Tuesday, January 17, 2017
Female Judges Alone are Not a Sufficient Condition for Promoting Women's Rights: The Example of Ghana
Josephine Dawuni, To Mother or Not to Mother: The Representative Roles of Women Judges in Ghana, J. of Africa Law.
Abstract:Feminist scholars have debated questions of gender and judging by focusing on variables such as representation, difference, diversity and legitimacy. While illuminating, most of these studies are by scholars in the global north. More research is needed to understand issues of gender and judging in the global south. This article adds to existing literature by asking whether women judges promote women's rights. Through in-depth interviews with women judges in Ghana, the article demonstrates that women judges do promote women's rights. The article presents a new method of analysis: exploring the dichotomy between direct and indirect modes of representing women's rights. Recognizing the importance of substantive representation and the contributions of female judges in promoting women's rights, it argues that female judges are not a sufficient condition for promoting women's rights. Necessary conditions include laws guaranteeing women's rights, working partnerships with women's civil society organizations and an enabling socio-cultural climate.
Monday, January 9, 2017
I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016). It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.
Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.
“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.
A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).
This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.
Gender quotas have been highlighted in several places recently, including:
The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"
The ABA Rule mandating diverse CLE panels
Wednesday, November 9, 2016
SCOTUS Hears Equal Protection Challenge to Different Citizenship Requirements for Child Born to Unwed Fathers v. Unwed Mothers
The case set for oral argument today is Lynch v. Morales-Santana
Whether sections 301 and 309 of the Immigration and Nationality Act of 1952 violate the Fifth Amendment’s guarantee of equal protection by requiring unwed citizen fathers to satisfy substantially more burdensome physical presence requirements than unwed citizen mothers in order to transmit derivative citizenship to their foreign-born children.
Whether the court of appeals properly remedied the equal protection violation by extending to unwed citizen fathers of foreign-born children the same rights available to similarly situated unwed citizen mothers.
Here is the Second Circuit's opinion below, finding an Equal Protection violation.
Friday, October 28, 2016
This was the topic of a paper recently published in Akron Law's open-access constitutional law journal, ConLawNOW, by our visiting scholar from Japan.
Wednesday, October 26, 2016
Subversive feminist action is alive and well these days in Iceland.
Monday, August 8, 2016
The Irish project Northern/Irish Feminist Judgments: Judges' Troubles and the Gendered Politics of Identity builds upon the work of the feminist judgment project completed at Durham and Kent and which integrated feminist theory and judicial method, re-writing influential judgments from feminist perspectives. The project will produce an anthology of re-written judgments from Northern/Ireland as well as innovative web resources with materials of use to both academics and civil society. Bringing together academic partners at institutions across the UK and Ireland including the Law Schools at Kent, LSE, UCD, UCC, Queen's Belfast, and the University of Ulster, with solicitors, barristers and civil society groups, the project creates a broad new community of Irish feminist scholars around an ambitious Northern/Irish Feminist Judgments Project. The project will create tangible resources which can be used to engender a societal dialogue about legal decision-making and social change, developing dynamic resources for future research and teaching in judicial studies. The project focuses on the gendered political roles of judges in contexts of transition from conflict, colonialism and religious patriarchy.
Friday, August 5, 2016
Srimati Basu, The Trouble with Marriage: Feminists Confront Law and Violence in India (U. Cal. Press 2015) (with podcast):
Are solutions to marital problems always best solved through legal means? Should alternative dispute resolutions be celebrated? In her latest book The Trouble with Marriage: Feminists Confront Law and Violence in India (University of California Press, 2015) Srimati Basu answers such questions and many more through explorations of "lawyer free" courts and questions surrounding understandings of domestic violence, analyses of the way rape intersects with marriage and how kinship systems change with legal disputes and by delineating the most important acts that frame marriage law in India. Theoretically and politically astute the book offers an ethnographic insight into legal sites of marriage trouble in India.
