Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, October 9, 2018

Is California's Mandate of Gender Quotas for Corporate Boards Constitutional?

Vikram Amar & Jason Mazzone, Is California's Mandate That Public Companies Include Women on their Boards of Directors Constitutional?

Earlier this week, California Governor Jerry Brown signed into law SB 826, a landmark measure that requires each publicly held corporation whose principal executive offices are located in California to have, by the end of 2019, at least one woman on its board of directors. By 2021, each such corporation is required to have at least two women board members if the corporation has five directors, and at least three women board members if the corporation has six or more directors.

 

In today’s column, Part One in a series, we begin to spot and analyze some of the cutting-edge constitutional questions SB 826 raises. More specifically, in the space below we address aspects of federal equal protection review, focusing on what it means under federal intermediate scrutiny to for a state to “substantially further” a government objective. In Part Two we ask which government objectives—both in enacting and implementing SB 826—are appropriate for a state to pursue consistent with equal protection law and constitutional principles more generally, and we also discuss a separate potential constitutional problem: the impact that SB 826 has on corporations chartered in other states. Throughout, we shall train our analysis on issues under the federal Constitution, even though we recognize (and in some instances note) that California constitutional limitations may pose additional problems for the measure.

For prior posts on the new California law, see Cal Becomes First State to Require Publicly Held Corporations to Include Women on Boards

October 9, 2018 in Business, Constitutional, Gender | Permalink | Comments (0)

Lawsuits Against Harvard and NYU Law Reviews Allege Illegal Racial and Gender Preferences for Editors and Articles Harm White Men

Suits Against Harvard and NYU Law Reviews Claim Racial Gender Preferences

A Texas-based group called Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) sued the Harvard Law Review on Oct. 6 and the New York University Law Review on Sunday, claiming that their racial and gender preference policies violate federal anti-discrimination laws. The lawsuits come at a time when law reviews—the traditional bastion of white males—are celebrating the increased diversity of their membership ranks. Harvard Law School, for example, had its first black women editor-in-chief in 2017. The Columbia Law Review has its first black male editor-in-chief ever this year.***

 

The new suits allege that policies at both law reviews violate the rights of students by giving women and minorities an unlawful advantage in getting onto those sought-after organizations. Moreover, the suits allege policies that give a preference to articles written by women and minority scholars violate the rights of others hoping to place articles there.

 

“Harvard Law School and Harvard University are violating Title VI and Title IX by allowing the Harvard Law Review to use race and sex preferences when selecting its members, editors, and articles—in direct contravention of the Law School’s supposed non-discrimination policy,” read the Harvard Law Review suit.

October 9, 2018 in Education, Gender, Law schools, Scholarship | Permalink | Comments (0)

Monday, October 1, 2018

CAL Becomes First State to Require Gender Quotas for Publicly Held Corporate Boards

NYT, California's Publicly Held Corporations will Have to Include Women on Their Boards

California became the first state to require its publicly held corporations to include women on their boards after Gov. Jerry Brown signed a bill into law on Sunday.

 

The bill, which applies to companies “whose principal executive offices” are in California, requires them to have at least one woman on their boards by the end of 2019.

 

In 2021, the companies must have a minimum of two or three women, depending on the size of their boards.

 

Hundreds of companies will be affected by the law, according to The Los Angeles Times, and those that fail to comply can be fined $100,000 for a first violation and $300,000 for a second.

 

In signing the legislation, Mr. Brown acknowledged that critics have raised “serious legal concerns” about it, which he conceded “may prove fatal to its ultimate implementation.” ***

 

Hannah-Beth Jackson, a Democratic state senator who represents Santa Barbara and helped write the legislation, applauded its signing on Twitter.

 

She has said that a quarter of California’s publicly traded companies do not have a woman on their boards, despite studies showing that companies that do are more profitable and productive. (Some research, however, has suggested that the findings are less conclusive.) For instance, Stamps.com — which has its headquarters in El Segundo, Calif., but is incorporated in Delaware — has an all-male, five-member board, and told The Los Angeles Times on Sunday that it “is reviewing the law.”

