Friday, February 27, 2015
The South Korean Constitutional Court recently held that prohibitions against adultery were unconstitutional. From the NYT:
South Korea’s Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country’s changing sexual mores and a growing emphasis on individual rights.
By contrast, the U.S. Supreme Court has so far refused to make an analogous statement. Check out the Mother Jones article (a bit outdated, though) .
A counter to the perspective expressed in the previous post, there's the HRC case against conversion therapy:
Research shows that young people experience conversion therapy as a form of family rejection, and LGBT youth who experience family rejection face increased health risks. In one study, such youth were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, and 3.4 times more likely to use illegal drugs compared with peers who had not experienced such rejection. On the other hand, family acceptance has been shown to be an important protective factor that can help to prevent suicide behavior and mental health issues. Providers who engage in conversion therapy under the veneer of state license can mislead families about the risks involved, leading to negative psychological outcomes and irreparable damage to family cohesiveness. This legislation is needed to protect families from these damaging practices.
OKLAHOMA CITY — A bill guaranteeing the right of parents to seek therapy for “same-sex attraction” for their minor children cleared the Oklahoma House of Representatives Committee on Children, Youth and Family Services on Tuesday.
House Bill 1598 author Sally Kern, R-Oklahoma City, turned aside a question about whether such therapies might “push” young people toward self-destructive behavior.
“In our schools, in our movies, the kids are being pushed in the direction that they’re born homosexual and they can’t change,” Kern said. “This bill will allow children who are struggling with these feelings … to go and have some counseling to get both sides of the issue to find out why they’re struggling with this.”
Kern agreed that nothing currently in state law prevents parents from sending their children to such counseling, but she said HB 1598 is a “pre-emptive” measure against legislation banning so-called “conversion therapy.”
Thursday, February 12, 2015
Galen Sherwin, ACLU Women's Rights Project, Would You Like Some (More) Sexism With That?
There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.
In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.***
"Just Go Home And Be With Your Babies"
The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."
It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.
In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."
Waiting Three Days to Pump – Not Intolerable?
The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."
Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection.
A few thoughts:
1. Sherwin says: "As Amanda Marcotte wrote on Slate, 'The fact that the original court latched onto [nursing humor] such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling.'" This is really the crux of the problem. The courts still just don't get it.
2. The US Supreme Court in Cleveland Board of Education v. LaFleur, encountered in 1973 a similar remark from a supervisor for a woman to just "go home and have your babies." There, the court found it to be sex discrimination, though in a roundabout procedural due process kind of way by imposing mandatory maternity leaves on teachers from the 4th month of pregnancy until one year after the birth of their child, with no right to reinstatement. Had the Court ruled on equal protection grounds of sex discrimination, as argued by the plaintiff, perhaps we wouldn't still be hearing the same thing happening in workplaces 42 years later.
Thursday, January 29, 2015
....there are two problems with what President Obama said about paid parental leave in his State of the Union: First, he called it “maternity leave.” And, second, that statement quoted above is all he said.
In the press release from last week, “parental leave” was the chosen phrase. Critically, it was gender-neutral. As President Obama said tonight, "it’s time we stop treating childcare as a side issue, or a women’s issue.” And as the CAP report points out, parental leave isn’t a women’s issue either, “men increasingly want to be caregivers.” It also clarifies, “As family demographics shift, parents of young children are not the only types of workers with significant caregiving responsibilities.” Specifically, the report is referring to the realities of “care for elders” and “same-sex families,” where maternity leave would not apply even if it were guaranteed.
And President Obama should have said more. He could have brought up that men do increasingly want to be caregivers, that paid parental leave should be given equally to men and women, that paid parental leave could have important economic benefits, like reducing employee turn over when men and women seek to change jobs to have children, that paid parental leave isn’t something that only elite workers have earned.
President Obama’s announcement last week may have been a wonderful surprise to federal workers and their families, and even to Americans everywhere eager to see universal paid parental leave become a reality. But the announcement set high expectations for what else President Obama could have said on the topic tonight. A one-liner about “maternity leave,” left us all hanging.
How did that happen? It started during the Great Depression as "a source of 'fiscal stimulus,' if you will," says Arizona State University's Chris Herbst, an associate professor in the school of public affairs.
The Works Project Administration first ran the day cares. The idea was to employ teachers and to also watch kids so that their unemployed parents could look for jobs. When women replaced deployed soldiers in the domestic workforce during World War II, the government funded a major expansion.
That all ended with the war, and though in the early 1970s Congress approved a similar program, Herbst says aides convinced President Nixon to veto it.
