Friday, September 23, 2016
Police forces across England and Wales are considering expanding their definition of hate crime to include misogyny after an experiment in one city that saw more than 20 investigations launched in two months.
The initial success of Nottingham’s crackdown against sexist abuse has drawn national interest after the city’s police revealed that they investigated a case of misogyny every three days during July and August, the first months to see specially trained officers targeting behaviour ranging from street harassment to unwanted physical approaches.
Several other forces have confirmed they are sending representatives to Nottingham this month to discuss the introduction of misogyny as a hate crime.
Police and campaigners said the initial figures were broadly in line with other categories of hate crime such as Islamophobia and antisemitism but were likely to rise significantly as awareness increased.
Wednesday, August 31, 2016
If bitter fights over dirty dishes feel like the gender wars, or you’ve found yourself ranting about The Second Shift, a new study from Indiana University suggests you’re onto something. For most Americans, the survey study found, chore roles align with traditional thinking on masculinity and femininity ― even among couples where a woman is the primary or sole breadwinner and even in same-sex couples.
The researchers were surprised by how much gender mattered ― and how little income did.
“Most research on housework suggests that couples divide housework along different axes; for example, lower-earning partners do more housework than higher-earning partners,” said lead author Natasha Quadlin, a doctoral student at Indiana University. “Instead, our findings suggest that [gender] is by far the biggest determinant of Americans’ attitudes toward housework.”
Gender matters more than income
Participants assigned straight women more female-typed chores, more gender-neutral chores and more physical and emotional caregiving than their partners. This held true even if the woman earned more money than the man.
While relative income determined whether or not the husband or the wife would become the stay-at-home caregiver, Quadlin pointed out that low-earning men in straight relationships were still expected to do fewer chores and fewer childcare tasks than their wives.
But even though gender mattered most, Quadlin found that participants gave primary responsibility for cooking, cleaning, laundry and dishes, as well as being a primary caregiver for a child, to lower-earning partners, while expecting the higher- wage earners to manage the household finances. Income didn’t have any bearing on groceries, car maintenance or outdoor chores. However, the effects of relative income were minor — for instance, low-wage earners were given responsibility for cooking 55 percent of the time, versus 45 percent for higher earners.
Wednesday, August 24, 2016
Sarah Lynn Swann, Conjugal Liability
Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. This Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law.
Within these domains, conjugal liability is deployed for a variety of laudable purposes, such as the prevention of harm to third parties, the deterrence of drug or other criminal activity, and the expansion of creditor’s remedies. However, conjugal liability is a deeply problematic way of achieving these goals. First, in operation, it is profoundly gendered: most often, it holds wives and girlfriends legally responsible for the wrongdoing of their husbands or boyfriends.***
Conjugal liability raises three main concerns. First, as many of the examples in the taxonomy of demonstrate, conjugal liability has gendered consequences. In operation, it tends to spread liability from men to women, making wives and girlfriends experience a punitive fall-out from the wrongful acts of their male intimate partners. Moreover, it often places the very difficult burden of attempting to control a partner onto particularly vulnerable women. Second, conjugal liability is, in some instances, a form of guilt by association. Third, conjugal liability offends the constitutional right to freedom of association, not only because of its gendered and guilt-by-association aspect, but also because it implicates the constitutionally-guaranteed privacy and liberty interests in “maintain[ing] certain intimate human relationships." Specifically, conjugal liability dictates when individuals should enter relationships, how they should behave once they are in them, and under what circumstances they should exit. It sets behavioral standards for what good spouses and partners must do, and punishes those who fail to meet this bar, thereby rendering an individual’s right to enter, maintain, and exit intimate relationships illusory.*
In operation, conjugal liability is profoundly gendered. Whereas traditional coverture held husbands legally responsible for the torts and petty crimes of their wives, conjugal liability reverses this gendered responsibility ascription. It tends to hold wives and women legally responsible for the wrongful acts of their husbands and male intimate partners, rather than the other way around. In part because of the sociological reality that men tend to engage in criminological behaviors more than women (meaning they commit sexual harms, engage in violent acts, and perform drug-trafficking activities more often than women), and in part because of cultural beliefs about appropriate gender roles, conjugal liability allocates responsibility in gendered ways.
