Monday, March 20, 2017
In March of 1907, Congress passed the Expatriation Act, which decreed, among other things, that U.S. women who married non-citizens were no longer Americans. If their husband later became a naturalized citizen, they could go through the naturalization process to regain citizenship.
But none of these rules applied to American men when they chose a spouse.
"It's as though she walks under his umbrella. He puts his arm around her and poof! she's a citizen," says Linda Kerber, a professor who teaches gender and legal history at the University of Iowa. "She has had the good sense to come out from these monarchies and opt for an American. She's a sensible woman, we adore her."
"Whereas an American-born woman who marries a foreign man, oh my goodness, she is disloyal," Kerber said.
When Mackenzie v. Hare — a case challenging the expatriation act that involved a woman married to a British citizen — reached the Supreme Court in 1915, the justices upheld the law, arguing that the women chose to marry knowing this was a consequence so they weren't being forced to expatriate. Then World War I began and hundreds of women found themselves affected by the law.
Once American women got the right to vote in 1920, they started lobbying lawmakers, pushing them to recognize that their citizenship should not be tethered to that of a husband. "There's a big scramble in those first two years for members of Congress to get on the good side of women and to get women to join their constituency," Kerber said. Eventually Rep. John Cable, of Ohio, introduced a bill to address the disparity. He may have been motivated by a nearing bid for re-election.
The Cable Act of 1922, also known as the Married Women's Independent Nationality Act, said women kept their citizenship if they married a man who could become a citizen even if he opted not to. "It sounds as though the Cable Act fixed it, if they married a man eligible for citizenship," Kerber says. However, "there's a lot of fine print."
These expatriated women had to petition the government to regain their citizenship, and their husband's status still played a role in theirs: if he wasn't eligible for citizenship, she could be denied. And if she lived on foreign soil for two years, she could lose her citizenship.
See also Linda Kerber, chap. 1, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship
Leti Volpp, chap. 3, Expatriation by Marriage: The Case of Asian American Women, in Feminist Legal History: Essays on Women and Law (Tracy A. Thomas & TJ Boisseau, eds).
Thursday, March 16, 2017
Katharine Gelber & Adrienne Stone, Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography
The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’. Although feminist thought has much to offer the study of this right, with some notable exceptions, feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family.
A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas.
In this chapter, we examine this debate through three lenses. First we turn to the philosophical foundations of the arguments for and against the regulation of pornography. Next we turn to the influence on law (specifically the constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.
Tuesday, March 14, 2017
Catherine Powell, Gender Indicators as Global Governance: Not Your Father's World Bank, 17 Geo. J. Gender & L. 777 (2016)
As feminism has come of age, it has powerfully instantiated itself into global governance. What are the tools feminism has borrowed – even co-opted – to embed itself within governance? Do these tools enhance or diminish the libratory potential of feminism? This paper looks at one tool – the use of quantitative indicators to advance gender equality in global governance. The paper focuses on the World Bank’s relatively new Women, Business and the Law program, as a microcosm of the recent explosion and popularity of gender indicators. *
Gender indicators are quantitative metrics that measure progress in securing gender equality. While this article views gender indicators as potentially powerful tools for reframing the discourse of law and development, it argues that in the context of the World Bank WBL program, indicators fall somewhat short, at least on feminist terms. Rather than transforming the development paradigm, the WBL gender indicators insert feminism into the prevailing (male-oriented) framework. As the WBL program itself admirably acknowledges, due to methodological limitations, its gender indicators focus on formal (not substantive) equality, the formal economy (without addressing the informal sector), and positive law (with limited coverage of customary law). By emphasizing the formal legal and economic spheres in this way, the WBL gender indicators largely ignore the private realm--(re)entrenching the public/private divide that feminist scholars have long criticized.
