists she would never have been president had it not been for the events of one sunny day - 24 October 1975 - when 90% of women in the country decided to demonstrate their importance by going on strike.

October 24, 2015 in International | Permalink | Comments (0)