Gender and the Law Prof Blog

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

Wednesday, April 18, 2018

The Deleterious Effects of the Marriage Penalty Tax on Women and Society

Dennis R. Lassila, Murphy Smith & Daqun (David) Zhang, Negative Social and Economic Effects of the Marriage Penalty Tax on Women and Society

For decades the marriage penalty tax (MPT) has been debated, reduced, increased, and muddled in the US tax system. The issue is important to individual taxpayers, as well as to policy-makers, academic researchers, and society overall. Research shows that the MPT has a negative impact on marital stability, resulting in particularly deleterious effects on women and children, as single females, especially single-parent females, are more likely to be in poverty. Consequently, the MPT is a gender issue in that women are more negatively affected by it than men are, but to varying degrees all members of society are negatively affected, women, men, and children. The purpose of this study is to review how the MPT was affected by the new tax law, the Tax Cuts and Jobs Act of 2017, and briefly review the history of the MPT and its impact on individuals and society. While the MPT was greatly reduced by the 2017 Act, notably regarding tax rates, the MPT, as connected to the earned income tax credit, continues to have a major detrimental impact on low to moderate income couples, discouraging marriage and having a particularly negative effect on their children.

April 18, 2018 in Family, Legislation | Permalink | Comments (0)

Tuesday, April 10, 2018

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Wednesday, March 28, 2018

British House of Commons Speaker Reprimands Foreign Secretary for Sexist Language

Boris Johnson Told Off by Speaker for "Sexism"

Foreign Secretary Boris Johnson has been reprimanded by Commons Speaker John Bercow for using sexist language.

 

Speaker Bercow intervened - to applause from some Labour MPs - after Mr Johnson referred to shadow foreign secretary Emily Thornberry as Lady Nugee.

 

Ms Thornberry is married to High Court judge Sir Christopher Nugee - but chooses to go by her maiden name.

 

Mr Bercow said it was "inappropriate" and sexist to refer to her as Lady Nugee.

 

He said MPs should be called by their names and not by the titles of their spouses.

 

Mr Johnson had to be reminded of Ms Thornberry's title by MPs, as he answered a question from a Conservative MP on the Commonwealth, calling her "the Baroness, whatever it is, I cannot remember what it is... Nugee".

 

Mr Bercow rebuked the foreign secretary, telling him: "We do not address people by the titles of their spouses.

 

"The shadow Foreign Secretary has a name, and it is not 'Lady something'. We know what her name is. It is inappropriate and frankly sexist to speak in those terms, and I am not having it in this Chamber.

 

"That is the end of the matter. No matter how senior a Member, that parlance is not legitimate. It will not be allowed, and it will be called out."

 

Mr Johnson subsequently apologised for his "inadvertent sexism."

 

Ms Thornberry has occasionally been teased about her formal title by Conservative critics and in February last year complained to Mr Bercow when Theresa May referred to her as Lady Nugee in the Commons.

 

"Is it in order for the prime minister to refer to a member of this House not by her own name, but by the name of her husband?" the Islington South MP said in a point of order.

 

"I have never been a Lady and it will be a great deal more than being married to a Knight of the Realm in order to make me one."

 

Mrs May said: "If the Honourable Lady is concerned about the reference that I made to her, of course I will apologise for that.

 

"I have to say to her, though, that for the last 36 years I have been referred to by my husband's name."

March 28, 2018 in Family, International | Permalink | Comments (0)

Tuesday, March 27, 2018

Foundations of Modern Penal Theory that Ignore the Gender Inequality of the Social and Family Context

Catalina Correa, The Foundations of Modern Criminal Law and Gender Inequality, 16 Seattle J. Soc. Justice 1 (2017)

Modern penal theory, like prevalent western theories of law, adopts a determined model of autonomy, one in which people are separable from social and family contexts. Taken to the criminal law context, this model proposes people can be defined without taking into account the social context. The use of prisons thus presupposes that individuals can be removed from their communities and families to be reeducated, readapted, treated or—in the retributive approach—simply punished. This notion of autonomy, however, hides from sight the group of people who not only maintain family ties with the men and women in prison, but who also, in contexts such as the Latin American one, take on the responsibility of supporting the prisoners economically. As this paper shows, this group is not heterogeneous or plural but defined by gender and primarily constituted of the mothers, daughters, wives and sisters of the people who are imprisoned. The data presented in this paper shows that this group of women is marginalized, impoverished and abused by a criminal justice system that not only omits to recognize the serious costs that the system imposes on them, but also omits to acknowledge their existence. This paper argues that this lack of recognition is possible because it is premised on a penal model that assumes a certain idea of autonomy, one which enables societies to erroneously affirm that prison sentences are individual sentences.

