Gender and the Law Prof Blog

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

Wednesday, October 18, 2017

32 Years of Equality Advocacy in Canada

Jena McGill & Daphne Gilbert, Of Promise and Peril: The Court and Equality Rights, 78 Supreme Court Law Review (2d) 235 (2017)

In this brief reflection, we look back on 32 years of equality advocacy and outcomes at the Supreme Court of Canada. We recount the fraught trajectory of the Supreme Court of Canada’s section 15 jurisprudence over the past decades, tracing the evolution of three distinct approaches to equality rights and highlighting the unique role that the Women’s Legal Education and Action Fund (LEAF) and its feminist equality advocacy has played in shaping the Court’s jurisprudence at each stage of section 15’s life. We then look to the future of section 15, suggesting that recent jurisprudence indicates the emergence of a new era in equality rights at the Supreme Court characterized by a distinct turning away from section 15 arguments. We offer some preliminary comments on what this trend might mean for the future of equality rights and for the future of feminist litigation strategies under the Charter, arguing that some of LEAF’s ideas about how to pursue substantive equality under section 15 that have not been acknowledged by the Court offer promising new directions for the next chapter of section 15 jurisprudence. We conclude that while under the current state of section 15 jurisprudence equality rights may be imperilled, the promise of section 15 remains.

October 18, 2017 in Courts, Gender, International | Permalink | Comments (0)

Tuesday, October 17, 2017

Study of Gender Diversity in High Courts

Nancy B. Arrington, Leeann Bass, Adam Glynn, Jeffrey K. Staton, Brian Delgado, Staffan I. Lindberg, Gender Diversity in High Courts

Abstract

Increasing the diversity of political institutions is believed to improve the quality of political discourse and, subsequently, the quality of political outcomes. Moreover, the presence of diverse officials in positions of power signals the openness and fairness of political institutions. These benefits of diversity should be particularly acute in the judiciary, where judges are tasked with the symbolically and substantively powerful duty of interpreting and defending constitutional values. Extant scholarship suggests that well-designed appointment process can promote diversity without explicitly gendered goals, much less quotas. If correct, these proposals raise the possibility of promoting greater diversity without having to resolve politically charged debates about quotas. Yet, scholars disagree about the effects of particular design choices. Worse, estimating causal effects of institutions in observational data is particularly difficult. We develop a research design linked to the empirical implications of existing theoretical arguments to evaluate the effect of institutional change on the gender diversity of peak courts cross-nationally. Specifically, we consider the effect of an increase (or a decrease) in the number of actors involved in the appointment process. We find mixed results for any existing claim about the role of appointment institutions play in increasing diversity. Yet we also find that any institutional change seems to cause an increase in the gender diversity of peak courts.

From the Intro:

The presence of more women on peak courts may in influence the law, and by implication, core matters of public policy, either because women understand the law in particular contexts or evaluate facts differently than men (e.g. Boyd, Epstein and  Martin, 2010; Glynn and Sen, 2015; Collins, Manning and Carp, 2010) or because male judges behave differently when they share the bench with women (Boyd, Epstein and Martin, 2010; Farhang and Wawro, 2004). It is also possible that more diverse courts promote the legitimacy of the justice system (e.g. O'Connor and Azzarelli, 2011; Kenney, 2013), and increased gender diversity on important courts may be conceived of simply as an unalloyed normative good (e.g. Malleson, 2003).

October 17, 2017 in Courts, Gender, International, Judges | Permalink | Comments (0)

Thursday, October 12, 2017

Women Judges in Pakistan

Livia Holden, Women Judges and Women's Rights in Pakistan, 7 Onati Socio-Legal Series (2017).

Abstract:

Although the first appointment of women judges in Pakistan dates back to 1974, the significant appointment of “lady judges” in the past decade has caused a jump in female representation in the judiciary to more than one third in family courts – a quiet move that sends a message of adherence to the principle of gender equality as per the international treaties to which Pakistan is signatory. By investigating the everyday interactions and preoccupations of women judges in their daily management of justice, this paper explores the socio-legal reception of the human rights discourse from the perspective of the female judges. The challenge in this scenario is whether this change will only be formal or whether it will also lead to substantial and accountable justice. The findings here additionally elucidate how the global agenda impacts local expectations and conceptualizations of rights within and beyond the state.