For thoughts on the potential legal problems with the quota law, see: 

Kimberly Krawic, Board Diversity in the News Again

I have detailed at some length, both herein a series of papers (co-authored with Lissa Broome and John Conley), in a piece for the NY Times, and in a recent public radio debate, why these studies that simply confirm the well-known correlation between board gender diversity and firm performance cannot be taken as evidence that gender diversity causes superior performance. This is more than just a recitation of the old “correlation doesn’t equal causation” argument. In this case there are strong empirical and theoretical reasons to believe that such a conclusion is premature.

Stephen Bainbridge, Can California Require Delaware Corporations to Comply with California's New Board of Director Gender Diversity Mandate

Opponents of the legislation are mainly focusing on equal protection arguments, claiming that neither the U.S. nor the California constitutions prohibit the sort of quotas contemplated by the bill. I think there’s another issue raised by the statute, however.

Virtually all U.S. corporations are formed (“incorporated”) under the laws of a single state by filing articles of incorporation with the appropriate state official.[1]The state in which the articles of incorporation are filed is known as the “state of incorporation.” Selecting a state of incorporation has important consequences, because of the so-called “internal affairs doctrine”—a conflicts of law rule holding that corporate governance matters are controlled by the law of the state of incorporation. 

For thinking about gender quotas more broadly, including corporate board quotas in Europe and the remedial need for quotas, see my article Reconsidering the Remedy of Gender Quotas, Harvard J. Law &Gender (online)

October 1, 2018 in Business, Gender, Legislation | Permalink | Comments (0)

Thursday, September 20, 2018

Assessing the Sex Diversity Dividend for Corporate Boards

Darren Rosenblum,  When Does Board Diversity Benefit Firms?

Firms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a “diversity dividend” depends on three key factors: (1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its governance; and (3) the jurisdiction(s) in which the firm operates. Only by further investigating the precise conditions under which diversity will have an effect can we estimate the potential instrumental benefits of sex diversity.

September 20, 2018 in Business, Gender | Permalink | Comments (0)

Wednesday, August 29, 2018

Witchcraft Related Violence: Human Rights Violations Against Women Labeled "Witches"

The UN Will Hold Its First Meeting to Discuss Witchcraft-Related Violence (Sept. 2017)

Every year, thousands of people are accused of witchcraft and face persecution, abuse, and even death. Now the United Nations is organizing to defend victims of witch hunts.

 

According to the UN, reports of witch hunts are on the rise, and cases are becoming more violent and prevalent across the globe. Experts and academics hope that the conference will raise awareness of the phenomenon so that it can be better understood as a human rights problem and integrated into the UN's approach to humanitarian issues.

 

"Witchcraft beliefs are encountered on virtually all continents," explains Dr. Charlotte Baker, who launched the upcoming meeting with funding from Lancaster University. "Globally, witchcraft accusations and persecution have resulted in serious violations of human rights including beatings, banishment, cutting of body parts, amputation of limbs, torture and murder."

 

The UN has identified women, children, the elderly, and people with disabilities as those most at risk of witch-related abuse. Foxcroft says that the violence can look different from country to country, from "elderly women being beaten, tortured, and killed in places like Kenya, Papua New Guinea, and India" to abuse in Nigeria and the Democratic Republic of Congo, where it is "mainly children who are targeted." According to the WHRN, those with albinism, autism and Down's syndrome have been targeted by such accusations, while a claim against an older woman is often used as an excuse to acquire her land and property.

 

What these cases share in common, however, is the startling lack of response from local judicial systems and the resulting impunity for the perpetrators. Branding someone a witch has historically been used to justify abuse, particularly by patriarchal religious leaders (see: the infamous Salem witch trials of the 1690s), and experts like Foxcroft believe that the spread of witchcraft-related human rights abuses is exacerbated once more by faith leaders who spread malevolent beliefs in witchcraft to exploit people or extract money from the fearful public.