March 27, 2018 in Family, Gender, International, Theory | Permalink | Comments (0)

Monday, March 26, 2018

The Flaws and Gendered Assumptions in the New Rape Survivor Child Custody Act

Jennifer Hendricks, The Wages of Genetic Entitlement: The Good, The Bad, and the Ugly in the Rape Survivor Child Custody Act, 112 Northwestern L. Rev. Online 75 (2017)

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.

March 26, 2018 in Family, Gender, Legislation | Permalink | Comments (0)

OR Governor Signs Boyfriend Loophole Gun Bill

Oregon Governor Signs "Boyfriend Loophole" Gun Bill

Amidst a crowd of students and advocates rallying for stronger gun regulations, Oregon Gov. Kate Brown signed Monday the first piece of legislation addressing the issue since the deadly shooting at Marjory Stoneman Douglas High School last month.

 

The law expands the prohibition of gun ownership to people convicted of domestic violence against non-married intimate partners — closing the so-called "boyfriend loophole."

 

It also blocks people convicted of misdemeanor stalking from owning a gun. 

 

"Closing the 'intimate partner' is an important step to keep Oregonians safer from gun violence," Brown said. "I'm hopeful that the tide is turning on our nation's gun debate."

 

The legislation was one of Brown's top priorities coming into the short legislative session, which ended Saturday.

March 26, 2018 in Family, Legislation, Violence Against Women | Permalink | Comments (0)

Wednesday, March 21, 2018

Constitutional Conflict Over Inherent Differences Between the Sexes

Cary Franklin, Biological Warfare: Constitutional Conflict Over 'Inherent Differences' Between the Sexes, Supreme Court Review (forthcoming)

Equal protection law no longer recognizes so-called “inherent differences” among the races as a justification for discrimination. The law takes a different view of sex. It continues to recognize “inherent differences” as a legitimate ground for treating men and women differently — as long as the differential treatment does not perpetuate women’s subordination or reinforce traditional sex stereotypes. This doctrine raises a host of difficult questions, most notably, what counts as an “inherent difference”?

The Court confronted that question twice in its 2016 Term. In Pavan v. Smith, the Court had to decide whether Arkansas could treat same-sex couples differently from different-sex couples with respect to their children’s birth certificates. In Sessions v. Morales-Santana, the question was whether the federal government, for purposes of assigning citizenship, could treat non-marital children born abroad to mixed-nationality couples differently depending on the sex of their U.S. citizen parent. In both cases, the Court rejected the government’s ostensibly biological justification for the differential treatment. But the new and important ways in which it reasoned about biology in these cases has not received much notice. Commentators treated Pavan as an obvious and relatively unimportant extension of the Court’s famous 2015 same-sex marriage decision. Meanwhile, so much was happening in the context of immigration when Morales-Santana came down that it did not attract much attention — and what attention it did attract tended to focus on the unusual remedy the Court adopted, not its reasoning about biology. 

This Article argues that Pavan and Morales-Santana, especially when read together, are surprisingly transformative and consequential decisions. In the past, the Court has declined to apply heightened scrutiny to biologically-justified sex classifications in contexts involving gay people and unmarried fathers. As a result, these contexts have become repositories of specious biological justifications for discrimination; pregnancy, in particular, has been understood to justify all manner of differential treatment in these areas. In Pavan and Morales-Santana, the Court broke with this tradition by genuinely scrutinizing the state’s pregnancy-based justifications for discriminating and finding them constitutionally inadequate. In so doing, it struck a serious blow against the most formidable barrier to equal protection where gay people, unmarried parents — and pregnant women — are concerned.

March 21, 2018 in Constitutional, Family, Gender, SCOTUS | Permalink | Comments (0)

Tuesday, February 27, 2018

Theorizing Women's Economic Abuse in the Family

Arianne Renan Barzilay, Power in the Age of In/Equality: Economic Abuse, Masculinities, and the Long Road to Marriage Equality, 51 Akron Law Rev. 323 (2018)

