Gender and the Law Prof Blog

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

Monday, March 19, 2018

Catharine MacKinnon and Gretchen Carlson Talk Sexual Harassment

Catharine MacKinnon and Gretchen Carlson Have Few Things to Say

Sexual harassment “was not considered anything you could do something about — that the law could help you do something about — until a book was written by a then-young woman named Kitty MacKinnon,” the Supreme Court justice Ruth Bader Ginsburg said at the Sundance Film Festival in January. She was there to attend the premiere of the documentary “RBG,” which will be released this spring. And the book, “Sexual Harassment of Working Women,” published in 1979, argued that sexual harassment in the workplace is sex discrimination and prohibited by equal protection laws.


“It was a revelation,” Justice Ginsburg said. “And it was the beginning of a field that didn’t exist until then.”


The Supreme Court agreed with Catharine A. MacKinnon. In its first case involving sexual harassment in 1986, with Ms. MacKinnon as co-counsel, the court ruled unanimously that sexual harassment is sex discrimination.


For over 40 years, Ms. MacKinnon, 71, has been a pioneer and lightning rod for sex equality. Along with her work on sexual harassment, she has argued, more controversially, that pornography and prostitution constitute sexual abuse of women in the context of social inequality.


Ms. MacKinnon now teaches law at the University of Michigan and Harvard. (In 1990, I studied with her, in a class called “Sex Equality,” when she was a visiting professor at Yale Law School.) Her most recent book, “Butterfly Politics,” surveys her four decades of activism.


Last month, she met Gretchen Carlson, the former Fox News anchor who, more recently, became a public face of sexual harassment. In July 2016, Ms. Carlson sued Roger Ailes, then chairman and chief executive of Fox News, claiming sexual harassment. After dozens of women came forward with their own accounts of harassment by Mr. Ailes, he was forced to resign.


Two months later, 21st Century Fox, the parent company of Fox News, settled Ms. Carlson’s harassment claim for $20 million and issued a rare public apology for her mistreatment. (Mr. Ailes died in May.)


Ms. Carlson, 51, is the author of the best-selling book “Be Fierce: Stop Harassment and Take Your Power Back.” A former Miss America, she was named chairwoman of the Miss America board of directors in January.

The article includes an in-depth interview with both women.

March 19, 2018 in Law schools, Violence Against Women, Women lawyers | Permalink | Comments (0)

Getting Rid of Student Evaluations due to Proven Gender Bias

Kristina Mitchell, Student Evaluations Can’t Be Used to Assess Professors .

Our research shows they're biased against women.  That means using them is illegal.


new study I published with my co-author examines gender bias in student evaluations. We looked at the content of the comments in both the formal in-class student evaluations for his courses as compared to mine as well as the informal comments we received on the popular website Rate My Professors. We found that a male professor was more likely to receive comments about his qualification and competence, and that refer to him as “professor.” We also found that a female professor was more likely to receive comments that mention her personality and her appearance, and that refer to her as a “teacher.”


The comments weren’t the only part of the evaluation process we examined. We also looked at the ordinal scale ratings of a man and a woman teaching identical online courses. Even though the male professor’s identical online course had a lower average final grade than the woman’s course, the man received higher evaluation scores on almost every question and in almost every category.


This is frustrating, perhaps more so given that we certainly are not the first study to look at the ways that student evaluations are biased against female professors. But we might be among the first to make the case explicitly that the use of student evaluations in hiring, promotion, and tenure decisions represents a discrimination issue. The Equal Employment Opportunity Commission exists to enforce the laws that make it illegal to discriminate against a job applicant or employee based on sex. If the criteria for hiring and promoting faculty members is based on a metric that is inherently biased against women, is it not a form of discrimination?


It’s not just women who are suffering, either. My newest work looks at the relationship between race, gender, and evaluation scores (initial findings show that the only predictor of evaluations is whether a faculty member is a minority and/or a woman), and other work has looked at the relationship between those who have accented English and interpersonal evaluation scores. Repeated studies are demonstrating that evaluation scores are biased in favor of white, cisgender, American-born men.


This is not to say we should never evaluate teachers. Certainly, we can explore alternate methods of evaluating teaching effectiveness. We could use peer evaluations (though they might be subject to the same bias against women), self-evaluation, portfolios, or even simply weigh the evaluation scores given to women by 0.4 points, if that is found to be the average difference between men and women across disciplines and institutions. But until we’ve found a way to measure teaching effectiveness that isn’t biased against women, we simply cannot use teaching evaluations in any employment decisions in higher education.

March 19, 2018 in Education, Equal Employment, Law schools | Permalink | Comments (0)

Does Title IX Protect Campus Visitors from Sexual Assault? The Larry Nasser Conundrum

Hannah Brenner, A Title IX Conundrum in the Lower Courts: Are Campus Visitors Protected from Sexual Assault?