Indeed, despite coverture’s traditional legal fiction that husbands were responsible for the petty crimes and torts of their wives, there is a long-running countervailing cultural tradition of assigning to wives and women the role of “moral compass” for potentially wayward men.
Tuesday, August 23, 2016
Stephanie Wildman and Adam Chang, Gender In/Sight: Examining Culture and Constraints of Gender, Georgetown J. Gender & Law, forthcoming.
Abstract:To build supportive and inclusive communities, society needs to acknowledge gender and consider how gender dynamics influence daily interactions. Gender In/sight seeks both to provide deeper understandings of gender and underline the presence of gender in daily life, ensuring that gender is “in sight.”
According to Merriam-Webster’s on-line dictionary, “Gender is currently in the top 1% of look-upped words and is the 386th most popular word on Merriam-Webster.com.” These statistics suggest that many people are thinking about gender, yet past thinking most often considers gender an either/or binary with only two anatomical choices.
This paper begins by reviewing a brief evolution of the social construction of gender in U.S. society, followed by an elucidation of why the gender binary remains so problematic. It then introduces some frequently used and misused terms that comprise the cluster of “gender,” examining the question “What is Gender?” Sex has become synonymous with gender and gender with sex. Sex relates to biology, sex assigned at birth, genitalia, chromosomes, and hormones. Identity represents one’s innermost sense of self, whether male, female, both, neither, or any other identity. Most people develop a gender identity that comports with their biological sex. That person is cisgender. A transgender person’s gender identity does not match their assigned birth sex and often seeks to transition (socially or physically). Gender Expression describes the manner in which people outwardly demonstrate gender. A common misconception about gender lies in the belief that someone’s sexual orientation can be determined based on that person’s gender expression. Such an assumption is incomplete because it does not take into account culture, race, ethnicity, geography, and many other factors. A richer vocabulary provides a more holistic picture of the gender landscape including: drag, gender fluid, agender/gender neutral, sex assigned at birth, pansexual. The paper offers these terms not to be final and definitive, but rather to begin the gender conversation and to illustrate its complexity.
The paper next examines more closely recent attempts to expand understandings of gender and the barriers to inclusive gender equality. These barriers include a societal lack of familiarity with gender-expansive terms and language, resulting in the unintended exclusion of non-binary people as well as a rift between feminists and gender-expansive communities exemplified over the meanings associated with being genderblind. Deeper understanding of gender becomes further challenged by the failure to deconstruct binary definitions of gender and the absence of consistent identification of gender as a protected classification.
Finally the paper develops necessary elements for Gender In/sight, a daily practice of both seeing gender and making inclusive, community building decisions to broaden society’s understanding of gender minority people. This section introduces the elements of gender in/sight, which include (1) looking at context; (2) “asking the other question;” (3) examining privileges associated with gender and sexuality, such as male privilege, heterosexual privilege, and cisgender privilege, (4) “finding the me” in the gender conversation, and (5) rebuilding a gender framework that is inclusive while recognizing nuanced differences.
Friday, August 5, 2016
So we shouldn’t downplay how far we’ve come. That would do a disservice to all those who spent their lives fighting for justice. At the same time, there’s still a lot of work we need to do to improve the prospects of women and girls here and around the world. And while I’ll keep working on good policies—from equal pay for equal work to protecting reproductive rights—there are some changes that have nothing to do with passing new laws. In fact, the most important change may be the toughest of all—and that’s changing ourselves.
So I’d like to think that I’ve been pretty aware of the unique challenges women face—it’s what has shaped my own feminism. But I also have to admit that when you’re the father of two daughters, you become even more aware of how gender stereotypes pervade our society. You see the subtle and not-so-subtle social cues transmitted through culture. You feel the enormous pressure girls are under to look and behave and even think a certain way.
And those same stereotypes affected my own consciousness as a young man. Growing up without a dad, I spent a lot of time trying to figure out who I was, how the world perceived me, and what kind of man I wanted to be. It’s easy to absorb all kinds of messages from society about masculinity and come to believe that there’s a right way and a wrong way to be a man. But as I got older, I realized that my ideas about being a tough guy or cool guy just weren’t me. They were a manifestation of my youth and insecurity. Life became a lot easier when I simply started being myself.