Sara Dehm & Jenni Millbank, Witchcraft Accusations as Gendered Persecution in Refugee Law, Social & Legal Studies (2018)

Witchcraft-related violence (WRV), in particular directed towards women and children, has become a source of increasing concern for human rights organisations in the current century. Yet for those fleeing WRV this heightened attention has not translated across into refugee status. This research examines how claims of WRV were addressed in all available asylum decisions in English, drawn from five jurisdictions. We argue that WRV is a manifestation of gender-related harm; one which exposes major failings in the application of refugee jurisprudence. Inattention to the religious and organisational elements of witchcraft practices, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges, or family or community disputes, such that they were not cognisable harms within the terms of the Refugee Convention; or they were simply disbelieved as far-fetched. The success rate of claims was low, compared to available averages, and, when successful, claims were universally accepted on some basis other than the witchcraft element of the case. This article focuses in particular upon cases where the applicant feared harm as an accused witch, while a second related article addresses those fearing persecution from witches or through the medium of witchcraft

Jenni Milbank & Anthea Vogl, Adjudicating Fear of Witchcraft Claims in Refugee Law, J of Law & Society (2018)

This research examines claims of witchcraft related violence (WRV) in asylum decisions. In refugee applications involving WRV those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. We argue that WRV is a manifestation of gender-related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of Religion, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside of what is understood to be objective, verifiable, or Convention-related. Male applicants struggled to make their claims comprehensible as a result of the feminised and ‘irrational’ characterization of witchcraft fears and beliefs.

August 29, 2018 in Gender, International, Religion | Permalink | Comments (0)

Friday, August 24, 2018

Rural Resentment and LGBTQ Equality

Luke Boso, Rural Resentment and LGBTQ Equality, 70 Florida L. Rev. (forthcoming) 

In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage.  Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills.  Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide.  Many rural Americans feel that they are under attack.  Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms.  This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people.  In several respects, the conflict is merely perceived and not real.  It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces. 

This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism.  Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel.  Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige.  They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them.  Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity.  It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.

August 24, 2018 in Gender, LGBT, Poverty, Same-sex marriage | Permalink | Comments (0)

Wednesday, June 27, 2018

Rebooting the Equal Rights Amendment

Allison Lange, The Equal Rights Amendment Has Been Dead for 36 Years. Why it Might be on the Verge of a Comeback

On May 30, Illinois became the 37th state to pass the Equal Right Amendment (ERA), which says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Next, advocates aim to secure the final state needed to ratify the amendment. They will probably target Virginia, North Carolina or Georgia.

True, the deadline to ratify the ERA came and went in 1982. But that may not be a dealbreaker. Some legal strategists argue that since other amendments had no time limit for ratification, the ERA should not have had one, either. Others argue that Congress simply needs to extend the deadline.

Suddenly, almost a century after it was first proposed, the ERA might be within reach.

The law is overdue, culturally and legally. Many Americans assume that the United States already has gender-equality rules. After all, the Civil Rights Act, Title IX and the Equal Pay Act all offer protections against discrimination. But these are pieces of legislation. New laws and Supreme Court rulings can diminish their power.

For more on the legal and social history of the ERA as well as the current movement, see my book chapter with historian TJ Boiseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)

Gerald Magliocca, Buried Alive: The Reboot of the Equal Rights Amendment

This Article addresses the recent effort to revive the proposed Equal Rights Amendment (ERA) to the Constitution. Following ratifications by Nevada (2017) and Illinois (2018), the ERA stands close to the three-fourths vote in the states required for ratification under Article Five. But these recent ratifications are of uncertain validity, as Congress imposed a deadline for the ERA's ratification that expired in 1982.