In an era when women have achieved formal legal equality, patriarchal power endures. In this article I take on a largely neglected subject: economic abuse. While this phenomenon has recently begun to generate awareness as a form of intimate partner violence, it currently lacks a theory and history with which to deeply understand it. A failure to recognize the profound roots enabling economic abuse contributes to its perpetuation, trivialization, and marginalization in legal thought. Such a failure has broad implications for gender equality. This Article offers both a history and a theory with which to understand the phenomenon’s deep roots. It sheds light on the historical modification of coverture through familial and market-based breadwinning roles, and points to new insights from masculinities theory to explain how economic abuse is enabled. It illustrates how economic abuse is socio-legally made possible, demonstrating how it is embedded in a historical, socio-legal structure of the market and the family. It thus brings domestic violence gender-based analysis into a broader conversation about the law, the market, and the family. It contends that economic abuse is not merely an individual matter requiring individual-oriented solutions, but rather a social one, based on a particular, historically-based construction of relationships between gender, law, the market, and the family. More generally, it offers a way to think about power in the family in this new, seemingly more egalitarian era. It concludes by suggesting guiding principles for mitigating economic abuse and for destabilizing gendered power dynamics in the family more broadly.

February 27, 2018 in Family, Gender, Masculinities | Permalink | Comments (0)

Tuesday, February 13, 2018

Older Women are the Future Economy

Alessandra Malito, Older Women will Soon Rule the World, MIT Professor Says

In his new book, “The Longevity Economy: Unlocking the World’s Fastest-Growing, Most Misunderstood Market,” (published by PublicAffairs) Joseph Coughlin, founder and director of the MIT Age Lab, a research program that studies the population 50 and older as well as the technology that impacts their lives, says the narrative on retirement needs a major update. Society puts so much emphasis on the years between birth and 65 years old, but life spans have lengthened over the last century to well into the 80s (and some say citizens of well developed countries can expect to live into the 100s) which means that Americans now may spend a third or more of their lives in retirement.

***

The catalyst won’t be the engineer or marketing person or someone doing advertisements on Madison Avenue, the future is distinctly female. She lives longer, she is the primary caregiver and the chief consumption officer of the home, so if she doesn’t buy it or envision it, she frankly won’t be living in it and the country and family is missing a big opportunity on what she knows and what she likes and what she will buy. We find the venture capital community ignoring women — we have a vision of innovation as a 27-year-old male wearing sneakers.

MarketWatch: Can you expand on “the future is female” comment? Women haven’t always been considered for such a role — why now?

Coughlin: They weren’t just marginalized — they were invisible. Female consumers today have more education in all fields except engineering, and that’s world wide. That makes her a dedicated researcher. Entrepreneurialism is a new women movement — women have startups employing Americans equal to large corporations. And while she is doing all that, she remains the caregiver, not just to her own children but to her parents. She’s influencing the majority of auto decisions, she understands what the needs and wants are in the population. Women are starting companies about downsizing services to clean up houses and services to provide care in homes — they see the problems and the opportunities.

 

MarketWatch: You had some tips for businesses looking to invest in the longevity economy — what are some?

Coughlin: With some irony, companies these days are very much liking to advertise that they are consumer-focused. But most companies ignore 51% of the population: the female population. To understand the aging marketplace, they need to look particularly at women 50 and older. The second thing is usable design does not have to be big, beige and boring — transcendent design is not just usable and functional, but genuinely delights the buyer. The third is to create new stories, new rituals, new myths — why don’t we have downsizing parties? Grandparent registries? If you think about it, business and society have all holidays and punctuation marks for 0-65 years old. After that you have a retirement party and everyone else’s parties. For one-third of your life, it’s not about you at all. And the last part is, if we are going to be living longer, we need to rewrite the way we think of retirement. Not just extending work span, but remaining engaged, productive. And frankly, most have a social network where we work, not where we live.

February 13, 2018 in Business, Family | Permalink | Comments (0)

Thursday, January 11, 2018

Reforming WTO Labor Standards of Parenting Leave to Reflect Women's Worldwide Equality

Taylor Stoneman, International Economic Law, Gender Equality, and Paternity Leave: Can the WTO Be Utilized to Balance the Division of Care Labor Worldwide?, 32 Emory Int'l Law Rev. 51 (2017)

Which public policies most effectively promote gender equality and how can they be realized internationally to support women on a global scale? I first argue that longer periods of paid paternity leave must be embraced to challenge the historical conception of women as the primary caregiver in a male-female partnership and to bring men into the private sphere at the important confluence of a couple’s childfree and parental lives. In order to broadly achieve these policies, I turn to international law. Building off Charlesworth, Chinkin, and Wright’s observation of the international legal order’s gendered nature, I demonstrate that the International Labour Organization’s (ILO) core labor standards, as they are today, reflect a gendered understanding of the labor market and are insufficient to support the basic needs of a working population that includes both men and women. I further argue that a reimagined set of these standards should be incorporated into a World Trade Organization (WTO) Trade-Related Agreement on Labor Standards that would impose substantive obligations on Member States. Such an agreement would be consistent with the WTO’s historical embrace of “embedded liberalism” and could ultimately drive domestic policy transformations benefiting women worldwide.

