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.
Tuesday, October 27, 2015
A Navy veteran from Colorado who identifies as neither male nor female has sued the U.S. Department of State after being denied a passport for refusing to select a gender on the application, court documents showed on Monday.
Dana Zzyym claimed in a federal discrimination lawsuit filed in the U.S. District Court in Denver that it was a constitutional violation to force an “intersex” person to pick either a male or female when seeking to travel abroad.
“I am not male, I am not female, I am intersex, and I shouldn’t have to choose a gender marker for my official U.S. identity document that isn’t me,” Zzyym said in a statement.
The lawsuit names U.S. Secretary of State John Kerry and the director of the Colorado passport agency as defendants.
The State Department did not respond immediately to a request for comment.
Thursday, October 1, 2015
Kathleen Darcy (Michigan State), Medicalizing Gender: How the Legal and Medical Professions Shaped Women's Experience as Lawyers, 4 Tennessee J. Race, Gender & Social Justice 31 (2015)
Abstract:Despite significant progress, women in the legal profession still have not advanced into positions of power at near the rate in which they saturate the legal market. Scholars agree that simply waiting for parity is not sufficient, and, thus, they have identified many of the barriers that contribute to women’s difficulties. To date, however, the role that scientific and medical understandings play on the evolution of law, and on women as lawyers, has not received examination until now. To this end, I posit that medicine played a significant role in shaping societal expectations and assumptions about gender, and was similarly influenced by already-existing societal assumptions about gender. This created a complex and substantial barrier that kept women from exploring options outside the “spheres” of society they traditionally occupied. This article explores how medically-supported gender theories, in practice, have actually operated to limit women’s professional progress, relegating them to traditional gender roles and halting their ascension in the ranks of the legal profession. I examine how this barrier operates in three ways: how early women lawyers adopted these medical theories into views about their own gender; how society and those around these early women lawyers adopted these views to shape expectations about women as lawyers; and how the court explicitly and implicitly relied on these assumptions about gender to keep women out of the legal profession. An examination of how these medical and scientific theories about gender have shaped the ways society views gender, and vice versa, can help illuminate the discussion on the barriers that impede modern women lawyers.
Tuesday, September 8, 2015
Robin West (Georgetown),Hobby Lobby, Birth Control and Our Ongoing Cultural Wars: Pleasure and Desire in the Crossfires
From the Abstract:
Both sides of the birth control debate agree that birth control artificially prevents or interrupts conception, allowing women to control their own fertility and allowing heterosexual men and women to enjoy unconstrained sexual liberty. However, the decision in Hobby Lobby omitted all discussion of this central function of birth control, and contained no mention of arguments for or against birth control that assume it.
This piece examines and criticizes the two major arguments opposing and supporting birth control on this understanding of its function and core social meaning: first the neo-natural lawyers’ argument against birth control advanced in a papal encyclical in the 1930’s and in contemporary law review articles by John Finnis, George Bradley, and Robert George, and second, the “sexual-libertarian” argument supporting the use of birth control, culled from Griswold, Eisenstadt, Lawrence and their advocates and supporters in the academy.
The focus of the piece is on the competing conceptions of heterosexual morality that underlie these two arguments. My central claim is that both sides fail to address women’s actual felt desires either for sex or pregnancy. Natural law advocates generally celebrate all non-contracepted marital sex regardless of women’s desires for either the sex or the pregnancy that is its foreseeable consequence. Likewise, sexual libertarians celebrate all consensual sex regardless of women’s desires.
This erasure of the relevance of women’s desire, or lack of desire, to the morality of heterosexual intercourse and pregnancy causes women harm, and is a condition of women’s subordination. The current legal clashes over birth control have marginalized the harms. This piece seeks to re-center them.
Monday, August 17, 2015
Seattle follows Philly in making public restrooms gender neutral.
No matter how you identify, you’ll now be able to use a single-stall bathroom in the city of Seattle.
The Seattle City Council passed a law on Monday that requires all public spaces–both those controlled by the city and those of private businesses–to designate any existing and future single-stall restrooms as all-gender, reported local news outlet Seattle Pi.
This goes for all local businesses, including coffee shops, restaurants, hotels and stores. The law prevents business owners from labeling any restroom as gender exclusive.
Saturday, August 15, 2015
During their nearly 30 combined years at the Center on Wrongful Convictions at Northwestern University Law School, the two lawyers have helped exonerate more than two dozen people once found guilty of horrendous crimes. Most of the people they have freed are men; just four are women. And for a long time, Daniel and Royal thought that disparity made perfect sense. Men are convicted of crimes, especially violent crimes, at much higher rates than are women. So it follows that most people exonerated of crimes are also men: The National Registry of Exonerations, a University of Michigan Law School database that has cataloged information on more than 1,600 exonerations nationwide since 1989, includes just 148 women.
About three years ago, however, Daniel and Royal began to question whether that number was too low. Women make up about 11 percent of the people convicted of violent crimes, but just 6 percent of those exonerated of violent crimes. At the urging of a former client, Julie Rea Harper—who spent four years in prison for the murder of her son before a serial killer confessed to the crime—Daniel and Royal decided to try to figure out if there was anything that set exonerated women apart.
They started by looking at the few women whose cases they had worked on themselves. "I haven't had any men's cases that looked like these four cases," Daniel recalls thinking. "Could that really be a coincidence?"
After three years of pursuing that question, Daniel and Royal have concluded that most innocence projects—including their own legal clinic—are failing to bring justice to wrongly convicted women. They have identified factors that make female clients more difficult to exonerate, and uncovered startling facts that distinguish the cases of wrongly convicted women from those of men. And they have launched a project that could change how the American innocence movement helps these women get justice.