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible as of late by the media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The United States Supreme Court has interpreted the law to contain a private implied right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. Over the past several years, a handful of district courts in the United States have rendered opinions that effectively refined the class of individuals who are entitled to protection under Title IX. These cases create two separate classes of individuals with different rights: students and non-students. Two cases in particular, K.T. v. Culver-Stockton College and Doe v. Brown University, both held that non-students who were sexually assaulted on campus by students enrolled at that university were not entitled to bring a Title IX cause of action for damages against the school for its deliberate indifference to their complaints of sexual assault. The Doe case is currently on appeal to the First Circuit and the Eighth Circuit dismissed the K.T. without ruling on this question of standing. Even more recently, in the sex abuse scandal involving a Michigan State University physician who was convicted of assaulting dozens of girls, athletes, and students, lawyers defending the university argue that the subset of victims who were not enrolled students (but who were treated by the doctor on campus) lack standing to sue under Title IX. There is growing evidence to suggest that these cases represent an emerging development in the evolution of Title IX jurisprudence. This article seeks to add to the ongoing and complex Title IX conversation by exposing a novel, yet very real conundrum: to whom does Title IX apply? Should students who are officially enrolled in an institution be safer than those who are not? Are non-students who interact within the university context simply left out of the spectrum of Title IX protections? And what sort of campus safety dynamic is created if we distinguish between kinds of victims in terms of extending protections of the federal law? After extensive analysis, the article concludes that creating safer campus communities probably demands an extension of rights to individuals who engage in the programs and activities of a university, regardless of their status as students.

March 19, 2018 in Education, Violence Against Women | Permalink | Comments (0)

Friday, March 16, 2018

A Review of Posts on Irish Law and Gender

Federal Court Issues Preliminary Injunction Blocking Ohio Ban on Abortion in Down Syndrome Cases

Ohio Judge Blocks Legislation Preventing Abortion in Down Syndrome Cases

An Ohio federal district court judge blocked legislation that would have banned abortion in cases where a fetus is diagnosed with Down syndrome.

Republican Gov. John Kasich signed the legislation into law in December of last year, and it was scheduled to go into effect March 23. The legislation is now blocked until a final ruling is made in the lawsuit.
In a court order granting a preliminary injunction Wednesday, Southern District of Ohio Judge Timothy Black said that federal abortion law is "crystal clear" that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."...
The law prohibits abortions after prenatal tests reveal Down syndrome in a fetus, or if there's "any other reason to believe" the fetus has the genetic condition.
A person performing an abortion in such a case could face a fourth-degree felony charge, and physicians could lose their licenses. The woman seeking the abortion would not be held accountable, according to the legislation.
The ACLU filed a complaint in mid-February calling the legislation unconstitutional.....
Similar laws have passed in North Dakota and Indiana, though a federal judge blocked the Indiana law. The North Dakota law went into effect in 2013.

FYI, Judge Black was also the trial judge in the Obergefell case on same-sex marriage.

The decision in Pre-Term Cleveland, et al v. Himes is here:  Order Granting Preliminary Injunction (March 14, 2018)

March 16, 2018 in Abortion, Constitutional | Permalink | Comments (0)

What Does Dressing Professionally Mean for Women of Color

Priya-Alika Elias, What Does Dressing "Professionally" Mean for Women of Color?

The schools did give us certain guidelines. . . . But generally, they avoided specific rules. “Be discreet,” they said. “Dress professionally, like the older lawyers do. Blend in.”


When you’re a woman of color, that’s almost impossible. You learn quickly that your body is hypervisible, because it is probably the only one of its kind in the courtroom. You are constantly among men, white men, who notice how different you look from the usual faces they see. And because you’re hypervisible, you are subject to the harshest, most unforgiving scrutiny. Does that girl belong here? What is she doing here? they wonder. And when they wonder, they seize upon the easiest thing to criticize, the first thing anybody would notice: the way you’re dressed..... 


The selective enforcement of rules continued all through law school. We didn’t get a handbook at my summer internship telling us what to wear: It was left to my supervisors to enforce the dress code. They did it in the most arbitrary fashion; my coworker wasn’t admonished for wearing a white suit to court, but I was sent home again and again to change.


Nobody tells you what too much means, in the context of the workplace. They don’t go into detail, because it’s an embarrassing conversation to have with another adult. That reluctance is normal, and it makes employers resort to coded language, like “unprofessional” and “excessive.” Unfortunately, it is this vagueness, this lack of specificity, that is exploited to the detriment of women of color. When you don’t have a clear set of rules to follow, you’re open to the judgment of a subjective authority — often a white male authority. In the eye of that authority, your very presence is a violation.

h/t Sahar Aziza


March 16, 2018 in Business, Law schools, Women lawyers | Permalink | Comments (0)

Thursday, March 15, 2018

The Corporate Governance Case for Board Gender Diversity

The Corporate Governance Case for Board Gender Diversity: Evidence from Delaware Cases

Gender diversity on company boards is becoming an increasingly important issue. The theoretical bases for the desirability of gender diversity regulations can be understood under three categories i.e. social benefits; business benefits; and corporate governance benefits. Since corporate governance is the main task of the board of directors, the corporate governance case for board gender diversity needs to be developed further. This article tests the corporate governance benefits of board gender diversity by conducting a qualitative content analysis of Delaware cases. The observations from this study are then analysed against the quantitative and qualitative literature on the about the corporate governance benefits of board gender diversity. The findings suggest that gender diversity might help boards overcome some impediments to effective functioning in certain cases but also suggests other complementary solutions to make boards more effective. The article thus, builds the corporate governance case for board gender diversity, but also sets out its limits.

March 15, 2018 in Business, Gender | Permalink | Comments (0)

Wednesday, March 14, 2018

MeToo, Time's Up, and Theories of Restorative and Transitional Justice

Lesley Wexler, Jennifer K. Robbennolt, Colleen Murphy, #Metoo, Time's Up, and Theories of Justice


Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned.