Wednesday, February 22, 2017
Rosalien Diepeveen, Tineke Lambooy & Remko Renes, The Two-Pronged Approach of the (Semi) Legal Norms on Gender Diversity: Exploratory Empirical Research on Corporate Boards of Dutch Listed Companies
In this article, two different perspectives on diversity and gender equality in boards of listed companies in The Netherlands are discussed: first, the diversity perspective which focuses on better decision-making capabilities of gender-diverse teams (i.e. the economic perspective), and second, the gender equality perspective which aims to realise gender equality in all levels of society pursuant to international human rights treaties and national law (i.e. the rights-based perspective).
This two-pronged approach is presented as follows: on the basis of a literature study and desk research, the authors first set out the views discussed in the extant literature on the economic perspective and, next, the legal context applicable to the rights-based perspective. Subsequently, the application in practice of these two perspectives are tested by analysing unique empirical data collected by the authors from listed companies in The Netherlands.
The empirical data are collected in two studies assigned by the Dutch Corporate Governance Code Monitoring Committee (the Committee) to the authors in 2014 and 2015. This Committee annually reports on the compliance by listed companies with the Dutch Corporate Governance Code (the Code). One of the areas of concern is diversity in corporate boards as, since 2008, the Code requires that companies have a policy to realise a diverse board composition, gender being one of the indicators. The Code applies on a comply or explain basis.
The empirical study revealed that Dutch companies, in their annual reporting on their board diversity policies, often referred to the Dutch corporate law provision concerning the gender quota. This provision requires of large companies that their corporate boards (both the board of directors and the supervisory board) comprise at least 30 per cent women and at least 30 per cent men. Like the Code, this legal provision also applies on a comply or explain basis. This law had been enacted for a limited period of time, i.e. from 2013 until 2016, but a legislative proposal is pending to extend the application of this quota provision until 2020.
The authors discovered that the two perspectives (i.e. the economic and the rights-based perspectives) are often mixed up by companies, government representatives and institutions, and other parties (together: stakeholders) who deal with the theme of (gender) diversity in corporate boards. In this article, the authors elaborate on these two perspectives, raise questions in regard to the application of the (semi-)legal norms in this area, and share innovative findings regarding the measures taken by progressive Dutch listed companies in order to realise a diverse board composition, and in particular to comply with the statutory quota on female board representation.
Tuesday, February 21, 2017
Joanna Kallinosis, Refugee Roulette: A Comparative Analysis of Gender-Related Persecution, 6 DePaul J. Women, Gender & L. (2017)
This essay examines the existing law regarding gender related persecution and the burden imposed on female asylum applicants to fit their claims within the circumscribed notion of a refugee within Immigration law of the United States of America. Such difficulties are contrasted with the Canadian Immigration system, where women enjoy greater freedom in the interpretation of requisites necessary to be granted asylum. Section I of this essay explores the problems women face in gaining asylum in the United States. Section II of this essay will analyze the conflicting claims and claimants. Section III of this essay will explore past trends in asylum law; discuss the framework for evaluating asylum claims under current US asylum law; analyze the competing judicial interpretations of asylum law and discuss the inconsistency of judicial decisions. Section IV of this essay will discuss the projection of future trends. Section V of this essay will propose an amendment to the Refugee Act to include a Sixth category of gender or sexual persecution.
Monday, February 20, 2017
Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G: Evolving Standards and Fair Application of the Law, 22 Southwestern J. Int'l Law 1 (2016)
I do not mean to diminish the importance of the A-R-C-G- precedent, a long-awaited and hard-fought victory. Issued by the Board of Immigration Appeals (BIA or Board), the decision constitutes binding precedent for immigration judges (and asylum officers) across the country who often have the final word in these life or death matters because adverse decisions are not often appealed, and if appealed, the vast majority are upheld. For thirteen years, from the vacating of the well-known and controversial Matter of R-A- decision denying asylum to a domestic violence survivor in 2001, to the issuance of the A-R-CG- decision in 2014, immigration judges and asylum officers adjudicated domestic violence asylum claims without the benefit of jurisprudential (or regulatory) guidance.
