Wednesday, July 19, 2017
Bridget Crawford & Anthony Infanti, Introduction to Feminist Judgments, to Feminist Judgments: Rewritten Tax Opinions (Bridget J. Crawford & Anthony C. Infanti eds., Cambridge University Press, 2017, Forthcoming).
Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings together a group of scholars and lawyers to rewrite tax decisions in which a feminist emphasis would have changed the outcome or the court’s reasoning. The volume includes cases that implicate gender on their face (like medical expense deductions for fertility treatment or gender confirmation surgery as well as special tax benefits for married individuals), as well as cases that require a more nuanced understanding of history, politics and economics (such as the tax treatment of tribal lands and the business expense deduction). This book opens the way for a discussion of how viewpoint is a key factor in statutory interpretation.
Monday, July 17, 2017
Academics are set to explore whether a person’s gender is still relevant in modern law.
Experts in law, political theory and social psychology will begin a comprehensive three-year project in May 2018, to investigate how sex and gender are defined and regulated for legal purposes.
They will look at the problems the current system raises for many people who do not identify with the limited male and female categories, and the team will explore different models for reforming gender classification.
Reforming Legal Gender Identity will examine the effects on English law if the ways of determining people’s gender changed, particularly if gender became self-determined, as well as the wider implications of reform for advancing equality and diversity.
The project will investigate the implication which when gender is no longer assigned at birth, what implications this might have for single-sex schools, and gender-specific shelters and community organisations – where entry and participation are based on having a particular sex.
Professor Elizabeth Peel, of Loughborough’s School of Social, Political and Geographical Sciences, said: “The research aims to assess and generate public debate about our current system for determining legal gender.
“I am particularly excited about understanding people’s attitudes towards our gender system and whether and how people think gender could be legally recognised in different ways, or perhaps not at all.”
Friday, July 14, 2017
Melina Constantine Bell, Gender Essentialism and American Law: Why and How to Sever the Connection
American law presumes that all persons are born either female or male, and rests a surprising number of legal entitlements on this presumption. Persons’ legal rights to express their identity at work, to use public accommodations, and to retain legal parenthood status with respect to their children may all depend on whether they are female or male. Yet we, as individuals, generally have no choice regarding whether we are legally designated female or male, just as people had no choice as to whether they were designated “colored” or “white” under past racial discrimination schemes. The American legal system plays a significant role in the construction, maintenance, and coercive enforcement of the binary gender system that requires people to conform their identities in distorting ways to be included politically. By sustaining the gender system, legal institutions unnecessarily undermine human well-being, and unjustly and disrespectfully constrain individual liberty. The United States and state governments should re-examine laws that use sex or gender as a category by adapting the Law Commission of Canada’s methodology in Beyond Conjugality. In this fashion, American law can begin to move gradually away from the creation, maintenance, and enforcement of the gender system.
We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism
As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses. When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation. After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques.
In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements. The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord. Law schools are notably implementing these pedagogical reforms in a time of great political division. From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity. University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.
Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content. This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog. How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers? The stakes are high. In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods. This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.
This is a pedagogical conversation that gender faculty should lead and engage. In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback. Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing. We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.
Monday, July 10, 2017
Maggie Hennefeld, On the Criminalization of Female Laughter
On January 10 2017, Desiree Fairooz, a 61-year-old Code Pink protester, was forcibly removed and arrested for laughing at Jeff Sessions during his Attorney General confirmation hearings. Fairooz’s eruption was provoked by an extremely laughable punch line, when Republican Senator Richard Shelby stated that Sessions has an “extensive record of treating all Americans fairly under the law,” adding that this claim “is clear and well-documented.”
As a description of a man who was once denied a federal judgeship due to concerns about his racism, who openly advocates anti-immigrant and anti-LGBTQ policies, and who casually jokes about the Ku Klux Klan, Shelby’s utterance was patently absurd and very deserving of public mockery and voluble laughter. For her protest, Fairooz now faces up to a year in jail and $2,000 in fines.
Her conviction in early May elicited a viral storm of outraged responses, including headlines such as “A Woman Is on Trial for Laughing During a Congressional Hearing,” “Activist’s Giggle Leads to Conviction,” and a piece authored by the Medusan disruptor herself, “I’m Facing Jail Time After Laughing at Jeff Sessions. I Regret Nothing.
How unprecedented is Fairooz’s indictment? Women are held in contempt of court all the time for laughing out loud at devastatingly inappropriate moments. In February 2017, a woman was sentenced to 93 days in jail for her voluble mirth at the gruesome details of a man’s death in a DUI accident, while the family members of the deceased were present in the courtroom. Laughing in disrespect of the dead has a legacy of retributive punishment: in 1862, a Confederate woman named Eugenia was arrested for laughing at the funeral procession of a Union soldier (she had also encouraged her children to spit on the uniforms of Union officers).