This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace.

We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, emphasize the need for holism and mixed types of responses in trying to spur societal change.

March 14, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Update on Work of Federal Judiciary Workplace Conduct Working Group on Sexual Harassment

Judicial Conference Receives Status Report on Workplace Conduct Review

Nearly 20 reforms and improvements have been implemented or are under development to help address workplace conduct concerns in the federal judiciary, James C. Duff, Chair of the Federal Judiciary Workplace Conduct Working Group, reported today at the biannual meeting of the Judicial Conference.


In introducing Duff before he delivered his report, Chief Justice John G. Roberts, Jr., who is the Conference's presiding officer, told the group, "I would like to reiterate what I stated in my year-end report. I have great confidence in the men and women who comprise the federal judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have a clear and immediate recourse to effective remedies. The Work of this group will help our branch take the necessary steps to ensure an exemplary workplace for every court employee."


“Any harassment in the judiciary is too much,” Duff said in his report to the Conference. He told the Conference that the Working Group hopes to simplify and develop additional options, at both the national and local levels, for employees to seek assistance with workplace conduct matters. . . . 


Representatives of current and former law clerks and a cross-section of current judiciary employees met with the Working Group at its most recent meeting and had what Duff described as "an informative and productive discussion."


The Working Group also is receiving input via a mailbox on, through which current and former judiciary employees can submit comments relating to the policies and procedures for protecting all judiciary employees from inappropriate workplace conduct.... 


The following either have been accomplished or are in progress:

  • Provided a session on sexual harassment during the ethics training for newly appointed judges in February.
  • Established an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.
  • Added instructive in-person programs on judiciary workforce policies and procedures and workplace sexual harassment to the curricula at Federal Judicial Center programs for chief district and chief bankruptcy judges this spring and upcoming circuit judicial conferences throughout the country this spring and summer.
  • Removed the model confidentiality statement from the judiciary’s internal website to revise it to eliminate any ambiguous language that could unintentionally discourage law clerks or other employees from reporting sexual harassment or other workplace misconduct.
  • Improve law clerk and employee orientations with increased training on workplace conduct rights, responsibilities, and recourse that will be administered in addition to, as well as separately from, other materials given in orientations.
  • Provide “one click” website access to obtain information and reporting mechanisms for both Employment Dispute Resolution (EDR) and Judicial Conduct and Disability Act (JC&D) claims for misconduct.
  • Create alternative and less formalized options for seeking assistance with concerns about workplace misconduct, both at the local level and in a national, centralized office at the Administrative Office of the U.S. Courts, to enable employees to raise concerns more easily.
  • Provide a simplified flowchart of the processes available under the EDR and JC&D.
  • Create and encourage a process for court employee/law clerk exit interviews to determine if there are issues and suggestions to assist court units in identifying potential misconduct issues.
  • Establish a process for former law clerks and employees to communicate with and obtain advice from relevant offices and committees of the judiciary.
  • Continue to examine and clarify the Codes of Conduct for judges and employees.
  • Improve communications with EDR and JC&D complainants during and after the claims process.
  • Revise the Model EDR Plan to provide greater clarity to employees about how to navigate the EDR process.
  • Establish qualifications and expand training for EDR Coordinators.
  • Lengthen the time allowed to file EDR complaints.
  • Integrate sexual harassment training into existing judiciary programs on discrimination and courtroom practices.
  • Review the confidentiality provisions in several employee/law clerk handbooks to revise them to clarify that nothing in the provisions prevents the filing of a complaint.
  • Identify specifically the data that the judiciary collects about judicial misconduct complaints to add a category for any complaints filed relating to sexual misconduct. The data shows that of the 1,303 misconduct complaints filed in fiscal year 2016, more than 1,200 were filed by dissatisfied litigants and prison inmates. No complaints were filed by law clerks or judiciary employees and no misconduct complaints related to sexual harassment.

March 14, 2018 in Equal Employment, Judges, Workplace | Permalink | Comments (0)

NC Bill Clarifies that Consent to Sex Can be Revoked Mid-course

Men Legally Allowed to Finish Sex Even if Woman Revokes Consent

On March 30, state Sen. Jeff Jackson, a Democrat, filed a bill that would change this horrific law. (He filed a similar bill with two Republican co-sponsors in 2015.) The text of SB 553 is short and to the point, reading, in part: "a person may withdraw consent to engage in vaginal intercourse in the middle of the intercourse, even if the actual penetration is accomplished with consent and even if there is only one act of vaginal intercourse."


Currently, the bill sits in the Senate's Rules Committee, where it is likely to be tabled. Jackson tells Broadly he plans to refile the bill again next year. "This really shouldn't be a controversial matter," he says. "North Carolina is the only state in the country where no doesn't really mean no. Right now, if a woman tells a man to stop having sex he is under no legal obligation to do so, as long as she initially consented. If sex turns violent, the woman has no right to tell the man he must stop."


Jackson says he first encountered this loophole when he worked as a criminal prosecutor, when his office was forced to dismiss a rape charge because of these circumstances. "Very few legislators are aware that this is the current state of our law," he says. "They're very surprised when I tell them. Most of my conversations have been educating our members about this plainly unacceptable loophole in our rape law. I have not had any members defend the loophole. Every legislator I've spoken to agrees we need to fix this. . . .