Tuesday, January 27, 2015
From the New Yorker: America's Family-Leave Disgrace
What do Papua New Guinea, Oman, and the United States of America have in common? They are the only three countries in the world with no paid-maternity-leave law. When you point out the deficiencies of the United States in this regard, somebody often replies, “This isn’t Scandinavia; we can’t impose cuddly capitalism”—the M.I.T. economist Daron Acemoglu’s phrase—“and still enjoy economic growth.” Granted, we’re not Sweden, but neither are we Romania, Uganda, Bolivia, or any of the hundred and eighty-five other countries that, according to a 2014 report from the U.N.’s Institute of Labor, provide their citizens with paid leave to care for a new child. Ninety-eight of those countries offer paid leave for fourteen weeks or more. In his State of the Union address on Tuesday, President Barack Obama vowed to make family leave and sick days a priority in the final two years of his Presidency. He has work to do. In the United States, where all sorts of powers are commonly attributed to the private sector, many people might imagine that employers take up the slack. But the majority of U.S. employers do not offer paid family leave, for the simple reason that they don’t have to.
Saturday, January 24, 2015
The majority of young women and men today would prefer an egalitarian relationship in which work and family responsibilities are shared equally between partners if that possibility were available to them, according to a new study from the University of Texas at Austin and the University of California-Santa Barbara.
The study finds that when the option is made available to them, the majority of respondents -- regardless of gender or education level -- opt for a relationship in which they would share earning and household/caregiving responsibilities equally with their partner. Additionally, the study finds that if workplace policies that support work-family balance, such as subsidized child care, are in place, women are even more likely to prefer an egalitarian relationship and much less likely to want to be the primary homemaker or caregiver.
Thursday, December 18, 2014
Told there was no procedure for appealing a decision by Illinois bar exam authorities not to provide stop-the-clock breaks when she needed to pump breast milk, Kristin Pagano nonetheless wrote a letter requesting reconsideration.
On Tuesday, that request was unanimously granted by the Illinois Board of Admissions to the Bar. Pagano will be allowed to take a break of up to 30 minutes during each three-hour segment of the test, which will not be counted against the time she is given to complete the bar exam, reports the Chicago Tribune. A female proctor and access to an appropriate area in which to pump breast milk will also be provided.
Hear Kristin speak about it here, Kristin Pagano Speaks: Breastfeeding Accommodations and the Illinois Bar Exam
Wednesday, December 17, 2014
Stewart Chang, Whittier Law, has uploaded Dreams of My Father, Prison for My Mother: The H-4 Nonimmigrant Visa Dilemma and the Need for an "Immigration-Status Spousal Support." The abstract reads:
This article uses the situation of H-4 visa derivatives in the Asian Indian immigrant community as a case study to expose and critique larger incongruities within current American immigration policy, which on the one hand has historically extolled individuality, equality, and workforce participation as avenues to the American Dream, while enforcing gender hierarchy and dependency through requirements that prioritize family unity on the other. These incongruities remain largely unnoticed because the culture of dependency is often attributed to traditional ethnic culture, which then becomes the site of scrutiny and blame. The H-4 visa dilemma in the Asian Indian community illustrates how the legal restrictions stipulated in immigration law often produce and perpetuate recursions of ‘traditional culture’ within immigrant American families that ultimately consign Asian Indian women to perpetually occupy the place of the foreign ‘Other’ in American society. The ‘Othering’ of the ethnic alien culture perpetuates the illusion that America is not patriarchal in comparison, which concurrently promotes the idea that the foreign culture is inferior, behind, and incompatible. This constructed inferiority further forecloses these women from other avenues of justice in America, such as family law, which is similarly configured as to be culturally incompatible with the dependent immigrant subject. Thus, these women of- ten voluntarily choose to exclude themselves from the process, as did many of my Asian Indian clients. These are the assumptions and hierarchies regarding the mythos of independence in American identity that this article seeks to overcome, which then open avenues for some nonconventional solutions.
Friday, December 5, 2014
Helen Alvare at George Mason Law has uploaded "Same-Sex Marriage and the Reconceiving of 'Children.'" (It's a conservative perspective but I, for one, am in favor of reading contrary views.) The abstract:
Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults’ interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults’ rights to same-sex marriage.
This Article discusses the importance of states’ interests in procreation and child rearing and the Supreme Court’s constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or “reconceived,” the role of children in marriage, in several important ways, all to the marked disadvantage of children.
Thursday, December 4, 2014
A Colorado mother claims in a federal lawsuit that she was fired from her hairstylist job after she sought to take periodic work breaks to pump breast milk but was rebuffed by an employer who called the idea "gross," court documents showed on Tuesday.
Ashley Provino of Grand Junction said she asked permission from her employer, Big League Haircuts, to take breaks every four hours to pump breast milk for her infant son, according to a complaint filed on Monday in U.S. District Court in Denver by lawyers with the American Civil Liberties Union of Colorado.