However, it was not the fact of Fairooz’s laughter that caused her arrest, so much as what it signified: to “impede and disrupt then Senator Sessions’ confirmation hearing by drawing attention away from the hearing itself and directing it instead toward the Defendants’ perception of the nominee’s racist views, policies, and voting record” (from a government motion filed against her). Her laughter evokes the anti-patriarchal outbursts in the classic feminist film, A Question of Silence (Marleen Gorris, 1982), in which three unruly women laugh exuberantly at their own murder trial, in response to the prosecution’s outlandish pretense that they live in a post-sexist society. (The women are on trial for killing a male boutique owner, whom they beat to death in an unpremeditated outburst of joyful fury due to his harassment of a female shoplifter.) In the film’s courtroom, this “question of silence” refers to the tyranny of lacking a voice against routine injustice, which then can only be articulated through defiant and disruptive laughter. ***
If we’ve come a long way with our laughter since the English Civil Wars of the 1640s—learning to laugh in empathy, in playful recognition of absurdity, or out of sheer muscular relief—this message has since been lost on Donald Trump and Jeff Sessions. Catharine A. MacKinnon, Professor of Law at the University of Michigan and long-term visitor at Harvard Law School, has offered comment:
Criminally charging and potentially sentencing Ms. Fairooz for a brief spontaneous injection of political laughter as ‘disruptive’ when it, at least, so clearly was not looks like an overly thin-skinned reflex reaction to a woman appropriating what is usually a masculine form of power: ridicule, public humiliation by humor, in this case political speech against racism.
Tracy Thomas, Seiberling Chair of Constitutional Law at the University of Akron, suggests that being laughed at by a woman is perhaps “one of [men’s] greatest fears.” In a correspondence with her, Thomas referenced a survey from Nancy Dowd’s The Man in Question, “where women report their greatest fear is rape and murder, while men’s greatest fear is being laughed at.” Or, as the Canadian novelist Margaret Atwood has put it, “Men are afraid that women will laugh at them. Women are afraid that men will kill them.” To this point, the journalist and American humorist, Helen Rowland, wrote in 1922 that “a man will forgive his wife for committing robbery, or murder, or breaking the Ten Commandments, yet threaten to leave her for laughing at the wrong moment”—should she be so fortunate that he doesn’t beat or kill her. In 1893, a New Haven court heard the divorce petition of Emma B. Phelps, who described the time “she laughed at her husband…and he ‘knocked her senseless’” (another time he threatened to kill her with a carving knife because she would not give him her watch).
Wednesday, July 5, 2017
Maya Sen, Diversity, Qualifications, & Ideology: How Female and Minority Judges Have Changed, or not Changed, Over Time, 2017 Wis. L. Rev. 367 (2017)
Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.
Friday, June 30, 2017
Sonia Katyal, The Numerus Clauses of Sex, U. Chicago L. Rev. (forthcoming)
There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity.
Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris’s groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.
Wednesday, June 28, 2017
Douglas NeJaime, The Nature of Parenthood, 12 Yale L.J. 2260 (2017)
In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted.
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.***
To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.
Friday, June 16, 2017
The Atlantic, The Push for Gender-Inclusive Curricula Marches On
In 1971, groundbreaking research quantified just how underrepresented and misrepresented women were in U.S. high-school history textbooks, finding, for instance, that there was more textbook space devoted to the length of women’s skirts than to the suffrage movement.
Big textbook publishers like McGraw-Hill, Macmillan Publishers, and the American Psychological Association printed guidelines about how to publish less sexist material. Universities funneled money into new women’s-studies courses; San Diego State University launched the first department of women’s studies in 1970. Congress passed the Women’s Education Equity Act in 1974, which funded more research and the creation of national resource centers to help school districts that wanted to deliver bias-free educations.
Even the Texas State Board of Education, which has long had a disproportionate and conservative influence on what information gets included in national textbooks, hopped on the gender-equality train, issuing a proclamation that textbooks should include “women in leadership and other positive roles with which they are not traditionally identified” and offer “goal choices and lifestyles for girls and women in addition to marriage and homemaking.”
For a while, textbooks and teaching at the secondary and university levels improved. Sexism became more subtle, and women’s stories more common. Scholars pushed not only for gender analysis, but for intersectional analysis along lines of race, class, ability, and sexual orientation, and called women’s-studies pioneers out for “the white-middle class, heterosexual bias of academic feminism [that] pervades research and teaching about women.”
But then, in the mid-90s, the movement stalled—particularly in the K-12 setting. Since then, says David Sadker, a pioneering researcher in the field, “things have been frozen in time … in two decades, there’s been very little progress, and some retrenchment.” Though some research shows that the omission of women is not as great as it once was—and that textbooks have significantly improved when it comes to the inclusion and treatment of women and gender since the 1960s—the subject is still underrepresented.***
The goal of the movement was not to simply hold women leaders up as heroines or societal anomalies, to paraphrase the 18th-century feminist author and activist Mary Wollstonecraft; its advocates wanted women and gender to be treated as more than “sidebar history.” Though showcasing women’s stories on their own is important, women’s-history pioneers also saw unearthing and integrating women’s stories as a gateway to better understand the laws, institutions, systems, and movements that are most familiar to Americans—and to correct and complicate them.
