Gender and the Law Prof Blog

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

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)

Wednesday, May 17, 2017

Comparing Legislative versus Judicial Abortion Laws

Noya Rimalt, When Rights Don't Talk: Abortion Law and the Politics of Compromise,  28 Yale J. Law & Feminism 328 (2017)

This Article draws attention to the significance of rights-talk in shaping proper abortion legislation. It engages with ongoing debates regarding the wisdom of Roe v. Wade’s judicially imposed, strict rights-based approach to legal abortion. As the issue of abortion remains extremely controversial in American politics, it has been argued that the Supreme Court’s rights-based rhetoric, coupled with its “undemocratic” judicial imposition of a resolution to the issue, played a central role in triggering the ongoing conflict over abortion. Legal scholars often rely on comparative examples in an attempt to argue in favor of legislative and conciliatory policy solutions to the issue of abortion.

This Article questions the superiority of legislative solutions to abortion by providing a critical comparative account of abortion legislation that seems to exemplify precisely the sort of compromise-based solution advocated by critics of Roe v. Wade’s judicially created right to abortion. It critically analyzes the give-and-take process in the Israeli legislature that gave birth to the country’s abortion law. The Article argues that the Israeli case study provides a cautionary tale of a legal system in which abortion regulation was decided exclusively by legislators, rather than judges, which resulted in legislation devoid of any concept of individual rights.

The Article concludes by exploring a number of additional comparative examples outside of Israel. Focusing specifically on Canada, Germany, and France, it illustrates how a broad comparative perspective is useful in drawing attention to the roles of courts and legislatures in shaping abortion policies, as well as to the disguised costs of abortion compromises.

May 17, 2017 in Abortion, International, Legislation | Permalink | Comments (0)

Friday, May 5, 2017

How Women Could Save the World: Questions of International Law, Equality Theory, and Feminism

Catherine Powell, How Women Could Save the World, If Only We Would Let Them: From Gender Essentialism to Inclusive Security, 28 Yale J. L. & Feminism 271 (2017)

Abstract

We increasingly hear that empowering women and placing them in positions of leadership will lead to a safer, more prosperous world. The UN Security Council’s groundbreaking resolutions on Women Peace, and Security (WPS) — and U.S. law implementing these commitments — rest on the assumption that women’s participation in peace and security matters will lead to more sustainable peace, because women presumably “perform” in ways that reduce conflict, violence, and extremism. This idea is of heightened importance today because women are still vastly underrepresented in positions of leadership in the peace and security field, having yet to “shatter that highest and hardest glass ceiling” as Commander-in-Chief in the United States or rise to the role of Secretary-General in the United Nations. Before her own historic race to become the first woman Commander in Chief, Hillary Clinton had prominently made the claim we increasingly hear that women’s empowerment is not only the right thing to do, but the smart thing to do for global and economic security.

Such claims raise fundamental questions for international law, equality theory, and feminism. Assertions that the world would be a better — more peaceful, more prosperous — place, if women assumed leadership positions in peace and security matters are unapologetically instrumentalist and reinforce essentialist views of women. At the same time, evidence suggests that these claims are to some extent accurate. Thus, these assertions should be carefully examined. Reviewing new research, this Article argues that while some evidence supports these claims, the statistical evidence supporting these claims suffers from methodological flaws. Moreover, the forms of gender performance reflected in the data — which international law has organized itself around — are based on the socially constructed roles women play as caregivers, nurturers, and collaborators, not necessarily on their inherent biological roles. Yet, international law reifies these roles and the stereotypes that surround them, even as it tries to open up opportunities for women beyond traditional sex-segregated positions that have long relegated women around the world to the pink ghetto of economic inequality and inferior political and social status. Having to maneuver around formal equality, on the one hand, and instrumentalist claims that women will “save” the world, on the other, means that the category of “woman” can restrict even as it liberates. After all, not all women are “peace-loving,” particularly in a world where the women who succeed are often those who can succeed on terms defined by men.

Two prevailing theoretical frameworks — antisubordination and securitization—shape the current debate about WPS, but each ultimately falls short. This Article identifies democratic legitimacy as a novel third approach missing from the existing debate. As an alternative view, the democratic legitimacy account effectively reframes the WPS debate as one concerning inclusive security — emphasizing that women’s participation enhances the representativeness, democracy, and fairness of the process as a whole — rather than privileging the “special interests” of a particular group (as the antisubordination approach is accused of doing) or reinforcing gender essentialism (as the securitization approach does). Notably, a democratic legitimation paradigm is grounded in a model of inclusion that can be applied to vectors of inequality beyond gender, as well as to inequality at the intersection of various forms of inequality. Moreover, by emphasizing democratic representation, this approach insists on local ownership and bottom-up solutions, thereby emphasizing participation and leadership by women in conflict zones, rather than female global elites. Under a democratic legitimacy paradigm, women can still “save” the world, but in a different way than the predominant discourse would have us believe.