Introduction:

According to statistics from Pakistan’s Law and Justice Commission (2009-2013), women now represent at least 1/3 of the judiciary in family courts in Pakistan. This figure makes Pakistan the country with the greatest number of women-appointed judicial officers among common law legal systems in Muslim majority states.1 Given the overall scarcity of information—not only in Pakistan but throughout the world—regarding modalities of judicial appointments (especially as concerning social diversity), this figure should be taken with a certain degree of caution. Nevertheless, it seems to be a significant indicator of an increasing awareness regarding gender representation in the judiciary, which is not, however, the primary focus of this paper.2 On the basis of qualitative data positioned on a national level by including state law and relevant legal precedents, this paper addresses the main concerns of women judges in Pakistan in their daily professional lives. This data assists in understanding how the global agenda of women’s rights is received and implemented in Pakistan. * * * 

In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan among the three most dangerous countries for women “due to a barrage of threats ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same report also signaled that 90% of women in Pakistan are exposed to some form of domestic violence. Even though our fieldwork experiences suggest that such quantitative data require scrutiny, these should nevertheless be considered as components of the social framework in which female judges work in Pakistan.

October 12, 2017 in Courts, Family, International, Judges | Permalink | Comments (0)

Monday, October 9, 2017

New legislation: The Women, Peace and Security Act

The Women, Peace and Security Act Guarantees Women a Seat at the Table

New legislation making its way to President Trump’s desk would guarantee women a seat at peace and security decision-making tables.

 

The Women, Peace and Security Act—passed by the Senate in August and the House in October—mandates that federal agencies make women’s participation a priority internally and in their work on-the-ground in conflict zones around the world. The legislation, which strengthens an Obama-era executive order on women’s participation in peace and security processes, gives Congress oversight of its implementation.

 

The WPS Act is five years in the making, but it has passed at a uniquely critical time. The Trump administration—one of the most male-dominated in modern history—has already shown a tendency to erase women from strategic frameworks related to peace and security. And around the world, while tensions rise, women remain vastly underrepresented at peace-making tables and in security forces.

 

Allison Peters, former Director of Policy and Security Programs at Inclusive Security and foreign policy and defense adviser in the U.S. Senate, penned an op-ed for USA Today presenting the comprehensive case for the historic legislation:

 

Critics might note that the U.S. is dealing with numerous foreign policy challenges and security threats and argue that focusing on women’s participation would be a “soft” distraction from these priorities. However, research shows us time and again that gender diverse groups are more likely to effectively prevent and resolve conflicts in the long-term.

 

Here is the the actual text of the bill that passed and the legislative history.

 

October 9, 2017 in International, Legislation | Permalink | Comments (0)

Wednesday, October 4, 2017

Inspiring Trailblazer, Australian Judge Rosemary Balmford

Obituary: Inspiring Trailblazer for Women in Law

Rosemary Balmford moved through many professional barriers for women. She was the first woman to lecture in law at the University of Melbourne. She heard the first sex discrimination in employment case brought before the Equal Opportunity Board. She was the first woman appointed a judge of the Supreme Court of Victoria. She was also the first woman to preside over a murder trial in Victoria.

 

Rosemary Anne Balmford AM was born in Melbourne on September 15, 1933. Her parents were John and Ada Norris. Her father, Sir John, returned from serving as lieutenant-colonel in the AIF during World War II, resuming his law practice in 1945. He became a barrister and then a judge appointed to the County Court and later the Supreme Court. Her mother, Dame Ada, held the honour in her own right for her extensive charity work.

 

The law was not Rosemary's sole interest. Rosemary and Peter shared a lifelong love of travel and ornithology. They visited all seven continents, and returning from one extensive trip Rosemary commented: "I can now say we have travelled through George Bush's Axis-of-Evil," namely Iran, Iraq and North Korea. When asked the highlight of her trip, she replied: "The warmth of the Iranian people."

 

Rosemary served as secretary of the Royal Australasian Ornithologists Union (RAOU) and wrote Learning About Australian Birds (William Collins, 1981) later updated as The Beginners Guide to Australian Birds (Penguin Australia, 1990). It was not unusual for friends travelling with Rosemary and Peter to be encouraged to help them identify a bird.

 

In 1971, Rosemary was appointed as the founding executive director of the Leo Cussen Institute for Continuing Legal Education. It was at the Equal Opportunity Board, however, in 1979 that Rosemary heard the landmark sex discrimination in employment case of Deborah Wardley v Ansett. Ansett, a major domestic airline, had refused to employ the pilot Deborah Wardley because she was a woman. The board ruled that Ansett's refusal to employ Wardley was unlawful. She then became the first female commercial pilot in Australia.

 

In 1982, Rosemary was appointed as a senior member of the Commonwealth Administrative Appeals Tribunal. Later, as a judge of the County Court, Rosemary made public her view on the opening up of the professions to women. Her argument was typical of her staunch and consistent logic, namely that to exclude women wasted the abilities of half the population.

