Thursday, April 6, 2017
Renee Blocher, Sex Discrimination, Plain and Simple: A Corpus Analysis
From the Abstract:
“Sex” and “gender” are words that are often used interchangeably, but some argue that these terms have distinct meanings and insist they should be used carefully and deliberately. While linguistic intuition is useful and productive in some circumstances, it is not accurate when it comes to determining the most common usage of words. The best way to determine if gender and sex are near synonyms and interchangeable or else two distinguishable concepts is to examine how these terms are actually used in context. This paper uses corpus linguistics to analyze how the terms “sex discrimination” and “gender discrimination” are used in context.
One interesting anecdote:
To Justice Ruth Bader Ginsburg, however, the distinction is not as clear, and the
interchangeability of sex and gender is useful and important. While litigating key sex
discrimination cases in the 1970s, her secretary inquired about her use of the term. Her
I'm typing all these briefs and articles for you and the word sex, sex, sex is on every page. Don't you know that those nine men [on the Supreme Court], they hear that word and their first association is not the way you want them to be thinking? Why don't you use the word 'gender'? It is a grammatical term and it will ward off distracting associations.
Since then, Justice Ginsburg employed the term gender discrimination in her litigation,
but she has not used it exclusively; in her opinion in the VMI case, she used the term sex and sex discrimination.
Friday, March 24, 2017
Tonja Jacobi & Dylan Schweers, Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments, 103 Virginia L. Rev. (forthcoming 2017).
This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.
For another report reaching a similar conclusion, see Study Shows Male Justices Interrupt Female Justices More During Oral Argument
Tuesday, March 14, 2017
Catherine Powell, Gender Indicators as Global Governance: Not Your Father's World Bank, 17 Geo. J. Gender & L. 777 (2016)
As feminism has come of age, it has powerfully instantiated itself into global governance. What are the tools feminism has borrowed – even co-opted – to embed itself within governance? Do these tools enhance or diminish the libratory potential of feminism? This paper looks at one tool – the use of quantitative indicators to advance gender equality in global governance. The paper focuses on the World Bank’s relatively new Women, Business and the Law program, as a microcosm of the recent explosion and popularity of gender indicators. *
Gender indicators are quantitative metrics that measure progress in securing gender equality. While this article views gender indicators as potentially powerful tools for reframing the discourse of law and development, it argues that in the context of the World Bank WBL program, indicators fall somewhat short, at least on feminist terms. Rather than transforming the development paradigm, the WBL gender indicators insert feminism into the prevailing (male-oriented) framework. As the WBL program itself admirably acknowledges, due to methodological limitations, its gender indicators focus on formal (not substantive) equality, the formal economy (without addressing the informal sector), and positive law (with limited coverage of customary law). By emphasizing the formal legal and economic spheres in this way, the WBL gender indicators largely ignore the private realm--(re)entrenching the public/private divide that feminist scholars have long criticized.
Tuesday, March 7, 2017
Nevada is about to do something no state has done in three-and-a-half decades: Ratify the Equal Rights Amendment.
Dusting off a decades-old debate about whether to enshrine women's rights in the Constitution is of questionable value to the amendment's prospects, say analysts. But that doesn't mean it's a meaningless gesture, and its revival certainly says a lot about the women's rights movement in 2017.
Even if Nevada becomes the 36th state to ratify the amendment, its entry into the Constitution is a loooong shot. The deadline to ratify the amendment ended long ago — in 1982 to be exact. And even if Congress reopened it, it's not clear any other state is seriously interested in playing along.
The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.***
A quick history/civics recap: Changing the Constitution is one of the most difficult things in all of governing, but Equal Rights Amendment supporters have come tantalizing close. In 1972, after a decade or so of debate, Congress passed it and sent it to the states for ratification. (Under one process to change or add a constitutional amendment, 38 states -- or three-quarters -- must ratify it, whether via their legislatures or a state convention.)
Congress gave the states an entire decade for 38 states to get that done. In the end, 35 did.
The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.
Until now. The Democratic-controlled Nevada State Senate passed it mostly along party lines on Wednesday. The Democratic-controlled State Assembly will pick it up from there, where it's expected to sail through on party lines.
"It's like a no-brainer. Equal Rights Amendment," said state Nevada Sen. Pat Spearmen (D), the author of the bill. "Equal rights. That's what it is. It's just equal rights."
