Tuesday, March 11, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. Her post last week introduced her topic of exploring feminist legal history.
What do we mean when we talk about feminism? My book project has forced me to reconsider how I would answer this question. My scholarship fits comfortably within any classic definition of feminist legal history: I focus on the intersection of law and history in the context of reproductive health, divorce, marriage, and abortion. I consider myself a feminist and a historian. I brought these understandings of myself and my work to the book and the question at its core: how did Roe v. Wade impact social-movement debate and what can the history of the decision teach us about law as a tool for social change, in the context of gender relations more broadly? Research for the project took me to over seventeen archives, to the basement of convents, and the offices of anti-feminists. The most fun came in the oral histories I conducted with over 100 of those who participated in the abortion wars in the decade after Roe. I spoke with men and women, doctors and homemakers, lawyers and activists, abortion opponents and population controllers, and feminists of every stripe. What I learned made me wonder what it meant to be “pro-choice” or “pro-life.” As importantly, the research made me question who should count as a proper object of study for women’s legal history.
At the beginning of my research, I had treated pro-choice activism as synonymous with the women’s movement—unquestionably a core subject for feminist legal historians. I learned that the relationship between women’s rights and the legalization of abortion was much more contested than I had predicted. Identifying a cause with women’s rights had profound ideological and strategic ramifications. Physicians, population controllers, and even feminists wondered if embracing the rhetoric of women’s rights would set back the progress of abortion reform.
Law also played a surprising and unanticipated role in the creation of the abortion-rights cause. On the one hand, feminists could use the Roe decision in arguing that their movement should frame abortion as an issue of women’s rights. The Supreme Court’s approval made the idea of abortion as a woman’s right more legitimate, more mainstream, and more politically palatable. On the other hand, feminists’ wish to preserve that victory created damaging internal debates about the proper scope of a reproductive-justice agenda, about protections against sterilization abuse, and about what counted as true reproductive liberty.
I wonder how often causes and social movements we identify as feminist have a more troubled history. Did different legal movements once count as feminist? Might social causes associated with feminism today once have had a radically different meaning, both legally and politically? It is questions like these that make Women’s History Month more exciting than ever for feminist legal historians.
Sheryl Sandberg's editorial in the Wall St. J, Bossy, The Other B Word and NPR's follow up Sheryl Sandberg: The Word Bossy Should be Banned ask, how many women now in leadership positions were once called bossy? (Yep, my hand is raised). Sanberg argues this is devastating to silence confident young girls and women with the slap of the bossy label. If they were boys, we'd call them assertive, and leadership material.
It's a thing now... the Ban Bossy Campaign including the Girl Scouts, Beyonce, and Condolezza Rice.
This is an important piece of the puzzle over the future demand for lawyers. It's not just about what Wall St. is willing to pay for lawyers. There still is tremendous need for lawyers particularly in cases of family matters, landlord tenant, immigration, and cases with poor and minority plaintiffs. Such need that, as the article suggests, it constitutes an access to justice issue, if not an international human rights issue.
Monday, March 10, 2014
.....most perceptive movie director about what it means to be a man; or, so argues a blog post in Esquire.
He’s written childish characters, yes, and characters whose behavior was marked with affectations, yes, and he prizes style to an extreme degree, but the fact is there is no contemporary filmmaker more preoccupied with masculinity—with what it means to be a man, a mentor, a father, a son—than he is. Few have been more insightful on the matter.
Gender and Law isn't a blog dedicated to movies but I found the observation relevant because movies, like other mediums, tend to illuminuates some aspect of society. That Anderson should be proposed as the director to illuminate manliness says a lot about my student's generation; gone is the violent charisma of Martin Scorcese's characters (Scorcese's recent films seem to be dramatic reconstructions of Wes Anderson's playful attempts, incidentally). What seems to have replaced the latter is the desire by Anderson's characters to be whimsical, ironic characters who also have a genuine desire to forge basic bonds with other men....
The Southern Poverty Law Center will pay teachers $250 to attend a tolerance program, and the Hawai'i legislature has approved the training. The program--called Teaching Tolerance--includes promoting tolerance for same-sex marriage. Republican state representative Bob McDermott objects to the school board supporting Teaching Tolerance. Here's why:
“I want political agendas, right or left, out of the schools,” McDermott said. “I want the teachers to spend the precious little time they have with students educating them in the basics. English teacher should focus on English, things like sentence structure, and not some mainlander’s political viewpoint of social justice. Make no mistake, this program only presents one side of the story.”
