Gender and the Law Prof Blog

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

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)

Tuesday, September 12, 2017

A Study of Gender Bias in Teaching Evaluations

Friederike Mengel, Jan Sauermann, Ulf Zolitz, Gender Bias in Teaching Evaluations

Abstract

 

This paper provides new evidence on gender bias in teaching evaluations. We exploit
a quasi-experimental dataset of 19,952 student evaluations of university faculty [in the Netherlands] in a context where students are randomly allocated to female or male instructors. Despite the fact that neither students’ grades nor self-study hours are affected by the instructor’s gender, we find that women receive systematically lower teaching evaluations than their male colleagues. This bias is driven by male students’ evaluations, is larger for mathematical courses and particularly pronounced for junior women. The gender bias in teaching evaluations we document may have direct as well as indirect effects on the career progression of women by affecting junior women’s confidence and through the reallocation of instructor resources away from research and towards teaching.

From the paper: 

Our results show that female faculty receive systematically lower teaching evaluations than their male colleagues despite the fact that neither students’ current or future grades nor their study hours are affected by the gender of the instructor. The lower teaching evaluations of female faculty stem mostly from male students, who evaluate their female instructors 21% of a standard deviation worse than their male instructors. While female students were found to rate female instructors about 8% of a standard deviation lower than male instructors.

 

When testing whether results differ by seniority, we find the effects to be driven by junior instructors, particularly PhD students, who receive 28% of a standard deviation lower teaching evaluations than their male colleagues. Interestingly, we do not observe this gender bias for more senior female instructors like lecturers or professors. We do find, however, that the gender bias is substantially larger for courses with math-related content. Within each of these subgroups, we confirm that the bias cannot be explained by objective differences in grades or student effort. Furthermore, we find that the gender bias is independent of whether the majority of instructors within a course is female or male. Importantly, this suggests that the bias works against female instructors in general and not only against minority faculty in gender-incongruent areas, e.g., teaching in more math intensive courses.

 

The gender bias against women is not only present in evaluation questions relating to the individual instructor, but also when students are asked to evaluate learning materials, such as text books, research articles and the online learning platform. Strikingly, despite the fact that learning materials are identical for all students within a course and are independent of the gender of the section instructor, male students evaluate these worse when their instructor is female. One possible mechanism to explain this spillover effect is that students anchor their response to material-related questions based on their previous responses to instructor-related questions.  

September 12, 2017 in Education, Family | Permalink | Comments (0)

Monday, September 11, 2017

Second Federal Court of Appeals Holds Breastfeeding is Covered under Title VII

Patrick Dorrian, Breast-Feeding Alabama Police Officer Proved Sex, Leave Bias

An Alabama police officer was within her rights to quit when she was denied a desk job so she wouldn’t have to wear a ballistic vest that may have rendered her unable to breast-feed, a federal appeals court ruled.

 

Stephanie Hicks can keep her jury win on her constructive discharge claim because lactation is a medical condition related to pregnancy under federal sex discrimination law, the U.S. Court of Appeals for the Eleventh Circuit held on an issue of first impression for the court ( Hicks v. City of Tuscaloosa , 2017 BL 314674, 11th Cir., No. 16-13003, 9/7/17 ). Hicks is a former employee of the Tuscaloosa Police Department.

 

The Sept. 7 ruling is “very significant” because with it the Atlanta-based Eleventh Circuit became the second federal appeals court to recognize that “breastfeeding is covered under Title VII” of the 1964 Civil Rights Act, Galen L. Sherwin said Sept. 8. The New Orleans-based Fifth Circuit previously reached the same conclusion in 2013, she said.

 

Sherwin is a senior staff attorney with the American Civil Liberties Union’s Women’s Rights Project, which supported Hicks as an amicus in the case. The New York-based lawyer said the Eleventh Circuit’s holding is also novel in two other important ways.

 

The court recognized that employers may be required to provide work accommodations to breast-feeding employees if they provide such accommodations to similarly situated non-breast-feeding workers, she told Bloomberg BNA. In other words, employers must treat accommodation requests from breast-feeding or lactating workers on the same terms as they treat other similar accommodation requests.

September 11, 2017 in Courts, Equal Employment, Family | Permalink | Comments (0)

Monday, August 28, 2017

Prof Julie Suk to Speak on Constitution Day on "The Constitution of Mothers" and a New ERA

The Center for Constitutional Law at the University of Akron School of Law will host Professor Julie Suk as the featured Constitution Day speaker on September 18, 2017.

Professor Suk's talk is entitled "The Constitution of Mothers:  Gender Equality and Social Reproduction in the United States and the World."  