Thursday, June 15, 2017
Linda Berger, Bridget Crawford & Kathy Stanchi have posted Using Feminist Theory to Advance Equal Justice Under Law, 17 Nevada L.J. 539 (2017). Their essay provides an overview of the Feminist Judgments Conference held in October 2016 at the Center for Constitutional Law at Akron. Papers from the conference are forthcoming in the Nevada Law Journal and the Akron Law Review. A talk by Judge Elinore Marsh-Stormer from the conference is available here, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).
Progress toward gender justice faces multiple and growing challenges, not only in the United States Supreme Court but at every level of political and cultural debate and decision making. Within this context, feminist theory and methods are more necessary than ever.
It is therefore timely and fitting that more than 200 hundred lawyers, judges, professors, students, and members of the public gathered for The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at The University of Akron School of Law. The conference had several purposes. First and foremost was to celebrate the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court.1 Both this volume, the first in a series, and its organizing focus, the United States Feminist Judgments Project, grew out of the work of the Women’s Court of Canada and the U.K. Feminist Judgments Project. * * *
A second purpose of the conference at the Center for Constitutional Law was to provide a forum for asking (and attempting to answer) a series of discrete questions about judges and the judicial function. Prime among these questions is whether judicial diversity matters—that is, whether it is important to have judges who are representative of many different groups of people as well as many different ways of thinking. On a simplistic level, our reaction might be that of course diversity on the bench matters. As Sally Kenney, our conference keynote speaker, eloquently argues, diversity in positions of power in all branches and all levels of government, including representation by women, is a reflection of the health of our nation’s democracy. In Kenney’s view, diversity on the bench is a requirement of a representative democracy—it is a civic right and responsibility.
The conference also sought to raise the “woman question”—the baseline feminist question of the 1980s and 1990s. The “woman question” asks whether women are represented in decision-making positions and how the law affects women. * * *
The third purpose of the conference was to showcase the work of an international group of professors, attorneys, and other researchers who rely on, challenge, complicate, or extend feminist legal theory. The panels at the conference represented a dazzling array of subject matters, methodologies, and inquiries. Evident throughout the conference presentations were what Martha Chamallas has called some of the recurring “moves” of feminist legal theory: treating women’s experiences as an appropriate subject for legal scholarship, exploring complex identities, challenging implicit bias, and unpacking women’s choices.* * *
The fourth and final goal of the conference—and one that extends to the pages of this issue of the Nevada Law Journal—is to create a community. For two days in Akron, Ohio, the assembled group came together to think in a sustained way about the highest and best aspirations for what the law could be, especially as the law relates to the unfinished promise of economic, social, and political equality between and among women, men, and people of all gender identities.
A summary from SCOTUSblog:
At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”
Here's more from Debbie Brake, Remedial Grief:
The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights. The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory. One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them. The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause. The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.
This tried and true tactic is not merely a remnant of segregation. Leveling down surfaces periodically as a response to equality claims. In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off. In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination. Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down. Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether. Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination. ***
Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention. The Morales-Santana decision is no exception. Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension. One the one hand, the Court identifies a general preference for extension. On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation. The Court’s invocation of these two principles is somewhat mystifying. The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source). Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent. If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter. In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.
By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group. Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.
And Brake, Remedial Grief, Part 2:
The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.
Tuesday, June 13, 2017
SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?
I've spent much of the last 20 years writing about remedies. Specifically, I have written a lot about the right to a meaningful remedy required by due process. (For more, see here, here, here, here.) The Supreme Court’s decision in Sessions v. Morales-Santana violates this general command of the law and more concerningly, jeopardizes equal protection law. For a right without a remedy has little value.
In Morales-Santana, a six-justice majority of the Supreme Court led by Justice Ginsburg and including Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan, found that the US law of citizenship for a child born abroad to one American parent discriminated on the basis of the gender. The law required an unwed father to have five years physical presence in the US before going abroad, while an unwed mother needed only one year. Ginsburg in the majority opinion waxes eloquently about the dangers of formal sex classifications and the reliance on “stunningly anachronistic” stereotypes of gender and parenting roles.
The Court, however, refused to grant the remedy requested of applying the one year rule to men. Instead, it applied the five year rule to everyone. Ginsburg acknowledges that the usual equal protection remedy is to extend protection and benefit to the class denied, rather than withdrawing the benefit for both classes. She says, however, and unconvincingly, that the statutory language here requires the withdrawal and application of the stricter standard until Congress weighs in.
I have to agree with Ian Samuel that this remedial decision is a “contender for the worst thing Justice Ginsburg has ever written for the Court.” It seriously jeopardizes equal protection law, and the availability of practical, meaningful relief for discrimination. The equality principle becomes normative rather than operative. It emasculates the equality law by denying the meaningful relief sought of equal application of the benefit. Practically, if discriminatory treatment results in merely a formal reprimand, and actually takes away benefit, there will be little incentive for plaintiffs to sue. Discriminatory treatment will go unchallenged, or will require only “mean” plaintiffs seeking to deny others benefit if they can’t have the benefit too.