The “agenda” of the program concerns McDermott, because he said there’s obvious “social engineering,” including a “disproportionate focus on normalizing homosexuality,” while also trying to discredit Christian beliefs.
“The theme of this curriculum is so called ‘anti-bias’ unless, of course, you are a person of faith. One example is the following: ‘Patrick is being raised in a very strict and exclusionary fundamentalist Christian home…’. If that is not biased I do not know what is,” McDemott said.
While I support the right of gay couples very much, I think McDermott's view, if accurate, deserves consideration; tolerance being such a vexed and paradoxical notion,....
Saturday, March 8, 2014
Today is International Women's Day:
Since its birth in the socialist movement, International Women's Day has grown to become a global day of recognition and celebration across developed and developing countries alike. For decades, IWD has grown from strength to strength annually. For many years the United Nations has held an annual IWD conference to coordinate international efforts for women's rights and participation in social, political and economic processes. 1975 was designated as 'International Women's Year' by the United Nations. Women's organisations and governments around the world have also observed IWD annually on 8 March by holding large-scale events that honour women's advancement and while diligently reminding of the continued vigilance and action required to ensure that women's equality is gained and maintained in all aspects of life.
IWD is now an official holiday in Afghanistan, Armenia, Azerbaijan, Belarus, Burkina Faso, Cambodia, China (for women only), Cuba, Georgia, Guinea-Bissau, Eritrea, Kazakhstan, Kyrgyzstan, Laos, Madagascar (for women only), Moldova, Mongolia, Montenegro, Nepal (for women only), Russia, Tajikistan, Turkmenistan, Uganda, Ukraine, Uzbekistan, Vietnam and Zambia. The tradition sees men honouring their mothers, wives, girlfriends, colleagues, etc with flowers and small gifts. In some countries IWD has the equivalent status of Mother's Day where children give small presents to their mothers and grandmothers.
The new millennium has witnessed a significant change and attitudinal shift in both women's and society's thoughts about women's equality and emancipation. Many from a younger generation feel that 'all the battles have been won for women' while many feminists from the 1970's know only too well the longevity and ingrained complexity of patriarchy. With more women in the boardroom, greater equality in legislative rights, and an increased critical mass of women's visibility as impressive role models in every aspect of life, one could think that women have gained true equality. The unfortunate fact is that women are still not paid equally to that of their male counterparts, women still are not present in equal numbers in business or politics, and globally women's education, health and the violence against them is worse than that of men.
However, great improvements have been made. We do have female astronauts and prime ministers, school girls are welcomed into university, women can work and have a family, women have real choices. And so the tone and nature of IWD has, for the past few years, moved from being a reminder about the negatives to a celebration of the positives.
Take a look at Hein's new Women and the Law Collection. It "brings together books, biographies and periodicals dedicated to women’s roles in society and the law. This unique collection of materials provides a platform to research the progression of women’s roles and rights in society over the past 200 years. Also included are more than 70 titles from Emory University Law School’s Feminism and Legal Theory Project which provide a platform to view the effect of law and culture on the female gender."
[Hat tip to Kyle Passmore]
Despite the provocatively alarming title, Pregnant? Your Boss May Have it In for You, this article describes an interesting research study:
Employers who illegally fire workers for being pregnant often attempt to skirt discrimination laws by smearing the employees as tardy, poor performers, or by chalking up their termination to company restructuring—even in cases where worse-performing employees, who were not pregnant, were allowed to remain on staff, and "company restructuring" turned out to be code for replacing pregnant workers.
That's according to a new study by sociology professor Reginald Byron of Southwestern University in Texas and Vincent Roscigno, a professor at Ohio State University. Their research, which will be published in the June 2014 issue of Gender & Society, is a major investigation into the phony justifications that employers who discriminated against pregnant workers gave to employees before firing them.
Byron and Roscigno examined 85 confirmed cases of pregnancy discrimination processed by the Ohio Civil Rights Commission for most years from 1986 to 2011. They found that pregnancy accounted for 40 percent of gender-related terminations. In around 30 percent of those cases, employers told the pregnant women that they were being fired for performing poorly; another 15 percent were let go for tardiness.
But a closer look at their workplaces found that pregnant employees were placed under greater scrutiny than their non-pregnant coworkers.