So we need to break through these limitations. We need to keep changing the attitude that raises our girls to be demure and our boys to be assertive, that criticizes our daughters for speaking out and our sons for shedding a tear. We need to keep changing the attitude that punishes women for their sexuality and rewards men for theirs.
We need to keep changing the attitude that permits the routine harassment of women, whether they’re walking down the street or daring to go online. We need to keep changing the attitude that teaches men to feel threatened by the presence and success of women.
We need to keep changing the attitude that congratulates men for changing a diaper, stigmatizes full-time dads, and penalizes working mothers. We need to keep changing the attitude that values being confident, competitive, and ambitious in the workplace—unless you’re a woman. Then you’re being too bossy, and suddenly the very qualities you thought were necessary for success end up holding you back.
We need to keep changing a culture that shines a particularly unforgiving light on women and girls of color. Michelle has often spoken about this. Even after achieving success in her own right, she still held doubts; she had to worry about whether she looked the right way or was acting the right way—whether she was being too assertive or too “angry.”
As a parent, helping your kids to rise above these constraints is a constant learning process. Michelle and I have raised our daughters to speak up when they see a double standard or feel unfairly judged based on their gender or race—or when they notice that happening to someone else. It’s important for them to see role models out in the world who climb to the highest levels of whatever field they choose. And yes, it’s important that their dad is a feminist, because now that’s what they expect of all men.
Monday, July 25, 2016
Jamie R. Abrams joins us as a guest blogger for July. She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.
“Gender reveal” parties are a popular trend among expecting parents. One website describes these parties as “a new trend that’s sweeping across the baby world.” The “gender reveal” is described online as one of the “most thrilling parts of pregnancy.” Expecting parents are accordingly encouraged to make this event “a big, wonderful, landmark event in your life.” Parents then tuck their ultrasound in an envelope and plan a grand event around its opening. The party reveals to family and friends – and to the couple themselves – the gender of the baby.
If you have not been invited or involved in one (I had not . . . and surely after this blog post, I will not be in the future!), it’s worth a quick online search. You will find an endless array of products emphasizing a whimsical gender binary from banners to straws to stickers. You can have buttons and voting materials for “Team He” versus “Team She.” You can have cupcakes and cake toppers for “Team Lashes “versus “Team Stashes.”
The emergence of gender reveal parties in this modern era is most perplexing. First, the use of the word gender itself defies a general movement toward greater sophistication and nuance between the terms sex and gender and an expanded recognition that gender is not binary. In this sense, the “gender” reveal is really not a gender reveal at all; it is really a “biological sex” reveal. The American Psychological Association describes sex as one’s biological sex, which is indicated by external genitalia, internal reproductive organs, and chromosomes. In contrast, gender “refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex.” Other dimensions of gender include one’s gender identity and one’s gender expression. Gender is not determined by one’s physical genitalia and it is not binary.
Even if the “gender reveal” party were most awkwardly renamed as a “genitalia reveal” party or a “biological sex reveal,” that too would inaccurately pretend that all bodies fit on “Team He” or “Team She” as the merchandise suggests. Sex – unlike gender – may be described on a male-female binary, but critically not all bodies conform to that binary; others are intersex. Making a big deal of the gender reveal wrongly presumes that the child’s gender is fixed in utero and that all bodies fit on “Team He” or “Team She.” Ironically, the parties themselves are premised on inclusivity. The planning sites suggest that they are to be celebrated because “male guests are allowed” and because “husbands can be involved.” So, these parties are celebrating the inclusivity of the party, while the party is framed around exclusivity.
This whimsical in utero trend of the big “gender reveal” defies the increased political, legal, and social recognition that biological sex does not define one’s gender and that gender is not binary. So, if I’m invited to a gender reveal party, I will happily engage in a tasty protest enjoying a cupcake for both “Team Lashes” and “Team Stashes” to quietly contest outdated and inaccurate depictions of gender.
