Gender and the Law Prof Blog

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

Wednesday, October 17, 2018

Adopting a Human Rights Perspective in Domestic Violence Law

Margaret Drew, Truth Seeking: The Lenahan Case and the Search for a Human Rights Remedy

It was not until Lenahan v. United States that many U.S. domestic violence advocates incorporated the human rights framework in a conscious and organized way. Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan case is then discussed. Part III addresses needed change within the U.S. civil law systems if the country is to affectively adopt a human rights perspective in matters of domestic violence and other human rights abuses.

October 17, 2018 in International, Violence Against Women | Permalink | Comments (0)

Monday, October 1, 2018

Trump Immigration Policies have Particularly Impacted Women and Domestic Violence Victims

Trump's Immigration Policies Have Especially Affected Women and Domestic Violence Victims

A policy takes effect on Monday that could increase the risk of deportation for undocumented immigrant victims or witnesses of crimes. The agency that considers visa applications will begin to refer immigrants for deportation proceedings in far more cases, including when a person fails to qualify for a visa. The policy would also constrain officers' discretion.
 
 The new US Citizenship and Immigration Services policy specifically applies to visas designed to protect victims of violent crime and trafficking, including some created under the Violence Against Women Act. Those visas will give legal status to victims who report or testify about crimes.
  
The result: Victims who apply for the special visas but fall short, including for reasons like incomplete paperwork or missing a deadline, could end up in deportation proceedings. Previously, there was no guidance to refer all visa applicants who fall short to immigration court for possible deportation. Under the new policy, it'll be the presumption. Advocates for immigrants worry the risk will be too great for immigrants on the fence about reporting their crimes.
  
Other policies that especially impact women and victims include:

October 1, 2018 in International | Permalink | Comments (0)

Wednesday, September 19, 2018

UK Highest Court will Have a Female Majority Hear a Case for the First Time in 600 Years

Female Majority to Hear Supreme Court Case for First Time in History

The UK's highest court is to have a female majority hear a case for the first time in 600 years.

Almost one hundred years after a law was passed allowing women to practice as barristers, three women and two men will decide a case in the highest court in the country.

Three of the five judges who are set to hear a Supreme Court case on October 3 about a 16-year-old with Asperger's Syndrome and learning difficulties are female.

Lady Hale, the court's first female president, has previously spoken out about the need for more women at the top of the judiciary. Earlier this year she said women were "seriously underrepresented" among senior judges, warning that women were forced to move into the public sector because of the difficulty of combining high-flying legal jobs with family and caring responsibilities.

September 19, 2018 in Courts, International, Judges | Permalink | Comments (0)

Wednesday, August 29, 2018

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

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

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

 

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

 

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

 

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

 

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

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

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

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

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

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

Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture

Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)

International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.

August 29, 2018 in International, Theory, Violence Against Women | Permalink | Comments (0)

Monday, August 27, 2018

Deja Vu and the Gendered Origins of the Practice of Immigration Law

Felice Batlan, Deja Vu and the Gendered Origins of the Practice of Immigration Law: The Immigrants’ Protective League, 1907-1940, Law & History Rev. (2018)

This essay from Felice Batlan was written after she spent days protesting at Chicago's O'Hare airport in response to Trump's "Muslim Ban." The article is posted on Law and History Review's multi-media digital platform which provides hyperlinks to both primary and secondary sources making it freely accessible and ideal for classroom use.

Abstract:

Donald Trump’s administration has provoked crisis after crisis regarding the United States’ immigration policy, laws, and their enforcement. This has drastically affected millions of immigrants in the U.S. and those hoping to immigrate. Stemming from this, immigration lawyers and immigrant advocacy organizations are challenging such policies and providing an extraordinary amount of direct pro bono legal services to immigrants in need. Yet the history of the practice of immigration law has been largely understudied. This article addresses this history by closely examining Chicago’s Immigrants’ Protective League between 1910 and 1940. The League provided free counsel to tens of thousands of poor immigrants facing a multitude of immigration-related legal issues during a time when Congress passed increasingly strict immigration laws often spawned by xenophobia and racism. The League, always headed by women social workers, created a robust model of immigration advocacy at a time when only a handful of women were professionally trained lawyers. A close and thick reading of the League’s archival documents, manifests how the events of Trump’s immigration policies have a long and painful history. U.S. immigration law and its enforcement have consistently been cruel, inhumane, arbitrary, and capricious. Told from the ground up and focusing upon the day-to-day problems that immigrants brought to the League, one dramatically sees how immigration laws and practices were like quicksand, thwarting the legitimate expectations of migrants, and, at times, leaving people in an endless legal limbo. The League, in response, participated in creating what would become the practice of immigration law, engaging, and quickly responding to changing laws, rules, policies, and the needs of migrants.