Nevada's governor is a Republican, and he hasn't commented on the amendment. But Democrats in Nevada say the parliamentary logistics of this mean the legislation doesn't need Gov. Brian Sandoval's signature.
Most Republicans in the state legislature aren't impressed. Their objections to the amendment in 2017 are similar to objections in the '70s and '80s: It could require women to enlist in the draft. It's not necessary. It's symbolic.
"An equal rights amendment that doesn’t have exclusions to protect families is something I can’t support," state Sen. Beck Harris, a Republican and the sole woman to vote against the amendment, told the Reno Gazette-Journal.
Monday, March 6, 2017
Mary Pat Treuthart, Feminist-in-Chief? Examining President Obama's Executive Orders on Women's Rights Issues, 91 Chicago-Kent LRev 171 (2016)
"I didn't run for President so that the dreams of our daughters could be deferred or denied. I didn't run for President to see inequality and injustice persist in our time. I ran for President to put the same rights, the same opportunities, [and] the same dreams within the reach for our daughters and our sons alike. I ran for President to put the American Dream within the reach of all of our people, no matter what their gender, or race, or faith, or station." President Barack Obama, Remarks by the President and the First Lady at International Women's Day Reception (Mar. 8, 2010) * * *Initially . . . a report card of sorts on President Obama's first 100 days in office concluded “[t]he Obama Administration has taken giant strides for women in terms of employment, reproductive health[,] and elevation of women's rights domestically and globally.” Particular early achievements noted by the editors included (1) overturning the global gag rule; (2) appointing seven women to cabinet-level positions; (3) creating the position of ambassador-at-large for women's global issues; (4) establishing the White House Council on Women and Girls (CWG); and (5) restarting the contributions by the United States to the United Nations Population Fund (UNFPA). All of this seemed like a propitious start, but the question posed by some observers was: Would the momentum continue?A year later, the reaction from prominent women leaders to President Obama's progress on gender equality was decidedly more mixed. Terry O'Neil, president of the National Organization for Women (NOW) opined that “[t]he administration is not taking enough of an initiative to change the reality for women.”***
What are women's rights issues? Certain topics may be more readily associated with the concept of women's rights in the policy arena, but there is no single unassailable definition of the term “women's rights issues.” A common description is a “set of policies that concern women as women.” Another approach is to characterize women's rights issues as those “where policy consequences are likely to have a more immediate and direct impact on significantly larger numbers of women than of men.” At least one scholar proposes that a degree of intentionality is a prerequisite and that women should be the “intended beneficiary, constituency, or object” of a particular action. Mere heightened interest by women in a specific topic would not necessarily categorize it as a women's rights concern; rather, the promotion of greater equality and opportunity for women while recognizing their differences from men is an essential part of the equation. Here, being mindful of the aforementioned explanation, this examination will concentrate primarily on executive orders that involve the empowerment of women, gender-based violence, reproductive rights, and employment.
Thursday, February 16, 2017
Aisling Swaine, Law and Negotiation: A Role for a Transformative Approach, Global Policy Volume 7, Issue 2, May 2016, 282-287
Abstract:Feminist critique of negotiations that aim to bring about peaceful political settlements has consistently pointed to the glaring absence of the critical analysis of and response to gender relations as part of both the modus operandi and substantive output of those processes. Just as war is a gendered phenomenon (working off gender relations that subordinate women), so too the processes that respond to it and aim to negotiate its end and create an aftermath, are inherently gendered. Where the goal is a peace that works for ‘everyone’, then negotiation needs to respond to structural gendered conditions that limit the potential that negotiation holds for women. The concept of transformation has been espoused by feminists as key to altering the structural inequalities that determine a systemic gendered order that works to deprivilege women and women’s interests. As a concept, ‘transformation’ holds great potential to regenerate processes of negotiation towards promoting women’s ability to have agency over their lives. This article begins a consideration of what transformation might mean for the practice of negotiation and how it might be advanced to make negotiations responsive to gender relations so that a peace that serves women as well as men is worked towards.