I’ve been trying to figure out then, why Ginsburg would write this, and why some of the other Justices would go along.
1. Failure to Consider the Precedent: If there had been a will to award the remedy requested, there was a way to do so. For the remedial holding is in stark contrast to Ginsburg’s demand for a remedy if extension and inclusion in US v. Virginia. There, after the Court held that the Virginia Military Institute (VMI) discrimination against women by not admitting them to the full military education, Ginsburg strongly rejected remedies of anything other than full inclusion and admission to the program. She rejected the creation of a separate military school for women, and reiterated that the remedy required was inclusion and opportunity in the program provided to men. Certainly the VMI case gave her the solid precedent to demand a remedy of inclusion in Morales-Santana.
Interestingly, the Court does not cite one of its closest prior cases where it found an equal protection violation but denied a remedy. In Dep't of Power v. Manhart, 435 U.S. 702 (1978), the Court held that requiring women employees to pay more for retirement benefits than men (because of their average longer longevity) was discrimination. The practice was stopped going forward due to a change in state law, but the Court denied the reimbursement remedy sought by the plaintiffs. The Court created a framework to consider the equities of the impact on the defendant (how would the government get all that money) and potentially on third parties of other retirees. (I’ve written about Manhart here and here).
This equitable standard and framework of Manhart could have been useful to Justice Ginsburg in weighing the equities of the impact of a change in the citizenship rule. It provided a mechanism to evaluate the potential harms to third parties like the children effected, and would have given support for a remedy extending the one-year rule to men.
2. Vote Getting: Perhaps Ginsburg agreed on the remedy to gain votes for the substantive decision on equality. That is certainly a common judicial approach to compromise to get the votes. And remedies are often easy ways for judges to gain these votes without appearing to compromise on the merits. Who were the questionable Justices? Roberts? Kennedy? She only need one of these. Kennedy’s decision in Obergefell and Troxel both evidence strong concern with the impact of unconstitutional state action on children. Children here will be denied citizenship based on the actions of their parents, something Kennedy is usually concerned about. And Obergefell also shows his strong acceptance of the evolving nature of social constructions.
Thus it is possible that she need one vote to get the merits decision. Except, that frankly, there doesn’t seem to be much new in this decision on the substantive of gender and equal protection. The opinion provides a nice summary of the law, citing all of the prior precedents. But it doesn’t add any new ground. Ginsburg does repeat her “exceedingly persuasive justification” language from VMI, which has been read to suggest strict scrutiny is required for gender classifications. Except that she immediately goes on to cite the accepted standard of intermediate scrutiny for gender. So if anything, she has undermined her opinion in VMI that was trying to create precedent for a higher standard of scrutiny.
The majority opinion also arguably adds a new angle from Obergefell about the need to interpret gender discrimination claims against an evolving nature of societal expectations. However, that understanding of antiquated sex stereotypes already exists in the precedent in Hoyt, Frontiero, and Hibbs. The new decision makes it a little stronger, and perhaps that will prove useful in future cases. Except that if you win on this nice academic language, you still lose any meaningful remedy or change.
3. Retroactivity. One judicial strategy for making a decision on the merits palatable is to deny an immediate remedy. The idea is to have legal change dictated, but not applied until the future. This might explain the compromise on the remedy that brought in Roberts. Except, retroactivity usually allows for meaningful relief in the future, which this decision does not.
4. The Mean Remedy: This opinion now provides current, modern precedent for the dangers of equal protection challenges—the denial of benefit to all. What Samuel calls the "the mean remedy" denies benefit to both men and women, rather than extending the benefit one group had previously enjoined. This is the fear all litigators have in brining equal protection challenges, that you will win the battle but lose the war. This was a big concern we had decades ago when litigating a civil rights case on behalf of women prisoners, that the equality claims to equal education and employment (critical to good time credit, income, and rehabilitation) would not be extended equally, but would be denied to all. (That didn’t happen). It is also what VMI tried to do privately after the case – close down the school to deny public military education to both men and women, with the alumni then opening a private school for men only (assumed to be immune from the state action requirement).
Now we have confirmation of that fear – and precedent for denial. We have a new decision, with six votes of liberal and conservative Justices, providing the literal roadmap for future courts to deny the “extension” remedy and instead order the “withdrawal” of benefit in cases of sex discrimination. That to me is one giant step backwards.