Tuesday, June 21, 2016
M. Christian Green, "Graceful Pillars": Law, Religion, and the Ethics of the "Daughter Track", Journal Law & Religion (forthcoming July 2016)
What is striking in these responses is the interplay and ethical tension between concepts of virtue and necessity, in a way that construes and constructs the “daughter track” as emblematic of a particular kind of filial virtue that manifests itself in what is often a situation of necessity, in which someone must step up to provide care in the face of scant resources afforded by the surrounding society. In other words, these daughters step up to bear the burden of eldercare because no one else will.
The plight of women on the “daughter track” raises crucial ethical questions about justice, care, and gender connection with eldercare. It does so in a moral and ethical context often shaped not only by the choice to care, but also by virtues forged in contexts of necessity. There are a number of conceptual frameworks in feminist philosophy and feminist legal theory that might be used to analyze the “daughter track” problem. One of the newest and most promising frameworks is the “vulnerability” framework that has been argued powerfully and eloquently about Martha Albertson Fineman. Another longstanding and influential framework is that of the “ethics of care.” With origins in the developmental psychological work of Carol Gilligan, who famously identified and juxtaposed a masculine “ethic of justice” with a feminine “ethic of care,” the ethics of care framework, originally.
While the ethic of care framework might seem to be the most obvious framework for analyzing the “daughter track,” since it involves daughters providing care to elderly parents, it is not the framework that I have chosen to apply here. The origins of the ethics of care in maternal experience do not fully track the daughter care experience, as suggested by contrasts between the “Mommy Track” and the “Daughter Track” in the popular media. Motherhood is most often chosen and eagerly awaited with positive expectations of giving birth and raising to maturity a child who may end up taking care of the parents someday. Eldercare needs, while in a certain sense universal and inevitable, since we all age and most of us have parents who live into old age, often strike out of the blue or build gradually and then hit like a tsunami when a parent’s need for care becomes acute, and the process is one of decline and ultimately death, leaving the caregiver with significantly depleted energy and funds to provide for their own care.
An Oregon judge has allowed a 52-year-old retired Army tank mechanic to change gender identity. Not from male to female, or vice versa. But to a new, third gender.
Jamie Shupe is now legally non-binary — widely believed to be a first for the United States.
Oregon joins several countries in recognizing a third gender. In 2014, India became the largest country in the world to have an official third option, following in the footsteps of Pakistan, Australia and Germany.
Thursday, June 16, 2016
Harvard Business Review, Are U.S. Millennial Men Just as Sexist as their Fathers?
The researchers found that male students systematically overestimated the knowledge of the men in their classes in comparison with the women. Moreover, as the academic term progressed, the men’s faulty appraisal of their classmates’ abilities increased despite clear evidence of the women’s superior class performance. In every biology class examined, a man was considered the most renowned student — even when a woman had far better grades. In contrast, the female students surveyed did not show bias, accurately evaluating their fellow students based on performance.
Wednesday, June 15, 2016
Paula Monopoli, JOTWELL, Linguistic Theory, Gender Schemas and Wills, reviewing Karen Sneddon, Not Your Mother's Will: Gender, Language, and Wills, 98 Marq. L. Rev. 1535 (2015).
Language matters. In her recent article, Not Your Mother’s Will: Gender, Language, and Wills, Karen Sneddon details just how much language matters in the context of wills and trusts. In a comprehensive review of linguistic theory and its intersection with inheritance law, Sneddon illuminates how will clauses and trust structures reflect gender schemas about men and women.
Sneddon first lays a foundation for her hypothesis that will drafting reflects masculine and feminine roles and norms by acquainting the reader with basic linguistic theory.
Friday, May 6, 2016
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
Wednesday, May 4, 2016
Jamie R. Abrams (Louisville), Debunking the Myth of Universal Male Privilege, 49 U.Mich.J.L. Reform 303 (2016)
Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military's statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male violence to men, and positions women as perpetual outsiders.
Debunking the myth of universal male privilege in heavily masculinized institutions would advance gender equality and shift the law reform focus. It would bring sexual assault, domestic violence, and sexual harassment into the same frame as the military mental health crisis and even mass solidier-on-soldier shootings. This would reveal the gender equality implications of military mental health and disentangle masculinities and military efficacy. Debunking the myth of univeral male privilege would yield more vigilance to how law reforms can exacerbate hyper-masculine violence. It introduces new entry points to gendered violence in the military, expanding the focus from incident-based responses to recruiting and training.