January 11, 2018 in Family, International | Permalink | Comments (0)

Thursday, December 7, 2017

Book Review: Elizabeth Cady Stanton and the Feminist Foundations of Family Law

Thanks to Prof. Mary Block for this review of my book:

Civil War Book Review, Elizabeth Cady Stanton & the Feminist Foundations of Family Law

Elizabeth Cady Stanton was a woman far ahead of her time with regard to her advocacy for women’s rights within the family. Tracy A. Thomas, Professor of family law and a feminist legal historian, argues that Stanton believed a radical challenge to family law was vital to the woman’s rights agenda. Stanton asserted that four institutions: government, church, family, and industry acted symbiotically to keep women in a subordinate status. The public and private spheres were not separate, but intertwined and they operated in myriad ways to discriminate and hinder women and stifle equality. Thomas states that Stanton and many other nineteenth-century women’s rights advocates had a fluid notion of feminism, one that embraced both the sameness and differences between men and women. Women were equal not inferior to men, but women were different because they could procreate while men could not so in addition to the vote, Stanton also promoted rights that extended to women as mothers. The greatest hurdle to achieving equal rights for women was that too many people confounded differences with inferiority. The rest of the populace was apathetic. The solution to the problem of women’s inequality was complete formal legal equality. The question was how best to achieve it.

***

Stanton’s feminist attack on the oppressive structures of marriage was radical in that she framed women’s inequality as systemic victimization. Marriage laws sexualized women and created a sanctuary for male lust through protection of the husband’s marital right, a vestige of coverture that shielded men who raped their wives. At the Tenth Annual Convention, Stanton said marriage was legalized prostitution, a claim intended to shock her audience. Women give up everything when they wed while men gave up nothing. Marriage was analogous to slavery in many ways. Man was the master and woman had to obey him. Upon marriage woman’s identity became submerged into that of her husband and she literally no longer existed in the eyes of the law. Stanton lauded Lucy Stone who kept her maiden name after she wed Henry Blackwell. Stanton herself demanded she be called Elizabeth Cady Stanton rather than Mrs. Henry Stanton to express her independent identity. This was less radical than Stone, but still radical for her time.

 

By the end of Stanton’s life, family law had changed, but not as radically as Stanton had desired. It would not be until the last quarter of the twentieth century and the second women’s rights movement that nearly all of her recommendations came to fruition. She truly was a woman far ahead of her time. Tracy Thomas has thoroughly documented Stanton’s radicalism on matters of marriage and the family and has shown just how significantly one woman’s feminism affected family law for the betterment of women.

December 7, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Friday, November 10, 2017

Gender Inequality Begins at Home

Where Do Kids Learn to Undervalue Women? From Their Parents.

Study after study shows that, among heterosexual parents, fathers — even the youngest and most theoretically progressive among them — do not partake generously of the workload at home. Employed women partnered with employed men carry 65 percent of the family’s child-care responsibilities, a figure that has held steady since the turn of the century. Women with babies enjoy half as much leisure time on weekends as their husbands. Working mothers with preschool-age children are 2 1/2 times as likely to performmiddle-of-the-night care as their husbands. And in hours not so easily tallied, mothers remain almost solely in charge of the endless managerial care that comes with raising children: securing babysitters, filling out school forms, sorting through hand-me-downs.

 

Empirical research shows that no domestic arrangement, not even one in which Mother works full time and Father is unemployed, results in child-care parity between heterosexual spouses. The story we tell ourselves, the one about great leaps toward the achievement of gender equality between parents, is a glass-half-full kind of interpretation. But the reality is a half-empty glass: While modern men and women espouse egalitarian ideals and report that their decisions are mutual, outcomes tend to favor fathers’ needs and goals much more than mothers’.