 

In 1996, when Attorney-General Jan Wade appointed Rosemary the first female Supreme Court judge of Victoria, her influence on women in the legal profession was profound.

October 4, 2017 in International, Women lawyers | Permalink | Comments (0)

Tuesday, September 26, 2017

The Gendered Impact of Family Reunification Immigration Rules under International Law

Wojciech Burek, Family Reunification Regulations and Women: The Perspective of International Law,  36 Polish Yearbook of International Law 83 (2016)

The concept of family reunification is well established in contemporary migration laws, at both the national and international levels. Focusing on international and EU law, in this article I argue that while existing provisions on family reunification are formulated in neutral language, from the gender point of view the enforcement of these substantively neutral rules may, in certain situations, result in discrimination, or at least bring about negative consequences, with respect to women in cases both when they are the sponsors of migration or the bearers of consequences of male migration. Following presentation of the international legal framework on family reunification and the relevant international jurisprudence, I deal with some rather common aspects relating to the personal scope of family reunification regulations, covering only the issues of who can, and who cannot, join their family member(s)/sponsor(s) in a foreign country (i.e. the unmarried minor rule, excluded forms of marriages – polygamous and forced marriages - and age limits). Some procedural aspects of family reunification are then dealt with (waiting periods, delays in proceedings, and end of a relationship as a cause for termination of residence rights.). These issues are examined with respect to concerns that they may cause indirect, or even direct, gender discrimination in some cases, while in others they may affect women more negatively than men.

September 26, 2017 in Family, International | Permalink | Comments (0)

Tuesday, September 19, 2017

Senate Bill Appropriates Money for International Gender Equality

 

The Senate appropriations bill, Senate Bill 1780, the "Department of State, Foreign Operations and Related Programs Appropriates Act, 2018," includes provisions for "gender equality," defined to include women's leadership, protection against violence and extremism, and for the Malala type efforts in Pakistan/Afghanistan and Boko Haram.  

 

Gender Equality

Sec. 7059. (a) Gender Equality.—Funds appropriated by this Act shall be made available to promote gender equality in United States Government diplomatic and development efforts by raising the status, increasing the participation, and protecting the rights of women and girls worldwide.

(b) Women’s Leadership.—Of the funds appropriated by title III of this Act, not less than $50,000,000 shall be made available to increase leadership opportunities for women in countries where women and girls suffer discrimination due to law, policy, or practice, by strengthening protections for women’s political status, expanding women’s participation in political parties and elections, and increasing women’s opportunities for leadership positions in the public and private sectors at the local, provincial, and national levels.

(c) Gender-Based Violence.—

(1) (A) Of the funds appropriated by titles III and IV of this Act, not less than $150,000,000 shall be made available to implement a multi-year strategy to prevent and respond to gender-based violence in countries where it is common in conflict and non-conflict settings.

(B) Funds appropriated by titles III and IV of this Act that are available to train foreign police, judicial, and military personnel, including for international peacekeeping operations, shall address, where appropriate, prevention and response to gender-based violence and trafficking in persons, and shall promote the integration of women into the police and other security forces.

(2) Department of State and United States Agency for International Development gender programs shall incorporate coordinated efforts to combat a variety of forms of gender-based violence, including child marriage, rape, female genital cutting and mutilation, and domestic violence, among other forms of gender-based violence in conflict and non-conflict settings.

(d) Women, Peace, And Security.—Funds appropriated by this Act under the headings “Development Assistance”, “Economic Support Fund”, “Assistance for Europe, Eurasia and Central Asia”, and “International Narcotics Control and Law Enforcement” should be made available to support a multi-year strategy to expand, and improve coordination of, United States Government efforts to empower women as equal partners in conflict prevention, peace building, transitional processes, and reconstruction efforts in countries affected by conflict or in political transition, and to ensure the equitable provision of relief and recovery assistance to women and girls.

(e) Women And Girls At Risk From Extremism.—

(1) ASSISTANCE.—Of the funds appropriated by this Act under the heading “Economic Support Fund”, not less than $19,000,000 shall be made available to support women and girls who are at risk from extremism and conflict, and for activities to—

(A) empower women and girls to counter extremism;

(B) address the needs of women and girls adversely impacted by extremism and conflict;

(C) document crimes committed by extremists against women and girls, and support investigations and prosecutions of such crimes, as appropriate;

(D) increase the participation and influence of women in formal and informal political processes and institutions at the local level and within traditional governing structures;

(E) support reconciliation programs between impacted minority, religious, and ethnic groups and the broader community;

(F) develop and implement legal reforms and protections for women and girls at the national and local government levels; and

(G) create and sustain networks for women and girls to collectively safeguard their rights on a regional basis.