While North Carolina may be the only state where women explicitly can't withdraw consent after sexual intercourse has begun, most other states see this as a gray area. Only South Dakota, Connecticut, California, Illinois, Maine, Maryland, Kansas, and Minnesota affirmatively recognize that consent can be withdrawn at any time during sex; Illinois is the only one that's made it law.

March 14, 2018 in Legislation, Violence Against Women | Permalink | Comments (0)

Conference: Noncompliant Bodies--Social Equity and Public Space

Yale School of Architecture, April 6-7, Noncompliant Bodies: Social Equity and Public Space

The discipline of architecture tends to overlook the needs of people who fall outside of white, male, heterosexual, able-bodied norms. This symposium, convened by Joel Sanders and Susan Stryker, will assemble a cross-disciplinary group of designers and scholars to explore the relationship between architecture and the demands for social justice voiced by people who have been marginalized and oppressed on the basis of race, gender and disability. The symposium will examine how designers working in collaboration with experts from related disciplines transform one of three architectural types: restrooms, museums, and urban streets. Our objective will be to propose alternative futures that rethink the relationship between bodies and built environments in ways that better serve the goals of social equity.

YSOA_NoncompliantBodies_Poster (002)

March 14, 2018 in Conferences, Gender | Permalink | Comments (0)

Tuesday, March 13, 2018

UK Survey on Women in the Law Shows Unconscious Bias, Worklife, Flextime and Male Networks Still Barriers to Equality

Largest Ever Survey on Gender Equality in Legal Profession

The largest international survey of women in the law has been released by the Law Society of England and Wales to mark International Women’s Day 2018, shedding light on the road to gender equality in the legal profession.


“As women solicitors practising in England and Wales outnumber men for the first time in history, people working in law across the world have spoken out about the challenges the profession faces in achieving gender equality,” said Law Society vice president Christina Blacklaws. . . .


"“While more and more women are becoming lawyers, this shift is not yet reflected at more senior levels in the profession. Our survey and a wider programme of work during my presidency in 2018-19 seek to understand progress, barriers and support remedies.


“Unconscious bias in the legal profession is the most commonly identified barrier to career progression for women, while flexible working is seen as a remedy by an overwhelming 91% of respondents to our survey.


“Interestingly, while half of all respondents said they thought there had been progress on gender equality over the last five years, there was a significant difference in perception by gender with 74% of men reporting progress in gender equality compared to only 48% of women.”

Key figures:

  • 7,781 people responded to the Law Society’s Women in the Law survey (5,758 women, 554 men and 1,469 unknown or other)
  • 74% of men and 48% of women reported progress on gender equality in the last 5 years (overall 50%)
  • Main barriers to career progression perceived as:
    - Unconscious bias (52%); however, only 11% said unconscious bias training is consistently carried out in their organisation
    - Unacceptable work/life balance demanded to reach senior levels (49%)
    - Traditional networks/routes to promotion are male orientated (46%)
    - Current resistance to flexible working practices (41%)
  • 91% of respondents said flexible working is critical to improving diversity 
    - 52% work in an organisation where flexible working is in place
  • 60% are aware of gender pay gap in their place of work
    - Only 16% see visible steps taken to address gender pay gap

March 13, 2018 in Equal Employment, International, Women lawyers | Permalink | Comments (0)

Guest Blogger: MeToo in the Legal Profession

#MeToo in the Legal Profession

Daniela Kraiem, Associate Director Women and the Law Program, American University Washington College of Law


Anita Hill testifying at the confirmation hearing of Clarence Thomas was one of the events that shaped my life as a lawyer, a feminist, and a human being.  As the country watched this intelligent, competent black woman give her testimony, I saw what it meant to speak truth to power.  I understood that power would not pin laurels on you for bravery, but would instead denigrate you and spit on you and tell you to your face that your experience was a lie.   I learned that action requires much more than bravery, it requires sacrifice.

I also understood, when Clarence Thomas responded that the proceedings had descended into a high-tech lynching just how heavy weight of intersectional oppression is, and how it is always deployed in the service of protecting power. What white supremacy cannot accomplish, patriarchy will. 

At that time, as a young waitress, I had endured my own ration of sexual harassment.  But it wasn’t until much later, until I graduated from law school and started to make my way as a young lawyer and experienced a few very sketchy, borderline moments that I think I grasped the depths of what Anita Hill was up against.

Lawyers expect our profession to provide us with a kind of shield.  We are powerful, privileged people, even if we are also female or gay or a person of color or all or none of the above.  Our identity as a member of the bar provides us with the ability move freely in the halls of power….until we are harassed by someone even more powerful. 

The harassers within the legal profession are among the most powerful people on the planet—bar none.  When you’re harassed as a lawyer, it’s often by a judge, a legislator, the partner of your firm, the CEO of the company or the big client.  A person with unparalleled resources, cultural capital to burn, and ability to use the law as both a shield and a cudgel against you.   

We operate in a profession where confidentiality and discretion are paramount, refusing assignments is difficult, and our reputations are our currency.  Harassers use and abuse the ethical and social conventions of our profession to prevent victims from speaking out and speaking up.  The result? Persistent gender-based inequality among lawyers that seems to have no discernable cause. 