May 5, 2017 in Gender, International, Theory | Permalink | Comments (0)

Thursday, May 4, 2017

Sex Quotas and Burkini Bans in France

Darren Rosenblum, Sex Quotas and Burkini Bans, 92 Tulane L.Rev. (2017)

This Essay recounts how feminist theorists and activists managed to write their ideals into the fabric of French law and culture, and how non-feminists began to appropriate those ideals. Parité, the 2000 law that requires half of all candidates for public office be women, saw French feminists first engineer a change in French universalism to respect sex difference; although not wholly successful, Parité advanced women’s political inclusion. Then, like a drop of water in a pond, these feminist ideas disappeared in plain sight: they became intrinsic to French state norms and public values. As they became woven into state norms, however, politicians began to use them to promote exclusions: first excluding Muslims from full participation in the Republic with veil and burqa bans; then supporting exclusions of sex and class with a corporate board quota (CBQ); most recently feminist ideas have been called upon to exclude French Muslims with proposed burkini bans.

May 4, 2017 in International | Permalink | Comments (0)

Wednesday, May 3, 2017

Essays on Women, Gender, and Law in Medieval Studies

Women, Gender and Law: Essays from the Gender and Medieval Studies Conference, 43 Historical Reflections (2017)

In the last 30 years the focus of medieval scholars has turned increasingly to nontraditional subjects, especially to women, children, and marginalized others in medieval society. . . . In examining formerly invisible “Others,” medievalists have changed the discourse of the past to one that is both more inclusive and more equivocal: no longer can the certainties that shaped, for example, the nineteenth century’s view of the past as populated by public males and private females, and energized by the confident triumphalism of Western Christianity, be maintained.

 

Linda E. Mitchell, Introduction: Women, Gender, and Law and Remembering Shona Kelly Wray 

Ecaterina Lung, Depictions of Women in the Works of Early Byzantine Historians and Chroniclers: Stereotype and Reality 

Niki Megalommati, Women and Family Law in Byzantium: Some Notes

Nina Verbanaz, Envisaging Eternity: Salian Women's Religious Patronage

Amy Livingstone, Pious Women in a "Den of Scorpions": The Piety and Patronage of the Eleventh-Century Countesses of Brittany

Teresa Phipps, Misbehaving Women: Trespass and Honor in Late Medieval English Towns

Miriam Shadis, The Personal and the Political in Testaments of the Portuguese Royal Family (12th & 13 c)

Mireia Comas-Via, Widowhood and Economic Difficulties in Medieval Barcelona

Stanley Chojnacki, Wives and Goods in the Venetian Palazzo

May 3, 2017 in Family, International, Legal History | Permalink | Comments (0)

Tuesday, May 2, 2017

Gender Quotas for Judges on International Courts

Nienke Grossman, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2016)

The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.

May 2, 2017 in Gender, International, Judges | Permalink | Comments (0)

Monday, May 1, 2017

The New Trend for Studying Gender

Daily Telegraph, The New Trend For Studying Gender, Apr. 24, 2017 (link not available).

A rise in the discussion about gender has led to a range of new courses, from celebrity-endorsed women studies to the world's first queer history course. Alice Barraclough finds out what they offer.
 
Of course you don't need a master's degree in feminism to understand inequality between the sexes. But a postgraduate degree in gender studies - or indeed in sexuality or queer history - isn't just about understanding that inequality, but the theories behind it and how we can make a difference.
 
Over the past few years, gender studies has become an increasingly popular cross-disciplinary postgraduate course. It taps into subjects ranging from history and law, to literature, politics and even science. While graduates go on to work for NGOs, charities and advocacy groups, the courses are also popular with professionals who already work in both the public and private sectors, and wish to develop a deeper understanding of gendered practice.
 
The University of Oxford offers a MSt in women's studies while Cambridge offers an MPhil in gender studies. You can study for an MSc in gender and international relations at Bristol or an MA in women, violence and conflict at York.
 
Dr Ann Kaloski Naylor, lecturer at the Centre for Women's Studies, University of York, says students choose women's studies because they want to make a difference to the world, "especially (not exclusively) to the position of women, and feel that this is not only necessary but possible; they want to lead useful lives inspired by, and grounded in, scholarly thought".
 