August 27, 2018 in Courts, International, Legal History, Religion, Women lawyers | Permalink | Comments (0)

Tuesday, July 31, 2018

New Zealand Second Country to Enact Paid Leave for Domestic Violence Victims

NYT, New Zealand Grants Domestic Violence Victims Paid Leave

New Zealand will grant victims of domestic violence paid leave from work, in a move that activists say will give people the time to move out and seek shelter for themselves and their children without losing their jobs.

Members of Parliament approved a bill allowing the change by a vote of 63 to 57 on Wednesday night, giving domestic abuse survivors, as well as those caring for young victims, 10 days off from work in addition to their regular paid vacations.

The measure, known as the domestic violence victims’ protection bill, will take effect next April, making New Zealand the second country in the world to pass such legislation, after the Philippines. * * * 

New Zealand gave all women the right to vote in 1893, the first self-governing country in the world to do so, and its prime minister, Jacinda Ardern — currently on parental leave — is the third woman to hold the job. But its domestic and sexual violence rates are among the highest in the world.

A 2011 United Nations report said that 30 percent of women in New Zealand had suffered domestic abuse in the previous decade, with 14 percent experiencing sexual violence. A 2017 report in The New Zealand Herald said that the country had “the worst rate of family and intimate-partner violence in the world,” estimating that 525,000 New Zealanders were harmed every year.

Guardian, A Huge Win: New Zealand Brings in Paid Domestic Violence Leave

New Zealand has passed legislation granting victims of domestic violence 10 days paid leave to allow them to leave their partners, find new homes and protect themselves and their children.

MPs clapped and cheered as bill passed on Wednesday night with 63 votes to 57. It is the result of seven years of work by Green MP Jan Logie, who worked in a women’s refuge before she became a politician. 

July 31, 2018 in International, Violence Against Women | Permalink | Comments (0)

Thursday, July 26, 2018

Law Profs Speak Out on Attorney General Decision to Deny Asylum for Domestic Violence

Nermeen Arastu, Janet Calvo, and Julie Goldscheid, What Jeff Sessions' Efforts to Deny Asylum to Domestic Violence Victims Look Like, Slate

Last week, the Department of Homeland Security released a policy memorandum providing guidance on how United States Citizenship and Immigration Services officers should implement Attorney General Jeff Sessions’ decision last month to do away with asylum for most domestic violence survivors. Sessions’ decision in Matter of A–B–, a case involving a domestic violence survivor’s application for asylum, overturned a prior ruling that explicitly recognized that those fleeing domestic violence may qualify for asylum. With the A–B– decision and accompanying guidance, the administration aims to reject decades of reform by flatly stating that these claims “in general” will not be grounds for asylum relief. These steps confirm the administration’s efforts to thwart our country’s prior commitments to end gender violence and support survivors, and to place the United States outside the global consensus, flouting international law.

Caroline Bettinger-López and Rachel Vogelstein, Sessions' Draconian Asylum Decision, Foreign Affairs Mag.

U.S. Attorney General Jeff Sessions made a radical decision that will undoubtedly result in death or significant harm to some of the world’s most vulnerable women: victims of domestic violence who live in countries that do not, or cannot, protect them from their abusive partners. Over the past two decades, the United States has provided a safe haven to many of these women through its asylum laws. In a heartless move that flouts established U.S. law and international human rights standards, Sessions found that a domestic violence victim from El Salvador—perhaps the most dangerous country on earth in which to be a woman—would not qualify for asylum, even though her own country had utterly failed to protect her.