(2) CLARIFICATION AND NOTIFICATION.—Funds made available pursuant to paragraph (1)—

(A) are in addition to amounts otherwise available by this Act for such purposes; and

(B) shall be made available following consultation with, and subject to the regular notification procedures of, the Committees on Appropriations.

(f) Coordination.—Funds made available for the purposes of this section shall be administered in coordination with the Ambassador-at-Large for Global Women’s Issues, Department of State, and the Senior Coordinator for Gender Equality and Women’s Empowerment, USAID.

 

And see Sec. 7042

Boko Haram.—Funds appropriated by this Act that are made available for assistance for Cameroon, Chad, Niger, and Nigeria—

(1) shall be made available for assistance for women and girls who are targeted by the terrorist organization Boko Haram, consistent with the provisions of section 7059 of this Act, and for individuals displaced by Boko Haram violence; and

(2) may be made available for counterterrorism programs to combat Boko Haram.

 

September 19, 2017 in International, Legislation | Permalink | Comments (0)

Thursday, September 7, 2017

Women on Corporate Boards: A Comparative Appraisal of Italian Law

Paola Monaco &  Angelo Venchiarutti,  Women on Corporate Boards: An Appraisal of Italian Law, European Business Law Review (forthcoming).

Abstract

Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards.

September 7, 2017 in Business, International, Legislation | Permalink | Comments (0)

Gender Quota Laws for Political Representation in Latin America

Lucia Martelotte, 25 Years of Quota Laws in Latin America

Abstract

In the last two decades, the majority of Latin American countries approved quota laws with the goal of reducing gender inequalities in the political arena and guaranteeing the effective fulfilment of women's political rights. The functioning and effectiveness of these mechanisms vary according to the design of the regulations and their linkages to the electoral system. In spite of advances, important challenges remain. In light of this, the debate on the political participation of women has evolved from quotas to parity. However, the discussion must not be approached from a purely numeric perspective or restricted to the public sphere; other dimensions of women's autonomy (physical and economic) must be taken into account. It is only once the conditions necessary for women to exercise their full autonomy are in place that achieving gender parity in democracy will be possible.

September 7, 2017 in International | Permalink | Comments (0)

Wednesday, September 6, 2017

Women's Rights and Fiscal Justice: Tax Policy from a Human Rights Perspective

Chiara Capraro, Women's Rights and Fiscal Justice

This article makes the case for tax policy to be considered from a human rights perspective. In a context of increasing economic inequality and austerity programmes cutting back on services and social protection measures, it is critical for human rights advocates to take up tax as an issue for the full realisation of human rights. In particular, given the gendered consequences of lack of funding to realise human rights, tax policy is of particular importance to women's rights advocates and feminists globally. Whether it is the impact of indirect taxes on women’s income, how tax policy influences labour market participation for women or the consequences for women’s rights of large scale corporate tax dodging, our advocacy would benefit from a deeper understanding of tax as human rights issue.

September 6, 2017 in International | Permalink | Comments (0)

Thursday, August 31, 2017

A Feminist Conflict-of-Laws Approach to the Comfort Women Agreement

Karen Knop & Annelise Riles, Space, Time, and Historical Injustice: A Feminist Conflict-of-Laws Approach to the "Comfort Women" Agreement, 102 Cornell L. Rev. 853 (2017)

After more than twenty years of worldwide feminist activism, transnational litigation, and diplomatic stalemate, on December 28, 2015, Japan and South Korea announced a historic agreement intended to provide closure to the so-called “Comfort Women issue”—the issue of what Japan must do to atone for the sexual enslavement of up to 200,000 women from throughout Asia in service to the Japanese troops before and during World War II. Reactions to this landmark agreement continue to be mixed, and the question for many is whether it will hold. One challenge is how to respect the scale and systematicity of the crimes without imposing a single narrative, or without projecting an overdetermined understanding of the gendered past onto the future. We offer an analysis of this question in a wider lens: how to address grave historical injustices when legal claims and advocacy goals spread and metamorphose not only over time, but also across jurisdictions.

 

Focusing on one high profile and particularly contentious provision of the agreement, concerning a privately erected statue honoring the Comfort Women outside the Japanese embassy in Seoul, we first show that the usual questions about settlements for historical injustices—whether they will achieve closure and what kind—can productively be traded for attention to where and when closure and reopening occur.