Friday, March 7, 2014
Prof. Brenda Stevenson at UCLA writes:
“Younger African Americans coming of age see what has happened with Trayvon Martin, they see what happened with (Jordan) Davis. They talk about it with their parents and their parents will say ‘that is what happened with Rodney King,’ or ‘that is what happened with Latasha Harlins, and their grandparents will say ‘that’s what happened with Emmett Till’ and so on,”....
The essay, from the Michigan Citizen, continues:
Young African Americans, particularly men, are informed early in life they are more susceptible to being regarded as guilty by nature — and the lessons are not necessarily learned in the home, but on the streets. A police officer can detain someone who is Black and they witness the ordeal, wondering if it was because of their race. They also see the victimization of Blacks at the hands of other races is largely disregarded compared to their white counterparts, she said.
Kathy Gyngell from the Guardian UK has an interesting spin on the contemporary feminist movement:
I am convinced that the opposite is true: there has never been a better time or place to be a woman than in 21st-century Britain.
Girls perform better than boys at school, and more girls than boys go to university.
Professions such as the law, education and medicine are increasingly feminised. The majority of medical graduates are now female, with women making up more than 60 per cent of doctors under the age of 30.
And the stuff about stay-at-home moms, as portended in the title of this blog post:
In this twisted, politically correct culture, being a victim counts more than genuine merit. But a deeper hypocrisy is at work here, for there is one group of women who the feminists regard as the enemy because they are perversely seen as a threat to the fashionable agenda of a woman's right to do any job.
This group is made up of the full‑time mothers.
Their decision to stay at home is generally regarded with contempt by feminists, who seem to see motherhood as a form of patriarchal oppression and think that a woman's only fulfilling role is in the workplace.
Thursday, March 6, 2014
As we begin women’s history month, I thought I would share a women’s legal history reading list. I've developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar. This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting. It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was legal fro a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s. The list goes on and on. My hope is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books. But for now, at least, the history is being recovered and analzyed, and the transmission of that discovery has been started.
Women’s Legal History: A Reading List
Tracy A. Thomas
Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)
Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)
Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)
Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)
Tracy A. Thomas, The New Face of Women’s Legal History, 41 Akron L. Rev. 695 (2008).
Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)
Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)
Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)
Nancy Cott, The Grounding of Modern Feminism (1987)
Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)
Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)
EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)
Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)
Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)
Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)
Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)
Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)
Coverture, Marital Status in the Family, Marital Property
William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)
Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)
Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)
Tracy A. Thomas, Elizabeth Cady Stanton on the Marriage Amendment: A Letter to the President, 22 Const. Comment. 137 (2005)
Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)
Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).
Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)
Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651
Ken Burns, Not For Ourselves Alone: The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)
Declaration of Sentiments, July 1848
History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)
Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)
Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)
Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)
Minor v. Happersett, 88 U.S. 162 (1974)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)
Iron Jawed Angels (2004) (video)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)
Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)
Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)
Muller v. Oregon, 208 US 412 (1908)
Adkins v. Children's Hospital, 261 US 525 (1923)
The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)
Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)
James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)
Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)
Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)
Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)
Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)
Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).
Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)
Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)
Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)
Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)
Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).
Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)
Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)
Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)
Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)
Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)
Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)
Women in the Courts
Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)
Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)
Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).
Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)
Bradwell v. State, 83 U.S. 130 (1872)
In re Lockwood, 154 U.S. 116 (1894)
Women’s Legal History Biography Project, at http://wlh.law.stanford.edu
This week I have been rereading Jill Hasday’s article on the history of the marital rape exception for its discussion of the 19th century voluntary motherhood advocacy. Voluntary motherhood was the demand of the women's rights community for the right of the wife to control sexual intercourse against the husband's marital privilege of forced sex. This time I picked up more clearly on Hasday's distinction between what she sees as the feminists' emphasis on bodily autonomy versus what Linda Gordon in her seminal work, The Moral Property of Women, sees as a mechanism for birth control. Hasday points out this was more than a practical birth control method of abstentience, but was a demand for a legal right and a structural shift in marriage of a gender-specific right to women. “right to her self,” “the sacred right to her own person,” the right to control men and unilaterially make the decision to engage in marital intercourse and pregnancy. My own work on Elizabeth Cady Stanton for a forthcoming book explores Stanton’s leadership and advocacy of this right to her own person
Kelly Allison Behre (West Virginia) has posted Digging Beneath the Equality Language: The Influence of the Father's Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform. Here's the abstract:
In 2004, a fathers’ rights group formed in West Virginia to promote “Truth, Justice, and Equality in Family Law.” They created a media campaign including billboards and radio spots advocating for male victims of intimate partner abuse and warning about the dangers of false allegations of domestic violence, sexual assault and child abuse, even offering a $10,000 award to anyone who could prove false allegations of abuse were used against a parent in a custody case. In 2007, they released a study concluding that 76% of protection order cases were based on false allegations or were unnecessary, and warned that protection orders were often filed to gain leverage in divorce and custody cases. They coupled their research with language created by a national fathers’ rights group to propose a new law to sanction parents making false allegations of intimate partner violence during custody cases. The Governor signed the bill into law in 2011.
