Gender and the Law Prof Blog

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

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)

Constitutional Conflict Over Inherent Differences Between the Sexes

Cary Franklin, Biological Warfare: Constitutional Conflict Over 'Inherent Differences' Between the Sexes, Supreme Court Review (forthcoming)

Equal protection law no longer recognizes so-called “inherent differences” among the races as a justification for discrimination. The law takes a different view of sex. It continues to recognize “inherent differences” as a legitimate ground for treating men and women differently — as long as the differential treatment does not perpetuate women’s subordination or reinforce traditional sex stereotypes. This doctrine raises a host of difficult questions, most notably, what counts as an “inherent difference”?

The Court confronted that question twice in its 2016 Term. In Pavan v. Smith, the Court had to decide whether Arkansas could treat same-sex couples differently from different-sex couples with respect to their children’s birth certificates. In Sessions v. Morales-Santana, the question was whether the federal government, for purposes of assigning citizenship, could treat non-marital children born abroad to mixed-nationality couples differently depending on the sex of their U.S. citizen parent. In both cases, the Court rejected the government’s ostensibly biological justification for the differential treatment. But the new and important ways in which it reasoned about biology in these cases has not received much notice. Commentators treated Pavan as an obvious and relatively unimportant extension of the Court’s famous 2015 same-sex marriage decision. Meanwhile, so much was happening in the context of immigration when Morales-Santana came down that it did not attract much attention — and what attention it did attract tended to focus on the unusual remedy the Court adopted, not its reasoning about biology. 

This Article argues that Pavan and Morales-Santana, especially when read together, are surprisingly transformative and consequential decisions. In the past, the Court has declined to apply heightened scrutiny to biologically-justified sex classifications in contexts involving gay people and unmarried fathers. As a result, these contexts have become repositories of specious biological justifications for discrimination; pregnancy, in particular, has been understood to justify all manner of differential treatment in these areas. In Pavan and Morales-Santana, the Court broke with this tradition by genuinely scrutinizing the state’s pregnancy-based justifications for discriminating and finding them constitutionally inadequate. In so doing, it struck a serious blow against the most formidable barrier to equal protection where gay people, unmarried parents — and pregnant women — are concerned.

March 21, 2018 in Constitutional, Family, Gender, SCOTUS | Permalink | Comments (0)

CFP Journal of Women's History Special Issue on "Migration, Sex, and Intimate Labor, 1850-2000"

Call for Abstracts: Journal of Women’s History Special Issue “Migration, Sex, and Intimate Labor, 1850-2000”

by Jennifer Montgomery - Journal of Women's History

Call for Abstracts—Journal of Women’s History Special Issue “Migration, Sex, and Intimate Labor, 1850-2000”

The Journal of Women’s History is seeking expressions of interest to submit articles to a special issue on migration, sex, and intimate labor in the period between 1850 and 2000, in any local, national, transnational, or global context. It seeks to frame “intimate labor” within the long history of women’s involvement in domestic and sexual markets and their movement across and within borders for myriad forms of care and body work (Boris and Parreñas, 2010). This special issue will be positioned within an emergent historiography that examines the practices, discourses, regulation of, and attempts to suppress what has come to be known as “trafficking,” while foregrounding the ways in which a historical lens can destabilize this term. Such research brings the gendered and sexual history of migration and labor into dialogue with new literatures on the history of globalization, capitalism, citizenship, and mobility. It also speaks to on-going concerns in contemporary politics around the relationship between labor and movement, “forced” and “free” migration, and the politics of humanitarianism. As such, while firmly historical, this special issue will engage with and contribute to ongoing interdisciplinary discussions about “modern slavery,” international law, human rights, and the gendered migrant subject.

We are especially interested in work that:

  • Engages critically with the historical production of categories such as “trafficking,” “smuggling,” and migratory “illegality” as they have pertained to women’s migration
  • Examines sexual labor in the context of gendered migration and the broader category of intimate labor(s)
  • Explores the historical lived experience of migrating for intimate, domestic, and sexual labor
  • Looks at local, national, and international responses to female migrants who were defined as trafficked, illegal, or exploited
  • Places trafficking and women’s intimate labor within a wider discourse of indenture, slavery and un-freedom; as well as imperialism, mobility, and globalization

We are interested in any thematic or methodological approach, but would especially welcome work that focuses on the global south, imperial contexts, and non-white subjects. Work can be locally, nationally, transnationally, globally, or comparatively focused. All submissions must be historical in focus.

Prospective contributors to this special issue are asked to send an extended abstract of 1,000 words to the issue’s guest editors, Julia Laite (j.laite@bbk.ac.uk) and Philippa Hetherington (p.hetherington@ucl.ac.uk) by 1 June 2018. Abstracts should describe the prospective article and how it explicitly engages with the theme of the special issue. Authors should also include a discussion of the sources—archival or published—they will be using in the article.

Selected contributors will be informed within two months and asked to submit a complete manuscript by 1 June 2019, which will go through the JWH’s standard process of peer and editorial review. If the manuscript is accepted for publication at the end of this process, it will be published in the special issue.

March 21, 2018 in Call for Papers, Gender, Legal History | Permalink | Comments (0)

Thursday, March 15, 2018

The Corporate Governance Case for Board Gender Diversity

The Corporate Governance Case for Board Gender Diversity: Evidence from Delaware Cases

Gender diversity on company boards is becoming an increasingly important issue. The theoretical bases for the desirability of gender diversity regulations can be understood under three categories i.e. social benefits; business benefits; and corporate governance benefits. Since corporate governance is the main task of the board of directors, the corporate governance case for board gender diversity needs to be developed further. This article tests the corporate governance benefits of board gender diversity by conducting a qualitative content analysis of Delaware cases. The observations from this study are then analysed against the quantitative and qualitative literature on the about the corporate governance benefits of board gender diversity. The findings suggest that gender diversity might help boards overcome some impediments to effective functioning in certain cases but also suggests other complementary solutions to make boards more effective. The article thus, builds the corporate governance case for board gender diversity, but also sets out its limits.

