Tuesday, July 29, 2014
Harper Jean Tobin and Jennifer Levi have posted Securing Equal Access to Sex-Segregated Facilities for Transgender Students, 28 Wisconsin J. Law, Gender & Soc'y 301 (2013).
If Title IX is to have any real meaning for transgender students, it must protect a student's ability to live and participate in school as a member of the gender with which they identify. This means that students must be permitted to use gender-segregated spaces, including restrooms and locker rooms, consistent with their gender identity, without restriction. Denial of equal access to facilities that correspond to a student's gender identity singles out and stigmatizes transgender students, inflicts humiliation and trauma, interferes with medical treatment, and empowers bullies. A student subjected to these conditions is, by definition, deprived of an equal opportunity to learn because of his or her transgender status, and therefore, because of his or her sex. Arguments against equal access reflect broader animus and stereotypes about transgender people, and rely on justifications that have been rejected by courts in related contexts. Access consistent with a student's gender identity is widely practiced, and is the only workable and nondiscriminatory approach that is consistent with Title IX's requirement of equal educational opportunity.
Kristin Collins (Boston U) has posted A Short History of Sex and Citizenship: The Historians' Amicus Brief in Flores-Villar v. US.
The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last thirteen years – was whether the gender asymmetry in this statutory scheme is consistent with constitutional sex-equality principles. The goal of the historians’ amicus brief in Flores-Villar was to explain to the Court how this ostensibly obscure citizenship law is part of a larger historical phenomenon: the persistence of gender-based sociolegal norms in determining citizenship. The introductory essay provides an overview of the account provided in the brief and discusses how generic conventions shaped the amicus brief’s presentation of the history of sex-based citizenship laws.
Tuesday, July 15, 2014
According to new research published in Archives of Sexual Behavior, the attitude that women shouldn’t be having sex can at least partly be traced back to the idea that women are supposed to be economically dependent on men. The researchers suggest that this link may drive conservative religious communities’ insistence on sexual purity....
The researchers conclude that this outdated attitude toward women’s pregnancy risks and financial needs hasn’t totally gone away, despite the fact that modern contraception, legal abortion rights, and greater workplace equality have created an entirely different society.
“The beliefs may persist due to cultural evolutionary adaptive lag, that is, because the environment has changed faster than the moral system,” the paper concludes. “Religious and conservative moral systems may be anti-promiscuity because they themselves arose in environments where females depended heavily on male investment.”
Thursday, July 10, 2014
[T]he Daily Beast published a thought-provoking post–Hobby Lobbypiece by Jay Michaelson pondering why women are losing legal battles while gay people keep winning. Michaelson gives 10 reasonable hypotheses, but leaves out the two most overwhelmingly obvious possibilities. The first is that Justice Anthony Kennedy likes gay rights more than women’s rights. The second is that feminism, as insidiously framed by the Christian right, is all about sex—while LGBTQ equality has become a battle not for sex, but for dignity.
Thursday, June 26, 2014
From the Legal History blog: New Release: Clément on "Sex Discrimination and British Columbia's Human Rights State, 1953-84"
In Equality Deferred, Dominique Clément traces the history of sex discrimination in Canadian law and the origins of human rights legislation, demonstrating how governments inhibit the application of their own laws, and how it falls to social movements to create, promote, and enforce these laws.
Focusing on British Columbia -- the first jurisdiction to prohibit discrimination on the basis of sex -- Clément documents a variety of absurd, almost unbelievable, acts of discrimination. The province was at the forefront of the women's movement, which produced the country's first rape crisis centres, first feminist newspaper, and first battered women's shelters. And yet nowhere else in the country was human rights law more contested. For an entire generation, the province's two dominant political parties fought to impose their respective vision of the human rights state. This history of human rights law, based on previously undisclosed records of British Columbia's human rights commission, begins with the province’s first equal pay legislation in 1953 and ends with the collapse of the country's most progressive human rights legal regime in 1984.
This book is not only a testament to the revolutionary impact of human rights on Canadian law but also a reminder that it takes more than laws to effect transformative social change.
Tuesday, June 17, 2014
It turns out that judges with daughters are more likely to vote in favor of women’s rights than ones with only sons. The effect, a new study found, is most pronounced among male judges appointed by Republican presidents, like Chief Justice Rehnquist....