Tuesday, February 14, 2017
Paula Monopoli, Gender and the Structural Constitution, 76 Maryland L.Rev. Endnotes 17 (2016)
Abstract:This paper is based on remarks delivered by the author for the Constitution Day Lectures at the University of Maryland Carey School of Law. The paper draws on the author’s prior scholarship on gender and constitutional design to explore why more than eighty-five countries have already had female prime ministers or presidents while the United States has not. The paper’s thesis is that this puzzle may be explained, in part, by what some have called the “structural constitution.” Two design choices by the Founders made it less likely that a woman would ascend to the presidency. The first of these structural features is the choice of a singular or unitary executive that combines the head of state, head of government and commander-in-chief function in one person. The impact of that choice can be amplified by executive activism and the power of the courts via judicial review to define the scope of the executive as more or less expansive. The second structural feature is the choice of direct presidential selection, filtered through the Electoral College. With Hillary Clinton as the first viable female nominee of a major American party, this paper considers these structural constitutional choices, how they construct our politics and their impact on the likelihood that Clinton will be elected.
Monday, February 13, 2017
Susie Salmon, Reconstructing the Voice of Authority
Abstract:Notwithstanding the presence of three women on the United States Supreme Court, in terms of gender equality, surprisingly little has changed in the legal profession over the past twenty years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive a different result.
This Article proposes that, until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior — that is, a male — these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students — and later lawyers — develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric — values inherited from a culture that silenced women’s voices in the public sphere — exacerbates the problem. This Article explores the dynamics and consequences of reinforcing the male paradigm in the way we coach and judge moot court and other oral-advocacy exercises, highlights some barriers to change, and proposes concrete steps legal educators, practitioners, and judges can take to help change what the voice of authority sounds like in the legal profession.
Friday, February 3, 2017
New Books: Thinking About Prenuptial Agreements from a Feminist Perspective--Choice, Autonomy, and the Imbalance of Power
Sharon Thompson, Prenuptial Agreements and the Presumption of Free Choice (Hart Publishing 2015)
This book provides an alternative perspective on an issue fraught with difficulty – the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues, such as imbalance of power between the parties, become obscured.
This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Lastly, it explores how the court might address concerns regarding power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that 'prenups' can play in the judicial allocation of spousal property on the breakdown of marriage.
Wednesday, February 1, 2017
Alice Woolley & Elysa Darling, Nasty Women and the Rule of Law, Univ. San Fran. (forthcoming)
No one enters the legal profession expecting social popularity – or, at least. no one should. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-‐lawyer criticisms. For women lawyers, attacks and criticism are role-‐related (arising from her occupation of the professional role) but also personal, specific and gendered. Lawyers in general are labeled as morally troubling; women lawyers risk being specifically and personally identified as morally transgressive, even when performing acts expected of a person in their role. Women who take on law firm leadership, advocate in notorious trials, lead teams in complex corporate transactions, demonstrate political ambitions or political leadership – that is, women who do things that lawyers might normally be expected to do– risk particularly gendered and hostile forms of criticism. They risk being labeled unlikable, unattractive, unfeminine, unpleasant, immoral–a bitch. Such attacks are not certain to occur. They may be more likely for some women than for others; the form and tone they take almost certainly varies with context. But a woman who chooses to enter the legal profession does not just risk generic unpopularity. She also risks being labeled a “nasty woman”.
That, at least, is the premise of this paper. We do not prove that women lawyers risk being attacked in this way, although we note some examples of women lawyers who have been, consider some objections to the premise, and discuss the extent to which gender equality has eluded the legal profession to date, even in comparison to other professions. Instead, we focus on why gendered and personal attacks on women might occur....
Our thesis is that attacks on women lawyers arise from the intersection between the normative structure of the lawyer's role and sexist stereotypes. The lawyer's function in achieving the social settlement of law, including maintaining the rule of law, requires lawyers to occupy positions of moral ambiguity and power. Lawyers have the privilege and responsibility to pursue the interests of their clients within the bounds of legality, even where doing so inflicts harm or violates valued norms of ordinary morality. That role makes all lawyers unpopular, but when combined with prescriptive gender stereotypes about appropriate conduct for women, it makes women lawyers seem not merely morally dubious, but also personally dangerous. That is, the danger presented by a woman lawyer connects to the woman herself; she presents the danger rather than simply being a part of a group or category of dangerous people; she invites moral outrage.