 

Borrowing our analytical lens from conflict of laws, we refine the problem as a manifestation of a pervasive issue for feminist justice in a globalized world that we call “spatio-temporal diffusion.” We argue that a novel response to this diffusion of historical injustices can be grounded in conflict-of-laws techniques. Using the hypothetical of a case brought by Korean Comfort Women in California, we redescribe the field’s techniques for dealing with time across space as a matter of what we term the “sequencing” of different spatio-temporal horizons. This approach resonates with, but also goes a step beyond, the arguments of certain feminist social theorists that feminist politics must be polytemporal. In the mode of an interdisciplinary experiment, we deploy the conflicts technique of sequencing spatio-temporal horizons as a more specified and hopeful approach to a feminist future.

August 31, 2017 in International | Permalink | Comments (0)

Monday, August 28, 2017

Prof Julie Suk to Speak on Constitution Day on "The Constitution of Mothers" and a New ERA

The Center for Constitutional Law at the University of Akron School of Law will host Professor Julie Suk as the featured Constitution Day speaker on September 18, 2017.

Professor Suk's talk is entitled "The Constitution of Mothers:  Gender Equality and Social Reproduction in the United States and the World."  

One of the largest mobilizations in recent American history was the Women’s March of 2017, with  millions of participants in U.S. cities and in concurrent events throughout the world.  Despite diverse backgrounds and agendas, the marchers unified around the general theme of equality for women.   It was a constitutional moment:  The unity principles included a call for a new Equal Rights Amendment to the U.S. Constitution, and in March 2017, Nevada became the first state to ratify the ERA 35 years after the 1982 deadline had lapsed.  Nevada’s ratification raises questions about the legitimacy of post-deadline ratification of a Congressionally adopted constitutional amendment, as well as deeper normative questions about the desirability and  meaning of constitutionalizing equal rights for women in the 21st century.   If Nevada’s ratification is valid or can be made valid by Congressional action, two additional states’ ratifications will put the ERA in the U.S. Constitution.  Would such an amendment change what the law does, or would it be merely symbolic? 

This lecture will argue that an ERA is needed in the twenty-first century, but for reasons different from those that motivated the 1972 adopters.  Meanwhile, most constitutions around the world explicitly guarantee sex equality, and many of these constitutions also guarantee special protections for mothers.  Drawing on global constitutionalism, this lecture argues that constitutional equality for women must go beyond prohibiting sex distinctions in the law, and reach the disadvantages faced by largely by women due to the burdens of raising the next generation of citizens.  The challenge of making the constitution regulate social reproduction, however, is illustrated by the history of women’s participation in advocating for the Prohibition Amendment and its repeal, both of which engaged the politics of the home and child-rearing.  The legacy of women’s past struggles to change the Constitution, in light of contrasting narratives outside the United States, should inform our present gender equality efforts. 

Full details here:  Download ConLawSpeakerSukF2017

Julie Suk is a Professor of Law at the Cardozo School of Law – Yeshiva University in New York, where she has taught since 2005.  She is a leading scholar of comparative equality law. Her research brings a transnational perspective to equality and antidiscrimination law in the United States, drawing on primary legal materials in multiple languages from multiple jurisdictions.  Professor Suk's articles compare European and American approaches to a broad range of issues in law and public policy, such as the enforcement of antidiscrimination norms in various legal systems around the world, holocaust denial, maternity leave, and women’s equal representation in political and corporate leadership positions.   Professor Suk’s current research projects focus on women, work, and family in comparative constitutional law, as well as education rights in the context of socioeconomic inequality.  Representative publications include: An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home (Yale Journal of Law and Feminism), Are Gender Stereotypes Bad for Women?  Rethinking Antidiscrimination Law and Work-Family Conflict (Columbia Law Review), Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict (Stanford Law Review), Gender Parity and State Legitimacy: From Public Office to Corporate Boards (International Journal of Constitutional Law). 

 

August 28, 2017 in Conferences, Constitutional, Family, Gender, International, Law schools | Permalink | Comments (0)

Friday, August 25, 2017

The History of Abortion Law in Victoria

Bronwyn Taylor, Judge-Made Law: The "Menhennit Ruling" and Abortion Law Reform in Victoria, 88 Victorian Historical J. (June 2017)

Women’s right to access abortion has historically been seen as controversial by lawmakers, secular and religious. Th is article examines the sources of change in Victoria’s abortion laws, and in particular the role of judicial law making. Th e late 1960s was a time of challenges to class, gender and political inequalities, locally and internationally. In Victoria during this period, with politicians unwilling to introduce abortion law reforms despite substantial community support, a conventional — even conservative — judicial ruling in 1969 changed the law in Victoria at one stroke and provided a model of legal access to abortion for other jurisdictions for the next 40 years. Th e article examines the context for, and consequences of, the decision of Mr Justice Menhennit in R v Davidson, the ‘Menhennit ruling’.