Much of the conversation around #MeToo starts to bleed—quite rightly in some cases—into conversation about crimes, about assault, and about a culture of violence.  But sexual harassment is also fundamentally an economic issue, one that warps our profession.  The cost is not just to the victims, who must figure out how to earn a living, despite the hostile environment they’re operating in. The cost is to all of us.  How many of us have not applied for a job, or turned down a plum assignment because taking it would have put us into close contact with someone who either the whisper network or gut instinct said would not be safe?  Avoiding sexual harassment shapes our choices, delimiting our options.  The language of choice (“You chose to turn down the assignment”; “You choose the less prestigious clerkship”) masks a sick, systemic tolerance for discriminatory behavior.  It’s not a leak in the pipeline, it’s the gaping hole.

The #MeToo moment is an opportunity for change, not just in the general law, but in lawyers.  There are specific and concrete steps that we can take now to make our workplaces exactly that—places where we work.  Where we represent our clients, or draft legislation, or decide cases.  Not places where we have to think about our basic safety and security. 

In February, a group of us came together to discuss concrete steps for change at #MeToo: Preventing Sexual Harassment in the Legal Workplace (February 19, 2018, American University Washington College of Law), sponsored by the Women and the Law Program at AU. I was inspired by these women and daunted by the amount of work to be done, starting with:

(See also these remarks by Daniela Kraiem, or watch the entire panel discussion complete with introductions by Kendra Brown, closing remarks by Ann Shalleck, and Q&A).

We also need to lead the change in our own workplaces.  Because of the immense cultural and political power wielded by harassers in the legal profession, we have to pay special attention to the even wider power differential for those who work with us, but who are not also lawyers. Court reporters, paralegals, administrative assistants, law clerks, interns, interpreters, bailiffs, correctional officers.  If a harasser is willing to risk harassing someone who is in any other context not afraid to sue your ass, how much more complicated is it for someone without our professional badges and power suits to shield them? We, as lawyers, have an especial obligation to the people we work with—to listen and watch and ask and to believe them when they tell us that something is making them uncomfortable—or worse.  Because of the power we possess, ours is a heightened obligation to not be complicit.

In the wake of #MeToo, I’ve thought often of Anita Hill and the lessons her experience etched on us. I’m looking for ways to repay the immense debt that I, at least, owe her for speaking out when doing so meant that she walked alone.  Working to end harassment in the legal profession—the context in which Clarence Thomas harassed Anita Hill, and the context in which Anita Hill fought back--is the right place to begin.

March 13, 2018 in Conferences, Equal Employment, Guest Bloggers, Women lawyers, Work/life | Permalink | Comments (0)

Monday, March 12, 2018

New Book: The Logics of Gender Justice: State Action on Women's Rights Around the World

Mala Htun & S. Laurel Weldon, The Logics of Gender Justice: State Action on Women's Rights Around the World (Cambridge Univ. Press March 2018)

When and why do governments promote women's rights? Through comparative analysis of state action in seventy countries from 1975 to 2005, this book shows how different women's rights issues involve different histories, trigger different conflicts, and activate different sets of protagonists. Change on violence against women and workplace equality involves a logic of status politics: feminist movements leverage international norms to contest women's subordination. Family law, abortion, and contraception, which challenge the historical claim of religious groups to regulate kinship and reproduction, conform to a logic of doctrinal politics, which turns on relations between religious groups and the state. Publicly-paid parental leave and child care follow a logic of class politics, in which the strength of Left parties and overall economic conditions are more salient. The book reveals the multiple and complex pathways to gender justice, illuminating the opportunities and obstacles to social change for policymakers, advocates, and others seeking to advance women's rights,

March 12, 2018 in Books, International | Permalink | Comments (0)

New Book: Oliver Wendell Holmes and Fixations of Manliness

I'm pleased to announce the publication of the new book by my former co-editor here at the Gender & Law Prof Blog, John Kang.

John Kang, Oliver Wendell Holmes and Fixations of Manliness (Routledge 2018)  

Oliver Wendell Holmes, Jr. has been, and continues to be, praised as America’s greatest judge and he is widely considered to have done more than anyone else to breathe life into the Constitution’s right of free speech, probably the most crucial right for democracy. One indeed finds among professors of constitutional law and federal judges the widespread belief that the scope of the First Amendment owes much of its incredible expansion over the last sixty years to Holmes’s judicial dissents in Abrams and Gitlow.


In this book, John M. Kang offers the novel thesis that Holmes’s dissenting opinions in Abrams and Gitlow drew in part from a normative worldview structured by an idiosyncratic manliness, a manliness which was itself rooted in physical courage. In making this argument, Kang seeks to show how Holmes’s justification for the right of speech was a bid to proffer a philosophical commentary about the demands of democracy.

He previewed part of the book in a prior article, John Kang, "The Solider and the Imbecile": How Holmes' Manliness Fated Carrie Buck, 47 Akron L. Rev. 1055 (2014)

March 12, 2018 in Books, Legal History, Manliness | Permalink | Comments (0)

Friday, March 9, 2018

Where are the Women on the European Court of Justice?