The paper argues that Congress can waive the expired ratification deadline but should not do so until should not do so until there is no doubt that 38 states have voted for ratification.There is room for doubt on that score because five states rescinded their ratification votes in the 1970s. Congress is free to disregard these rescissions on the ground that a state may not repeal its ratification of a proposed constitutional amendment. Ignoring these state rescissions in addition to waiving the ratification deadline, though, would raise substantial concerns about the ERA’s legitimacy and may lead a future Congress to attempt the reversal of that recognition.

Thus, the wise course is for Congress to refrain from taking action on the ERA until 38 states can be counted as yes votes without the five rescinding states. If Congress decides to include these five states as part of the ratification total, then at least two-thirds of the Senate and the House of Representatives should be required to support that decision—in accord with a precedent established by Fourteenth Amendment--to quiet the doubts about the validity of the ERA’s ratification.

June 27, 2018 in Constitutional, Gender, Legal History, Legislation | Permalink | Comments (0)

Sunday, June 17, 2018

The Terrible Gender Stereotypes of Father's Day Cards

The Terrible Stereotypes of Mother's and Father's Day Cards

The messaging isn’t subtle, either. Some cards are very clear about which parent is considered more important. “Happy Mother’s Day to a woman who does it all!,” read one card. “You work. You cook. You clean. You nurture … You crazy?!” But the woman on the inside of the card has a happy enough expression, even though each of her limbs is engaged in a different task. A month later I found a Father’s Day card that said: “Father’s Day is in June … Because about a month after Mother’s Day, somebody went ‘Hey, wait a minute!’” (In reality, it took much longer. President Woodrow Wilson declared Mother’s Day a national U.S. holiday in 1914; it wasn’t until 1972 that President Nixon made Father’s Day official.)

A more scientific study of the themes of Mother’s and Father’s Day cards  looked at a batch in 2010. The researchers, Carol Auster and Lisa Auster-Gussman (who, fittingly, are mother and daughter) came to this conclusion: “Ritualized holidays tend to support the status quo, and traditional ideologies of motherhood and fatherhood,” of mothers as nurturers, and fathers as providing more utilitarian support. “The portrayal of motherhood and fatherhood on the greeting cards is important because these cards may act as agents of socialization, shaping individuals’ perceptions, regardless of whether the cards reflect the reality of parenting,” the study goes on to say....

In terms of content, Father’s Day cards emphasized supporting the family economically, imparting practical lessons, and being the best—far more “Number One Dad” or “Best Dad Ever” sort of cards than mothers had. “It was like they needed an award, but there wasn’t a lot of depth in what they were achieving,” says Auster-Gussman, a doctoral candidate in social psychology at the University of Minnesota.

In contrast, Mother’s Day cards focused a lot more on what the mothers were doing for their children. The cards in the study that mentioned “the little things you do” were, without exception, Mother’s Day cards, and cards that talked about making a child feel loved were much more likely to be for moms, too.

June 17, 2018 in Gender, Pop Culture | Permalink | Comments (0)

Friday, May 11, 2018

Mother's Day - Friend or Foe to Feminism?

Thursday, May 10, 2018

Changing the Toxic Culture of Domestic Violence by Renorming in Law

Melissa Berger, Reforming by Re-Norming: How the Legal System has the Potential to Change a Toxic Culture of Domestic Violence, 44 Notre Dame J. of Legislation 171 (2018)

Regressive societal norms and gender-based biases, both explicit and implicit, have compounded over time to form a cultural realm of tolerance toward domestic violence. This Article examines how the law has contributed to the development of this culture, and more importantly, how the law can be utilized to transform a toxic culture of intimate partner violence. The law can be a positive agent of change, and its powers should be marshaled to effectuate change in attitudes and norms towards domestic violence. By importing the social norms theory of psychology and theories of re-norming and implicit biases, we may work to detoxify society’s treatment and tolerance of intimate partner violence.