Tuesday, August 2, 2016
Anna Bryson & Kieran McEvoy, Women Lawyers and the Struggle for Change in Conflict and Transition, 42 Australian Fem. L.J. (2016)
Abstract:This article examines the particular experiences of female "cause lawyers" in conflicted and transitional societies. Drawn from an ongoing comparative project which involved fieldwork in Cambodia, Chile, Israel, Palestine, Tunisia and South Africa, the paper looks at opportunities, obstacles and the obduracy required from such lawyers to "make a difference" in these challenging contexts. Drawing upon the theoretical literature on the sociology of the legal profession, cause-lawyers, gender and transitional justice, and the structure/agency nexus, the article considers in turn the conflict\cause-lawyering intersection and the work of cause-lawyers in transitional contexts. It concludes by arguing that the case-study of cause-lawyers offers a rebuttal to the charge that transitional justice is just like ‘ordinary justice’. It also contends that, notwithstanding the durability of patriarchal power in transitional contexts, law remains a site of struggle, not acquiescence, and many of these cause-lawyers have and continue to exercise both agency and responsibility in ‘taking on’ that power.
Thursday, July 7, 2016
Josephine Dawuni & Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, 62 Africa Today 45 (2015)
In recent years, women have been selected as leaders of African judiciaries. This article identifies where and when women have become chief justices and presidents of constitutional courts from 1990 to 2014. We profile women from three civil-law and three common-law countries and find that the women selected meet or exceed the requirements for holding the highest position in the judiciary. We then explore why some African countries, but not others, have had female judicial leaders. We initially find that the selection method may be less important than the type of legal system, the commitment of gatekeepers, the end of major armed conflict, and regional diffusion in explaining why some countries have seen women rise to leadership positions in the judiciary.
Friday, June 17, 2016
It’s not every day that a constitutional lawyer gets treated like a rock star. But at South African President Jacob Zuma’s State of the Union address in February, reporters jostled to hear what Thulisile Madonsela had to say about it, and onlookers took to Twitter to gush about her and her canary-yellow dress.
“Please, can we have her as president!” one pleaded.
Madonsela is not just a lawyer. She is also South Africa’s public protector, an ombudsman-like post that has come to symbolize for many a struggle for rule of law and better governance in this young democracy.
Thursday, May 26, 2016
Belinda Smith & Monica Hayes, Using Data to Drive Gender Equality in Employment: More Power to the People?
The latest version of affirmative action legislation in Australia, the Workplace Gender Equality Act 2012 (Cth) (WGE Act), reflects a fundamental shift from its predecessor legislation, the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (EOWW Act) and, before that, the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) (AA Act). This shift has been correctly characterised as a change in focus from processes to outcomes because employers covered by the legislation are now required to report on selected indicators intended to provide an overall picture of the actual state of affairs of gender employment within their organisation, not merely their ‘workplace programs’ for addressing gender inequality. However, the enactment of the WGE Act reflects another shift in the regulatory framework, a shift toward using information disclosure and standards to drive change.
Ciara O'Connell (Sussex Law), Diana Guarnizo Peralta (Dejusticia), Cesar Rodriguez-Garavito (Universidad de los Andes), Amicus Curiae Brief Presented to the Intra-American Court of Human Rights in the Case of IV v. Bolivia
Abstract:The IV v. Bolivia case examines the rights of a Bolivian migrant woman who was given a tubal ligation (sterilized) without her informed consent. In this amicus curiae, Ciara O'Connell (University of Sussex) and Diana Guarnizo-Peralta and Cesar Rodriguez-Garavito (Dejusticia) intervene in order to explain how the medical field frequently becomes a place where discrimination is exercised against women in the form of gender stereotyping and "paternalistic control." This amicus requests that the Inter-American Court issue reparation provisions in order to guarantee non-repetition of these women's reproductive rights violations. The suggested reparations consist of the adoption of education programs aimed at training medical students and medical professionals, as well as the general population, and reform of internal rules and manuals on informed consent so that they comply with international standards.
Friday, May 13, 2016
Business people tend to hate governments telling them what to do, and the quotas on female board members imposed on companies by a handful of European countries are no different. But here’s the thing: If a goal of the quotas is to bring more women into the top ranks of business, they seem to be working.
That’s the view of Rajeev Vasudeva, the CEO of Egon Zehnder, one of Europe’s largest executive search firms. Vasuveda said he’s no fan of quotas, but concedes they’re having an impact. “I’m not a great supporter of quotas but in this case it’s making difference,” he said in an interview. “It has changed the conversation—it clearly has been put on the agenda of companies.”