Rebecca Gills & Christian Jensen, Where are the Women? Legal Traditions and Descriptive Representation on the European Court of Justice, in Politics, Groups, and Identities (Feb. 2018)

What constrains the representation of women on the European Court of Justice (ECJ)? In this paper, we investigate how gender-based double standards can diminish the likelihood that the member state will select a female candidate. We find that the appointment of women to the ECJ depends upon the relationship between the appointee's policymaking backgrounds and the degree to which legal traditions in the member state provide policymaking experience to ordinary judges. The fact that this configuration has a disparate impact by candidate gender reflects the fact that female candidates are expected to demonstrate partisan neutrality or policymaking expertise, while male candidates are assumed to have these traits. Our findings demonstrate the importance of informal job requirements and institutional constraints on the ability of governments to achieve their representation goals.

March 9, 2018 in Courts, Gender, International, Judges | Permalink | Comments (0)

CFP Journal of Research on Women and Gender


The Journal of Research on Women and Gender is currently accepting manuscripts for our latest issue. Our mission is to promote critical dialogues about the experiences of women and persons of various gender identities in diverse cultural contexts. We welcome manuscripts that give voice to the unique and varied expressions of women and various genders. As an interdisciplinary publication, we welcome qualitative research, quantitative research, pedagogical work, and creative projects. Please see our website for detailed information about our submission guidelines.

We encourage everyone to share this message with those interested in submitting a paper or serving as a reviewer for our journal. If you have any questions, please contact our Journal Manager, Hayden Prince (

To view our previous publications, please see our archives.



March 9, 2018 in Call for Papers | Permalink | Comments (0)

Thursday, March 8, 2018

International Women's Day is a Protest Day, Not a Hallmark Holiday

Vox, International Women's Day, Explained

But what is International Women’s Day? Where did it come from, and why is it necessary?


The day actually has fairly radical origins, involving the Socialist Party of America. Over the past few years, however, it has become a corporate-backed, global rallying day for women’s issues with a key goal: to finally bring about gender parity around the world.


In short, it’s a day to work toward gender parity.


The Socialist Party of America organized the first National Women’s Day in New York in 1909 to commemorate the 1908 strike of the International Ladies’ Garment Workers’ Union. (Women garment workers in early-20th-century America had plenty of reasons to walk off the job, as the 1911 Triangle Shirtwaist Factory fire would tragically prove.)


A year later, National Women’s Day became International Women’s Day at the second International Conference of Working Women in Copenhagen, where more than 100 women from 17 countries decided to establish a worldwide day of celebration to press for working women’s demands.


In fact, the Russian Revolution has International Women’s Day to thank. The 1917 demonstrations by women demanding “bread and peace” sparked other strikes and protests, which led to the abdication of Czar Nicholas II four days later and granted women the right to vote.


International Women’s Day became a more popularized holiday after 1977, when the United Nations invited member states to celebrate it on March 8.

NYT, International Women's Day: Pride, Protests, and Pressure

CNN, Spain Sees First Feminist Strike on Women's Day

Campaign Website, internationalwomen'

Slate, Made in the USA

Americans may think of International Women’s Day as a sentimental export from abroad—but this week’s global strike is a throwback to its real history.


In the United States, the holiday’s reddish tint caused it to fall out of mainstream favor rather quickly, and until a few years ago, few Americans had heard of it. Recently, however, as digital marketing campaigns flow across national borders, the softer and more commercial descendent of the original radical American holiday has arrived back on our shores. A coalition of corporations, including BP and PepsiCo, now promotes International Women’s Day online with hashtags and official themes. (This year’s is #BeBoldForChange. Inspired yet?) A March 8 Google Doodle last year celebrated “Doodle-worthy women of the future” by asking women across the world to talk about their aspirations, from the unobjectionably noble (improve girls’ access to education) to the unobjectionably fun (swim with pigs in the Bahamas). Americans can now order an International Women’s Day bouquet to “honor an inspiring woman in your life,” or celebrate by buying perfume or mascara whose proceeds go to empowerment-related causes. Capitalism hearts your socialist holiday!


Tension over the radical origins of Women’s Day is nothing new. One long-popular origin story had it that the holiday was first established in 1907 to mark the 50th anniversary of a massive demonstration by female garment and textile workers in New York City, whose rally against low wages and 12-hour work days was brutally shut down by the police. There was only small problem with this inspiring tale: Neither the 1857 protest nor the 1907 tribute seem to have actually occurred. Two French feminist historians busted the myth in the 1980s, revealing that the 19th-century uprising was actually invented in 1955, in part “to detach International Women’s Day from its Soviet history.”


The organizers reclaiming International Women’s Day this week, by contrast, have no qualms about its far-left origins and are in fact trying to restore that spirit to the soft-focus holiday it’s become. Ashley Bohrer, a member of the International Women’s Strike’s national planning committee, described the strike in part as an effort to draw attention to “the decoupling of InternationalWomen’s Day from its very radical working-class background.” Early on, she pointed out, the holiday had often been called International Working Women’s Day. “In recent years people have celebrated March 8 as Women’s Day,” she said, “but what’s been lost is the ‘working’ part and the ‘international’ part.”

International Women's Day is Not a Hallmark Holiday

Though we now fondly know March 8 every year to be the day we celebrate International Women’s Day, it’s not always been that way. In 1908, amid early discussions about women’s poorly paid labor, long hours, and lack of voting rights (hahahahaha, sound familiar?), the first Women’s Day marches took place. The very first was in 1908, when 15,000 women (in New York City, baby!) took to the streets to protest. Only a year later and the inaugural national Women’s Day was born on February 28, 1909, in conjunction with the Socialist Party of America. Were the first Bernie Bros actually women? It really makes you think.


