Thursday, October 1, 2015

Medicalizing Gender

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)


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.

October 1, 2015 in Gender, Science, Theory | Permalink | Comments (0)

Tuesday, September 8, 2015

West on Recentering Women's Harm in the Current Debate Over Birth Control

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.

September 8, 2015 in Gender, Reproductive Rights | Permalink | Comments (0)

Monday, August 17, 2015

"Seattle passes all-gender bathroom law"

The story: 

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.

August 17, 2015 in Gender, LGBT | Permalink | Comments (0)

Saturday, August 15, 2015

Why is it so Hard for Wrongfully Convicted Women to Get Justice?

Why is it so Hard for Wrongfully Convicted Women to Get Justice?

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.

August 15, 2015 in Gender | Permalink | Comments (0)

Tuesday, August 11, 2015

CFP Sex and Death: Gender and Sexuality Matters in Trusts and Estates

Sex and Death: Gender and Sexuality Matters in Trusts and Estates

The AALS Section on Trusts and Estates and AALS Section on Women in Legal Education will hold a joint program, Sex and Death: Gender and Sexuality Matters in Trusts and Estates, during the AALS 2016 Annual Meeting in New York City.  They are soliciting proposals for presentations between now and August 21.  From the CFP:

Submissions should be of an abstract of scholarship relating to the overlap between sex, gender, or sexuality and trusts and estates.  Potential topics include implications of same-sex marriage, assisted reproduction and property rights, feminist legal theory applied to property transmission or tax, or any other matter examining the intersection between sex and death.  Abstracts should be between 750 and 2000 words, inclusive of any footnotes. Scholarship may be at any stage of the publication process from work-in-progress to completed article, but if already published, scholarship may not be published any earlier than 2014. Each professor may submit only one abstract for consideration.

Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible. The deadline for submission is Friday, August 21, 2015.

To be considered, abstracts must be submitted electronically to Professor Wendy Greene, Samford University’s Cumberland School of Law,<> and Professor Alyssa DiRusso, Samford University’s Cumberland School of Law, at<>.  The deadline for submission is Friday, August 21, 2015. Authors of selected papers will be notified by September 25, 2015.  Call for Paper participants will also be responsible for paying their annual meeting registration fee and travel expenses.

Presenters will be selected after review by the Program Chairs of both sections.  Additional presenters may be solicited by the Program Chairs to insure a diverse panel.  Any inquiries about the Call for Papers should be submitted to: the Chair for the Section on Women in Legal Education, Professor Wendy Greene, Samford University’s Cumberland School of Law, 205.726.2419 or and/or the Program Chair for the Section on Trusts and Estates, Professor Alyssa DiRusso, Samford University’s Cumberland School of Law, 205.726.4325 or

August 11, 2015 in Call for Papers, Family, Gender | Permalink | Comments (0)

Thursday, June 18, 2015

Tracking the First Amendment Decisions of the Women Justices

Ronald Collins, Concurring Opinions, More on the Roberts Court & the First Amendment--the Women Justices

How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.


In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:

  • Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
  • Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
  • Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).

June 18, 2015 in Gender | Permalink | Comments (0)

The Importance of Maleness to Judicial Decision Making

Rebecca Gill, Michael Kagan, & Fatma Marouf (UNLV), Chivalry, Masculinity, and the Importance of Maleness to Judicial Decision Making.


Social science research on gender in the legal system has largely focused on the woman as the "other." This research has looked for ways in which women judge or are judged differently from the norm. The results of this line of research have been mixed. Male-centered theories of masculinity and chivalry provide promising tools to help researchers understand the contribution that maleness has on outcomes in the legal system. Immigration appeals provide an ideal test of these theories, which predict that male judges will be harder on male immigrants and easier on female litigants than will female judges. In this paper, we implement a research design that takes seriously both female-centric and male-centric explanations of decision outcomes. Using an original database of immigration appeals in the U.S. Courts of Appeal, we find evidence to support the research of maleness on its own terms. We find that elements of chivalry and masculinity theory both operate to frame the decisions made by male judges. The introduction of women on the panel of judges is associated with significant changes in the relative success of male and female petitioners, but not in a way that is consistent with theories of women judges as representatives. In addition to providing support for masculinity theory to explain the behavior of male judges, our data raise new questions about how females temper the reaction of mixed-gender panels toward male and female parties in court.