Claudia Martin, Update on Gender Parity at the Human Rights Council
On November 8, I published Taking-stock: The Human Rights Council and Gender Parity in Special Procedures after 10 years in this blog. The Article was also cross-posted at the Human Rights Brief. To complement my article, the Human Rights Brief recently interviewed Ambassador Marta Maurás Pérez from Chile. Ambassador Maurás is a pioneer for gender parity in the UN Human Rights Council (HRC). As the only woman in the 2015 HRC Consultative Group, she was a leader in the Consultative Group’s creation of the 2015 Gender Parity Guidelines. She continues to work to increase the number of women holding special procedures positions. The interview with Ambassador Maurás discusses her dedicated work on closing the gender gap within the UN and around the world. In addition, she discusses the challenges ahead to ensure that gender parity becomes mandatory in the work of the HRC. The full interview is posted at the Human Rights Brief. I hope her words encourage us to continue our advocacy to promote gender parity at the HRC and other international tribunals and organs.
Tuesday, January 24, 2017
Study Concludes Law Fails to Grasp the Reality of Workplace Discrimination and Condones Gender Inequality
Laura Edelman, Aaron Smyth, Asad Rahim, Legal Discrimination:Empirical Sociolegal and Critical Race Perspectives on AntiDiscrimination Law, 12 Annual Rev. Law & Social Science 395 (2016)
Abstract:The topic of workplace discrimination has received considerable attention in both empirical sociolegal scholarship and critical race theory. This article reviews the insights of both bodies of literature and draws on those insights to highlight a critical mismatch between the assumptions of antidiscrimination jurisprudence and extant knowledge about discrimination in the workplace. Antidiscrimination jurisprudence assumes that most discrimination is intentional, that legal rights provide an effective mechanism for redress of discrimination, and that employers respond rationally to legal sanctions.In contrast, the empirical sociolegal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination.
Thursday, January 19, 2017
Erin Buzuvis, Hormone Check: Critique of Olympic Rules on Sex and Gender, 31 Wis.J. Gender & Law 29 (2016)
Abstract:Most sports, including all Olympic sports, are divided into two categories: men's and women's. This Article first presents a history of gender testing in Olympic and international sports to illustrate why past attempts to define eligibility for women's sports have proven unfair to women with intersex conditions. It then describes the shortcomings of the International Olympic Committee’s (IOC) first effort to articulate standards of eligibility for transgender athletes. In its second Part, this Article explains the more recent efforts of the IOC and the International Association of Athletics Federations (IAAF) to define eligibility for women's sports solely on the basis of testosterone. That effort is temporarily suspended by the Court of Arbitration for Sport as applied to hyperandrogenism, but, as Part Ill explains, on grounds that could permit the rule's reinstatement if a stronger justification is presented by the IAAF.
Finally, this Article evaluates the concept of a unified hormone rule that the IOC appears to propose. After considering the strengths and weakness of alternatives to such a rule, including genderless sports and a uniform gender identity rule, this Article proposes a hybrid rule that applies a hormone standard to transgender athletes and a gender identity standard for women. This final Part seeks to rationalize the different treatment of transgender and intersex women in ways that minimize the potential for such a rule to contribute negatively to society's understanding of both gender and athletic fairness.
Tuesday, January 10, 2017
Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 Connect.L.Rev. (2016)
Abstract:This Article argues that a significant strand of feminist theory in the1970s and 1980s — socialist feminism — has largely been ignored by feminist jurisprudence in the United States and explores potential contributions to legal theory of recapturing the insights of socialist feminism. It describes both the context out of which that theory grew, in the civil rights, anti-war, and anti-imperialist struggles of the 1960s, and the contents of the theory as developed in the writings of certain authors such as Heidi Hartmann, Zillah Eisenstein, and Iris Young, as well as their predecessors in the U.K., and in the practice of socialist feminist groups in the United States during the same period. Although many American feminist legal theorists themselves participated in or were influenced by the progressive movements of the 1960s and 1970s, socialist feminism is virtually absent from their writings, except for those of Catharine MacKinnon, who, despite sympathy with the approach, disagreed with it and went on to develop her own version of feminist equality theory. The author argues that the time is now ripe to recapture this strand of feminism and explore what it would add to the study and pursuit of women’s equality.
Thursday, October 13, 2016
The Rethinking Gender Forums sponsored by the University of Akron Women's Studies program brings together colleagues from multiple disciplines to deepen the dialogue and understanding of gender issues.