Provino said the owner, Kyle Reed, “adamantly refused” her request, called the topic “gross,” retaliated by cutting her hours so she never worked more than four hours at a time, and ultimately fired her.
“Discrimination against breastfeeding mothers in the workplace is not only illegal, it is also bad for Colorado families and businesses, because it forces women out of the workplace,” ACLU cooperating attorney Paula Greisen said in a statement.
Reached by telephone, Reed said the lawsuit was “total fiction” and vowed to fight Provino's claims.
“She has dollar signs in her eyes and thinks she's going to win a million dollars,” he said.
Monday, November 17, 2014
“The phone call. The phone call," sighed Allison Strange. "There’s always that one call that you never expect to get.”
On Sept. 6, 2011, the caller ID showed her son's cell phone, but the voice on the other end wasn't Josh. Her son had been arrested for rape.
Josh Strange avoided prosecution, but he did face the justice of Auburn University, where he was a sophomore. Under federal civil rights law, colleges and universities have to conduct their own investigations into sexual assault reports, separate from a criminal one. And after a 99-minute hearing, the discipline committee – chaired by a university librarian – reached its decision.
“Josh was as white as a piece of notebook paper, and just looked like he had been punched in the stomach,” remembered Allison Strange, who was outside the hearing room. “I walked up and I looked, and Josh said, ‘Mom, I’m gone. They don’t want me here anymore. I can’t stay. They’ve expelled me.’”
In the aftermath, Allison and Josh Strange formed the group Families Advocating for Campus Equality that pushes for universities to get out of the business of adjudicating sexual assault cases. Allison Strange wants those cases to be left to the criminal justice system, and she says you only need to look at her son's case to understand why.
Prof. DiFonzo of Hofstra Law writes:
The November 2014 elections included a North Dakota voter initiative emblematic of the vigorous debate taking place nationwide about child custody.
The “Parental Rights Initiative” required courts to award “equal parenting time” to both parents after divorce or separation. The measure was defeated by a sizeable margin (62% to 38%) but it represents only the latest round in a combustible campaign to change how child custody cases are decided.
An important 2014 study shows that child custody norms are significantly changing in the 21st century, with the proportion of parents sharing custody rising dramatically. In fact, we reached a major milestone in the past decade: for the first time since the mid-19th century, custodial arrangements that did not provide sole custody to mothers constituted a majority.
The vocabulary of child custody is also adapting to shared parenting.
“Decision making” and “parenting time” are replacing “legal custody” and “physical custody.” The modern terms reflect a cultural pivot toward mutual child rearing responsibilities rather than declaring a winner and a loser. On balance, then, it appears that our society has adapted the best-interest-of-the-child standard to provide some variant of shared custody. In custody cases today, both parents increasingly enjoy significant, though not necessarily equal, amounts of parenting time.
Legally enforceable presumptions, such as the one proposed and rejected in North Dakota or the one that the Governor of Minnesota vetoed in 2012, are problematic. An equal parenting presumption shifts the starting point for a custody determination from the child’s best interests to how the parents will divide the 168 hours in a week so that each parent handles half the child rearing.
A 50/50 presumption alters the critical issue from what’s best for the child to how we can treat the parents equally. That’s not the same question at all. A legal presumption of equal parenting time effectively converts the current focus on the child’s welfare to a best-interests-of-the-parents standard.
Saturday, November 15, 2014
The decision is the first since the U.S. Supreme Court last June ruled that some for-profit companies may, like religious nonprofits, opt out of providing birth control coverage in their insurance plans. In the cases that have followed, various religious nonprofits have maintained, as they did in the Washington case, that the opt-out provision itself is a "substantial burden" on religion, and thus, that it violates the Religious Freedom Restoration Act, a federal law enacted to enhance religious rights.
In rejecting that claim, the U.S. Court of Appeals for the District of Columbia said that "Religious objectors do not suffer substantial burdens ... where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do ... "
These religious objectors have no right, the court said, "to be free from the unease, or even anguish" of knowing that others are legally entitled to receive or provide birth control. The court noted that birth control coverage was added to the Affordable Care Act because it accounts for a large part of women's preventive health care costs.
Writing for the 3-0 court panel, Judge Cornelia Pillard said the challengers' argument that the opt out harms them by triggering substitute coverage makes little sense in light of the government's need to carry out a duly enacted program.
Read the full decision here Priests for Life v. US Dep't of Human Services
Friday, November 14, 2014
"We may name it a Male Law, or Macho law," he said.
From the UK Express:
MEN who have children by different women should be PAID by the government for increasing the population, claimed a Russian MP.
The new "Macho Law", which was proposed by Valeriy Seleznyov, could see men that have a string of children with different women paid an unspecified amount to help cover child costs.