There was no relationship between having daughters and liberal votes generally. Daughters made a difference in only “civil cases having a gendered dimension....”
The most likely explanation, Professor Sen said, was the one offered by Justice Ginsburg. “By having at least one daughter,” Professor Sen said, “judges learn about what it’s like to be a woman, perhaps a young woman, who might have to deal with issues like equity in terms of pay, university admissions or taking care of children.”
Wednesday, May 28, 2014
Gianmarco Monsellato is a partner at the No. 5 law firm in France. His firm also has 50/50 gender balance at every level--including equity partnership.
How did he do it? Dramatically differently than most law firms. Most of his competitors have spent years organizing women’s initiatives, networks, or mentoring programs that have done little to increase the percentage of women reaching the top. The National Association of Women Lawyers’ recent report is pretty clear: These “fix the women” approaches have not delivered.
Monsellato puts the burden squarely on the partner himself to be extremely proactive:
Instead, Monsellato tackled the problem personally. He was involved in every promotion discussion. “For a long time,” he says, “I was the only one allocating cases.” He insisted on gender parity from the beginning. He personally ensured that the best assignments were evenly awarded between men and women. He tracked promotions and compensation to ensure parity. If there was a gap, he asked why. He put his best female lawyers on some of his toughest cases. When clients objected, he personally called them up and asked them to give the lawyer three months to prove herself. In every case, the client was quick to agree and managed to overcome the initial gender bias.
The idea is intriguing. It is also an idea that probably requires the right combination of corporate culture, amenable clients, and, most importantly, a highly deft corporate leader who also possesses an unusal charisma and great foresight about business productivity. Not easy to duplicate this model.
Saturday, May 24, 2014
From the Daily Iowan: Editorial: Time to Redecorate Kinnick's Pink Locker Room
When opponents of the Iowa football team walk into their locker room on any given autumn Saturday, they are met with a tradition that is unique even by the somewhat off-kilter standards of college sports traditions. The locker room, the walls, the stalls, the towels, the floor, even the urinals, rather than displaying the shade of white common in most Iowa facilities, are bright pink.
The famous pink locker room, started in 1979 by legendary football coach Hayden Fry and garishly renovated in 2005, have become ingrained into the university’s DNA. There is a time when all trends must die, however: The pink locker room should be redecorated.
It’s blatantly obvious that the pink locker room is a rather childish example of a destructive and anachronistic culture. As University of Iowa Professor Kembrew McLeod pointed out in the Des Moines Register last week, the governing philosophy behind the color arrangement is that pink is a “girl” color; forcing the über-masculine opponents of the Hawkeyes to prepare themselves in the presence of a “feminine” color will disturb the opposing players’ minds so much that they will fail to conquer the Hawkeyes.
Thursday, May 22, 2014
Saurabh Vishnubhakat (Postdoc, Duke & NIH), has posted Gender Diversity in the Patent Bar, 14 John Marshall L. Rev. __ (2014). From the abstract:
This article describes the state of gender diversity across technology and geography within the U.S. patent bar. The findings rely on a new gender-matched dataset, the first public dataset of its kind, not only of all attorneys and agents registered to practice before the United States Patent and Trademark Office, but also of attorneys and agents on patents granted by the USPTO. To enable follow-on research, the article describes all data and methodology and offers suggestions for refinement. This study is timely in view of renewed interest about the participation of women in the U.S. innovation ecosystem, notably the provision of the Leahy-Smith America Invents Act directing the USPTO to study diversity, including gender diversity, among patent applicants, and of related research by the National Women’s Business Council on usage of the U.S. patent and trademark systems by U.S.-based female entrepreneurs. Analysis of gender data on the patent bar complements these studies and begins to provide a more complete picture of diversity in the U.S. patent system.
Tuesday, May 20, 2014
The idea of “privilege”—that some people benefit from unearned, and largely unacknowledged, advantages, even when those advantages aren’t discriminatory —has a pretty long history. . . . .But the concept really came into its own in the late eighties, when Peggy McIntosh, a women’s-studies scholar at Wellesley, started writing about it. In 1988, McIntosh wrote a paper called “White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women’s Studies.”