In previous years, whether the United States was under a Republican or Democratic president, such a decision would have been unthinkable. The State Department’s human rights reports routinely criticize other countries for their lack of protections for domestic violence survivors, and U.S. asylum laws have evolved over the years to account for the multiple forms of persecution that victims may suffer—including persecution at the hands of a private actor—when their governments fail to provide protection. 

Asylum protections for victims of gender-based violence have been well established for decades—not only in the United States but also under the international human rights system. The United Nations’ 1951 Refugee Convention established the right to claim asylum on the basis of gender-based persecution and crimes. Historically, nations treated domestic violence as a private matter to be resolved between partners and families. But in modern times, violence against women has come to be understood as a human rights violation—a form of gender-based discrimination that subordinates and oppresses women. 

July 26, 2018 in International, Violence Against Women | Permalink | Comments (0)

Wednesday, June 13, 2018

Attorney General Announces Domestic Violence No Longer Legal Basis for Asylum

NYT, Sessions Says Domestic and Gang Violence are not Grounds for Asylum

Attorney General Jeff Sessions on Monday made it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence, in a ruling that could have a broad effect on the flow of migrants from Central America.

Mr. Sessions’s decision in a closely watched domestic violence case is the latest turn in a long-running debate over what constitutes a need for asylum. He reversed an immigration appeals court ruling that granted it to a Salvadoran woman who said she had been sexually, emotionally and physically abused by her husband.

Relatively few asylum seekers are granted permanent entry into the United States. In 2016, for every applicant who succeeded, more than 10 others also sought asylum, according to data from the Department of Homeland Security. But the process can take months or years, and tens of thousands of people live freely in the United States while their cases wend through the courts.

Mr. Sessions’s decision overturns a precedent set during the Obama administration that allowed more women to claim credible fears of domestic abuse and will make it harder for such arguments to prevail in immigration courts. He said the Obama administration created “powerful incentives” for people to “come here illegally and claim a fear of return.”

Asylum claims have expanded too broadly to include victims of “private violence,” like domestic violence or gangs, Mr. Sessions wrote in his ruling, which narrowed the type of asylum requests allowed. The number of people who told homeland security officials that they had a credible fear of persecution jumped to 94,000 in 2016 from 5,000 in 2009, he said in a speech earlier in the day in which he signaled he would restore “sound principles of asylum and longstanding principles of immigration law.”

“The prototypical refugee flees her home country because the government has persecuted her,” Mr. Sessions wrote in his ruling. Because immigration courts are housed under the Justice Department, not the judicial branch of government, he has the authority to overturn their decisions.

“An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family or other personal circumstances,” he added. “Yet the asylum statute does not provide redress for all misfortune.”

His ruling drew immediate condemnation from immigrants’ rights groups. Some viewed it as a return to a time when domestic violence was considered a private matter, not the responsibility of the government to intervene, said Karen Musalo, a defense lawyer on the case who directs the Center for Gender and Refugee Studies at the University of California Hastings College of the Law.

“What this decision does is yank us all back to the Dark Ages of human rights and women’s human rights and the conceptualization of it,” she said.

Volokh Conspiracy, Jeff Sessions' Ruling Denying Asylum to Victims of Domestic Violence Highlights Arbitrary Cruelty of Immigration Policy

Attorney General Jeff Sessions recently issued a ruling denying asylum to female victims of domestic abuse and gang violence. His decision, which ruled against a Salvadoran woman who had been severely abused by her husband, concludes that such victims "generally" don't qualify for asylum under a federal law that grants asylum to any refugees who is "unable or unwilling to return to [her home country], and is unable or unwilling to avail . . . herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The decision overrules two prior Justice Department Board of Immigration Appeals decisions, which granted asylum to female victims of domestic abuse in Guatemala and El Salvador. Sessions' ruling is legally problematic. But, perhaps even more importantly, it highlights the arbitrary injustice of a policy that denies asylum to victims of horrible persecution as bad as that which falls within the scope of the rules.