The MP wants to extend a system that is already in place in Russia - where woman can claim "maternity capital allowances" of around £6,500 when they have more than one child.
He went on to explain that the amount granted from the "Macho Law" could then be used to help cover property and education costs.
"Some men have several children from different women, each of whom is not eligible for the 'maternity capital programme, as some of them have only one child, and others can be married to another man," he explained.
Wednesday, November 12, 2014
Clare Huntington, Fordham Law, has uploaded "Postmarital Family Law" on SSRN. It's forthcoming from Stanford Law Review and its abstract reads:
Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital childbearing continues to spread across class lines, the effect will be most pronounced among children.
This shift is the single most important issue facing family law today, yet scholars have been slow to engage with the structure and substance of the law in response. In family law, the marital family serves as a misleading synecdoche for all families, not only marginalizing nonmarital families, but also actively undermining their already tenuous bonds.
It is essential for family law to address the needs of both marital and nonmarital families. This entails a new theory of state regulation as well as new doctrines, institutions, and norms in practice. Some feminists argue that the state should privilege caregiving between parents and children instead of marital relationships, while other commenters stubbornly advocate marriage primacy — the elevation of marriage above other family forms — despite all evidence that marriage promotion fails. These responses fundamentally misunderstand nonmarital family life, in which dynamics between parents deeply affect children yet marriage is not realistically returning. We must instead understand that it is possible to separate marriage from parenthood but not relationships from parenthood. The state must accordingly help unmarried parents become effective co-parents, especially after their relationship ends, so they can provide children with the healthy relationships crucial to child development. This theoretical insight, and the family law that flows from it, will inaugurate a larger debate about how to prepare for a world in which marriage is not the defining institution of family life.
Saturday, November 8, 2014
Deborah N. Misir is in the sixth month of a high-risk pregnancy. So Ms. Misir, a Long Island lawyer, has asked that an upcoming trial for one of her clients — set for about two months before her due date — be postponed.
Doctors told Ms. Misir, 42, to “avoid stress, pressure and upsetting confrontations, which could result in medical complications that could threaten the life of my baby,” according to a letter she wrote on Wednesday to the judge.
But thus far, Ms. Misir’s request has gone nowhere: The United States attorney’s office has fought the proposed delay, and the judge, citing her health, even asked about a trip to Washington that she said she was planning.
“I am puzzled by the U.S. attorney’s office’s objection to any adjournment due to my pregnancy,” Ms. Misir said. “Pregnancy — much less high-risk pregnancy — has long been recognized in this country as a legal disability requiring accommodation."***
In an Oct. 20 letter to the judge opposing the request, prosecutors wrote that the case had been long pending; that Ms. Misir had agreed previously to the January date; and that she had a “highly experienced and able” co-counsel. The government also cited Mr. Tabone’s right to a speedy trial, adding, “The court should not countenance further delay of the trial.” ***
She wrote that she had worked as a Justice Department lawyer, as an ethics lawyer in the White House and as a deputy assistant secretary of labor for policy.
“In over 17 years of federal practice,” she said, “I have never been treated so disrespectfully, brutally, and with lack of basic civility by opposing counsel, as has occurred in this court.”
Friday, November 7, 2014
Today, families are no longer quite so cookie cutter similar. Some families are comprised of a mother and her children and a father who is no longer an active member of the family or never has been. Other families consist of two absent parents, leaving the parental role to be fulfilled by grandparents or foster families. And there are, for the first time in history, a fair amount of same sex parents who are raising children. These types of family are a few million strong.
Despite studies proving otherwise, some people still insist that children are being ruined by this type of family dynamic. They deem homosexual couples as "unfit"parents, but don't seem to have concrete or legitimate evidence to substantiate their claims. They fight against same-sex adoption with the fervor of a quarterback at the Super Bowl.
So, what do opponents argue?
Check out the rest here.
Tuesday, November 4, 2014
It used to be legally required. In the 1870s and the 1970s (to vote, for example). But why now? See BBC News, Why Should Women Change Their Name on Getting Married?
Feelings can run high over the issue of surname change, as demonstrated by recent criticism of Amal Alamuddin's decision to change her name when she married George Clooney. Some feminists point out that women suffer serious detriment to their careers when they change their names - that they signal their submission to their husbands, and reinforce to their own children the idea that women are inferior to men.
Others shrug the issue off and say that women's names mean little to them, or point out that a birth name is usually the name of the woman's father anyway. Those who think a woman should change her surname often say that it's not really important, but, given the choice between the various options, they prefer to go with "tradition".
This argument, of course, presupposes that traditions are worth preserving. But in fact, just a brief dip into the history of marital surname change - a specifically English phenomenon - reveals that its origins are at best controversial. And at worst, they are deeply unsavoury.