One of the largest mobilizations in recent American history was the Women’s March of 2017, with  millions of participants in U.S. cities and in concurrent events throughout the world.  Despite diverse backgrounds and agendas, the marchers unified around the general theme of equality for women.   It was a constitutional moment:  The unity principles included a call for a new Equal Rights Amendment to the U.S. Constitution, and in March 2017, Nevada became the first state to ratify the ERA 35 years after the 1982 deadline had lapsed.  Nevada’s ratification raises questions about the legitimacy of post-deadline ratification of a Congressionally adopted constitutional amendment, as well as deeper normative questions about the desirability and  meaning of constitutionalizing equal rights for women in the 21st century.   If Nevada’s ratification is valid or can be made valid by Congressional action, two additional states’ ratifications will put the ERA in the U.S. Constitution.  Would such an amendment change what the law does, or would it be merely symbolic? 

This lecture will argue that an ERA is needed in the twenty-first century, but for reasons different from those that motivated the 1972 adopters.  Meanwhile, most constitutions around the world explicitly guarantee sex equality, and many of these constitutions also guarantee special protections for mothers.  Drawing on global constitutionalism, this lecture argues that constitutional equality for women must go beyond prohibiting sex distinctions in the law, and reach the disadvantages faced by largely by women due to the burdens of raising the next generation of citizens.  The challenge of making the constitution regulate social reproduction, however, is illustrated by the history of women’s participation in advocating for the Prohibition Amendment and its repeal, both of which engaged the politics of the home and child-rearing.  The legacy of women’s past struggles to change the Constitution, in light of contrasting narratives outside the United States, should inform our present gender equality efforts. 

Full details here:  Download ConLawSpeakerSukF2017

Julie Suk is a Professor of Law at the Cardozo School of Law – Yeshiva University in New York, where she has taught since 2005.  She is a leading scholar of comparative equality law. Her research brings a transnational perspective to equality and antidiscrimination law in the United States, drawing on primary legal materials in multiple languages from multiple jurisdictions.  Professor Suk's articles compare European and American approaches to a broad range of issues in law and public policy, such as the enforcement of antidiscrimination norms in various legal systems around the world, holocaust denial, maternity leave, and women’s equal representation in political and corporate leadership positions.   Professor Suk’s current research projects focus on women, work, and family in comparative constitutional law, as well as education rights in the context of socioeconomic inequality.  Representative publications include: An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home (Yale Journal of Law and Feminism), Are Gender Stereotypes Bad for Women?  Rethinking Antidiscrimination Law and Work-Family Conflict (Columbia Law Review), Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict (Stanford Law Review), Gender Parity and State Legitimacy: From Public Office to Corporate Boards (International Journal of Constitutional Law). 

 

August 28, 2017 in Conferences, Constitutional, Family, Gender, International, Law schools | Permalink | Comments (0)

Friday, August 25, 2017

Book Studies Why Mothers Opt Out of the Workplace

New Book Podcast, Liana Christin Landivar, Mothers at Work: Who Opts Out?

A big question in Sociology regarding work and gender is: which mothers opt out of the labor force to take care of children? Popularly known as “opting out,” this trend is often seen as a mother’s personal choice rather than a decision made within a set of cultural and structural constraints in women’s everyday lives. Building upon previous work, Liana Christin Landivar‘s new book Mothers at Work: Who Opts Out? (Lynne Rienner Publishers, 2017) uses nationally representative data to inquire into who exactly is opting out and who is staying in the labor force. Most media coverage on the topic focuses on women who work in management or other professional level occupations, but Landivar’s book looks at a wide spectrum of occupations and finds that the question of who opts out is much more nuanced. She finds that investigating occupation is key for answering who is opting out. She also delves into the categorizations of work hours, giving consideration not only to part-time work and how that varies by occupation, but also women who scale back, or reduce work hours but not to part-time levels. Additionally, age of the mother, as well as the child, alongside race and educational attainment all help to better understand which mothers are opting out. Landivar gives careful consideration to the structural factors across and between occupations and how they may influence mothers opting out. Finally, this book provides some important methodological insights for the reader, including emphasizing the variations within work hours and the key importance of reference groups used to answer research questions.

This book will be enjoyed by Sociologists broadly, but is key reading for work/family and gender scholars. Folks in gender studies as well as business leaders might enjoy this book and find important insights into which mothers opt out of the labor force. This book would be useful in a gender/work/family class as well as a graduate level methods course, with its careful explanation of modeling and fantastic graphics.

August 25, 2017 in Books, Family, Workplace | Permalink | Comments (0)

Friday, August 18, 2017

Book Review: The Feminist Legacy of Elizabeth Cady Stanton

Thanks to Paula Monopoli for her great (and thorough) review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law in the Journal of Legal Education.