(Hat tip: Brant Lee)
Wednesday, May 14, 2014
From Rosin's Slate article:
It used to be that women had to worry about men disappearing after they got pregnant or divorced. Now, some women have the opposite problem. A growing fathers’ rights movement is aggressively challenging what it sees as the courts’ assumption that the mother is the only real parent. Men’s rights activists air their grievances about unfair child custody laws on sites such as A Voice for Men and on subreddits like Men’s Rights and The Red Pill.
One recent study showed that people are generally in favor of joint custody, but they believe that divorce courts are seriously slanted toward mothers.
And, this too:
But is this actually true? “There’s a real perception—even women share it—that courts are unfair to fathers,” says Ira Ellman, a custody expert at Arizona State University. But in fact the great revolution in family court over the past 40 years or so has been the movement away from the presumption that mothers should be the main, or even sole, caretakers for their children. Individual cases like Patric’s may raise novel legal issues, but on the whole, courts are fair to men, particularly men who can afford a decent lawyer.
Tuesday, May 13, 2014
Michele Gillman (Baltimore) has posted The Return of the Welfare Queen, 22 American J. Gender, Social Policy & Law (forthcoming).
- The “welfare queen” was shorthand for a lazy woman of color, with numerous children she cannot support, who is cheating taxpayers by abusing the system to collect government assistance.
- The good news is that dependency rhetoric did not work and may have backfired.
- The bad news is that the welfare queen still lurks behind repeated calls to cut government benefits and to criminalize poverty.
- This article explores the legacy of the welfare queen, her return in the 2012 presidential campaign, and the current inadequacies of TANF. The article concludes with suggestions to reform TANF in the hopes of burying the welfare queen once and for all
Saturday, May 10, 2014
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
From Slate, The New York Times Obituary Page has a Grave Imbalance. Just 10% of the NYT obits are of women. Amanda Hess argues,
I think a new mindfulness needs to take place about who is deemed important to cover, and for what kinds of achievements. I would guess there are dozens of writers, scientists, and academics whose lives and deaths go unnoticed because the men's lives are perceived as more of note.
While the keepers of the Times parody account went on to snark that the newspaper is confident that it gives “equal prominence to all significant deaths, regardless of gender,” the real Times obituary desk has made some effort to respond to feminist criticism of its coverage. Last year, the Times led its obituary of rocket scientist Yvonne Brill with the detail that she “made a mean beef stroganoff, followed her husband from job to job and took eight years off from work to raise three children.” (She may have worked at NASA in life, but the Times put her back in the kitchen in death.) But after widespread outrage about the coverage, the Times took out the stroganoff reference in the obit’s online version.
From the authors of the recent study Professors are Prejudiced Too that has been in the news. Explaining the methodology of how they discovered that professors respond more to mentor students who are white men.
- The good news. "Despite not knowing the students, 67 percent of the faculty members responded to the emails, and remarkably, 59 percent of the responders even agreed to meet on the proposed date with a student about whom they knew little and who did not even attend their university."
- The bad news. "Professors were more responsive to white male students than to female, black, Hispanic, Indian or Chinese students in almost every discipline and across all types of universities."
- And. "We found the most severe bias in disciplines paying higher faculty salaries and at private universities."
Maybe its not just Princeton freshmen that need to check their privilege.
Thursday, May 8, 2014
Robert McGee (Fayetteville), Gender and the Ethics of Tax Evasion.
The study begins:
Gender is perhaps the most widely studied demographic variable. It is an interesting variable from the perspectives of economics, law, philosophy, political science, psychology, sociology, anthropology, religion, history and culture, to name a few. What makes women different from men? How are they different from men? Is female thinking becoming closer to male thinking as women gain equal rights and liberation?
This compilation of existing studies suggests to the author that women are more tax compliant, less self-reliant, and significantly less likely to engage in criminal behavior. The possible explanations include that women are more ethical, more moral, more deferential to authority, and less risk averse.
Tuesday, May 6, 2014
An article from the Sunday New York Times How Not to Pick Judges by Maya Sen (political science, Rochester) has been getting a lot of media play. The takeaway is that the ABA's judicial rating system perpetuates gender and racial bias.
RESEARCH has long shown that female judges vote differently from men on issues of sex discrimination, harassment and sentencing, while black judges vote differently from whites on issues involving civil rights and affirmative action.