 

The result of this covert power imbalance is not a net zero. A growing body of research in family and clinical studies demonstrates that spousal equality promotes marital success and that inequality undermines it. And the disparity creates not only undue emotional, physical and financial strain on mothers, but also perpetuates attitudes about what is and should be acceptable — or even desirable — between a woman and a man, with children as their eager audience

 

Ideals are no substitute for behavior. What are kids to make of their father sitting on his phone reading Facebook while their mother scrambles to prepare them for the day? It’s not hard to predict which parent’s personhood those offspring will conclude is more valuable. Children are gender detectives, distinguishing between the sexes from as early as 18 months and using that information to guide their behavior, for example by choosing strongly stereotyped toys. And family research shows that men’s attitudes about marital roles, not women’s, are ultimately internalized by both their daughters and their sons. This finding is a testament to kids’ ability to identify implicit power, to parse whose beliefs are more important and therefore worth adopting as their own.

November 10, 2017 in Family, Gender | Permalink | Comments (0)

Tuesday, November 7, 2017

Do Gendered Divorce Laws of Mali Violate Human Rights?

US Courts and Child Custody Judgments from Foreign Countries that Have Sex-Discriminatory Custody Rules

Coulibaly v. Stevance, decided Wednesday by the Indiana Court of Appeals, considers whether Indiana courts should honor a Malian child custody decree (involving Malian citizens). Indiana has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), under which state courts must enforce out-of-state and out-of-country custody decrees.

 

[T]the question was whether Malian child custody law violates human rights principles as Indiana courts understand them; the Indiana court of appeals said no, even though aspects of the law involved sex discrimination, and even though Malian law more generally doesn’t ban Female Genital Mutilation. (One of the couple’s children is a 15-year-old daughter.)

 

Mother notes that Mali’s divorce law is fault-based, and … argues that Mali’s marital laws evince a preference for men such that women will more often be found at fault for a divorce, resulting in a de facto paternal preference in child custody decisions. Specifically, Mother notes that statutory law in Mali expressly provides that “[t]he husband owes protection to his wife, the wife obedience to her husband.” The law provides further that the husband is the head of the household, that the household expenses “fall principally on him,” that he has the right to choose the family residence, and that the wife must live with him and he must receive her.. Additionally, a woman is prohibited from running a business without her husband’s permission.

 

In light of the prevailing fault-based divorce system, it is unsurprising that the Malian court made a number of findings with respect to the parties’ conduct during the marriage. The court expressly found Mother’s physical abuse allegation to be unsupported. The court also noted that under Malian law, a husband is entitled to choose the family residence and that Mother’s dispute regarding Father’s decision to live in Mali was therefore grounds for divorce. The Malian court further found that Mother admitted that she had “a habit of uttering insulting and offensive remarks toward” Father, which constituted “serious abuse”, and also that Mother’s persistence in her plan to emigrate with the children without Father’s knowledge or consent was a violation of her duty of loyalty, a mutual duty imposed by Malian marital law upon both spouses irrespective of gender. In light of these findings, the trial court granted Father’s petition for divorce and dismissed Mother’s counter petition.

 

Further, although Mali’s marriage laws impose different duties on husbands and wives based on gender, either spouse may be granted a divorce based on the other spouse’s failure to fulfill his or her respective duties. Whatever we might think about the wisdom of Mali’s marital and custody laws in this regard, we simply cannot say that they are so utterly shocking to the conscience or egregious as to rise to the level of a violation of fundamental principles of human rights.

 

Mother’s remaining arguments suffer the same infirmity — she essentially asks us to look beyond Mali’s custody law to conclude that Mali’s legal system and culture are, on the whole, so oppressive to women that no custody order issued in that country could be enforceable in the United States. [Footnote moved: Mother … notes that men in Mali are permitted to have multiple wives, while women may have only one husband. Mother notes further that the marital laws permit (but do not require) the payment of nominal dowry by the husband upon marriage “where required by custom.”] We are in no position to make such a judgment, and the language of the UCCJEA prohibits us from attempting to do so. Mother has not established that Mali’s child custody laws violate fundamental principles of human rights, and she is consequently unable to avoid enforcement of the Malian custody decree.

 

November 7, 2017 in Family, International | Permalink | Comments (0)

Friday, November 3, 2017

Cleaning in the Shadow of the Law: The Effect of Unilateral Divorce Laws on Men's Marital Investment in Housework

Jennifer Roff, Cleaning in the Shadow of the Law? Bargaining, Marital Investment, and the Impact of Divorce Law on Husbands' Intra-Household Work, 60 Journal of Law & Economics 115 (Jan. 2017)

Previous literature has established that unilateral divorce laws may reduce women's household work and overall marital investment. If unilateral divorce has differential costs by gender, it may impact household work by gender through bargaining channels. However, little research has examined how divorce laws affect men's levels and share of household production. To examine this, I use data on matched couples from the Panel Study of Income Dynamics and exploit time variation in state divorce laws. I find that unilateral divorce laws lead to a decrease in marital investment, as measured by mens' and women's household work. The evidence also supports a bargaining response to divorce laws, as fathers in states without joint-custody laws engage in a significantly higher share of household work under unilateral divorce than those in states with joint-custody laws, consistent with a higher cost of marital dissolution among fathers who stand to lose custody of their children.