 

Mother. Author. Orator. Woman Suffrage Leader: The Feminist Legacy of Elizabeth Cady Stanton

 

Tracy Thomas’s new book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, provides extensive support for the claim that Stanton was “the intellectual giant of the [women’s rights] movement.” In this eminently readable yet deeply substantive work, Professor Thomas argues that Stanton was a foundational theorist for modern feminism. Until recently, Stanton’s intellectual contributions have not been widely explored, and Thomas aims to rectify that oversight. She situates Stanton in her rightful place by focusing on Stanton’s writings and advocacy in the area of family law. Thomas does a persuasive job, using Stanton’s views on marital property law, divorce, voluntary and involuntary maternity, and the custody of children as a lens through which to examine broader themes about women’s status as equal citizens in our republic. She also documents Stanton’s intellectual contributions in a way that informs current debates about gender equality.


While Stanton’s writings ranged broadly on the subordination and emancipation of women, Thomas narrows in on Stanton’s views on the subjugation of women within marriage. She also reveals Stanton’s extensive, if de facto, training in law through her father’s practice, law library and clerks. “As a young woman, Stanton had read widely in her father’s law library and discussed cases with him . . . . [H]er legal training allowed Stanton to bring to the early women’s rights movement a keen sense of the role of law in creating inequality between the sexes.” Thomas argues that this understanding of the common law itself and her understanding of how to construct legal arguments were central to Stanton’s efficacy as a theorist and an advocate.

 

Thomas begins by examining Stanton’s personal story. Stanton was a harried mother of three children under the age of ten when she convened the first women’s rights convention in Seneca Falls in 1848. In the decade that followed, she went on to have four more children and to advocate tirelessly for women’s equality. Thomas points out how much the adage “the personal is the political” applied to Stanton, as she wrote to her partner in advocacy, Susan B. Anthony, for help:


Can you get any acute lawyer . . . sufficiently interested in our movement
to look up just eight laws concerning us—the very worst in all the code? I
can generalize and philosophize easily enough myself; but the details of the
particular law I need, I have not time to look up. You see, while I am about
the house, surrounded by my children, washing dishes, baking, sewing, etc.,
I can think up many points, but I cannot search books, for my hands as well
as my brains would be necessary for that work . . . . Men who can, when they
wish to write a document, shut themselves up for days with their thoughts
and their books, know little of what difficulties a woman must surmount.

 

These words would resonate with many female scholars today. After this first letter, Stanton again wrote to Anthony to tell her that the legislative testimony she was trying to finish was not nearly done and that her deadline was rapidly approaching. Anthony responded by coming to babysit while Stanton finished the address. Having a public voice requires time and energy. But bearing a disproportionate share of family caregiving makes such public participation difficult and remains a structural barrier to gender equality today.

 

Thomas integrates these and similar examples of the connection between the nineteenth-century Stanton and modern-day feminists. She begins her book with an introduction that gives the reader a thumbnail sketch of modern feminist theory. Thomas outlines the distinctions among liberal feminism, with its focus on formal equality; difference feminism, with its focus on resolving subordination by recognizing women’s biological, relational, and cultural differences; and radical or dominance feminism, which situates subordination in the victimization of women as sexual objects and emphasizes the need for structural reforms. Thomas argues that Stanton’s views on family law reform informed modern feminist theory. 

 

***

 

As Thomas notes, many of the reforms that Stanton wrote about and advocated for in terms of property, marriage, divorce, and custody have become the legal status quo. But in these turbulent times, Thomas’s book reminds us how fragile those gains are and how radical they still seem to many in our society. As Stanton lamented, after “years of untiring effort” to obtain guarantees of property and custody, those statutes were “repealed in States where we supposed all was safe.”Her cautionary note to be vigilant rings as loudly in 2017 as it did in 1876, and we would do well to heed it. Professor Thomas’s excellent new book has given us additional intellectual tools to do just that.

August 18, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Monday, July 31, 2017

Book Review: Gendered Law in American History

Janet Halley, Book Review: Richard Chused & Wendy Williams, Gendered Law in American History (2016), JOTWELL

Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what didhappen with this issue or that in the transformative-yet-reactionary 19th Century?

 

But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours.  But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!

 

The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths.

*** 

One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.