Still, despite decades of effort by presidents and advocacy groups to promote minority and female candidates to the bench, our 1,355 sitting federal judges remain 81 percent white and 76 percent male.
A surprising part of the problem, as I show in a new study in the Journal of Law and Courts, is linked to the American Bar Association’s system for rating judicial candidates, which plays a surprisingly large role in judge selection.
Sen's empirical research showed that:
even when matching comparable candidates, the bar association rates minorities and women significantly lower than their white or male counterparts. For example, African-Americans are 42 percentage points less likely to receive a “well qualified” (or “exceptionally well qualified,” when that category was still being used) rating than are whites who have comparable educational and professional qualifications and are nominated by the same president. Women are 19 percentage points less likely to earn a thumbs up.
Thursday, May 1, 2014
This Article presents a new way to think about women’s equality, a theory of rights of belonging — those rights that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community. Rights of belonging are an alternative to the conventional, identity-based civil rights paradigm, which is based on combating discrimination based on identifiable characteristics. In the past half century, women’s equality law has been based primarily in the Equal Protection Clause of the Fourteenth Amendment and statutes prohibiting discrimination based on identifiable characteristics. While the equal protection model has reduced such discrimination, it has failed to address deeply rooted economic inequality in our society. Because equal protection law only addresses discrimination based on easily identifiable characteristics, including race and gender, it has masked the significance of other fundamentally important, but less visible, characteristics, such as poverty. The persistent poverty of women is a sex equality issue, and pursuing economic rights is crucial to empower women to overcome economic barriers. Thus, rights of belonging must include not only the right to be free of discrimination based on identifiable characteristics, but also economic rights — the material conditions necessary to empower women to participate effectively in the world around them.
Friday, April 25, 2014
(photo of the Royal and Ancient Golf Club)
Golf, I've heard it said, began in Scotland. And in Scotland, there is the Royal and Ancient Golf Club. This Club is no mere club; it, along with the US Golf Association, creates the venerable Rules of Golf. The Club has also historically prohibited women from belonging to the club, even as honorary members.
That might change, though:
“Members of The Royal and Ancient Golf Club of St. Andrews, the founding club of The R&A, will vote on a motion to admit women as members. The Club’s committees are strongly in favor of the rule change and are asking members to support it.”
What prompted the change of heart? As usually the answer in such institutional matters, political pressure and fear of economic damage:
...there was a golf game-changer last year, when the controversy over all-male clubs hit the sports pages as the British Open was held at another men-only member club, Muirfield. First Minister of Scotland Alex Salmond refused to attend, declaring the male-only rule to be “indefensible in the 21st century.” Others thought so, too, as attendance at Muirfield dropped by 20,000 following Salmond’s personal boycott.
Tuesday, April 22, 2014
C. Marshall Thatcher (South Dakota) has published What is "Eet"? A Proposal to Add a Series of Referent-Inclusive Third Person Singular Pronouns and Possessive Adjectives to the English Language for Use in Legal Drafting, 59 S. Dakota L. Rev. 79 (2014).
Adoption of the new pronouns and possessive adjectives proposed below ["ee" and "eet"] would put an end to the '"masculine rule." Under that rule of prescriptive grammar, the third person singular pronoun '"he' is both a male and an indefinite sex referent." By necessary extension, the third person singular pronouns "him" and "his" are also both male and indefinite sex referents. Use of masculine pronouns to refer both specifically to a male referent and generically to either a male or a female referent makes those pronouns "pseudo generic. "
Despite the emergence of various techniques for avoiding application of the masculine rule, it continues to survive as a rule of statutory construction. "Generally the masculine, but not the feminine, is considered to include all genders. A federal statute provides that in determining the meaning of any Act on Contract, unless the context indicates otherwise, words importing the masculine gender include the feminine as well." Despite mounting criticism of the masculine rule, it continues to be applied in various primary legal authorities including statutes, judicial opinions, and Jury mstruct1ons.
A substantial commentary has demonstrated that the masculine rule is indefensible. It is unabashedly sexist; it is discriminatory in its gender bias, and is therefore unfair. Use of masculine pronouns and possessive adjectives to refer in the alternative to masculine or feminine antecedents is also imprecise and thus misleading.