Norway was the first to introduce quotas for women in 2003, requiring that public companies fill at least 40% of their board seats or risk dissolution. Iceland, Spain and France followed with 40% targets—although with less severe penalties—and other countries have lower thresholds. Last year, Germany became the largest economy to impose a quota, mandating 30% of supervisory board seats be filled by women
Tuesday, April 12, 2016
Location: Massachusetts Historical Society
Katherine Marino, American Academy of Arts and Sciences
The Origins of “Women’s Rights are Human Rights”: Pan-American Feminism and the 1945 United Nation Charter
Comment: Kirsten Weld, Harvard University
In June, 1945, at the conference in San Francisco that created the United Nations, a group of Latin American feminists pushed “women’s rights” into the category of international human rights in the founding documents of the UN and proposed what became the UN Commission on the Status of Women. The Brazilian delegate and feminist Bertha Lutz called their work a “Latin American contribution to the constitution of the world.” This paper examines what “women’s rights” and “human rights” meant to these Latin American activists and how a movement of transnational, Pan-American feminism shaped their ideas and activism. It argues that the notion that “women’s rights are human rights,” often assumed to be a product of U.S./Western European liberal democratic and feminist thought, was in fact forged through transnational collaboration in a context of fraught U.S./Latin American relations.
RSVP so we know how many will attend. To respond, email email@example.com or phone 617-646-0568.
As usual, there will be four programs in this series, two each at the Schlesinger Library and the Massachusetts Historical Society. The complete schedule is available at http://www.masshist.org/2012/calendar/seminars/women-and-gender
Each seminar consists of a discussion of a pre-circulated paper provided to our subscribers. (Papers will be available at the event for those who choose not to subscribe.) Afterwards the host institution will provide a light buffet supper.
We look forward to seeing you at the program!
Monday, April 4, 2016
Pok Yin Stephenson Chow (Nottingham), Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights-Treaty Body Practice and the Issue of Ambivalence, Human Rights Law Review, 2016 (Forthcoming)
Over the past two decades, ‘intersectionality’ has become one of the most celebrated notions in international human rights law and discourse. Outside of the US where the concept originated, the sweeping influence of intersectionality has extended to the UK and other members of the European Union where intersectionality has ‘become part of policy initiatives’. It was remarked that intersectionality ‘has acquired considerable conceptual purchase in international human rights law and activism’ and has become the standard multi-disciplinary approach ‘for analyzing subjects’ experiences of both identity and oppression’.
The recognition that intersectionality gained over the years was also evident in the express and implicit references across UN human rights treaty-bodies practice, where the concept was used to highlight how gender discrimination is often intertwined with discrimination on other grounds, such as race, ethnicity and socio-economic background, thus ‘complicating simplistic, singular understandings of the nature of women’s disadvantage.’ In particular, the Committee on the Elimination of Discrimination against Women (‘CEDAW’) acknowledged intersectionality as a ‘basic concept for understanding the scope of the general obligations of States parties [of the Convention]’. Nevertheless, despite such express acknowledgements, the effectiveness of the concept remained uncertain. In particular, it remained unclear whether the juridical understanding of ‘intersectionality’ could fully honor the complexity that intersectional analysis demands. Conaghan thus argues that although intersectionality has contributed tremendously to the feminist movement, the concept has ‘reached the limits of its theoretical potential’. She argues that inequality is a sophisticated and multi-dimensional phenomenon, and that intersectionality, having its roots in law, does not seem to fully address that complexity.
The limitation of intersectionality is exemplified in the works of the UN human rights treatybodies in the context of minority women. Many often cultural and religious practices are deemed ‘harmful’ and discriminatory, but the women who practice them may not agree that these practices are discriminatory. This raised difficult issues regarding whether human rights law could properly accommodate their multiple identities (both as women and as members of their cultural group). Moreover, it is increasingly recognized that the engagement of such practices is often characterised by a form of ‘ambivalence’, i.e. a feeling of ‘open-endedness, incompleteness [and] uncertainty’. Niec observed that while individuals may identify certain manifestations of their traditions as violations of their rights, they may at the same time seek to preserve the group’s culture and religion, because it is the latter that ‘shaped and defined [her] identity as a member of that collective’. Radhika Coomaraswamy, UN Special Rapporteur on Violence against Women, its Causes and Consequences, remarked that even in situations where women have migrated from the community of their birth, the vast majority continued to retain a deep emotional attachment to group identity, and in this respect, the advocacy of the prohibitionof certain practices might offend their sense of dignity and belonging. While it may be reasonably expected that intersectionality could play a greater role in resolving such conflicts – that the application of intersectionality would better address the multiple identities of minority women – the concept have only yielded partial solutions, as shall be demonstrated below.