Thursday, June 8, 2017
WSJ, A Rooney Rule for Law Firms? Project Aims to Promote More Women (behind pay wall)
It looks like Biglaw firms are finally moving from the rhetoric of diversity to that reality. Thirty firms, including DLA Piper, Paul Hastings, Jenner & Block, Morrison & Foerster, Blank Rome, and White & Case, have committed to abiding by a version of the “Rooney Rule” when promoting and hiring laterals. For those that have no more than a passing familiarity with the concussion-fest that is the NFL, the Rooney Rule — named after the late owner of the Pittsburgh Steelers, Art Rooney — requires teams to interview at least one minority candidate when there is a head coach or general manager vacancy. The rule is seen as a progressive success — yes, eight minority head coachesis seen as a success — and now Biglaw firms are taking a cue from the NFL.***
The idea was proposed by Mark Helm, a partner at Munger, Tolles & Olson, at Diversity Lab’s event, Women in Law Hackathon. Diversity Lab then worked with the firms to develop the rule, and as reported by Law.com, they are committed to making sure the law firm rule is successful:
“These law firms have signed on [to] help us form the idea, put it into fruition, see what works, see what doesn’t work,” said Caren Ulrich Stacy, CEO of the Diversity Lab, which is working with the firms to develop the Mansfield Rule. “We’re going to stick with the firms and we’re going to help them measure and track and then [see] where the needle has moved over the course of the year so that its second iteration next year could be even better.”
The Biglaw version of the rule, named the Mansfield Rule after Arabella Mansfield, the first woman admitted to practice law in the U.S. (a good fact to remember for a future Trivia Question of the Day), asks firms to consider two or more candidates who are women or attorneys of color when hiring for leadership and governance roles, promotions to equity partner, and hiring lateral attorneys. And, if the firms can demonstrate 30 percent of the pool for these positions are diverse, they’ll be “Mansfield Certified.” That spiffy designation will allow firms to participate in a client forum hosted by 45 in-house legal departments, including companies like Facebook, HP, Microsoft, and PayPal.
The participating firms seem committed to the Mansfield Rule, and are hopeful it will yield real results:
“It has been demonstrated again and again that diverse teams make better decisions. While we aspire to create those teams everywhere, including and especially in leadership, it is also well documented that unconscious bias clouds our best intentions,” said Fenwick & West managing partner Kathryn Fritz in a statement to The American Lawyer. “The Mansfield Rule helps us bring greater intention to our considerations and actions so that we can achieve our aspirational goal.”
There also is a sense that an industry-wide solution is what’s needed, as the Wall Street Journal reports:
Alan Hoffman, the managing partner and chairman of Blank Rome, said the firm is thrilled to participate in the pilot because “we’re not retaining women in the practice at the same rate as men.” Blank Rome began in 2012 trying to get more women in line to take over practice group leadership, and now half of the firm’s 16 practices are led by women.
Orrick Chairman and Chief Executive Mitch Zuklie said the rule looks to be a promising way for law firms and their clients to come together to hold the industry accountable and is emblematic of the fact that “systemic problems require systemic solution."
I have written about the need for systemic solutions for gender discrimination such as the use of gender quotas, and also the limitations of token measures like the Rooney Rule. See Tracy Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Gender & Law (online) (Nov. 2016).
Friday, June 2, 2017
From Chapter 6, "Our Girls," in Tracy A. Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016)
Toward the end of Elizabeth Cady Stanton's long career advancing women's rights and legal reform, she renewed her efforts to deconstruct the foundations of women's continued subordination. Why did many women themselves not endorse reform and equality? Why did so many women say "I have all the rights I want." Stanton located the source of social subordination in the teachings of the church, which women heard every week from the pulpit and every day in the papers. She dedicated her last decade of life to challenging the gendered interpretations of the Bible and offering alternative feminist understandings of religious doctrine.
As part of that, Stanton drew on new emerging ideas of anthropology of matriarchal societies which she used to show that female power and women-ruled societies were viable alternative ways to structure power. Almost a century later, at the 1977 National Women's Conference in Houston, Gloria Steinem embraced Stanton’s theory of the matriarchate, using it similarly to emphasize the viability of an alternative system of female power.