November 3, 2017 in Family, Gender | Permalink | Comments (0)

Tuesday, October 31, 2017

Relationship Status Discrimination Against Women in Academic Hiring

Lauren Rivera, When Two Bodies are (Not) a Problem: Gender and Relationship Status Discrimination in Academic Hiring, Amer. Soc. Rev. (Oct. 25, 2017)

Junior faculty search committees serve as gatekeepers to the professoriate and play vital roles in shaping the demographic composition of academic departments and disciplines, but how committees select new hires has received minimal scholarly attention. In this article, I highlight one mechanism of gender inequalities in academic hiring: relationship status discrimination. Through a qualitative case study of junior faculty search committees at a large R1 university, I show that committees actively considered women’s—but not men’s—relationship status when selecting hires. Drawing from gendered scripts of career and family that present men’s careers as taking precedence over women’s, committee members assumed that heterosexual women whose partners held academic or high-status jobs were not “movable,” and excluded such women from offers when there were viable male or single female alternatives. Conversely, committees infrequently discussed male applicants’ relationship status and saw all female partners as movable. Consequently, I show that the “two-body problem” is a gendered phenomenon embedded in cultural stereotypes and organizational practices that can disadvantage women in academic hiring. I conclude by discussing the implications of such relationship status discrimination for sociological research on labor market inequalities and faculty diversity.

October 31, 2017 in Education, Equal Employment, Family, Workplace | Permalink | Comments (0)

Tuesday, October 24, 2017

DC Circuit en banc Allows Immigrant Teen's Abortion to Proceed

The DC Circuit sitting en banc overruled a panel decision from late last week delaying an immigrant teen's abortion, granted by a state court. 

Garza, as GAL to J.D. v. Hargan, No. 17-5236 (D.C. Cir. en banc, Oct. 24, 2017), overruling the panel decision in Garza v. Hargan (D.C. Cir. Oct. 20, 2017)

Concurring Opinion to the Order by Judge Millett (the dissent in the panel decision).

Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.

Dissenting Opinion by Judge Kavanaugh (majority opinion in the panel decision).

The en banc majority has badly erred in this case.

The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.

Judge Karen Henderson also dissent in a separate opinion.

October 24, 2017 in Abortion, Constitutional, Family, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 18, 2017

McDonald's Moms v. Organic Moms: Regulating Motherhood

Kate Cairns, Josée Johnston & Merin Oleschuk, Calibrating Extremes: The Balancing Act of Maternal Foodwork

When it comes to feeding children, mothers today must avoid the appearance of caring too little, or too much. Either extreme garners social stigma, although the penalties are far from equal.

 

As mothers in our study distanced themselves from an unhealthy “Other” who made poor food choices, we were surprised how frequently McDonald’s entered the conversation. McDonald’s seemed to function as a trope symbolizing “easy” meals, “unhealthy” choices, and “bad” mothering more generally. Gail (white, acupuncturist) contrasted her vision of healthy home cooking with a “stereotypical image of someone stopping at McDonald’s to get food for their kids.” Marissa (Black, project manager) confessed that as “busy people we do need to do fast food,” but clarified that “my kids will tell you that does not mean McDonald’s.” Lucia (Latina, social worker) said she and her son “talk about what’s junk and you know, McDonald’s and all that kind of food” in an effort to teach him “what’s healthy, what’s not healthy.”

 

Again and again, mothers distanced themselves from the figure of the “McDonald’s Mom,” a stigmatized “Other” they used to defend their own feeding practices. While this defense may seem judgmental, we suggest mothers’ efforts to establish this distance reflect the intense pressures they experience feeding their children. These pressures are especially penalizing for poor women who struggle to feed kids on a limited budget and racialized women who face enduring racist stereotypes about parenting and food choices. Indeed, the assumption that poor mothers make inferior food choices is evident in recent calls to restrict what can be purchased on SNAP benefits, undermining the essential role of government assistance in mitigating the effects of poverty.