June 18, 2015 in Gender | Permalink | Comments (0)

Monday, June 8, 2015

"Do women and men have different brains?"

From the NYT: 

Do women and men have different brains?

Back when Lawrence H. Summers was president of Harvard and suggested that they did, the reaction was swift and merciless. Pundits branded him sexist. Faculty members deemed him a troglodyte. Alumni withheld donations.

But when Bruce Jenner said much the same thing in an April interview with Diane Sawyer, he was lionized for his bravery, even for his progressivism.

“My brain is much more female than it is male,” he told her, explaining how he knew that he was transgender.


June 8, 2015 in Gender, Manliness, Masculinities | Permalink | Comments (0)

Saturday, June 6, 2015

The New Issue of the Hastings Women's Law Journal

Monday, June 1, 2015

Chinn on Gender Equality and Gay Equality

On SSRN, Stuart Chinn has uploaded "Situating 'Groups' in Constitutional Argument: Interrogating Judicial Arguments on Economic Rights, Gender Equality, and Gay Equality."  The abstract reads: 

The New Deal transformation in Commerce Clause and Due Process jurisprudence marked, among other things, a shift in judicial attention from groups defined by economic relationships to groups defined by social status. Hence, one might plausibly see judicial activism in defense of freedom of contract during the Lochner era subsequently giving way, in part, to the judicial protection of racial minorities, women, and gay persons in the decades after Brown v. Board of Education.

In this paper, I attempt to illuminate this shift in judicial attention by examining the Supreme Court's rhetoric surrounding groups in the context of the Lochner era cases on wages and hours regulations and the post-Brown v. Board of Education era cases on gender and gay equality. I situate my inquiry in the context of broader themes in American political thought, with particular attention to the core concepts and principles of American liberalism. In examining the recurrent modes of argument surrounding groups in these Supreme Court cases, I discuss how the Court's concept of groups — and how its views of American society more broadly — has varied in different constitutional doctrinal contexts.

My examination of these cases yields two key findings. The first finding speaks to a similarity across these contexts of Supreme Court jurisprudence: when confronted by reforms calling for special or different legal treatment of specific groups, both pro-reform and anti-reform Supreme Court justices in these three doctrinal contexts put forth arguments about group-sameness and group-difference. That is, group-sameness and group-difference arguments were deployed by Justices on both sides of the various legal controversies in these doctrinal areas. The second finding speaks to a difference between these doctrinal contexts: while arguments in defense of special legal treatment for groups in the Lochner era cases on wages and hours regulations were linked to larger, broader, more systemic goals, no such sensibility informs the judicial protection of groups in the post-Brown cases on gender and gay equality. Rather, in more recent years, the judicial defense of groups largely proceeds from a judicial concern for only the groups in question. Thus, we see in the more contemporary cases examples of judicial arguments about “societal segmentation” — a significant mode of legal and political argument that, I assert, has appeared episodically throughout American history. In the final Part, I set forth a more general definition of societal segmentation arguments, and I discuss how notions of segmentation may be situated in relation to the principles of American liberalism.

June 1, 2015 in Gender, LGBT, Scholarship | Permalink | Comments (0)

Saturday, May 30, 2015

Reducing Gender Biases with Sleep Therapy

NYT, Race and Gender Biases Can be Reduced with Sleep Therapy, Study Finds

It may be possible to reduce biases regarding race and gender while a person sleeps, according to a new study published in the journal Science.

Prior research has shown that biases can be reduced with a technique called counter-stereotype training. Neuroscientists at Northwestern University wondered whether sleep might bolster the effect.