March 15, 2018 in Business, Gender | Permalink | Comments (0)

Wednesday, March 14, 2018

Conference: Noncompliant Bodies--Social Equity and Public Space

Yale School of Architecture, April 6-7, Noncompliant Bodies: Social Equity and Public Space

The discipline of architecture tends to overlook the needs of people who fall outside of white, male, heterosexual, able-bodied norms. This symposium, convened by Joel Sanders and Susan Stryker, will assemble a cross-disciplinary group of designers and scholars to explore the relationship between architecture and the demands for social justice voiced by people who have been marginalized and oppressed on the basis of race, gender and disability. The symposium will examine how designers working in collaboration with experts from related disciplines transform one of three architectural types: restrooms, museums, and urban streets. Our objective will be to propose alternative futures that rethink the relationship between bodies and built environments in ways that better serve the goals of social equity.

YSOA_NoncompliantBodies_Poster (002)

March 14, 2018 in Conferences, Gender | Permalink | Comments (0)

Friday, March 9, 2018

Where are the Women on the European Court of Justice?

Rebecca Gills & Christian Jensen, Where are the Women? Legal Traditions and Descriptive Representation on the European Court of Justice, in Politics, Groups, and Identities (Feb. 2018)

What constrains the representation of women on the European Court of Justice (ECJ)? In this paper, we investigate how gender-based double standards can diminish the likelihood that the member state will select a female candidate. We find that the appointment of women to the ECJ depends upon the relationship between the appointee's policymaking backgrounds and the degree to which legal traditions in the member state provide policymaking experience to ordinary judges. The fact that this configuration has a disparate impact by candidate gender reflects the fact that female candidates are expected to demonstrate partisan neutrality or policymaking expertise, while male candidates are assumed to have these traits. Our findings demonstrate the importance of informal job requirements and institutional constraints on the ability of governments to achieve their representation goals.

March 9, 2018 in Courts, Gender, International, Judges | Permalink | Comments (0)

Monday, March 5, 2018

Gender Sidelining Symposium

A terrific lineup of speakers at the upcoming Gender Sidelining Symposium

Gender Sidelining Symposium at California Western School of Law

 

Subtle, yet pernicious forms of unequal treatment exist wherein women may not experience adverse outcomes that are actionable under anti-discrimination or other laws, but nonetheless may find themselves hindered in their ability to advance and flourish. These myriad behaviors, policies, and practices lead to "Gender Sidelining"—a term recently coined by a group of law professors at California Western—whereby women experience obstacles that the law does not (and arguably should not) proscribe.

The Gender Sidelining Symposium on April 26-27, 2018 will highlight examples of and help us understand the process by which this phenomenon occurs. By bringing together academics and practitioners from a broad range of fields—employment and labor law, business law, criminal law, politics, and beyond—the symposium will take an innovative look at how existing social structures can lead to adverse treatment on the basis of gender when actions may not be motivated by gender-based animus or even by implicit bias.

March 5, 2018 in Conferences, Equal Employment, Gender, Theory | Permalink | Comments (0)

Tuesday, February 27, 2018

Theorizing Women's Economic Abuse in the Family

Arianne Renan Barzilay, Power in the Age of In/Equality: Economic Abuse, Masculinities, and the Long Road to Marriage Equality, 51 Akron Law Rev. 323 (2018)

In an era when women have achieved formal legal equality, patriarchal power endures. In this article I take on a largely neglected subject: economic abuse. While this phenomenon has recently begun to generate awareness as a form of intimate partner violence, it currently lacks a theory and history with which to deeply understand it. A failure to recognize the profound roots enabling economic abuse contributes to its perpetuation, trivialization, and marginalization in legal thought. Such a failure has broad implications for gender equality. This Article offers both a history and a theory with which to understand the phenomenon’s deep roots. It sheds light on the historical modification of coverture through familial and market-based breadwinning roles, and points to new insights from masculinities theory to explain how economic abuse is enabled. It illustrates how economic abuse is socio-legally made possible, demonstrating how it is embedded in a historical, socio-legal structure of the market and the family. It thus brings domestic violence gender-based analysis into a broader conversation about the law, the market, and the family. It contends that economic abuse is not merely an individual matter requiring individual-oriented solutions, but rather a social one, based on a particular, historically-based construction of relationships between gender, law, the market, and the family. More generally, it offers a way to think about power in the family in this new, seemingly more egalitarian era. It concludes by suggesting guiding principles for mitigating economic abuse and for destabilizing gendered power dynamics in the family more broadly.

February 27, 2018 in Family, Gender, Masculinities | Permalink | Comments (0)

Tuesday, February 20, 2018

Exposing the Myths of Negotiating While Female

Andrea Kupfer Schneider, Negotiating While Female, 70 SMU L. Rev. (2017)

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be likeable, it is clear that not negotiating has long-term detrimental effects. The third myth, based on the limited assumption that a good negotiator must be assertive, is that women cannot negotiate as well as men. However, the most effective negotiators are not just assertive, but also empathetic, flexible, socially intuitive, and ethical. Women can and do possess these negotiation skills. This article concludes by proposing an action plan which provides advice on how women can become more effective negotiators and identifies structural changes that might encourage negotiation and reduce the gender pay gap.

February 20, 2018 in Gender, Theory, Women lawyers, Workplace | Permalink | Comments (0)