Abstract: Sweden is widely considered to have one of the most equal and gender-equal societies in the world. But the Swedish society is also one in which the Labour Court can find discrimination when a 60-year-old ‘Swedish’ ‘white’ woman fails to get a job interview – yet not when workers call a colleague of Gambian background ‘blackie’, ‘big black bastard’, ‘the African’, and ‘svartskalle’, or a man of Nigerian background ‘Tony Mogadishu’ and ‘Koko stupid’. In this article, I will try to explain the logic behind these positions. I will also suggest an extended jurisprudential methodology that might help to prevent laws and the legal system from reinforcing societal processes of racialization. In this article I will argue that it is necessary to develop the legal methods to make it possible to forestall and prevent racism. To prevent everyday racism in the way intended by the law in books, the courts must take into account the living law and the law in action. If the courts are allowed to continue applying the law according to their whim, without even considering their position as representatives for the power of dominant ‘white’ groups over subordinated people of colour, then it is obvious that the living law that is the dominant discourse of ‘white’ normalcy will never change.
Sarah Iqbal, Asif Mohammed Islam, Rita Ramalho, Alena Sakhonchik, Unequal Before the Law: Measuring Legal Gender Disparities Across the World
Abstract:Several economies have laws that treat women differently from men. This study explores the degree of such legal gender disparities across 167 economies around the world. This is achieved by constructing a simple measure of legal gender disparities to evaluate how countries perform. The average number of overall legal gender disparities across 167 economies is 17, ranging from a minimum of 2 to a maximum of 44. The maximum possible legal gender disparities is 71. The measure is found to be correlated with other measures of gender inequality, implying the measure does capture gender inequality while also differing from preexisting measures of gender inequality. A high degree of legal gender disparities is found to be negatively associated with a wide range of outcomes, including years of education of women relative to men, labor force participation rates of women relative to men, proportion of women top managers, proportion of women in parliament, percentage of women that borrowed from a financial institution relative to men, and child mortality rates. Subcategories within the legal disparities measure help to uncover specific types of legal disparities across economies.
Thursday, February 16, 2017
Aisling Swaine, Law and Negotiation: A Role for a Transformative Approach, Global Policy Volume 7, Issue 2, May 2016, 282-287
Abstract:Feminist critique of negotiations that aim to bring about peaceful political settlements has consistently pointed to the glaring absence of the critical analysis of and response to gender relations as part of both the modus operandi and substantive output of those processes. Just as war is a gendered phenomenon (working off gender relations that subordinate women), so too the processes that respond to it and aim to negotiate its end and create an aftermath, are inherently gendered. Where the goal is a peace that works for ‘everyone’, then negotiation needs to respond to structural gendered conditions that limit the potential that negotiation holds for women. The concept of transformation has been espoused by feminists as key to altering the structural inequalities that determine a systemic gendered order that works to deprivilege women and women’s interests. As a concept, ‘transformation’ holds great potential to regenerate processes of negotiation towards promoting women’s ability to have agency over their lives. This article begins a consideration of what transformation might mean for the practice of negotiation and how it might be advanced to make negotiations responsive to gender relations so that a peace that serves women as well as men is worked towards.
Tuesday, February 7, 2017
Tristin Green, American is from Venus, France is from Mars: Pinupus, Policing, & Gender Equality, Employee Rgts & Employment Policy J (forthcoming)
Professor Tristin Green shows in this Essay that current portrayals of differences between American and French harassment law are incomplete. They overlook important history of harassment law in the United States and miss the extent to which American law has been and continues to be shaped by concerns very similar to those articulated by the French in devising their harassment law. To reveal the common thread of concern, Professor Green uncovers the seeds of the limits placed on employer liability for harassment by the United States Supreme Court in the 1980s and 1990s, and digs beneath the doctrinal cover of “because of sex” in Title VII cases today. She shows judges in the United States relying on the “because of sex” requirement to prevent Title VII from disrupting exclusionary and subordinating work cultures for the very same reasons that French law was originally narrowly conceived. American judges in these cases see harassment as a problem of interpersonal intrusion (if not violence) first and of workplace discrimination second. Most fundamentally, they see employers as mere police officers of individuals who engage in harassment, and they resist a construction of the law that would require employers to alter male-dominated work cultures.