The key legal question in the case is whether Salvadoran victims of domestic violence qualify as people with "a well-founded fear of persecution" based on their "membership in a particular social group." The phrase "particular social group" is far from precise. But, as Sessions recognizes, courts have generally defined it as a group "composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." It should be obvious that women qualify as a group that shares "a common immutable characteristic," and that they are also a group that is "socially distinct" and "can be defined with particularity." It is true that gender is not completely immutable in an age of sex change operations. But it is surely sufficiently so to qualify under the rules. And you don't have to be a radical feminist to recognize that, in highly sexist societies like El Salvador and Guatemala, which have a "culture of machismo and family violence" (as one of the BIA decisions overruled by Sessions puts it), domestic violence against women flourishes in large part because of gender bias. And such bias helps account for the failure of the authorities to effectively curtail such abuse. Recognizing that does not require us to assume that all Guatemalan and Salvadoran men are sexist or violent, or that all law enforcement officials in those countries are misogynists, merely that such attitudes are sufficiently widespread in those countries that they account for much of the danger faced by female victims of domestic violence.

June 13, 2018 in International, Violence Against Women | Permalink | Comments (0)

Wednesday, March 28, 2018

British House of Commons Speaker Reprimands Foreign Secretary for Sexist Language

Boris Johnson Told Off by Speaker for "Sexism"

Foreign Secretary Boris Johnson has been reprimanded by Commons Speaker John Bercow for using sexist language.

 

Speaker Bercow intervened - to applause from some Labour MPs - after Mr Johnson referred to shadow foreign secretary Emily Thornberry as Lady Nugee.

 

Ms Thornberry is married to High Court judge Sir Christopher Nugee - but chooses to go by her maiden name.

 

Mr Bercow said it was "inappropriate" and sexist to refer to her as Lady Nugee.

 

He said MPs should be called by their names and not by the titles of their spouses.

 

Mr Johnson had to be reminded of Ms Thornberry's title by MPs, as he answered a question from a Conservative MP on the Commonwealth, calling her "the Baroness, whatever it is, I cannot remember what it is... Nugee".

 

Mr Bercow rebuked the foreign secretary, telling him: "We do not address people by the titles of their spouses.

 

"The shadow Foreign Secretary has a name, and it is not 'Lady something'. We know what her name is. It is inappropriate and frankly sexist to speak in those terms, and I am not having it in this Chamber.

 

"That is the end of the matter. No matter how senior a Member, that parlance is not legitimate. It will not be allowed, and it will be called out."

 

Mr Johnson subsequently apologised for his "inadvertent sexism."

 

Ms Thornberry has occasionally been teased about her formal title by Conservative critics and in February last year complained to Mr Bercow when Theresa May referred to her as Lady Nugee in the Commons.

 

"Is it in order for the prime minister to refer to a member of this House not by her own name, but by the name of her husband?" the Islington South MP said in a point of order.

 

"I have never been a Lady and it will be a great deal more than being married to a Knight of the Realm in order to make me one."

 

Mrs May said: "If the Honourable Lady is concerned about the reference that I made to her, of course I will apologise for that.

 

"I have to say to her, though, that for the last 36 years I have been referred to by my husband's name."

March 28, 2018 in Family, International | Permalink | Comments (0)

Tuesday, March 27, 2018

A Legal Study of Equal Pay in the EU

Petra Foubert, The Enforcement of the Principle of Equal Pay for Equal Work or Work of Equal Value: A Legal Analysis of the Situation in the EU Member States, Iceland,Liechtenstein and Norway (July 2017)

Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States. Although there is a big difference between the countries with the lowest pay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called "unadjusted" gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference), there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated.

March 27, 2018 in Equal Employment, International | 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)

Friday, March 23, 2018

Gender, Immigration, and the Travel Ban

Marcia Zug, Make Immigration Great Again: How Morales-Santana Could Signal the End of Sexist Immigration Law and Provide a Way to Fight the Travel Ban, Wake Forest L. Rev. (forthcoming)

Gender plays a surprisingly important, and arguably unjust, role in immigration law. Explicit gender divisions and gender stereotypes are widespread. However, prior to the Supreme Court's recent decision in Morales-Santana, these distinctions have been consistently upheld. Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is extremely important. It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination. Moreover, given immigration law’s long history of gender bias, the possibilities for discrimination claims are numerous and thus, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project. International Refugee limited the scope of the government’s proposed travel ban and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.Reading the two cases together, this essay suggests that gender discrimination claims may provide a new and effective means of challenging the travel ban, particularly if the current race and nationality based challenges fail.