May 10, 2018 in Gender, Violence Against Women | Permalink | Comments (0)

Tuesday, May 1, 2018

School Dress Codes and Bras

ACLU Warns Florida School District its Dress Code and Protest Policies are Unconstitutional

The ACLU is intervening after [Lizzy] Martinez, a 17-year-old junior at Braden River, was disciplined for not wearing a bra under her shirt to school due to a painful sunburn. School administration removed her from class, told her she was distracting other students, and required her to put Band-Aids over her nipples for the rest of the day. The school maintained that it was doing this in Martinez’s best interest — but then proceeded to block her on Twitter when she complained that she felt sexualized, and it discouraged students from participating in a student protest against the stigmatization of female bodies.

The ACLU letter to the school district is here and it is well worth the read.

As described above, the justification proffered for the enforcement of the dress code against Ms. Martinez was rooted in sex stereotypes that male students were “distracted” by her nipples and a paternalistic desire to “protect” Ms. Martinez from the laughter and stares of her male classmates. The justification reflects overly broad and archaic generalizations about boys’ inability to control their sexual impulses and girls’ inability to make their own decisions about the clothing that makes them feel safe and comfortable. These stereotypes reinforce a culture of victim blaming in which schools convey the message to female students that they are at fault for experiencing sexual harassment if they make certain clothing choices. The Supreme Court has long struck down policies based on “‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”

 

The biased enforcement of the dress code against Ms. Martinez and other female students jeopardizes their equal access to education by forcing them to miss important class time. As described above, Ms. Martinez missed multiple days of school, including three tests. It also prioritizes male students’ freedom from “distraction” over female students’ physical comfort.

 

 

May 1, 2018 in Constitutional, Education, Gender | Permalink | Comments (0)

Tuesday, April 10, 2018

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Five States Now Legally Recognize Nonbinary Gender Identity

States are Starting to Recognize a Third Gender

When Davi, a 17-year-old in Oakland, California, found out that their true gender identity — nonbinary, meaning neither male or female — was finally recognized by the state, they felt a sense of relief.

 

“I will feel like I don’t have to explain myself all of the time,” Davi said. “I will be so grateful, and less tired.”

 

Nonbinary gender identity is not recognized by most states. Last June, Oregon became the first to recognize a nonbinary gender option on driver’s licenses. Since the bill passed, Washington, DC, and three more states followed suit: Washington, New York, and California, which became the first state to allow nonbinary residents to change their gender on all relevant legal documents, including birth certificates, to a gender-neutral option.

 

For nonbinary youth like Davi, that means nothing less than a shift from nonexistence to existence in the eyes of the law. “Most people have the privilege of feeling that,” said Davi. “[They] probably do not even think about that concept.”

April 10, 2018 in Gender | Permalink | Comments (0)

Tuesday, March 27, 2018

Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities

Charles Craver, Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?

When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining process and how it operates, such information greatly enhances their likelihood of interacting effectively. Well-prepared minorities and women should thus be able to seek advantageous terms for themselves in ADR, even when dealing with white-male counterparts. Conversely, there is no guarantee that members of ethnic groups or women would achieve more advantageous outcomes in judicial proceedings. Even the formal rules of judicial proceedings may be influenced by subconscious stereotypes that still influence the ways that judges, jurors, and arbitrators assess litigant situations. Therefore, this article posits that adjudication is not clearly preferable to ADR procedures for minority group members and women.

March 27, 2018 in Courts, Gender | Permalink | Comments (0)

Foundations of Modern Penal Theory that Ignore the Gender Inequality of the Social and Family Context

Catalina Correa, The Foundations of Modern Criminal Law and Gender Inequality, 16 Seattle J. Soc. Justice 1 (2017)

Modern penal theory, like prevalent western theories of law, adopts a determined model of autonomy, one in which people are separable from social and family contexts. Taken to the criminal law context, this model proposes people can be defined without taking into account the social context. The use of prisons thus presupposes that individuals can be removed from their communities and families to be reeducated, readapted, treated or—in the retributive approach—simply punished. This notion of autonomy, however, hides from sight the group of people who not only maintain family ties with the men and women in prison, but who also, in contexts such as the Latin American one, take on the responsibility of supporting the prisoners economically. As this paper shows, this group is not heterogeneous or plural but defined by gender and primarily constituted of the mothers, daughters, wives and sisters of the people who are imprisoned. The data presented in this paper shows that this group of women is marginalized, impoverished and abused by a criminal justice system that not only omits to recognize the serious costs that the system imposes on them, but also omits to acknowledge their existence. This paper argues that this lack of recognition is possible because it is premised on a penal model that assumes a certain idea of autonomy, one which enables societies to erroneously affirm that prison sentences are individual sentences.