To anyone unfamiliar with the fathers’ right movement, this story may not cause concern, let alone outrage. But another look at the research and the law may raise red flags. In spite of its dissemination between and beyond the fathers’ rights movement, the evaluation conclusions bear little rational relationship to the findings. The research is at best misguided and confused, and at worst, a deliberate attempt to mislead the public in order to promote a political agenda. The new law is inexplicably redundant, as both the domestic relations code and criminal code already provide sanctions for parents who make false allegations of abuse. The law was essentially a solution created to prove a problem by shifting the public policy focus from protecting victims to questioning their motives and potentially silencing them.
At first glance, the modern fathers’ rights movement and law reform efforts appear progressive, as do the names and rhetoric of the “father’s rights” and “children’s rights” groups advocating for the reforms. They appear a long way removed from the activists who climbed on bridges dressed in superhero costumes or the member martyred by the movement after setting himself on fire on courthouse steps. Their use of civil rights language and appeal to formal gender equality is compelling. But a closer look reveals a social movement increasingly identifying itself as the opposition to the battered women’s movement and intimate partner violence advocates. Beneath a veneer of gender equality language and increased political savviness remains misogynistic undertones and a call to reinforce patriarchy.
Wednesday, March 5, 2014
Perhaps the story could have originated only from a preppy New York City day school.
A highbrow Manhattan prep school is getting down and dirty to fight a former employee who claims he was fired for being straight.
The Trinity School on the Upper West Side called ousted coach Gregory Kenney a two-timing cad after he alleged in a lawsuit that he was fired by lesbian boss Pat Krieger in 2012 because he’s heterosexual.
School officials insist that Kenney wasn’t ostracized for his traditional lifestyle. But they don’t let things lie there.
In court papers filed last month in response to the teacher’s Manhattan civil suit, they say Kenney’s colleagues “overheard him lying to his wife about staying late for work events, only to attend bars with other women who were not his wife.”
....forbids Michigan's county clerks from issuing marriage licenses to gay couples, Oakland County clerk Lisa Brown said that she will ignore the attorney general if a federal judge permits her to do so.
DETROIT — Oakland County Clerk Lisa Brown said she is ready to begin immediately issuing same-sex marriage licenses if a federal judge rules that Michigan's ban on such unions is unconstitutional.
She said she answers to one authority: the courts - not the state attorney general.
"My job is to follow what the judge says," testified Brown, a defendant in a case that could make Michigan the 18th state to legalize gay marriage.
Last fall, Brown testified, Michigan Attorney General Bill Schuette sent 82 clerks statewide a memo instructing them not to issue marriage licenses to gay and lesbian couples, even if a federal judge overturns the ban.
The memo holds nothing over her, Brown said, pointing out that she doesn't report to Schuette, the governor or any state official - just the judge.
Tuesday, March 4, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.
If it’s March, it’s time once again to celebrate Women’s History Month. With the rise of important new scholarship, we also have a perfect reason to assess the state of women’s legal history itself. When New York University Press published a volume of essays on feminist legal history in 2011 (co-edited by Tracy Thomas), feminist legal history was still relatively new. At its heart was a narrative about the history of feminism, starting with the Seneca Falls Convention of 1848, continuing through the battle for the Equal Rights Amendment, suffrage, and temperance in the early twentieth century, the rise of the “second-wave” in the 1960s and 1970s, and the backlash to it in the 1980s. Three years later, feminist legal history is unquestionably alive and well—the subject of many books, law review articles, and symposium events. The flourishing of the field makes it more important than ever to question what we mean by both “law” and “feminism.”
