Monday, November 25, 2013

Daily Read: Julie Goldscheid on the Constitutional and Social Problems of Violence Against "Women" (on this International Day for the Elimination of Violence Against Women)

The 25th of November is "International Day for the Elimination of Violence against Women" declared by the United Nations by a Resolution in 2000

IntDayElimViolenceWomen

The resolution echoes earlier attention to the problem which it defines as including

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender.  Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?

GoldscheidProfessor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform, available in draft on ssrn.  Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women."  She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted.  In West Virginia, the Supreme Court of Appeals in  Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men.  As Goldscheid describes it, the court

concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.

To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible.  However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,

the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender.  The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services.  For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.

These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."  

Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing.  It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.

http://lawprofessors.typepad.com/conlaw/2013/11/daily-read-julie-goldscheid-on-violence-against-women.html

Courts and Judging, Current Affairs, Equal Protection, Family, Gender, Scholarship, Theory | Permalink

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