In the early 1890s, Elizabeth Cady Stanton added to her historical argument of the perversions of the church, by offering an alternative to this ordained gender structure of “the matriarchate.” She incorporated this theory of maternal power into addresses to national conventions, writings on Wyoming’s new grant of women’s suffrage, and in other essays on women’s rights.[i] Stanton drew on emerging anthropological theories of matriarchal societies, prehistoric cultures like the Amazons, Iroquois, and others in which women ruled as the creative force wielding power and peaceful governance. The theory of matriarchy was a popular idea that emerged in the late nineteenth century, originating with Swiss lawyer and jurist Johann Jakob Bachofen and advanced by Marxist thinker Friedrich Engels and others.[ii] The theory of a matriarchal prehistory held that earlier societies existed in which women controlled government and property, created the first families, developed agriculture, and were worshipped as goddesses because of their reproductive and caregiving abilities. A “patriarchy cataclysm” disrupted the peace, harmony, and ecological balance of these matriarchal systems with intervening wars and weapon development, after which patriarchy evolved as the superior social structure and provided survival and advancement.[iii]
Stanton wrote from England in 1890 that she had “been reading the whole year to glean these facts” about the matriarchate by studying British scholars.[iv] She was likely also influenced by her colleague, Matilda Joslyn Gage, who was developing similar theories about religion on matriarchy later published in her magnum opus, Woman, Church, and State.[v] Stanton, like Gage, appropriated the anthropological matriarchal theories of the nineteenth century for her own feminist purposes. For these theories had been developed to justify the converse, the superiority of patriarchy. They held that society had evolved from the unsophisticated, chaotic matriarchal systems into ordered and aggressive systems grounded in patriarchy. Stanton, interpreting the theory through her feminist lens, concluded that the matriarchate provided historical evidence of women’s ability and superior powers and the negative influence of the destructive forces of male aggression and patriarchy. “Thus, instead of being a ‘disability,’ as unthinking writers are please to call it, maternity has been the all-inspiring motive or force that impelled the first steps” toward “the birth of civilization.” Matriarchal theory was attractive because it freed women’s rights advocates from the “charge of their critics that male dominance was biological and eternal, and therefore inevitable and unchangeable.” Stanton used this evidence not to advocate a return to female supremacy, but rather as evidence of women’s capabilities sufficient to support an “Amphiarchate,” a shared power between women and men in the “as yet untried experiment of complete equality.[vi] Second-wave feminists of the late twentieth century resurrected these ideas of the matriarchate bolstered by archeological finds of prehistoric fertility goddesses and a strong current of feminism seeking support for alternative gender structures of power.[vii]
[i] “Matriarchate,” 227; “Her Political Status,” Evening Star, Feb. 25, 1891; “The Matriarchate Mother-Age,” Woman’s Tribune, Feb. 28, 1891; “The Matriarchate or Mother-Age,” National Bulletin, Feb. 1892; ECS, “Wyoming,” Woman’s Tribune, July 5, 1890; ECS, “Wyoming Admitted as a State into Union,” 134 Westminster Review 280 (Sept. 1890); “Antagonism”; Mrs. Stanton on Our Foremothers, Woman’s Journal, Dec. 29, 1894; ECS and SBA, “Women’s Rights,” in Johnson’s Universal Cyclopedia v. VIII (Charles Kendall Adams, ed. 1895).
[ii] Bachofen, Mother Right: A Study of the Religious and Juridical Nature of Gynecocracy in the Ancient World (1861); Friedrich Engels, Origin of the Family, Private Property, and the State (1884).
[iii] ECS, “Karl Pearson on the Matriarchate,” Women’s Penny Paper, Nov. 8, 1890; ECS, “The Matriarchate, or Mother-Age,” National Council of Women, Feb. 22-25, 1891; ECS, “The Antagonism of Sex,” National Bulletin, June 1893; ECS, “Then Woman Said: ‘I Will,’” Dec. 23, 1894; ECS, “Moral Power, or Brute Force?” Boston Investigator, Feb. 25, 1899; ECS, “The Antagonism of Sex,” Boston Investigator, Mar. 16, 1901; Woman’s Bible, 25; Cynthia Eller, Gentlemen and Amazons: The Myth of Prehistory, 1861-1900 6-7 (2011); Cynthia Eller, The Myth of Matriarchal Prehistory 3-15 (2000).
[iv] ECS to Clara Colby, Feb. 21, 1891; ECS, “Reminiscences,” Woman’s Tribune, Mar. 19, 1892.
[v] Fitzgerald, xxi; Kern, 67; HWS, v.I, 753; Matilda Joslyn Gage, “The Matriarchate,” 2 The Open Court 1480-81, Jan. 5, 1889. Gage’s son-in-law, Frank Baum, actualized Gage’s theory of matriarchal power in his “The Wizard of Oz” book series.
[vi] “Matriarchate,” 227; “Antagonism”; Woman’s Bible, 25; Eller, Amazons, 123, 130-32.
[vii] Gloria Steinem, Wonder Woman, in Eller, Myth, 1-2; Merlin Stone, When God Was a Woman (1976); Riane Eisler, The Chalice and the Blade (1987).
Wednesday, May 31, 2017
Replacing the Masculine View of Leadership as Authority with a Feminist View of Leadership as a Bridge
As a scholar of the U.S. women’s movement, I have spent some of my intellectual time puzzling out the role of leaders in feminism. A historical perspective tells us that there were women who emerged as leaders — an oft recited list includes names such as Susan B. Anthony, Elizabeth Cady Stanton. Gloria Steinem, and Betty Friedan. A historical view also tells us that women’s leadership is often contentious, in retreat and ignored.
In quick review of feminist history, we can see these dynamics. For women in the early years of 1960s’ and 1970s’ feminist activism assuming a visible position as a leader brought personal loss as participants “trashed” those they thought were stepping into the public spotlight. Indeed this history is filled with stories of feminists attacking each other as they worked to create social change. The temptation in reviewing this history is to assume that women and cooperative and productive leadership do not mix. ***
Then comes the early 21st century, a time when the U.S. women’s movement is declared dead repeatedly. In my book, Everywhere and Nowhere, I investigate the state of the movement and find that at the community level a vibrant and distinct feminism exists, complete with women assuming leadership positions. Yet, at the national level when people are queried as to who is a feminist leader most times they cannot go beyond answering “Gloria Steinem.” As a result, the temptation (and inclination) is to declare U.S. feminism as dead.