August 25, 2017 in Abortion, International, Legal History | Permalink | Comments (0)

Tuesday, August 22, 2017

Enforcing Masculinities at the Borders

Many thanks to guest blogger Prof. Jamie Abrams for blogging with us this summer.

As immigration reform debates heat up, I am reminded of a project I undertook several years ago to examine how U.S. immigration laws and policies reflect governing dominant masculinities. In Enforcing Masculinities at the Borders, I noted how sparse historical work had considered the masculinities dimensions of immigration law. I argued that unpacking the masculinities dimensions of our paradigmatic shifts in immigration policy might offer an additional—even unifying—dimension to previously disparate and divergent immigration laws worthy of further research.  This thesis feels more worrisome and relevant than ever.

Masculinities, the study of how men relate to each other and construct their identities, can be used as a powerful sociological and legal tool to understand institutions, power structures, and human relations. Recent events underscore that it is critical to make masculinities visible in immigration law to understand how dominant masculine imperatives shape citizenship itself. Immigration laws and policies reinforce dominant masculinities at the border by excluding marginalized masculinities and admitting those who comport with dominant masculinity norms. The state is not just enforcing immigration laws at its borders but it also enforces masculinity norms. For that reason, we should approach immigration reform with great caution and concern within the women’s movement, more vigilant to immigration reform than preciously understood.

Examining the masculinity underpinnings of historical immigration trends sets up the importance of a modern inquiry to understand how current dominant masculinities shape and drive immigration law and policy.  The terrorist attacks of September 11, 2001, dramatically catalyzed sweeping changes in immigration law and policy.  While September 11, 2001, offered a message of national security imperatives, critically the seeds of today’s anti-immigration activism and rhetoric began earlier with shifting masculinities and escalating nativism.  Indeed one of the key defining characteristic of this generation of masculinities in crisis is its resorting to anger, even violence, in response to threatened masculinities. This can be viewed as an expression of hyper-masculinity or an “explosive rage of the twenty-first century” as masculinities scholar Michael Kimmel calls it. The idea that some subsection of white men perceive themselves as the “real victims in America” is heavily influencing modern immigration policy and political rhetoric. 

The dominant masculinity imperative displayed by some political groups is not just “anti-immigrant” for security reasons or to shore up our nation’s borders. These reform efforts are driven – at bottom – by a toxic masculinity, which seeks to “other” women, the LGBTQ community, and immigrants by pushing a toxic masculinity into the political foreground. This masculinities lens reveals that the feminist community should watch and engage in the immigration debate carefully, recognizing that immigration law reflects the dominant masculinities of our time. 

Photo

Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism.

August 22, 2017 in International, Masculinities | Permalink | Comments (0)

Monday, July 17, 2017

New Project to Explore Whether Traditional Female/Male Distinctions are Outdated in Modern Law

Is Male/Female Gender an Outdated Concept in Law?

Academics are set to explore whether a person’s gender is still relevant in modern law.

The study will examine how gender is relevant to legal interactions and documents such as passports and birth certificates

Experts in law, political theory and social psychology will begin a comprehensive three-year project in May 2018, to investigate how sex and gender are defined and regulated for legal purposes.

They will look at the problems the current system raises for many people who do not identify with the limited male and female categories, and the team will explore different models for reforming gender classification.

Reforming Legal Gender Identity will examine the effects on English law if the ways of determining people’s gender changed, particularly if gender became self-determined, as well as the wider implications of reform for advancing equality and diversity.

The project will investigate the implication which when gender is no longer assigned at birth, what implications this might have for single-sex schools, and gender-specific shelters and community organisations – where entry and participation are based on having a particular sex.

Professor Elizabeth Peel, of Loughborough’s School of Social, Political and Geographical Sciences, said: “The research aims to assess and generate public debate about our current system for determining legal gender.

“I am particularly excited about understanding people’s attitudes towards our gender system and whether and how people think gender could be legally recognised in different ways, or perhaps not at all.”

July 17, 2017 in Gender, International | Permalink | Comments (0)

Wednesday, July 5, 2017

Iceland Passes Law Requiring Equal Pay for Women

Iceland Law Closes Gender Gap, Pays Women as Much as Men

Now, in a major stride towards trying to close the gap in pay once and for all, the Iceland government passed a new law that requires all of their public and private companies employing above 25 people, to pay employees equally “regardless of gender, ethnicity, sexuality, or nationality,” according to a report on The Associated Press (AP) 

 

These companies will be certified by the government after they provide proof that they pay men and women, and people of all races, religions and nationalities equally, for work of equal value. There are a few other countries that have “equal-salary certificate policies,” but the AP report points out that Iceland is the first such country to mandate this for both private and public firms.
 