RETHINKING GENDER FORUMS
Wednesday October 19, 2016
“Never Could Make Enough To Get Ahead: Southern Freedwomen's Work in Socio-historical Perspective”
Dr. Kathryn Feltey, Associate Professor, Department of Sociology
Wednesday November 16, 2016
“Going Back in Time: Whiteness, Maleness, and the Lure of Cinematic Nostalgia”
Dr. Kara Kvaran, Department of Women’s Studies
Wednesday February 15, 2017
“The Perils of Perfection: Why Girls Should Be Bold and Imperfect”
Dr. Robin Prichard, Associate Professor, School of Dance, Theatre, and Arts Administration
Wednesday March 22, 2017
“Poetry Lives! Two Akron Women Poets on Gender, the Body, and Surprise”
Dr. Mary Biddinger, Associate Professor, English Department, and Holly Brown, Author
Wednesday April 19, 2017
“College Students’ Caregiving Responsibilities and Its Impact on College Performance”
Dr. Pam Schulze, Professor and Director of the Center for Family Studies
Monday, October 3, 2016
Harvard Business Review, Why More American Men Feel Discriminated Against
American men today earn about 20% more than their female counterparts and hold 96% of Fortune 500 CEO positions. They constitute more than 80% of the House and the Senate, and have an unrivaled 44-0 streak in winning the presidency. But in 2016 American men are also increasingly likely to say that they’re the ones facing discrimination.
In the 2012 American National Election Study, 9% of Republican men said that men faced “a great deal” or “a lot” of discrimination in America. In 2016 that figure is 18%. Perceptions of gender discrimination against men also rose slightly among independent men, but fell among Democratic men. If we add in those men who say that men face “a moderate amount” of discrimination, 41% of Republican men now say that men are being discriminated against. Overall, about one-third of men now say that they’re facing substantial gender discrimination, and two-thirds say that they’re facing at least a little discrimination.
Friday, September 23, 2016
Police forces across England and Wales are considering expanding their definition of hate crime to include misogyny after an experiment in one city that saw more than 20 investigations launched in two months.
The initial success of Nottingham’s crackdown against sexist abuse has drawn national interest after the city’s police revealed that they investigated a case of misogyny every three days during July and August, the first months to see specially trained officers targeting behaviour ranging from street harassment to unwanted physical approaches.
Several other forces have confirmed they are sending representatives to Nottingham this month to discuss the introduction of misogyny as a hate crime.
Police and campaigners said the initial figures were broadly in line with other categories of hate crime such as Islamophobia and antisemitism but were likely to rise significantly as awareness increased.
Wednesday, August 31, 2016
If bitter fights over dirty dishes feel like the gender wars, or you’ve found yourself ranting about The Second Shift, a new study from Indiana University suggests you’re onto something. For most Americans, the survey study found, chore roles align with traditional thinking on masculinity and femininity ― even among couples where a woman is the primary or sole breadwinner and even in same-sex couples.
The researchers were surprised by how much gender mattered ― and how little income did.
“Most research on housework suggests that couples divide housework along different axes; for example, lower-earning partners do more housework than higher-earning partners,” said lead author Natasha Quadlin, a doctoral student at Indiana University. “Instead, our findings suggest that [gender] is by far the biggest determinant of Americans’ attitudes toward housework.”
Gender matters more than income
Participants assigned straight women more female-typed chores, more gender-neutral chores and more physical and emotional caregiving than their partners. This held true even if the woman earned more money than the man.
While relative income determined whether or not the husband or the wife would become the stay-at-home caregiver, Quadlin pointed out that low-earning men in straight relationships were still expected to do fewer chores and fewer childcare tasks than their wives.
But even though gender mattered most, Quadlin found that participants gave primary responsibility for cooking, cleaning, laundry and dishes, as well as being a primary caregiver for a child, to lower-earning partners, while expecting the higher- wage earners to manage the household finances. Income didn’t have any bearing on groceries, car maintenance or outdoor chores. However, the effects of relative income were minor — for instance, low-wage earners were given responsibility for cooking 55 percent of the time, versus 45 percent for higher earners.
Wednesday, August 24, 2016
Sarah Lynn Swann, Conjugal Liability
Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. This Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law.