This tradition of celebrating National Women’s Day continued for five years in the States, while Germans Louise Zietz and Clara Zetkin were floating a larger idea internationally. Taking inspiration from Zietz, Zetkin, a Marxist and advocate or women’s rights, brought the idea of having an International Women’s Day to the International Conference of Working Women in Copenhagen in 1910. Her idea was appreciated so much by the hundreds of women in attendance — socialists, workers, and union laborers alike — that they all decreed that it must happen the following year. On March 19, 1911, Europe saw its first-ever International Women’s Day. The date was subsequently changed to March 8 two years later, and stuck. It’s been that way ever since. 


The holiday continued steadily on every year and was finally acknowledged by the U.N. in 1975, who decided to officially sanction and recognize the holiday on a yearly basis. The day began receiving yearly themes in 1996, and has since been celebrated with themes like World Free of Violence Against Women, Investing in Women and Girls, and this year’s Planet 50-50 by 2030: Step It Up for Gender Equality, though many of the recognized themes are just as evergreen as the need to celebrate the day itself....


International Women’s Day is a national holiday and day off in the following countries — Afghanistan, Angola, Armenia, Azerbaijan, Belarus, Burkina Faso, Cambodia, China (for women only), Cuba, Georgia, Guinea-Bissau, Eritrea, Kazakhstan, Kyrgyzstan, Laos, Macedonia (for women only), Madagascar (for women only), Moldova, Mongolia, Nepal (for women only), Russia, Tajikistan, Turkmenistan, Uganda, Ukraine, Uzbekistan, Vietnam, and Zambia — but not the United States. Maybe next year?


March 8, 2018 in International, Legal History, Pop Culture | Permalink | Comments (0)

Law Students Protest Libertarian Feminist Speaker

Campus Speech Protest Draws Call to Discipline Students

The shouting down of Christina Hoff Sommers by students at Lewis and Clark law school during a talk on her brand of feminism has renewed concern about freedom of expression in academic settings.


Protesters who disrupted Sommers’ March 5 appearance at an event sponsored by the conservative legal group the Federalist Society should face school and bar discipline, one scholar told Bloomberg Law. Another said their tactics only amplified her ideas, which they opposed.


“I think there’s always a tough balance to be drawn between the right of speakers to speak and the right of students to protest,” Tung Yin, a professor at the private Portland, Ore., school who attended the event told Bloomberg Law.


The Lewis and Clark incident is one of many controversies involving events hosted by conservative groups that were canceled or disrupted on college and law school campuses. Law schools have not had as many incidents as other campuses, but some Federalist Society events have become a venue for politically charged disputes over speech.


Seattle University law school revoked its co-sponsorship of an immigration discussion in October hosted by its chapter of the Federalist Society. Texas Southern University law school soon after canceled a Federalist Society event that was to feature a conservative state representative.

Feminism Critiqued

Sommers, a scholar at the American Enterprise Institute, a nonprofit conservative-leaning think tank, articulates what she calls a “factual feminism” that critiques contemporary feminism. For instance, she challenges the gender wage gap and claims about the prevalence of sex assault on college campuses.Her lecture, “The Closing of the Feminist Mind,” was “an argument for a more judicious, inclusive, freedom-centered feminism,” Sommers told Bloomberg Law by email.


At least some of the protesters who interrupted her talk were law students, according to Yin.


They chanted that “rape culture is not a myth” and that the gender wage gap “is real,” in a video uploaded to YouTube. They also sang “no platform for fascists.”


Janet Steverson, a law professor and dean of diversity and inclusion at the school, asked Sommers to “wrap up” her speech “a couple of” times, Yin said.


Sommers said that she was able to give half of her speech, and that most of the student attendees, including progressives, were civil.


But she complained in a tweet about Steverson’s interference and said she was “never able to develop” her argument.


The speech was intended “to show that there was too little intellectual diversity in gender studies,” and that the “lack of balance has been harmful to the field” and “students who take it too seriously,” Sommers said.


“The censorious protesters who shouted me down could be Exhibit A for my thesis,” Sommers said.


She told Bloomberg Law that she is a registered Democrat and a moderate “libertarian feminist.”***


A better strategy for the protesters would have been to ignore the speech, Anthony Michael Kreis, a law professor at Chicago-Kent College of Law, told Bloomberg Law by telephone.


“I really had no idea who” Sommers was before the incident, but “now I know a lot more about her,” which shows that the protests were counterproductive, he said.

Sommers is the author of  Who Stole Feminism? How Women have Betrayed Women (1994) and  Freedom Feminism (2013) on the history of "conservative feminism," and host of the vlog The Factual Feminist.

Sommers' positions and writing have been characterized by the Stanford Encyclopedia of Philosophy as "equity feminism," a classical-liberal or libertarian feminist perspective which suggests that the main political role of feminism is to ensure the right against coercive interference is not infringed. Sommers has contrasted equity feminism with "victim feminism" and "gender feminism", arguing that modern feminist thought often contains an "irrational hostility to men" and possesses an "inability to take seriously the possibility that the sexes are equal but different."


March 8, 2018 in Law schools, Theory | Permalink | Comments (0)

Wednesday, March 7, 2018

Making the Case for Gender Quotas

Gender quotas are back in the news with the Oscars and the trending of "inclusion riders."  See posts here and here.  Not so long ago gender quotas were talked about with Canadian Prime Minister Justin Trudeau's 50% female cabinet, European corporate board quotas, and the United Nation's gender parity initiatives.