July 31, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Thursday, July 6, 2017

Guest Blog: MothersEsquire: A Professional Community for Lawyer Moms

We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

 Photo

MothersEsquire:  An Introduction to a Supportive Community

As a member of the academic community, I often find myself stuck in something of an outsider status with the practicing legal profession.  I am not a practicing lawyer, so my role in the local bar associations, CLEs, and practitioner-related groups often is a bit awkward and strained.  I attend as many events as I can, but they are downtown and my campus communities have historically not been conveniently located to these groups.  The kinds of conversations – particularly those related to gender dimensions of the profession – are often a powerful and painful reminder of the obstacles faced during my six years of private practice, but they do not quite reflect the day-to-day obstacles that I face in academic life.  The same outsider phenomenon can also describe the role of students attending these events.  I often recommend that students attend bar events and CLE programs, but likewise the relevance and applicability for them might not always translate smoothly to students to justify the commute downtown in the middle of their academic day.  

This blog entry is an opportunity to highlight a new organization that I think has ably bridged communities for moms in the legal profession:  MothersEsquire.  This year has been an important one for the organization of women’s groups.  From the D.C. Women’s March to Pant Suit Nation to Law Mamas, there is no shortage of outlets for women and women lawyers to come together this year.  The MothersEsquire organization stands out in a couple of key ways. 

First, it is not limited to geographical boundaries or bar licensure borders.  For example, I am a member of the Maryland Bar, but not a member of the Kentucky Bar where I currently reside.  This is an obstacle, or at least a deterrent, to my participation in local bar events.   The same is true for many law students who might be studying in Kentucky or Virginia or California, but may not necessary call that community their home later as a practitioner. 

Second, MothersEsquire has followed a “participatory action model” of modern governance. Many long-established bar organizations and affinity groups have signature events that fill the calendar like annual dinners, annual fundraisers, annual awards, golf tournaments, etc.  As a new group, MothersEsquire has organically responded and adapted to changing conditions faced in communities.  For example, when student members last Fall were attending a state bar ethics program and some questionable and inappropriate comments regarding women in the profession were made by a prominent speaker, the group quickly mobilized via social media and local organizers at the event who were also present on social media responded and addressed the concerns effectively and promptly in real time.  The organization is also working on breastfeeding accommodations.  It was able to effectively advocate for a law student denied bar exam nursing accommodations and it established an advocacy group to work on courtroom accommodations.

Third, the group has played a role and provided a focus that fills a gap in traditional women’s bar associations.  Certainly, not all women lawyers are mothers or identify as mothers.  Further, not all women lawyers are interested in or need to have an outlet to think about unique issues of parenting and the profession.   For those that do, however, this group provides an outlet, an information source, a networking portal, and more.  Its website explains:

“We are Moms.  We are Lawyers. We are Master-Negotiators and Multi-Taskers -- at work and at home. We are the Equity Partners at the office and the Team Coach at school.  We drive mini-vans to depositions and to carpool line. We read briefs by day and Goodnight Moon by night.   And we are bringing women together to Disrupt the "Motherhood Penalty" in our profession.”

Finally, this group is unique for its founding in my hometown of Louisville, Kentucky by practicing attorney Michelle Coughlin.  Historically, countless influential women’s groups and professional change-agents have originated in large coastal cities, or at least perceptively so.  This group is distinctively inclusive.  It originated in a so-called “red state” or a so-called “flyover state,” but includes members from far beyond that.  Its members include SAH mother attorneys, practicing mother attorneys, prospective mother attorneys, and attorney prospective mothers. 

For more information about MothersEsquire join the Facebook group or check out its website:  I highlight it here on the Gender & Law Blog as a great example of leadership in the profession that bridges academia and practice, crosses geographical boundaries, and fosters organic professional connections.     

July 6, 2017 in Family, Guest Bloggers, Women lawyers, Work/life | Permalink | Comments (0)

Thursday, June 29, 2017

Call for Papers: Feminist Judgments: Rewritten Family Law Opinions

Call for Authors – Feminist Judgments: Rewritten Family Law Opinions

DEADLINE:  FRIDAY, JULY 21, 2017

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics.  With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes.  Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same.  A description of the process of selecting decisions, as well as a list of cases considered but not included, can be found on the application website (link below).     

Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit).  Rewritten decisions may be majority opinions, dissents, or concurrences.  Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.

Those who are interested in rewriting an opinion or providing commentary should complete the form found here: 

https://goo.gl/forms/9JYv7GtR2gJMDVbY2

Applications are due no later than Friday, July 21, 2017.  The editor will notify accepted authors and commentators by Monday, July 31, 2017.

First drafts of rewritten opinions will be due on Friday, February 2, 2018.  First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Rachel Rebouché at rebouche@temple.edu

June 29, 2017 in Call for Papers, Courts, Family | Permalink | Comments (0)

Wednesday, June 28, 2017

Breaking the Gendered Nature of Parenthood

Douglas NeJaime, The Nature of Parenthood, 12 Yale L.J. 2260 (2017)

In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted.

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.***

To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.

June 28, 2017 in Constitutional, Family, Gender | Permalink | Comments (0)