Within these domains, conjugal liability is deployed for a variety of laudable purposes, such as the prevention of harm to third parties, the deterrence of drug or other criminal activity, and the expansion of creditor’s remedies. However, conjugal liability is a deeply problematic way of achieving these goals. First, in operation, it is profoundly gendered: most often, it holds wives and girlfriends legally responsible for the wrongdoing of their husbands or boyfriends.***
Conjugal liability raises three main concerns. First, as many of the examples in the taxonomy of demonstrate, conjugal liability has gendered consequences. In operation, it tends to spread liability from men to women, making wives and girlfriends experience a punitive fall-out from the wrongful acts of their male intimate partners. Moreover, it often places the very difficult burden of attempting to control a partner onto particularly vulnerable women. Second, conjugal liability is, in some instances, a form of guilt by association. Third, conjugal liability offends the constitutional right to freedom of association, not only because of its gendered and guilt-by-association aspect, but also because it implicates the constitutionally-guaranteed privacy and liberty interests in “maintain[ing] certain intimate human relationships." Specifically, conjugal liability dictates when individuals should enter relationships, how they should behave once they are in them, and under what circumstances they should exit. It sets behavioral standards for what good spouses and partners must do, and punishes those who fail to meet this bar, thereby rendering an individual’s right to enter, maintain, and exit intimate relationships illusory.*
In operation, conjugal liability is profoundly gendered. Whereas traditional coverture held husbands legally responsible for the torts and petty crimes of their wives, conjugal liability reverses this gendered responsibility ascription. It tends to hold wives and women legally responsible for the wrongful acts of their husbands and male intimate partners, rather than the other way around. In part because of the sociological reality that men tend to engage in criminological behaviors more than women (meaning they commit sexual harms, engage in violent acts, and perform drug-trafficking activities more often than women), and in part because of cultural beliefs about appropriate gender roles, conjugal liability allocates responsibility in gendered ways.
Indeed, despite coverture’s traditional legal fiction that husbands were responsible for the petty crimes and torts of their wives, there is a long-running countervailing cultural tradition of assigning to wives and women the role of “moral compass” for potentially wayward men.
Tuesday, August 23, 2016
Stephanie Wildman and Adam Chang, Gender In/Sight: Examining Culture and Constraints of Gender, Georgetown J. Gender & Law, forthcoming.
Abstract:To build supportive and inclusive communities, society needs to acknowledge gender and consider how gender dynamics influence daily interactions. Gender In/sight seeks both to provide deeper understandings of gender and underline the presence of gender in daily life, ensuring that gender is “in sight.”
According to Merriam-Webster’s on-line dictionary, “Gender is currently in the top 1% of look-upped words and is the 386th most popular word on Merriam-Webster.com.” These statistics suggest that many people are thinking about gender, yet past thinking most often considers gender an either/or binary with only two anatomical choices.
This paper begins by reviewing a brief evolution of the social construction of gender in U.S. society, followed by an elucidation of why the gender binary remains so problematic. It then introduces some frequently used and misused terms that comprise the cluster of “gender,” examining the question “What is Gender?” Sex has become synonymous with gender and gender with sex. Sex relates to biology, sex assigned at birth, genitalia, chromosomes, and hormones. Identity represents one’s innermost sense of self, whether male, female, both, neither, or any other identity. Most people develop a gender identity that comports with their biological sex. That person is cisgender. A transgender person’s gender identity does not match their assigned birth sex and often seeks to transition (socially or physically). Gender Expression describes the manner in which people outwardly demonstrate gender. A common misconception about gender lies in the belief that someone’s sexual orientation can be determined based on that person’s gender expression. Such an assumption is incomplete because it does not take into account culture, race, ethnicity, geography, and many other factors. A richer vocabulary provides a more holistic picture of the gender landscape including: drag, gender fluid, agender/gender neutral, sex assigned at birth, pansexual. The paper offers these terms not to be final and definitive, but rather to begin the gender conversation and to illustrate its complexity.
The paper next examines more closely recent attempts to expand understandings of gender and the barriers to inclusive gender equality. These barriers include a societal lack of familiarity with gender-expansive terms and language, resulting in the unintended exclusion of non-binary people as well as a rift between feminists and gender-expansive communities exemplified over the meanings associated with being genderblind. Deeper understanding of gender becomes further challenged by the failure to deconstruct binary definitions of gender and the absence of consistent identification of gender as a protected classification.
Finally the paper develops necessary elements for Gender In/sight, a daily practice of both seeing gender and making inclusive, community building decisions to broaden society’s understanding of gender minority people. This section introduces the elements of gender in/sight, which include (1) looking at context; (2) “asking the other question;” (3) examining privileges associated with gender and sexuality, such as male privilege, heterosexual privilege, and cisgender privilege, (4) “finding the me” in the gender conversation, and (5) rebuilding a gender framework that is inclusive while recognizing nuanced differences.