March 23, 2018 in International, SCOTUS | Permalink | Comments (0)

Thursday, March 22, 2018

Evaluating Leadership Patterns of Modern Canadian Chief Justices

Cindy Ostberg & Matthew Wetstein, Strategic Behavior and Leadership Patterns of Modern Chief Justices

This study uses theories of strategic behaviour, leadership change and feminist theory to examine patterns of judicial activity by the three post-Charter chief justices. Building on prior scholarship, we use various methods to examine patterns of majority voting, dissenting activity, opinion writing, ideological voting, and panel size across the 1973-2014 period. While Chief Justice Lamer and Dickson exhibited clear patterns of task leadership, we find strong evidence of strategic change by Chief Justice McLachlin after her promotion to chief. She moved from a prolific dissenter as an associate justice to a chief that exhibited behaviour of both a task and social leader, which scholars see as highly uncommon. Her efforts to solidify her central role as a collegial leader within her own court are remarkable, and took place during a period of increasing panel sizes and a shrinking court docket.

March 22, 2018 in Courts, International, Judges | Permalink | Comments (0)

Friday, March 16, 2018

A Review of Posts on Irish Law and Gender

Tuesday, March 13, 2018

UK Survey on Women in the Law Shows Unconscious Bias, Worklife, Flextime and Male Networks Still Barriers to Equality

Largest Ever Survey on Gender Equality in Legal Profession

The largest international survey of women in the law has been released by the Law Society of England and Wales to mark International Women’s Day 2018, shedding light on the road to gender equality in the legal profession.

 

“As women solicitors practising in England and Wales outnumber men for the first time in history, people working in law across the world have spoken out about the challenges the profession faces in achieving gender equality,” said Law Society vice president Christina Blacklaws. . . .

 

"“While more and more women are becoming lawyers, this shift is not yet reflected at more senior levels in the profession. Our survey and a wider programme of work during my presidency in 2018-19 seek to understand progress, barriers and support remedies.

 

“Unconscious bias in the legal profession is the most commonly identified barrier to career progression for women, while flexible working is seen as a remedy by an overwhelming 91% of respondents to our survey.

 

“Interestingly, while half of all respondents said they thought there had been progress on gender equality over the last five years, there was a significant difference in perception by gender with 74% of men reporting progress in gender equality compared to only 48% of women.”

Key figures:

  • 7,781 people responded to the Law Society’s Women in the Law survey (5,758 women, 554 men and 1,469 unknown or other)
  • 74% of men and 48% of women reported progress on gender equality in the last 5 years (overall 50%)
  • Main barriers to career progression perceived as:
    - Unconscious bias (52%); however, only 11% said unconscious bias training is consistently carried out in their organisation
    - Unacceptable work/life balance demanded to reach senior levels (49%)
    - Traditional networks/routes to promotion are male orientated (46%)
    - Current resistance to flexible working practices (41%)
  • 91% of respondents said flexible working is critical to improving diversity 
    - 52% work in an organisation where flexible working is in place
  • 60% are aware of gender pay gap in their place of work
    - Only 16% see visible steps taken to address gender pay gap

March 13, 2018 in Equal Employment, International, Women lawyers | Permalink | Comments (0)

Monday, March 12, 2018

New Book: The Logics of Gender Justice: State Action on Women's Rights Around the World

Mala Htun & S. Laurel Weldon, The Logics of Gender Justice: State Action on Women's Rights Around the World (Cambridge Univ. Press March 2018)