Thursday, March 10, 2016
Michelle Travis (San Francisco), Gendering Disability to Enable Disability Rights Law, Cal. L. Rev. (forthcoming)
Abstract:This Article expands the social model of disability by analyzing the interaction between disability and gender. The modern disability rights movement is built upon the social model, which understands disability not as an inherent personal deficiency but as the product of the environment with which an impairment interacts. The social model is reflected in the accommodation mandate of the Americans with Disabilities Act of 1990 ("ADA"), which holds employers responsible for the limiting aspects of their workplace design. This Article shows that the limitations imposed upon impairments result not only from physical aspects of a workplace but also from other identity-based stereotypes, biases, and oppressions, which affect how disability is both experienced and perceived.
This Article advances the social model's aspirations by specifically challenging the existing gender-neutral view of the causes and consequences of disability. This analysis reveals how ignoring gender has enabled masculine norms to become embedded into the ADA's substantive and procedural approaches to defining and remedying disability discrimination in the workplace. This inattention to gender has not only imposed serious social and economic consequences on women with disabilities, but it has also rendered legally invisible many non-prototypic members of the disabled community. This analysis illustrates how attending to other social identities may advance the social model, deepen our understanding of disability discrimination, and empower disability rights law to serve a broader group of individuals within the disabled community.
Friday, February 19, 2016
We had this dilemma in captioning a class action lawsuit. Women Prisoners of the DC Dep't of Corrections v. District of Columbia (1993). And chose "women" for the exact reason discussed of the history of derogatory use of the term "female," even when correctly used as an adjective (rather than a noun).
Wednesday, January 6, 2016
The New York Times set out to find out what makes for a smarter, more well-functioning team. They worked with M.I.T. to group nearly 700 volunteers into teams that had to work together to complete short tasks involving things like brainstorming, logical analysis, and planning.
Who works smartest? Surprisingly, the study found that smarter people do not make for smarter teams. Teams with high-IQ averages didn’t perform any better than lower-IQ average teams did. Nor did teams with extroverts. Instead, the study found three things made for smarter teams:
First, their members contributed more equally to the team’s discussions, rather than letting one or two people dominate the group.
Second, their members scored higher on a test called Reading the Mind in the Eyes, which measures how well people can read complex emotional states from images of faces with only the eyes visible.
Finally, teams with more women outperformed teams with more men. Indeed, it appeared that it was not “diversity” (having equal numbers of men and women) that mattered for a team’s intelligence, but simply having more women. This last effect, however, was partly explained by the fact that women, on average, were better at “mindreading” than men.
So there you have it. Let everyone talk, pay attention to people’s eyes, and have more women on your team.
Wednesday, December 16, 2015
One critical part of improving LEAs’ response to allegations of sexual assault and domestic violence is identifying and preventing gender bias in policing practices. Gender bias in policing practices is a form of discrimination that may result in LEAs providing less protection to certain victims on the basis of gender, failing to respond to crimes that disproportionately harm people of a particular gender or offering reduced or less robust services due to a reliance on gender stereotypes. Gender bias, whether explicit or implicit, conscious or unconscious, may include police officers misclassifying or underreporting sexual assault or domestic violence cases, or inappropriately concluding that sexual assault cases are unfounded; failing to test sexual assault kits; interrogating rather than interviewing victims and witnesses; treating domestic violence as a family matter rather than a crime; failing to enforce protection orders; or failing to treat same-sex domestic violence as a crime. In the sexual assault and domestic violence context, if gender bias influences the initial response to or investigation of the alleged crime, it may compromise law enforcement’s ability to ascertain the facts, determine whether the incident is a crime, and develop a case that supports effective prosecution and holds the perpetrator accountable.
Four days after an Oklahoma police officer was found guilty of serial rape, U.S. Attorney General Loretta Lynch announced the Department of Justice’s new guidelines for authorities handling sexual assault cases in their communities and within their departments.
The report, released Tuesday, calls for law enforcement agencies to fight gender bias in their responses to sexual assault and domestic violence with clear policies and updated training.
Lynch said officers across the country too often make snap judgments about women who report rape: She’s drunk. She’s an unreliable narrator. She’s just embarrassed by her actions.