 

When distancing their own feeding practices from “bad” ones, some mothers described feeding their children an organic diet – a resource-intensive practice that has become a gold standard of middle-class motherhood. Mothers today face considerable pressure to purchase ‘pure’ foods that are free of harmful chemical additives; this “intensive feeding ideology” involves the added work of researching products, reading labels, and making baby food from scratch.***

 

Our point is not to equate these uneven penalties, but to draw attention to the multiple ways mothers are harshly judged for their foodwork. Notably, comparable figures of the “McDonald’s” or “Organic Dad” did not emerge in our broader study (which included men), revealing the continued gendered burden of feeding children and the more flexible standards fathers face when doing this work.

 

What became clear throughout our research is that mothers from diverse backgrounds face pressure to continually monitor their children’s eating in ways that are careful and responsible, yet don’t appear obsessive or controlling. We call this process calibration – the constant balancing act of striving for an elusive maternal ideal. Calibration is labor-intensive and emotionally taxing, part of the seemingly impossible task of performing the “good” mother. If you opt for affordability or convenience, you risk being seen as a McDonald’s Mom. If you take your job as health-protector tooseriously, you may be deemed an obsessive Organic Mom who deprives her kids of childhood joys like hotdogs. These gendered pressures not only contribute to mother-blame, but distract us from the larger harms perpetuated by an unhealthy, unsustainable, and unjust food system.

October 18, 2017 in Family, Gender, Pop Culture, Poverty | Permalink | Comments (0)

Monday, October 16, 2017

Court Upholds Denial of Parole to Pregnant Woman to Protect Unborn Child

Commonwealth v. Becker, (Pa. Super. Ct. Oct. 10, 2017)

P & P opposed Becker's parole because of the risk that she may use heroin while pregnant. The trial court shared similar concerns, among others, and denied Becker's petition for parole. 

Becker first claims that the denial of her parole was manifestly unreasonable, as she had incurred no misconducts during her incarceration, attended treatment and counseling, and had a stable address and family support. Becker's claim is without avail.

“Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law-abiding citizen in society.”

 Here, the record does not support Becker's assertion that the denial of her parole was manifestly unreasonable. First, we note, Becker's gender and concomitant pregnancy are incidental to her well-chronicled heroin addiction. As such, the basis of the Becker's parole denial, as stated by the trial court, was the substantial risk that she would use heroin, not her unique status. In coming to its decision, the trial court expressed concern for the health of Becker's unborn child. However, the trial court did not discuss prisoner access to women's healthcare, prenatal care, child welfare resources or other associated services that might indicate its decision was motivated entirely by Becker's status. Rather, it focused on Becker's prior use of heroin and the dangers it posed to her and others. Specifically, the trial court reiterated its concern with “[Becker] using drugs and ․ harming herself” and the potential for relapse. N.T. Parole Hearing, 8/22/16, at 7, 15–17, 69 (“[S]he has a bad history [of heroin abuse][,] and history dictates when she gets out [of prison], she uses”).

 The trial court's concerns are well founded.

 Becker next claims that the trial court violated her substantive due process rights when it denied her parole based solely on her pregnancy. Becker concedes that in Pennsylvania, “a prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner's minimum term.” However, citing Block v. Potter, 631 F.2d 233, 235 (3rd Cir. 1980), Becker argues that the trial court based its denial of parole on factors she avers are unconstitutional and/or arbitrary, including gender, pregnancy and the safety of the unborn child.

 Here, Becker asks us to determine whether the trial court's consideration of her gender, pregnancy and the health of the unborn child was, like in Block, an unconstitutional arbitrary government action. We decline to conduct such an analysis.

 Under the Administrative Agency Law, a court can only review an action of a Commonwealth agency where its decision constitutes an adjudication. The Supreme Court found that the act unambiguously defines adjudication to exclude parole decisions. The Court also addressed the theory that parole decisions would be applicable for review under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court rejected this argument, as there was no precedent to support it.

 Becker's next claim on appeal is that the trial court violated her equal protection rights by denying her petition for parole. Equal protection requires that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Legislative classifications based on gender call for a heightened standard of review. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 295 (1993). However, the Supreme Court of the United States has repeatedly held that we cannot reasonably presume opposition to abortion reflects an animus against women and/or pregnant women as a class. See Id. at 269–70;  see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (finding that discrimination based on pregnancy was discrimination based on gender only because Congress specifically intended it to be when it amended 42 U.S.C. § 2000e). “Where the challenged governmental action does not burden ‘fundamental’ or ‘important’ rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate governmental interest.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citations omitted). Furthermore, drug users are not a suspect or a quasi-suspect class. New York City Transit Authority v. Beazer, 440 U.S. 568, 592–93 (1979). This argument affords Becker no relief.