May 30, 2015 in Gender | Permalink | Comments (0)

Wednesday, May 27, 2015

The Confidence Gap

The May issue of the Atlantic dwells on "The Confidence Gap".

 Evidence shows that women are less self-assured than men—and that to succeed, confidence matters as much as competence. Here's why, and what to do about it.


 The statistics are well known: at the top, especially, women are nearly absent, and our numbers are barely increasing. Half a century since women first forced open the boardroom doors, our career trajectories still look very different from men’s.

.....Other commentators point to cultural and institutional barriers to female success. There’s truth in that, too. But these explanations for a continued failure to break the glass ceiling are missing something more basic: women’s acute lack of confidence.

May 27, 2015 in Gender | Permalink | Comments (0)

Saturday, May 23, 2015

College Common App Directs Students to Use Ms.

Directions from the College Common Application

Ms. and Miss

If you are describing an unmarried woman, please select Ms. as your choice. This title can be used for a married or unmarried woman (like Mr. refers to a married or unmarried man).

May 23, 2015 in Education, Gender | Permalink | Comments (0)

Wednesday, May 20, 2015

law faculty diversity is apparently thriving

An article by Jim Lindgren so argues.

How diverse are tenured and tenure-track law faculties? Which ethnic and gender groups are now the most under- and over-represented in law teaching compared to a very broad measure of the pool: English-fluent, full-time working lawyers of a similar age?

In “Measuring Diversity: Law Faculties in 1997 and 2013,” which can be downloaded from SSRN, I explore tenure-track law school diversity in 1997 and 2013. For the gender and ethnicity of law professors in 2013, I use data released by the ABA, representing the 2013-2014 academic year. For the lawyer population, I use data from the government’s 2011-2013 American Communities Surveys.

This study finds that diversity hiring in law schools has been a great success, at least as to ethnicity and gender. All large traditional affirmative-action groups in law teaching are now at or above parity with full-time lawyers, and such groups as women, minorities, and minority women are significantly over-represented in law teaching compared to working lawyers. Indeed, the only ethnic and gender groups that are more than a half slot short of parity on a typical tenure-track faculty of about forty are non-Hispanic whites, males, and non-Hispanic white males, the groups typically thought of as over-represented.

May 20, 2015 in Education, Gender, Race | Permalink | Comments (0)

Tuesday, May 19, 2015

Gendering Big Brother

Jane Bailey, Gendering Big Brother: What Should a Feminist Do?

Set in the context of an imaginary dialogue between a straight, white, middle-aged radical feminist law professor and her Cyberfeminism student, this paper explores various theories about stereotypes and other tools of discrimination, as well as the emancipatory potential of digitized communications for equality-seeking groups. It suggests that the Snowden revelations about widespread government surveillance of citizens and concerns around “big data” present an opportunity for coalition between feminists and civil libertarians on the issue of surveillance. In the final analysis though, the paper cautions that this context may simply reflect a moment of interest convergence in which collaboration is unlikely to produce real change for subordinated groups unless the discriminatory tropes that disproportionately expose members of subordinated groups to surveillance are first addressed.

May 19, 2015 in Gender | Permalink | Comments (0)

Friday, May 15, 2015

Women for Men

Women for the website run by Fox News commentator Suzanne Venker.  

Its mission statement reads: 

America is at war with masculinity. For years, prominent women in media and government have used their perch to belabor the false notion that women are in need of perpetual justice and focus.

In fact, it is males that need attention.

Women for Men (WFM) is committed to providing much-needed support for the American male who’s tired of being told there’s something fundamentally wrong with him and who’s mentally drained from being shafted in family courts and college tribunals, where men are assumed guilty until proven innocent. 

Decades of feminist propaganda have landed us in a place where women are hailed as heroes, and men are viewed as perpetrators—or just plain losers. That’s what WFM seeks to remedy. 