This quick journey through feminist history acknowledges that leadership is a complicated concept, easily misunderstood and that our tools to study leadership need refining. One way that we can work to better conceptualize leadership is to acknowledge the ways in which gender, in particular masculinity, have become wedded to the notion of the leader. Many of the characteristics of what a leader is are formed around a more masculinist notion of control and authority. Leaders in the Weberian sense are charismatic, authoritative or bureaucratically assigned. They are in control, in the forefront and are accepting and even welcoming of the chance to lead. When this type of leadership is not present, scholars can conclude that leadership is not present. But what if we examine leadership differently? What if the gendered nature of the concept of leader is examined and deconstructed? We do have hints of this in scholarship such as Belinda Robnett’s 1997 conceptualization of a “bridge leader” born out of her study of women in the civil rights movement. Whereas a masculinist view of leadership sees it as publicly visible and clearly in control, the bridge leader works out of the spotlight, making connections between groups and networks and acquiring needed resources.
Tuesday, May 30, 2017
Jennifer Skeem, John Monahan & Christopher Lowenkamp, Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men, 40 Law & Human Behavior 580 (2017) [earlier draft available here.]
Increasingly, jurisdictions across the United States are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning. On the basis of a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders, but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest, which is based on combining both genders, is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d = .32, 99% CI = .29 -.35, or 87% overlap in scores); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.
Thursday, May 18, 2017
The Humphrey School of Public Affairs at the University of Minnesota has created an online platform called The Gender Policy Report that will analyze the policies that will be proposed by the US federal government in this new administration through the lens of gender.
The goal is to be non-partisan and to consider how new policies may affect the welfare of women, gender, and sexual minorities in the US and around the world.
The GPR platform seeks collaborators and submissions.
Here is the CFP.
The Gender Policy Report
The Gender Policy Report (GPR) is a non-partisan, multidisciplinary effort to produce and disseminate timely, gender-focused analyses of emerging policy proposals and developments. GPR contributions will clarify the gendered bases of policy practices and conflicts. They will offer diverse public audiences informed perspectives on how policies matter for gender justice and constructions of gender itself. Working across varied media platforms, the GPR will seek to inform policy debates and improve public discourse. Our mission is to take the best insights from gender scholarship and research and make them accessible to broader communities in a way that is timely for addressing serious policy challenges.
The Violence Area of the GPR seeks to make visible the high prevalence of violence that occurs inside and outside of family contexts against women and sexual and gender minorities: intimate partner violence, harassment, rape and sexual assault, trafficking and female genital cutting. The GPR also seeks to explore the mechanisms that can explain the behaviors and available policy interventions. For instance, contributions might explore economic interventions that may give women subjected to intimate partner violence leverage to leave abusive relationships, or may explore the existing debates on the effectiveness of mediation in cases of intimate partner violence. Other lines of contribution may be current evidence on the relationships between and policies on child maltreatment and partner violence; or policies that are in place or should be in place to address violence in the workplace; or a comparison on the treatment of sexual assault on campus between Title IX and the criminal justice system. We welcome pieces that explore how violence and gender work intersectionally to affect more vulnerable communities and what policies may alleviate these disparities. Contributions to the area might offer comparisons with international cases and policies or how US policies may affect policies in an international context.
Call for Collaborators: We are actively seeking Research and Advocacy Collaborators to join the work of the Violence area and shape its trajectory going forward. We encourage potential collaborators to set their own pace, and we expect a lot of variation in terms of individual involvement. Please contact us at the email addresses below if you are interested.
Call for Submissions: The violence justice area of the GPR will seek to publish original content at least twice per month. We are eager to receive submissions and proposals from diverse perspectives across a broad spectrum of relevant issues. We are also committed to publishing work in a wide range of formats and communications styles.
Examples of Content include but are not limited to:
- Policy Analysis Blog Posts (500-1200 words): Short essays that weigh in on current policy, evidence on this policy and how policy proposals may affect the tools people from diverse and different communities have to respond to being victims of gender-based violence. Ideally, the essay would clarify gender implications of a policy that otherwise may not be evident.
- Research Summary Blogs (500-1200 words): Accessible, engaging summaries or reviews of existing research on gender-based violence. This public-friendly translation of a recent research article or book might use current debates in the field (i.e. to use mediation or not in cases of intimate partner violence) as a “hook.”
- Data posts on Policy that relates to issues of Violence (3-4 figures with explanatory text): Posts that focus on drawing attention to illuminating data visualizations in the form of charts, graphs, etc. Contributors would provide a short written introduction and a few lines to help readers interpret each data visual. Examples include prevalence rates of sexual assault on campus versus the wider community and intimate partner violence prevalence rates by race, ethnicity, gender and sexual orientation.