March 27, 2018 in Family, Gender, International, Theory | Permalink | Comments (0)

Monday, March 26, 2018

The Flaws and Gendered Assumptions in the New Rape Survivor Child Custody Act

Jennifer Hendricks, The Wages of Genetic Entitlement: The Good, The Bad, and the Ugly in the Rape Survivor Child Custody Act, 112 Northwestern L. Rev. Online 75 (2017)

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.

March 26, 2018 in Family, Gender, Legislation | Permalink | Comments (0)

Friday, March 23, 2018

How Women's Colleges are Handling Transgender Applicants

"What it Means to Be a Woman is Not Static": How Women's Colleges are Handling Transgender Applicants

Back in the late 1800s, when "brain fever" was used as an argument for why women shouldn’t receive a formal education, Mount Holyoke College was among the first to offer an all-female undergraduate program.

But a lot has changed since the first women’s colleges were founded — today there are nearly 40 — and many of them have been grappling with one specific aspect of that identity in recent years: How should transgender applicants be considered?

Propelled by increasing social pressures and Title IX guidelines issued during the Obama administration, many of these institutions have rewritten their admissions policies to change and clarify who will be counted.

Mount Holyoke, for example, now says students who self-identify as women can be considered for admission, according to a policy statement: "We recognize that what it means to be a woman is not static. Traditional binaries around who counts as a man or woman are being challenged by those whose gender identity does not conform to their biology."

The college further emphasizes its commitment as a historic place for women, partly founded on the motto "Go where no one else will go, do what no one else will do."

March 23, 2018 in Education, Gender | Permalink | Comments (0)

Thursday, March 22, 2018

Justifying Sex Segregation in Competitive Sports

Patrick Shin, Sex and Gender Segregation in Competitive Sports: Internal and External Normative Perspectives, 80 Law & Contemporary Problems 47 (2018)

What are the justifications for mandatory sex segregation in competitive sport, and what are the arguments against it? This article takes up these questions. I argue that justifications of sex segregation in sport should be sensitive to two distinct perspectives that can come into play. The “internal” perspective emphasizes considerations rooted in an ethos of athletic competition. The “external” perspective brings into focus broader social norms such as anti-discrimination principles and equality goals. Both perspectives support the general idea of separate men’s and women’s competitions, at least in elite levels of sports that reward physical strength and power. The perspectives may diverge, however, on specific questions about who should be permitted to compete in each division, and more particularly, on the appropriate treatment of transgender athletes. What is important to see is that objections that arise from the external vantage point of equality and anti-discrimination cannot be fully answered by appeal to internal considerations about the competitive integrity of sport. Institutional decisions to exclude classes of individuals from participating in men’s or women’s competitions must consider not only what would be best for the sport, but what is required by antidiscrimination principles and genuine commitment to respect for gender identity and expression.

March 22, 2018 in Gender, Sports | Permalink | Comments (0)

The Long History of Women's Sports

Mary Anne Case, Heterosexuality as a Factor in the Long History of Women's Sports, 80 Law & Contemporary Problems  25 (2017)

Too many accounts of the development of women’s sports tend to posit their origin in the late nineteenth or even the twentieth century, as a belated, slowly developing, and sometimes vehemently resisted addendum to the development of sports for men. To begin a history of women’s sports at such a late date has several important distorting effects. Most simply, it ignores both the much longer history of women’s participation in many kinds of sports and the fact that the history of organized men’s sports as presently conventionally understood itself does not date back appreciably farther than the last century and a half. The history of women’s sports is more complicated than a progress narrative. Rather than seeing women being gradually admitted into more and more sports over time, we have to acknowledge that a variety of sports — from wrestling and boxing to polo and baseball — were played by women and were seen as suitable for women over long history. Women’s recent readmission to competition in some of these sports follows an intervening period of exclusion.