When and why do governments promote women's rights? Through comparative analysis of state action in seventy countries from 1975 to 2005, this book shows how different women's rights issues involve different histories, trigger different conflicts, and activate different sets of protagonists. Change on violence against women and workplace equality involves a logic of status politics: feminist movements leverage international norms to contest women's subordination. Family law, abortion, and contraception, which challenge the historical claim of religious groups to regulate kinship and reproduction, conform to a logic of doctrinal politics, which turns on relations between religious groups and the state. Publicly-paid parental leave and child care follow a logic of class politics, in which the strength of Left parties and overall economic conditions are more salient. The book reveals the multiple and complex pathways to gender justice, illuminating the opportunities and obstacles to social change for policymakers, advocates, and others seeking to advance women's rights,

March 12, 2018 in Books, International | 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)

Thursday, March 8, 2018

International Women's Day is a Protest Day, Not a Hallmark Holiday

Vox, International Women's Day, Explained

But what is International Women’s Day? Where did it come from, and why is it necessary?

 

The day actually has fairly radical origins, involving the Socialist Party of America. Over the past few years, however, it has become a corporate-backed, global rallying day for women’s issues with a key goal: to finally bring about gender parity around the world.

 

In short, it’s a day to work toward gender parity.

 

The Socialist Party of America organized the first National Women’s Day in New York in 1909 to commemorate the 1908 strike of the International Ladies’ Garment Workers’ Union. (Women garment workers in early-20th-century America had plenty of reasons to walk off the job, as the 1911 Triangle Shirtwaist Factory fire would tragically prove.)

 

A year later, National Women’s Day became International Women’s Day at the second International Conference of Working Women in Copenhagen, where more than 100 women from 17 countries decided to establish a worldwide day of celebration to press for working women’s demands.

 

In fact, the Russian Revolution has International Women’s Day to thank. The 1917 demonstrations by women demanding “bread and peace” sparked other strikes and protests, which led to the abdication of Czar Nicholas II four days later and granted women the right to vote.

 

International Women’s Day became a more popularized holiday after 1977, when the United Nations invited member states to celebrate it on March 8.

NYT, International Women's Day: Pride, Protests, and Pressure

CNN, Spain Sees First Feminist Strike on Women's Day

Campaign Website, internationalwomen'sday.com

Slate, Made in the USA

Americans may think of International Women’s Day as a sentimental export from abroad—but this week’s global strike is a throwback to its real history.

 

In the United States, the holiday’s reddish tint caused it to fall out of mainstream favor rather quickly, and until a few years ago, few Americans had heard of it. Recently, however, as digital marketing campaigns flow across national borders, the softer and more commercial descendent of the original radical American holiday has arrived back on our shores. A coalition of corporations, including BP and PepsiCo, now promotes International Women’s Day online with hashtags and official themes. (This year’s is #BeBoldForChange. Inspired yet?) A March 8 Google Doodle last year celebrated “Doodle-worthy women of the future” by asking women across the world to talk about their aspirations, from the unobjectionably noble (improve girls’ access to education) to the unobjectionably fun (swim with pigs in the Bahamas). Americans can now order an International Women’s Day bouquet to “honor an inspiring woman in your life,” or celebrate by buying perfume or mascara whose proceeds go to empowerment-related causes. Capitalism hearts your socialist holiday!

 

Tension over the radical origins of Women’s Day is nothing new. One long-popular origin story had it that the holiday was first established in 1907 to mark the 50th anniversary of a massive demonstration by female garment and textile workers in New York City, whose rally against low wages and 12-hour work days was brutally shut down by the police. There was only small problem with this inspiring tale: Neither the 1857 protest nor the 1907 tribute seem to have actually occurred. Two French feminist historians busted the myth in the 1980s, revealing that the 19th-century uprising was actually invented in 1955, in part “to detach International Women’s Day from its Soviet history.”

 

The organizers reclaiming International Women’s Day this week, by contrast, have no qualms about its far-left origins and are in fact trying to restore that spirit to the soft-focus holiday it’s become. Ashley Bohrer, a member of the International Women’s Strike’s national planning committee, described the strike in part as an effort to draw attention to “the decoupling of InternationalWomen’s Day from its very radical working-class background.” Early on, she pointed out, the holiday had often been called International Working Women’s Day. “In recent years people have celebrated March 8 as Women’s Day,” she said, “but what’s been lost is the ‘working’ part and the ‘international’ part.”