- Multimedia Contributions: Video presentations, powerpoint slide decks, audio podcasts, recordings of panel discussions…You name it, we’re interested. Send us your ideas and teach us some new tricks!
We hope you'll join us in this exciting and timely new project. If you have any questions about the violence area of the GPR, would like to become a Research Collaborator, or have ideas for contributing content, please contact via e-mail.
Greta Friedemann-Sánchez firstname.lastname@example.org
Leigh Goodmark email@example.com
The new French President has appointed women to 50% of his cabinet, as did Canadian prime minister Justin Trudeau.
French President Emmanuel Macron has unveiled a gender-balanced cabinet in accordance with an earlier pledge, with 11 of 22 posts taken by women.
I have written about the importance of these gender quotas in institutional power structures as important to rectifying systemic gender inequality. Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).
Tuesday, May 16, 2017
Using data on 1,901 U.S. Supreme Court oral arguments between 1998 and 2012, we document that voice-based snap judgments based on lawyers’ identical introductory sentences, “Mr. Chief Justice, (and) may it please the Court?”, predict court outcomes. The connection between vocal characteristics and court outcomes is specific only to perceptions of masculinity and not other characteristics, even when judgment is based on less than three seconds of exposure to a lawyer’s speech sample. Consistent with employers irrationally favoring lawyers with masculine voices, perceived masculinity is negatively correlated with winning and the negative correlation is larger in more masculine-sounding industries. The first lawyer to speak is the main driver. Among these petitioners, males below median in masculinity are 7 percentage points more likely to win in the Supreme Court. Justices appointed by Democrats, but not Republicans, vote for less-masculine men. Female lawyers are also coached to be more masculine and women’s perceived femininity predict court outcomes. Republicans, more than Democrats, vote for more feminine-sounding females. A de-biasing strategy is tested and shown to reduce evaluators’ tendency to perceive masculine voices as more likely to win. Perceived masculinity explains 3-10% additional variance compared to the current best prediction model of Supreme Court votes.
Friday, May 5, 2017
Catherine Powell, How Women Could Save the World, If Only We Would Let Them: From Gender Essentialism to Inclusive Security, 28 Yale J. L. & Feminism 271 (2017)
We increasingly hear that empowering women and placing them in positions of leadership will lead to a safer, more prosperous world. The UN Security Council’s groundbreaking resolutions on Women Peace, and Security (WPS) — and U.S. law implementing these commitments — rest on the assumption that women’s participation in peace and security matters will lead to more sustainable peace, because women presumably “perform” in ways that reduce conflict, violence, and extremism. This idea is of heightened importance today because women are still vastly underrepresented in positions of leadership in the peace and security field, having yet to “shatter that highest and hardest glass ceiling” as Commander-in-Chief in the United States or rise to the role of Secretary-General in the United Nations. Before her own historic race to become the first woman Commander in Chief, Hillary Clinton had prominently made the claim we increasingly hear that women’s empowerment is not only the right thing to do, but the smart thing to do for global and economic security.
Such claims raise fundamental questions for international law, equality theory, and feminism. Assertions that the world would be a better — more peaceful, more prosperous — place, if women assumed leadership positions in peace and security matters are unapologetically instrumentalist and reinforce essentialist views of women. At the same time, evidence suggests that these claims are to some extent accurate. Thus, these assertions should be carefully examined. Reviewing new research, this Article argues that while some evidence supports these claims, the statistical evidence supporting these claims suffers from methodological flaws. Moreover, the forms of gender performance reflected in the data — which international law has organized itself around — are based on the socially constructed roles women play as caregivers, nurturers, and collaborators, not necessarily on their inherent biological roles. Yet, international law reifies these roles and the stereotypes that surround them, even as it tries to open up opportunities for women beyond traditional sex-segregated positions that have long relegated women around the world to the pink ghetto of economic inequality and inferior political and social status. Having to maneuver around formal equality, on the one hand, and instrumentalist claims that women will “save” the world, on the other, means that the category of “woman” can restrict even as it liberates. After all, not all women are “peace-loving,” particularly in a world where the women who succeed are often those who can succeed on terms defined by men.
Two prevailing theoretical frameworks — antisubordination and securitization—shape the current debate about WPS, but each ultimately falls short. This Article identifies democratic legitimacy as a novel third approach missing from the existing debate. As an alternative view, the democratic legitimacy account effectively reframes the WPS debate as one concerning inclusive security — emphasizing that women’s participation enhances the representativeness, democracy, and fairness of the process as a whole — rather than privileging the “special interests” of a particular group (as the antisubordination approach is accused of doing) or reinforcing gender essentialism (as the securitization approach does). Notably, a democratic legitimation paradigm is grounded in a model of inclusion that can be applied to vectors of inequality beyond gender, as well as to inequality at the intersection of various forms of inequality. Moreover, by emphasizing democratic representation, this approach insists on local ownership and bottom-up solutions, thereby emphasizing participation and leadership by women in conflict zones, rather than female global elites. Under a democratic legitimacy paradigm, women can still “save” the world, but in a different way than the predominant discourse would have us believe.