This article examines the application of intersectionality across the practice of the UN human rights treaty-bodies. Echoing the concerns raised by Conaghan, it ponders the question: whether intersectionality has reached its limits? In particular, it seeks to examine whether intersectionality as applied by the UN treaty-bodies offer a satisfactory solution to situations of ‘ambivalence’.
Monday, March 21, 2016
Douglas NeJaime & Reva Siegel, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harms, and Pluralism
Abstract:Those who believe contraception, abortion, and same-sex relationships are sinful are increasingly seeking religious exemptions from laws protecting these practices. This essay examines the spread of culture-war conscience claims in the United States and across borders.Religious liberty claims asserted in these culture-war contexts differ from claims for the accommodation of religious ritual observance in ways that warrant principled legal response. When a person of faith seeks an exemption from legal duties to another in the belief that the citizens the law protects are sinning, granting the religious exemption can inflict material and dignitary harms on those whom the law protects. Employing cross-borders comparisons to illustrate, we argue that religious accommodation of such claims serves pluralist ends only when the accommodation is structured to shield other citizens from harm. Our analysis includes the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores and its forthcoming decision in Zubik v. Burwell and reaches beyond U.S. borders to the European Court of Human Rights, including its decision in Eweida and Others v. United Kingdom.
Thursday, March 17, 2016
Call for Papers: Displacement
Signs: Journal of Women in Culture and Society invites submissions for a special issue titled “Displacement,” slated for publication in spring 2018.
The current refugee crisis gives new urgency to questions of gendered displacement. The United Nations’ most recent statistics place the number of registered Syrian refugees at 4.7 million, 50.7 percent of whom are women and over half of whom are children under eighteen. During the same period, tens of thousands of Central American women and children have crossed the Rio Grande into the United States. Feminists have already responded to concerns about sexual violence in refugee camps and during refugees’ journeys and to the gendered response to the crisis on the part of receiving states (i.e., demographic concerns surrounding gender ratios of migrants admitted). What are the larger questions of “displacement” that require an interdisciplinary and transnational feminist lens?
This special issue of Signs seeks submissions reflecting multifaceted, innovative, and interdisciplinary approaches to the question of displacement, as well as the potential for attention to displacement to address and transform central questions in feminist theory, including how feminists approach larger questions of space, place, and subjectivity. Feminist scholars have a long history of engagement with the question of displacement; across disciplines, feminist scholars have described, theorized, and critiqued gendered forms of displacement and how these displacements have shaped and reshaped geopolitics, national borders, political discourses, narrative form, and ethnic and racial formations both contemporarily and historically. Questions of place and belonging have long been at the heart of cultural work in literature, theater, visual culture, and the arts. We invite submissions on the theme of displacement widely conceived and at multiple scales—the subjective, the family, the city; regional, national, transnational, and global. Possible subjects include:
- How humanitarian and state responses to displaced persons depend on, reinforce, or transform gendered, racial, and sexual norms.
- Visual and narrative representations of displacement in relation to gendered and racialized subjectivities.
- Cultural representations of displacement, migration, belonging, and exile. Critical and historical investigations and comparisons of feminist ideas of these subjects.
- Reverberations of historical displacements in the contemporary world.
- Claims to space and place as forms of resistance to displacement or as the basis for social movements (i.e., landless movements, right to the city).
- Dispossession and displacement as central to neoliberalism, capitalist development, colonization, and slavery. How are dispossession and displacement related?
- How experiences of displacement reshape constructions of “home” or the nation.
- Critical assessments of homophobic and gender-based violence as sources of displacement.
- Gendered figurations of internally and externally displaced persons as threats to national sovereignty or borders. The production of new forms of intimacy through displacement or the creation of new social movements through and in response to displacement.
- The way that ethical norms and perspectives ignore or undervalue the importance of gender and gendered perspectives with regard to displacement.
Pieces that critically examine or call into question distinctions between migrants, refugees, and internally displaced persons are also welcome.
Signs particularly encourages transdisciplinary and transnational essays that address large questions, debates, and controversies without employing disciplinary or academic jargon. We welcome essays that make a forceful case for why displacement demands a specific and thoughtfully formulated interdisciplinary feminist analysis and why it demands our attention now. We seek essays that are forceful, passionate, strongly argued, and willing to take risks.
The deadline for submissions is September 15, 2016. Denise Horn, Assistant Professor of Political Science and International Relations at Simmons College, and Serena Parekh, Associate Professor of Philosophy at Northeastern University, will serve as guest editors of the issue.