Women's Law Project, WLP on the DOJ's First-Ever Guidance on Gender Bias in Law Enforcement
Wednesday, December 9, 2015
National Women's Law Center, Let's Talk About Intersectional Feminism
Recently, the Ms. Foundation launched the #MyFeminismIs campaign “to paint a broad, inclusive and intersectional picture of Feminism as we continue to challenge and change the conversation around equal rights.” The campaign aims to start a dialogue about feminism as a movement for the equality of all genders and what feminism looks like for each of us.
If you’re new to the term, intersectionality is a word coined by Professor Kimberlé Crenshaw, who defined it as “the view that women experience oppression in varying configurations and in varying degrees of intensity. Cultural patterns of oppression are not only interrelated, but are bound together and influenced by the intersectional systems of society. Examples of this include race, gender, class, ability, and ethnicity.”
In other words, the ways that people experience discrimination — based on sex, race, gender identity, ability, sexual orientation, size, religion, national origin, the list goes on — can’t be separated into categories because these systems of oppression are all connected. And because various forms of oppression are intertwined, an intersectional lens is fundamental to feminism as a movement for liberation and equality. We can’t work for gender equality without addressing other issues of inequality like police brutality against people of color, immigration reform, Islamophobia, or discrimination and violence against the LGBT community.
That’s why a campaign like #MyFeminismIs, which focuses on a broad, inclusive, and intersectional feminism, is so exciting. We come to our work, our activism, our feminist movement as our whole selves — so our work, our activism, and our movement should reflect that. What the #MyFeminismIs campaign is doing to continue the conversation about what inclusive, intersectional feminism like — in the media, in academia, in organizing and activism, and in the women’s advocacy world — will help shape and strengthen the future of feminism.
Thursday, November 12, 2015
A new survey finds that while most of the public knows society has a long way to go before women will be fully equal, people are poorly informed about feminism and key women’s issues.
The poll, conducted by Perry Undem Research/Communication for the Ms. Foundation for Women, surveyed a representative sampling of adults nationwide. The poll over-sampled people of color in order to get better data on certain demographic groups.
The survey has both good and bad news for feminists. It found that while respondents believe in equality for women, many have a negative view of the word “feminism,” are divided on whether women of color face more barriers to equality than white women, and have a narrow idea of what “women’s issues” means.
Tuesday, November 10, 2015
Melanie Randall (W. Ontario), Particularized Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognize Gender and the Legal Reception of Gender Persecution Claims in Canada, the United Kingdom, and the United States, 23 American J. Gender, Social Policy & Law 529 (2015)
Tuesday, November 3, 2015
(Muller v. Oregon, 1908)
At the NE Ohio Faculty Colloquium last week, I presented on the topic derived from my forthcoming book chapter on the long history of the ERA.
For this presentation, I focused on the early history of ERA, introduced by Alice Paul in the midst of the Supreme Court's detour into Lochnerism. A close review of the Lochner cases on maximum hours law, shows how gendered these cases were. The Court struck down laws like that in Lochner limiting men's work, while easily upholding the same limitation for women. The advent of the Brandeis Brief (or more appropriately the Kelley Brief since it was mostly written by Florence Kelley) in Muller v. Oregon (1908) added sociological facts of women's weakness, primary material function, and need for protection research designed to justify the rationality of the state legislature's determination that women needed protection.
My takeaways on looking at Lochner through the gendered lends were:
1. It explains some of the flip-flops and seeming inconsistencies of Lochner to understand legalistic exceptions were made for women.
2. It shows how grounded Lochner was in masculinity: real mean don’t need “protection.” Men were tough, strong, and could withstand or counter the abuse of workplace. (Except maybe in the case of coal mining, see Holden v. Hardy, 1898)..
3. And perhaps most importantly, it reveals the historical depth of what Joan Williams calls the “ideal worker.” The ideal worker since industrialization was male, able to work unlimited hours at a moment's notice, needed the job as a family breadwinner, and never needs any accommodations like pregnancy leave, nursing breaks, or family leave. Women are defined as "other" than the ideal, or even regular work. Women themselves defined female workers this way, attuned to the realities of women's working class experience.