Seeing this similar thread of concern and how it restricts the reach of harassment law in the United States is important to understanding the equality project in both countries. France and the United States both face significant hurdles to developing a harassment law that will alter workplace cultures in ways that further integration and equality. If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective.
Julie Suk, An Equal Rights Amendment for the Twenty-first Century: Bringing Global Constitutionalism Home, Yale J. Law & Fem. (forthcoming)
From the Abstract:[T]his Article proposes a new vision of the ERA’s legal function, drawing on the experience of global constitutionalism. Focusing on countries that adopted constitutional amendments on sex equality after the ERA’s failure, this Article shows how the constitutional right to sex equality can promote gender balance in positions of political and economic power, combat practices that disadvantage mothers in the workplace, and shift family care policies to increase fathers’ participation in childcare. In Europe, constitutional sex equality amendments since the 1990s go beyond outlawing sex discrimination; these new amendments engender and legitimize legislative efforts to disrupt the traditional gendered division of roles in the family and public spheres. Constitutional courts in Germany and France have construed these amendments as articulating actual equality between women and men as a principle by which the constitutional order’s legitimacy is measured, rather than as an individually enforced right. In the United States, there are some synergies between European constitutional innovations in gender equality and public policies that are emerging piecemeal at the state and local level.States are leading the way in legislating pregnant worker fairness, paid parental leave, and childcare. A motherhood movement and a wide range of actors from across the political spectrum are driving these new laws. These developments can shape an updated vision of constitutional sex equality for the United States. Taking inspiration from global constitutionalism, and recognizing the potential of state constitutionalism, this Article identifies the emerging new infrastructure of social reproduction — rather than antidiscrimination — as the normative core for the twenty-first-century ERA.
Thursday, February 2, 2017
Helen Irving, What is a Citizen?, the concluding chapter of the book, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (Cambridge University Press 2016).
Explains the history of citizenship-stripping (“marital denaturalisation”) from women who married foreign men (and the parallel conferral, by many countries, of the husband’s citizenship: “marital naturalisation”), a legal practice that was followed in virtually every country in the world between the early-to-mid nineteenth and the mid-twentieth century (and ultimately repudiated in the 1957 UN Convention on the Nationality of Married Women). The book locates this practice in the formation of modern citizenship laws and explains it as an aspect of the emergence of modern international relations. Its concluding chapter is a reflection on what this history reveals about the nature of citizenship. It challenges theories of citizenship as rights and citizenship as participation, and offers an ‘existential’ defence of citizenship that prioritises protection of the citizen on the part of the state.
Wednesday, February 1, 2017
Claudia Martin, Update on Gender Parity at the Human Rights Council
On November 8, I published Taking-stock: The Human Rights Council and Gender Parity in Special Procedures after 10 years in this blog. The Article was also cross-posted at the Human Rights Brief. To complement my article, the Human Rights Brief recently interviewed Ambassador Marta Maurás Pérez from Chile. Ambassador Maurás is a pioneer for gender parity in the UN Human Rights Council (HRC). As the only woman in the 2015 HRC Consultative Group, she was a leader in the Consultative Group’s creation of the 2015 Gender Parity Guidelines. She continues to work to increase the number of women holding special procedures positions. The interview with Ambassador Maurás discusses her dedicated work on closing the gender gap within the UN and around the world. In addition, she discusses the challenges ahead to ensure that gender parity becomes mandatory in the work of the HRC. The full interview is posted at the Human Rights Brief. I hope her words encourage us to continue our advocacy to promote gender parity at the HRC and other international tribunals and organs.