 The trial court based its decision denying Becker's petition for parole on her status as an incarcerated, pregnant heroin addict. The court's action does not burden a fundamental or important right, nor is Becker's status a suspect or quasi-suspect classification. Therefore, the trial court's action need only pass a rational basis test. Small, 772 A.2d at 672. Our Supreme Court has defined the rational basis test as examining a law to find if it is “unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Nixon, 839 A.2d at 286–87 (citation omitted). If it is not, then the discrimination is permissible under the Equal Protection Clause. Id. at 286. Here, we find protecting Becker's unborn child was a legitimate governmental interest. Planned Parenthood, 505 U.S. at 846. By denying Becker parole, the trial court ensured Becker could not use heroin and harm her unborn child. Denying parole until going into labor was reasonable, as the only other alternative was releasing Becker on parole. Therefore, there was no equal protection violation.

October 16, 2017 in Abortion, Constitutional, Family, Pregnancy | Permalink | Comments (0)

Thursday, October 12, 2017

Women Judges in Pakistan

Livia Holden, Women Judges and Women's Rights in Pakistan, 7 Onati Socio-Legal Series (2017).

Abstract:

Although the first appointment of women judges in Pakistan dates back to 1974, the significant appointment of “lady judges” in the past decade has caused a jump in female representation in the judiciary to more than one third in family courts – a quiet move that sends a message of adherence to the principle of gender equality as per the international treaties to which Pakistan is signatory. By investigating the everyday interactions and preoccupations of women judges in their daily management of justice, this paper explores the socio-legal reception of the human rights discourse from the perspective of the female judges. The challenge in this scenario is whether this change will only be formal or whether it will also lead to substantial and accountable justice. The findings here additionally elucidate how the global agenda impacts local expectations and conceptualizations of rights within and beyond the state.

Introduction:

According to statistics from Pakistan’s Law and Justice Commission (2009-2013), women now represent at least 1/3 of the judiciary in family courts in Pakistan. This figure makes Pakistan the country with the greatest number of women-appointed judicial officers among common law legal systems in Muslim majority states.1 Given the overall scarcity of information—not only in Pakistan but throughout the world—regarding modalities of judicial appointments (especially as concerning social diversity), this figure should be taken with a certain degree of caution. Nevertheless, it seems to be a significant indicator of an increasing awareness regarding gender representation in the judiciary, which is not, however, the primary focus of this paper.2 On the basis of qualitative data positioned on a national level by including state law and relevant legal precedents, this paper addresses the main concerns of women judges in Pakistan in their daily professional lives. This data assists in understanding how the global agenda of women’s rights is received and implemented in Pakistan. * * * 

In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan among the three most dangerous countries for women “due to a barrage of threats ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same report also signaled that 90% of women in Pakistan are exposed to some form of domestic violence. Even though our fieldwork experiences suggest that such quantitative data require scrutiny, these should nevertheless be considered as components of the social framework in which female judges work in Pakistan.

October 12, 2017 in Courts, Family, International, Judges | Permalink | Comments (0)

Tuesday, September 26, 2017

The Gendered Impact of Family Reunification Immigration Rules under International Law

Wojciech Burek, Family Reunification Regulations and Women: The Perspective of International Law,  36 Polish Yearbook of International Law 83 (2016)

The concept of family reunification is well established in contemporary migration laws, at both the national and international levels. Focusing on international and EU law, in this article I argue that while existing provisions on family reunification are formulated in neutral language, from the gender point of view the enforcement of these substantively neutral rules may, in certain situations, result in discrimination, or at least bring about negative consequences, with respect to women in cases both when they are the sponsors of migration or the bearers of consequences of male migration. Following presentation of the international legal framework on family reunification and the relevant international jurisprudence, I deal with some rather common aspects relating to the personal scope of family reunification regulations, covering only the issues of who can, and who cannot, join their family member(s)/sponsor(s) in a foreign country (i.e. the unmarried minor rule, excluded forms of marriages – polygamous and forced marriages - and age limits). Some procedural aspects of family reunification are then dealt with (waiting periods, delays in proceedings, and end of a relationship as a cause for termination of residence rights.). These issues are examined with respect to concerns that they may cause indirect, or even direct, gender discrimination in some cases, while in others they may affect women more negatively than men.

September 26, 2017 in Family, International | Permalink | Comments (0)