More significantly, to begin the history of women’s sports in the nineteenth century is to begin it in a time period in which men and women were seen, as both a descriptive and a normative matter, to be as different as possible from one another, with men strong and active, women delicate and passive. Thus, the modern history of sport is often seen to begin at precisely the time women were seen as least suited to participate in sports.

This article views the history of sports through a heterosexual matrix. It argues that from the dawn of time through the development of the modern Olympic movement, a culture’s openness to women’s participation in sports was tied to whether that participation was seen to have a heterosexual payoff. In ancient Greece and Africa as well as in medieval and early modern Europe, women’s sports often formed part of mating rituals, and a successful female competitor was seen as a desirable mate. In the nineteenth century, however, athletic and other sporting competition often was seen as doubly debilitating to a woman’s chances for heterosexual success: not only would sweating and the development of muscles make her unattractive, but strenuous physical exercise was thought to risk physiologically compromising her reproductive capacity. Rather than seeing physical fitness as conducive to reproductive fitness as had their ancestors, men like Pierre de Coubertin, founder of the modern Olympic movement, saw the two as in tension with each other.

After considering the extent to which these competing views of women’s athleticism in relation to heterosexuality influenced the development of women’s sports, the article will conclude by observing the remnants of a heterosexual matrix in twenty-first century sports, from figure skating and synchronized swimming to gymnastics and crew.

March 22, 2018 in Gender, Legal History, Sports | Permalink | Comments (0)

Wednesday, March 21, 2018

Before MeToo There was Catharine MacKinnon

 

MacKinnon

NYT, Before #MeToo, There was Catharine MacKinnon and her Book "Sexual Harassment of Working Women"

Catharine A. MacKinnon’s influential work of legal scholarship published in 1979, but it offers the clearest possible illustration of the dynamics that MacKinnon believed were central to the American workplace, a system in which women were judged by the standards imposed on wives and concubines, used and discarded similarly.

 

MacKinnon, whose work has helped shape thinking about harassment, wrote at a time when the trees were beginning to shake in a landscape that still looked a lot like Cheever’s. Women remained employed largely in their capacity to serve as secretaries, receptionists, nurses, typists, telephone operators, research assistants. In the book, MacKinnon draws on the observations of the sociologist Talcott Parsons, who noted that a woman in an “occupational organization” was essentially a “wife-mother,” tasked with ego-building, “housekeeping (tidying up, answering the phone, getting coffee)” and performing the attendant role of “sex object.” In 1976, aRedbook magazine survey examining sex at work brought a kind of loose statistical confirmation, with one in three respondents remarking that appearance was as important as any other qualification when it came to getting hired. MacKinnon cites one woman’s lament that the well-paid jobs always go to the prettiest girls. It was a woman’s fate to either endure the migratory hands of a male boss and earn a decent living, or wish she looked good enough to invite the indignities.

 

These arrangements made the sexual subjugation of women in offices and on factory floors inevitable. “Women tend to be economically valued according to men’s perceptions of their potential to be sexually harassed,” MacKinnon argues. “They are, in effect, required to ‘ask for it.’” These imbalances, built on the subordination of female labor to male desire, meant that coercion and compliance could never be disaggregated — a notion that only now, in the aftermath of so many harassment scandals, with replicating details, is finding its place in our collective recognition. MacKinnon and other feminists who are almost always tagged as “radical” reflexively saw what so many witnesses to the current revelations are still absorbing: Harassment has been endemic to the way we do business. It has been tireless and unyielding.

March 21, 2018 in Equal Employment, Gender, Legal History, Theory | Permalink | Comments (0)