In Iceland, the current gender pay gap is somewhere between 14 to 18% , according to the World Economic Forum. With this new legislation, Iceland hopes to close its gender pay gap by 2022. And if the legislation is cleared by their Parliament, its Equal Pay Standard will be in force by 2020.
 
In fact, in protest of this injustice, thousands of women across Iceland staged peaceful resistance by shutting shop at work 2.38pm, because the stats about the gap suggest that their pay only technically covers their work up to that time, compared to the boys.

“Equal rights are human rights,” he said. “We need to make sure that men and women enjoy equal opportunity in the workplace. It is our responsibility to take every measure to achieve that,” said Equality and Social Affairs Minister Thorsteinn Viglundsson.

Iceland has made significant progress in trying to close their gender gap, through policies such as quotas on corporate boards and government committees, and 48 percent female representation in the Icelandic Parliament.

July 5, 2017 in Equal Employment, International | Permalink | Comments (0)

Australia: Abortion and Human Rights

Ronli Sifris & Suzanne Belton, Australia: Abortion and Human Rights, 19 Health & Human Rights J. 209 (2017)

This article adopts a human rights lens to consider Australian law and practice regarding elective abortion. As such, it considers Australian laws within the context of the right to equality, right to privacy, right to health, and right to life. After setting out the human rights framework and noting the connected nature of many of the rights (and their corresponding violations), the article shifts its focus to analyzing Australian law and practice within the framework of these rights. It considers the importance of decriminalizing abortion and regulating it as a standard medical procedure. It discusses the need to remove legal and practical restrictions on access to abortion, including financial obstacles and anti-abortion protestors. Further, it comments on the importance of facilitating access; for example, by keeping accurate health data, securing continuity of health care, increasing the availability of medical abortion, and ensuring appropriate care is provided to the most marginalized and vulnerable women.

July 5, 2017 in Abortion, International | Permalink | Comments (0)

Wednesday, June 14, 2017

CFP Gender and the Rise of the Global Right

Signs Special Issue: Gender and the Rise of the Global Right

As political events across the world have made clear, the right wing is ascendant: from the election of Donald J. Trump in the United States; to the Brexit victory in the United Kingdom; to the rise of rise of rightist, nationalist, anti-immigrant, and neo-Nazi parties across Europe; to the election of the Hindu nationalist Bharatiya Janata Party in India; to the Philippine president’s professed admiration for Adolf Hitler; to the impeachment of a democratically elected woman leader in Brazil; to the military coup and gendered crackdown in Egypt; to the virulently antigay legislation in Uganda, in which US–based Christian evangelicals played no small role. Far less studied are the myriad ways in which the global Right represents a particular politics of gender. Indeed, backlash against perceived shifts in gender and sexual norms may have partly spurred the Right’s rise. And right-wing movements have often justified themselves by invoking gender and sexuality—whether through a desire to return to or preserve “tradition” and “shared values” or by stoking anxieties about the sexual threats represented by racial, foreign, or religious others.

These developments present an urgent need for feminist theorizing, across regions and disciplines. It is of critical importance that the central role of gender and sexuality in the rise of the Right be recognized and that the voices of critique be feminist ones, including investigations of the Rights’ representational politics, its workings in discourse, mass media, human rights, law, and culture broadly conceived. We welcome submissions from all disciplines, and especially submissions that are engaging across disciplines and that are themselves inter- or transdisciplinary.

Possible areas of focus might include:

  • The gender politics of local right-wing resurgences, the transnational linkages among them, and comparative critiques of their cultures, discourses, and modes of organizing, funding, coordination, and transmission.
  • Comparisons of the present moment with past historical shifts, such as the colonial encounter, and their gendered implications for the postcolonial present.
  • The fault lines within right-wing gender politics, in which racialization determines which women are to be protected and which are threats, to be deported, jailed, or “liberated.”
  • The role of religion and religious actors in right-wing politics, and the gendered agendas they advance.
  • The Right’s use of the language of women’s rights, human rights, LGBT rights, or other rights discourses; the role of right-wing women in dignifying, legitimating, and speaking for their movements.
  • Right-wing attacks on women’s and gender studies; efforts to discredit the field and establish right-wing ideologues in academic settings.
  • Gendered life under repressive regimes; the role of networks, undergrounds, and samizdat.
  • The media politics and cyberpolitics of the Right; the discursive structures of mainstream and social media; the gendered phenomenon of the internet troll.
  • The interrelations between various gender-related crusades (e.g., the transnational antichoice movement, resistance against LGBT rights, the introduction of transphobic policies, efforts to stop antiviolence legislation).
  • Right-wing masculinities (e.g., fathers’ movements, men’s-rights movements, militarist gender ideologies, and constructions of boyhood).
  • Links between the gendered effects of global economic crises or structural adjustments and the rise of the Right.
  • The representational politics of the global Right, in literature, film, music, art, and popular culture; representations and works of literature that resist, subvert, and push back against the arguments of the new Right and its normalizers.

Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We welcome essays that make a forceful case for why the global rise of the Right demands a specific and thoughtfully formulated interdisciplinary feminist analysis and why it demands our attention now.  We seek essays that are passionate, strongly argued, and willing to take risks. The issue will be coedited by Agnieszka Graff, associate professor at the Center for American Studies at the University of Warsaw; Ratna Kapur, visiting professor of law at Queen Mary University of London; and Suzanna Danuta Walters, Signs editor in chief and professor of sociology and women’s, gender, and sexuality studies at Northeastern University.

The deadline for submissions is September 15, 2017.

Please submit full manuscripts electronically through Editorial Manager. Manuscripts must conform to the guidelines for submission.

June 14, 2017 in Call for Papers, International | Permalink | Comments (0)

Monday, June 12, 2017

SCOTUS Holds Citizenship Law for Unwed Fathers Violates Equal Protection But Denies Remedy Extending Equal Treatment

Justice Ginsburg (6-2) writing for the Court in Sessions v. Morales-Santana holds unconstitutional a federal citizenship law requiring unwed fathers of children born abroad to have previously lived in the US for 10 years, while an exception for unwed mothers required only 1 year of physical presence.  In classic Ginsburg voice, the Justice attacks facial classifications based on gender as based on outdated, and illegal, stereotypes.  Her opinion provides a good treatise summary of the law of equal protection, citing her opinion in US v. Virginia, Reed, Frontiero, Hibbs, and newly-integrating Obergefell.

However, the Court, refused to extend the one-year exception to unwed fathers, instead, requiring that both men and women be held to the 10-year standard.  Which is the danger of an equal protection analysis -- that the treatment sought will be denied or retracted rather than extended equality.

Here are the highlights of the equal protection analysis:

III
Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida (1961) (women are the“center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, (1948) (States may draw “a sharp line between the sexes”). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J. E. B. v. Alabama (1994); see, e.g. United States v. Virginia (1996) (state-maintained military academy may not deny admission to qualified women). Laws granting or denying benefits “on the basis of the sex of the qualifying parent,” our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee. Califano v. Westcott, (1979) (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).

Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Virginia; Kirchberg v. Feenstra (1981).

A
The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia, 518 U. S., at 533 (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982); alteration in original); see Tuan Anh Nguyen v. INS, 533 U. S. 53, 60, 70 (2001). Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (slip op., at 20). Here, the Government has supplied no “exceedingly persuasive justification,” Virginia, 518 U. S., at 531 (internal quotation marks omitted), for §1409(a) and (c)’s “gender-based” and “gender biased” disparity, Westcott. 

1
History reveals what lurks behind §1409 [enacted in 1940] . . . During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child. Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. “[D]ominance [of] the husband,” this Court observed in 1915, “is an ancient principle of our jurisprudence.” Mackenzie v. Hare, 239 U. S. 299, 311 (1915). See generally Brief for Professors of History et al. as Amici Curiae 4–15. Through the early 20th century, a male citizen automatically conferred U. S. citizenship on his alien wife. C. Bredbenner, A Nationality of Her Own:Women, Marriage, and the Law of Citizenship 15–16, 20–21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. . . . And from 1790 until 1934, the foreign-born child of a married couple gained U. S. citizenship only through the father....

For close to a half century, as earlier observed, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia; Wiesenfeld. In particular, we have recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.” Mississippi Univ. for Women, 458 U. S., at 725. In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed. Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, §1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.

FN 13 Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn. J. E. B. v. Alabama; see, e.g., Craig v. Boren, (1976); Weinberger.

 

June 12, 2017 in Constitutional, Family, International, SCOTUS | Permalink | Comments (0)

Thursday, May 18, 2017

French Cabinet is Fifty Percent Women

The new French President has appointed women to 50% of his cabinet, as did Canadian prime minister Justin Trudeau.

Macron Cabinet: Women are Half of France's New Ministers

French President Emmanuel Macron has unveiled a gender-balanced cabinet in accordance with an earlier pledge, with 11 of 22 posts taken by women.

Macron's Cabinet Gives Glimpse of How He Plans to Govern France

I have written about the importance of these gender quotas in institutional power structures as important to rectifying systemic gender inequality.  Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

May 18, 2017 in Gender, International | Permalink | Comments (0)