Over the course of the month, I’m hoping to blog about the ways in which scholars are testing the boundaries of current understandings of women’s legal history. Some historians have found law in unconventional places: in the stories of those operating in administrative agencies, legislative hearings, abortion clinics, doctors’ offices, and grassroots organizations. These histories invite us to rethink whether women make law even when they do not transform existing doctrine, relate their claims to a lawyer, or change black-letter rules. In this way, women’s legal history stands at the forefront of a larger reevaluation of the relationship between law and social change. How we view that relationship, as women’s legal historians increasingly recognize, depends on how much we recognize something as law even when it fails to conform to our expectations.
Other historians have tested the relationship between feminism and the law. Whom should we consider a feminist? Should we treat as feminist any historical actor who identified herself (or himself) as such, or can we recognize feminists from their substantive commitments? Should feminist legal historians study those who obstructed legal progress for women? Can feminist politics obscure as well as illuminate our understanding of where we are and how we got here?
I am not sure I’ll answer these questions by the end of women’s history month, but it’s crucial to start a conversation about them. Women’s legal history teaches us not to take for granted legal rules, relationships, and institutions that now seem natural. It is a history of society’s blind spots and forgotten opportunities. For that reason, Women’s History Month seems to be as good a time as ever to consider what we as historians might have missed.
Sunday, March 2, 2014
Michael Higdon at Tennessee Law has uploaded Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men.
Just last month, in the state of Utah, twelve biological fathers filed suit, challenging the state’s adoption laws — laws the fathers allege permit “legalized fraud and kidnapping.” Specifically, these laws require nonmarital fathers to promptly take legal action in Utah to preserve their paternal rights. A problem arises, however, as mothers from other states have started traveling to Utah specifically to surrender newborn children for adoption. The fathers, unaware that their children are being placed for adoption in another state, fail to take action in Utah and, as a result, are permanently deprived of all parental rights. In that sense, these laws — which actually are not much different than the adoption laws of other states — permit nonmarital mothers to effectively thwart a man’s desire to father a resulting child.
Although not the subject of the Utah lawsuit, at the other end of the spectrum, many are surprised to learn that the law also permits a nonmarital mother to force fatherhood on men who never even consented to the sexual act that produced the child. Male victims of statutory rape, for example, in every case to consider the issue, have been ordered to pay child support for children that were a product of the rape. Likewise, adult men who are victims of sexual assault as well as men whose sperm was taken without their consent (and subsequently used to artificially inseminate a female) have also been consistently ordered to pay child support for the resulting child. In all of these cases, the mother’s wrongdoing has been ruled irrelevant.
In the enclosed article, Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, I explore examples of both kinds of fathers — I refer to them as “Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy.
Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other. In the attached Article, I argue that the laws relating to the reproductive rights of nonmarital males have effectively evolved into a modern day form of coverture and, thus, must be opposed for the very same reasons coverture was opposed. In addition, given the parallel these laws share with coverture, the reaction to which has greatly shaped modern feminism, feminist legal theory is an ideal lens through which analyze the harms befalling nonmarital fathers.
Of course, feminists have, understandably (and often justifiably), looked at the fathers’ rights movement with some skepticism. After all, a victory for fathers could very much come at the expense of those rights feminists have fought long and hard to secure for mothers. As I analyze in the article, however, this concern need not always be the case. And indeed, when it comes to the law as it relates to the reproductive freedom of nonmarital males, feminists are not only the group best situated to wage that battle, but also a group that should have a vested interest in victory. Specifically, as I explore in the Article, the laws in question not only harm nonmarital males, but at the same time, pose significant harms to women. For this reason, I conclude with a list of potential solutions to these problems, identifying areas where change can be instituted so as to offer greater protection for men, but at the same time, preserve current protections afforded women.
....of Ban Ki-moon, the Secretary General of the United Nations. And rightfully so; he is the first Korean to head that grand post.
The Secretary wears his dedication to human rights on his sleeve. And so too that sleeve contains a spot, a stubborn spot, for the rights of LGBT.
With bleak irony, South Koreans, at the same time, have proudly stigmatized the plight of their gay compatriots:
On the 21st of April, two members of the National Assembly of South Korea (the Democratic united-opposition-party) withdrew the motion on the Comprehensive Anti-discrimination Act. Since the beginning of 2000, they attempted to introduce the Anti-discrimination act two times both in 2007 and 2010....
....there was a strong apposition by both parties. In addition, religious affiliated organizations of South Korea resisted the bill on the basis of recognizing sexual minorities......
....Two anonymous members of the National Assembly expressed the reason of the withdrawal of the Act is simply put, because they did not want to be labeled as pro North Korean or as a gay assemblyman.