Quota is certainly a bad word.  But that doesn't mean its a bad idea.  To the contrary, I have argued that quotas, specifically gender quotas, can be legal.  And that such quotas are powerful remedies that offer the promise of structural change.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).

The article first discusses the need for and the power of gender quotas.  They are worth examining because no other remedy packs as much potential for making concrete, meaningful, systemic change.  The article traces the other contexts, mostly international, where such quotas have been endorsed.  It then addresses the legal issues. Here is an excerpt:


III.  Making the Legal Case for Judicial Gender Quotas

* * *

A second legal question regarding the validity of gender quotas is whether ordering such gender-specific relief would violate constitutional parameters of equal protection as seen in the affirmative action cases. U.S. Supreme Court decisions in the race context seemed to have foreclosed most affirmative action remedies like quotas in education and employment. Conditioning state action based on race is said to be discriminatory and trigger strict scrutiny, thereby justifying little state action.“‘To be narrowly tailored, a race-conscious admissions program cannot use a quota system,’ but instead must ‘remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.’” Race, however, can still be used as one factor in decisions like university admissions.

On the other hand, the European Court of Justice has upheld gender quotas against claims that they violate equality dictates. “[T]he ECJ's jurisprudence has reinforced the notion that gender quotas can only be narrowly justified by the goal of eradicating women's disadvantage.  Particularly when women's underrepresentation in certain positions is explained by prejudice, stereotype, or other practices associated with women's traditional exclusion from working life, quotas tend to be upheld.” Viewed this way, “[q]uotas are a mechanism for combating and undoing the history and present complex structures of women’s subordination.”

In the U.S., the question turns in large part on application of the Fourteenth Amendment’s Equal Protection Clause as to whether a gender quota as a judicial remedy would itself constitute discrimination. One key distinction between gender and race quotas is that the constitutional standards for sex discrimination have been distinguished from those for race. The Supreme Court has applied only intermediate, not strict, scrutiny to sex-based classifications. While arguments have been made over the years that sex is akin to race in its immutable and stereotypical function, and thus should demand the same level of strict scrutiny, the Court has stuck to its different standard for women. As a result, the Court has shown a greater tolerance for sex-based action, articulating a need to protect women or acknowledge gendered differences. And the constitutional standard has been interpreted by the Court to require women’s admission to the avenues of power.

What the intermediate standard of constitutional scrutiny might mean in the quota context is that sex-based action might be more tolerable than race-based action. Perhaps this is the silver lining of the double-standard of intermediate scrutiny. For the Court's gender jurisprudence has recognized “the transformative potential of affirmative action and” how it “best advances the antisubordination goal of the equal protection guarantee.”Courts would need to identify important (but not compelling) interests justifying the sex-based action. These important interests could be derived from women’s non-representative lack of power, continued subordination, lack of autonomy, and other systemic effects well-established in the feminist literature, and interests in equity, proportional representation, and balanced power which have driven global reforms.

This important objective of reversing gendered and discriminatory systems by mandating shared parity of power differentiates the case of gender quotas from the women-only policy struck down in Mississippi University for Women v. Hogan. There, a state university’s nursing program was open only to women.132 The state claimed that its single-sex admission policy “compensate[d] for discrimination against women and, therefore, constitutes educational affirmative action.” The Court noted, significantly, that such a justification could be an important governmental interest. “In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.” However, in Hogan, the Court found that this compensatory remedial purpose was not in fact the state’s objective. “Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities.” The Court concluded that, “[r]ather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tend[ed] to perpetuate the stereotyped view of nursing as an exclusively woman’s job.” In addition, the Court found that “MUW's admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.” Thus, the constitutional infirmity with the all-women policy in Hogan was that it was not remedial and not aimed at reversing systemic inequality, but rather impermissibly perpetuated gendered stereotypes.

Where affirmative remediation is the legitimate objective, the Supreme Court has upheld quota-like gender preferences. In Johnson v. Transportation Agency, the Court upheld an affirmative action plan of a county employer granting promotion preference to a woman against challenge under Title VII. The county adopted the plan because “mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.” It’s “goal” (specifically designated as the softer term “goal” rather than “quota”) was to achieve “a statistically measurable yearly improvement in hiring, training and promotion of minorities and women” by the use of a “benchmark by which to evaluate progress,” working toward a long-term goal where its work force matched the gender composition of the area labor force, 36%. At the time, just 22% of the employees were women, two-thirds of them clerical, only 7% women in administration, 9% in technical, and none in the position of the skill craft worker challenged in the lawsuit. The Court upheld using the gender preference as one of the factors of employment, citing the statistical imbalance and underrepresentation of women. It did not, the Court said, “unnecessarily trammel the rights of male employees or create [ ]  an absolute bar to their advancement” because positions still remained available for men and candidates, both men and women, still had to be qualified for the position.

Taking these cases together, the Court has shown a willingness to consider quotas in the gender context. While it has not had the question presented directly, the Court has at least not closed the door to gender parity. Instead, as in any heightened constitutional scrutiny, it demands close and careful application of the constitutional standards to ensure that gender preferences are not mere pretexts nor avenues for future discrimination.

March 7, 2018 in Equal Employment, Theory | Permalink | Comments (0)