International Women's Day is Not a Hallmark Holiday

Though we now fondly know March 8 every year to be the day we celebrate International Women’s Day, it’s not always been that way. In 1908, amid early discussions about women’s poorly paid labor, long hours, and lack of voting rights (hahahahaha, sound familiar?), the first Women’s Day marches took place. The very first was in 1908, when 15,000 women (in New York City, baby!) took to the streets to protest. Only a year later and the inaugural national Women’s Day was born on February 28, 1909, in conjunction with the Socialist Party of America. Were the first Bernie Bros actually women? It really makes you think.

 

This tradition of celebrating National Women’s Day continued for five years in the States, while Germans Louise Zietz and Clara Zetkin were floating a larger idea internationally. Taking inspiration from Zietz, Zetkin, a Marxist and advocate or women’s rights, brought the idea of having an International Women’s Day to the International Conference of Working Women in Copenhagen in 1910. Her idea was appreciated so much by the hundreds of women in attendance — socialists, workers, and union laborers alike — that they all decreed that it must happen the following year. On March 19, 1911, Europe saw its first-ever International Women’s Day. The date was subsequently changed to March 8 two years later, and stuck. It’s been that way ever since. 

 

The holiday continued steadily on every year and was finally acknowledged by the U.N. in 1975, who decided to officially sanction and recognize the holiday on a yearly basis. The day began receiving yearly themes in 1996, and has since been celebrated with themes like World Free of Violence Against Women, Investing in Women and Girls, and this year’s Planet 50-50 by 2030: Step It Up for Gender Equality, though many of the recognized themes are just as evergreen as the need to celebrate the day itself....

 

International Women’s Day is a national holiday and day off in the following countries — Afghanistan, Angola, Armenia, Azerbaijan, Belarus, Burkina Faso, Cambodia, China (for women only), Cuba, Georgia, Guinea-Bissau, Eritrea, Kazakhstan, Kyrgyzstan, Laos, Macedonia (for women only), Madagascar (for women only), Moldova, Mongolia, Nepal (for women only), Russia, Tajikistan, Turkmenistan, Uganda, Ukraine, Uzbekistan, Vietnam, and Zambia — but not the United States. Maybe next year?

 

March 8, 2018 in International, Legal History, Pop Culture | Permalink | Comments (0)

Thursday, February 15, 2018

Gendered Relations of the Judges on the Brazilian Supreme Court and the Impact on Judicial Decisionmaking

Rafaela Carvalho, "They Don't Let Us Speak": Gender Relations and Judicial Decision-Making in the Brazilian Supreme Court

Supreme Courts are generally portrayed as institutions particularly well-positioned to defend and promote rights of minorities, including gender rights. However, gender discrimination often occurs within these institutions. Although existing empirical studies have largely focused on how the gender of the judge affects his or her decisions on the merits of the case, gender hierarchy and gender stereotypes can have an impact in other aspects of Court’s operation, such as in how judges relate to one another during deliberations. The paper aims to explore one facet of this phenomenon by looking at gendered relations judges in the Brazilian Supreme Court decision-making process. By examining a database containing all the court rulings debates between 2001 and 2013, we analyze the impact of gender in two dimensions of judicial behavior in a collegiate setting. More specifically, we test whether the gender of their colleagues affect how Brazilian Supreme Court Justices behaves when it comes to (i) dissenting from the case reporter's opinion; and (ii) asking for deliberations to be suspended, after the case reporter has spoken, in order to further study the arguments and case files. In all these dimensions, we expect the justices' confidence in the reporter's or the dissenter's knowledge or authority on the issues being discussed plays an important role, which makes them relevant to understanding the role of gender stereotypes. Our preliminary results point to gender biases in the Justices' attitudes towards female case reporters and female dissenters in at least one of these dimensions: when the case reporter is female, the other Justices are more likely to dissent. We interpret these results as suggesting that gender stereotypes -- for example, that women are less competent or reliable, and/or less likely or less able to retaliate -- might help us understand decision-making in the STF and in Brazilian courts more generally.

February 15, 2018 in International, Judges | Permalink | Comments (0)