Monday, January 30, 2017
Russia's parliament voted 380-3 on Friday to decriminalize domestic violence in cases where it does not cause "substantial bodily harm" and does not occur more than once a year.
The move, which eliminates criminal liability in such cases, makes a violation punishable by a fine of roughly $500, or a 15-day arrest, provided there is no repeat within 12 months.
The bill now goes to the rubber-stamp upper chamber, where no opposition is expected. It then must be signed by President Vladimir Putin, who has signaled his support.
Kremlin spokesperson Dmitry Peskov told journalists that family conflicts do "not necessarily constitute domestic violence."
The passage by the parliament, or Duma, reverses a ruling by the Supreme Court last year, subsequently backed by parliament, that decriminalized battery that does not inflict bodily harm, but retained criminal charges involving battery against family members. That reform is effectively reversed by Friday's vote.
Tuesday, January 17, 2017
Female Judges Alone are Not a Sufficient Condition for Promoting Women's Rights: The Example of Ghana
Josephine Dawuni, To Mother or Not to Mother: The Representative Roles of Women Judges in Ghana, J. of Africa Law.
Abstract:Feminist scholars have debated questions of gender and judging by focusing on variables such as representation, difference, diversity and legitimacy. While illuminating, most of these studies are by scholars in the global north. More research is needed to understand issues of gender and judging in the global south. This article adds to existing literature by asking whether women judges promote women's rights. Through in-depth interviews with women judges in Ghana, the article demonstrates that women judges do promote women's rights. The article presents a new method of analysis: exploring the dichotomy between direct and indirect modes of representing women's rights. Recognizing the importance of substantive representation and the contributions of female judges in promoting women's rights, it argues that female judges are not a sufficient condition for promoting women's rights. Necessary conditions include laws guaranteeing women's rights, working partnerships with women's civil society organizations and an enabling socio-cultural climate.
Monday, January 9, 2017
I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016). It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.
Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.
“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.
A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).
This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.
Gender quotas have been highlighted in several places recently, including:
The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"
The ABA Rule mandating diverse CLE panels
Wednesday, November 9, 2016
SCOTUS Hears Equal Protection Challenge to Different Citizenship Requirements for Child Born to Unwed Fathers v. Unwed Mothers
The case set for oral argument today is Lynch v. Morales-Santana
Whether sections 301 and 309 of the Immigration and Nationality Act of 1952 violate the Fifth Amendment’s guarantee of equal protection by requiring unwed citizen fathers to satisfy substantially more burdensome physical presence requirements than unwed citizen mothers in order to transmit derivative citizenship to their foreign-born children.
Whether the court of appeals properly remedied the equal protection violation by extending to unwed citizen fathers of foreign-born children the same rights available to similarly situated unwed citizen mothers.
Here is the Second Circuit's opinion below, finding an Equal Protection violation.
Friday, October 28, 2016
This was the topic of a paper recently published in Akron Law's open-access constitutional law journal, ConLawNOW, by our visiting scholar from Japan.
Wednesday, October 26, 2016
Subversive feminist action is alive and well these days in Iceland.
Monday, August 8, 2016
The Irish project Northern/Irish Feminist Judgments: Judges' Troubles and the Gendered Politics of Identity builds upon the work of the feminist judgment project completed at Durham and Kent and which integrated feminist theory and judicial method, re-writing influential judgments from feminist perspectives. The project will produce an anthology of re-written judgments from Northern/Ireland as well as innovative web resources with materials of use to both academics and civil society. Bringing together academic partners at institutions across the UK and Ireland including the Law Schools at Kent, LSE, UCD, UCC, Queen's Belfast, and the University of Ulster, with solicitors, barristers and civil society groups, the project creates a broad new community of Irish feminist scholars around an ambitious Northern/Irish Feminist Judgments Project. The project will create tangible resources which can be used to engender a societal dialogue about legal decision-making and social change, developing dynamic resources for future research and teaching in judicial studies. The project focuses on the gendered political roles of judges in contexts of transition from conflict, colonialism and religious patriarchy.