The battle of the sexes will begin to erode only when America stops making men pay for the modern woman’s so-called oppression. If we do, marriages and relationships will improve—as will the health of the American family.

And some recent news about Ms. Venker in Salon is here.   She raises what she believes is a crippling paradox in feminist discourse: 

“There’s no question that [feminists] are disdainful of masculinity,” Venker said. “That’s just not debatable. But at the same time, you’re saying to women, ‘You don’t need a man … because you’re basically capable of everything he is capable of, and you should aspire to be like a man in your life. That’s what makes you powerful and of value and equal to them.’”

May 15, 2015 in Gender, Manliness, Masculinities | Permalink | Comments (0)

Sunday, May 10, 2015

The Truth About Mother's Day

Thursday, May 7, 2015

Mrs., Ms. or Mx.?

First Ms.--Now Mx!

In what could be an exciting linguistic turn for trans and gender-nonconforming folks, the Oxford English Dictionary isconsidering adding the gender-neutral honorific Mx. to future editions.


Pronounced “mix” or “mux,” the term has been gaining mainstream traction in the U.K. in the last several years. According toBritish newspaper The Sunday Times, government departments, the postal service, and some universities and banks all accept the term on official forms.


Said OED assistant editor Jonathan Dent, “This an example of how the English language adapts to people’s needs, with people using language in ways that suit them rather than letting language dictate identity to them.”


Mx. is used less frequently in the U.S., but given that we may have reached what TIME magazine called a “transgender tipping point,” the stateside use of the term could be on the horizon.

May 7, 2015 in Gender | Permalink | Comments (0)

Saturday, April 25, 2015

Are Law Firms that Represent Men Only Illegal?

My colleagues and I have been discussing this issue. In the family law context, there is a rise of law firms that represent only male parties, often due to an affiliation with the father's rights movement. 

For example:

We didn't come up with any answers, just flagged some of the questions:

    Does the civil rights law apply? Are law firms "public accommodations" under the Civil Rights Act? They are defined as public accommodations under the ADA - any relevance? Is the licensing of lawyers sufficient state action? Maybe the commerce clause?

    Don't lawyers have the right to choose their own clients? A First Amendment right of association?  Or what about a religious right under Hobby Lobby?

    What about ethical rules for lawyers against discrimination?

Here is an older law review article on the topic: Samuel Stonefield, Lawyer Discrimination Against Clients (1998)


April 25, 2015 in Business, Family, Gender | Permalink | Comments (0)

Thursday, April 23, 2015

Why is Sex Discrimination for Religious Reasons OK

WashPost, Why Is It OK to Discriminate Against Women for Religious Reasons?

Why are biased acts against women — even religiously motivated ones — considered so much less toxic than biased acts of any other kind? Why do women often demur and accept humiliation rather than make a fuss? Why does respect even for admittedly extreme religious beliefs trump respect for half the human race?


My encounter came to mind again as I pondered recent stories of ultra-Orthodox Jewish men refusing to take airline seats next to women. Several cases were reported in the New York Times this month. Others have appeared in the Israeli press as far back as 2012.

On some flights women reportedly moved when asked. Some men switched places with women to eliminate the adjacency problem. Some flight attendants assisted the Orthodox men in relocating. Yet when others did not, some flights were delayed as men refused to be seated. The incidents have spawned lively discussions among Jews and non-Jews alike.


Yet I wonder: Why are we even discussing this?


Would such blatant behavior be treated merely as a social choice, a courtesy issue or an awkward airline customer-service problem if the targets were anyone other than women?


Let’s test it. What if we recast my encounter, giving me a different race and gender. How do I react now if someone says, “I don’t touch black men.” Do I quietly move on? How would this young man have reacted had the tables been turned? What if I had done something I could never imagine myself doing? Would he have treated it as a social issue if I had refused his hand, saying: “I don’t shake hands with Jews?”

April 23, 2015 in Gender, Religion | Permalink | Comments (0)