Manuscripts may be submitted electronically through Signs’ Editorial Manager system at http://signs.edmgr.com and must conform to the guidelines for submission available at http://signsjournal.org/for-authors/author-guidelines/.
Thursday, February 18, 2016
Ciara O'Connell, Engendering Reproductive Rights in the Inter-American System, in Gender, Sexuality and Social Justice: What's Law Got to Do With It?, Kay Lalor, Elizabeth Mills, Arturo Sánchez García and Polly Haste, eds., p. 58, Institute of Development Studies, 2016
Abstract:The challenge of including a gender perspective within human rights work has been a project only recently undertaken by the international human rights community. It is undeniable that much progress has been made over the past two decades in regard to advocacy and legal efforts to protect, promote and fulfil women’s human rights. However, there remain significant shortcomings in how the law is used to address systemic conditions that cause the subordination of women. This article seeks to explore the gap that exists between women’s rights rhetoric and implementation at the national level. An examination of women’s reproductive rights in the Inter-American System of Human Rights serves as a lens by which to explore how international human rights bodies fall short in addressing the gendered implications of women’s rights violations as they are embedded in national cultures.
Thursday, February 11, 2016
Natali Nanasi (SMU), Domestic Violence Asylum and the Perpetuation of the Victimization Narrative
Abstract:Pitiful. Helpless. Powerless. The words often used to describe survivors of domestic violence conjure a vivid and specific image of a woman lacking both strength and agency. These (mis)conceptions stem from the theories of “Battered Woman Syndrome” and “learned helplessness,” developed in 1979 by psychologist Lenore Walker, who hypothesized that intimate partner abuse ultimately causes a woman to resign herself to her fate and cease efforts to free herself from violence or dangerous situations.
Although widely criticized, learned helplessness has permeated the legal establishment, for example, serving as the foundation for mandatory arrest and “no drop” policies in the criminal sphere of domestic violence law. Legal scholars have examined the problematic impacts of both the theory of learned helplessness itself and its effect on survivors in the criminal and civil justice systems. This article adds to that important conversation by exploring the previously unexamined area of learned helplessness’ impact on immigration, specifically asylum, law.
Through a series of cases from 1996 to 2014, it is now established that a woman may receive asylum protection if she can establish that she is “unable to leave” a violent domestic relationship. This formulation fits squarely within Walker’s framework, as it requires a victim to advance a narrative of helplessness if she is to obtain refuge in the United States. Furtherance of the notion of Battered Woman Syndrome in asylum law is troubling for a number of reasons, namely, as this piece details, in the harms that can result when survivors of domestic violence are required to conform to a specific “stock story” (including injury to both those who fit the stereotype and those who do not). Additionally, continued adherence to and reliance on learned helplessness poses challenges for client-centered lawyering, perpetuates the tendency of victim-blaming, ignores the realities of the dangers of separation violence, and furthers the damaging dichotomy of “worthy” and “unworthy” immigrants.
By identifying these concerns and proposing alternative bases for protection that would encompass not just pitiable and vulnerable victims of domestic violence, but strong, empowered and capable fighters against domestic abuse, this article seeks to critique, rebut and prevent the infiltration of static and stereotypical images of battered women in the realm of immigration law.
This Executive Summary (8 pages) outlines findings and recommendations from research to identify the experience of women who are subject to immigration control and experience domestic abuse in the UK. Focussing on one immigration rule, ‘no recourse to public funds,’ it concludes that the fundamental rights of women in the UK, to life, and to freedom from torture, are being violated. The state does not uphold the rights of these women, nor is it neutral. Rather, the role of the state prolongs the abuse and makes it worse. This summary also summarises recommended changes to law and policy
Thursday, February 4, 2016
Karin Paparelli, Gender Equality and Women at Law in Cuba
Gender equality and more specifically, the role of women in the legal profession in Cuba, presents a paradox of cultural restraint amid progressive policies. In a traditionally patriarchal society, Cuba has actually outpaced the United States and other nations when it comes to gender equality. Cuban women are found in staggering numbers in the legal profession, politics and high-level ministerial positions. ***
Curiously, traditionally “male” professions in Cuba include science, engineering, information technology, and mathematics and exclude medicine, education and law. Nearly 70 percent of health care workers including doctors, 80 percent of the education workforce, and surprisingly, 66 percent of all lawyers and judges in Cuba are women.