But why, in 2017, are these courses gaining such interest? "There's definitely a renewed interest from young people. This is enhanced by social media, which has popularised feminism, in that when teenagers sense gender inequality and oppression there is somewhere easy to go to find out and to chat to others," says Dr Kaloski Naylor. "It's a 21stcentury version of 'consciousnessraising' groups, where many women (and some men) can discover that their own sense of injustice is shared, and that personal inequalities - for example, not being allowed to play football or netball, or being told to wear certain clothes - stem from much wider understandings of women and men. It's also clear that issues of abuse and violence motivate people of many genders, and our degree programmes and modules that address issues of violence and feminist cultural activism are really popular."
 
Violence against women is increasingly recognised as a global issue. From September, a one-year MSc in women, peace and security will run at the London School of Economics (LSE) - the first of its kind. What's more, actor and director Angelina Jolie will join former foreign secretary William Hague as a "professor in practice". Last month, Ms Jolie led a postgraduate women, peace and security class at LSE as part of the one-term module currently offered to postgraduate degree students. She spoke about her experience in the field and what motivated her work as UN special envoy.

May 1, 2017 in Education, International | Permalink | Comments (0)

Monday, April 24, 2017

Oppression Through Protection in International Humanitarian Law Texts

Griffin Ferry, Oppression Through “Protection”: A Survey of Femininity in Foundational International Humanitarian Law Texts, 35 Law & Inequality: A Journal of Theory and Practice 57 (2017).

War is often assumed to be a space devoid of a regulatory framing—characterized as inherently contrary to and separate from the input of social and ethical values expressed in laws—but international humanitarian law (IHL) contradicts this mistaken assumption. A field as fluid as the conflicts it addresses, IHL has developed into a highly-regimented, value-driven framework that increasingly affects and constrains state behavior. Regulatory codifications of IHL are necessarily backwards-looking, arising in response to technological, political, and social developments that continuously change the nature of armed conflict. Despite this continual evolution, the oppression of women has been thematically constant over sixteen centuries of IHL evolution, an unfortunately consistent value that has far-reaching impacts for the field.

 

The foundational doctrines of IHL evidence the marginalization of women in various ways. Notably, the doctrines repeatedly use essentialized conceptualizations of women as weak, infantile persons requiring protection from physical violence above all else to justify oppressive codifications. Ostensibly progressive IHL codifications rest on theoretical underpinnings that modernize historic inequality and perpetuate IHL’s androcentric condition.

 

This Article unearths and analyzes the patriarchal roots of IHL and its essentialized conceptualizations of women with a gender-focused examination of the Summa Theologica, the Lieber Code, the Hague Conventions, and the Geneva Conventions. These foundational IHL texts contain recurring themes that marginalize, sexualize, and infantilize women under the guise of protection. The texts are fora in which the objectification and marginalization of women in conflict are surreptitiously endorsed and legitimized. Understanding the history and forms of female oppression is a critical first step toward ensuring the future of IHL does not perpetuate the shortcomings of the past.

 

 

April 24, 2017 in International | Permalink | Comments (0)

Tuesday, March 28, 2017

Books: The Public Law of Gender--From the Local to the Global

Kim Rubenstein & Katharine G. Young, eds. The Public Law of Gender: From the Local to the Global (Cambridge Univ. Press 2016)

With the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, it is timely to document the raft of legal reform and to critically analyse its effectiveness. In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame. Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.

The Table of Contents is here.

March 28, 2017 in Books, Constitutional, International | Permalink | Comments (0)

Monday, March 27, 2017

Comparative Perspectives on the International Regulation of Abortion

Siobhan Mullally and Claire Murray, Regulating Abortion: Dissensus and the Politics of Rights, 25 Social & Legal Studies: An International Journal (2016)

This special issue brings together comparative perspectives on the regulation of abortion. It examines the sociopolitical contexts within which proposals to expand access to abortion for women are won and lost. Women’s claim to a right to safe and legal abortion services is relatively new in the language of human rights; yet, it is one that continues to ‘trickle up’ and to ‘download’ across diverse jurisdictions. As the essays in this volume acknowledge, however, the universalized power of law, and the turn to law to secure a vindication of rights, brings with it certain risks. These risks of ignoring context and the messy processes of implementation are highlighted in the essays collected together in this volume.

March 27, 2017 in Abortion, International, Reproductive Rights | Permalink | Comments (0)

The Feminization of Migration and Threats to Women's Health and Safety

Berta E. Hernandez-Truyol, Globalizing Women's Health & Safety: Migration, Work & Labor

Abstract

Worldwide, women's equality remains elusive in the social, political, civil, economic and cultural spheres. Such reality presents a challenge in the movement of persons across state borders because, globally, the world is experiencing a feminization of migration. In turn, the feminization of migration effects threats to the health and safety of migrant women, whose well-being is in peril at all stages of the migration journey – from the country of origin, to the transit states, to the receiving state – from smugglers and official actors alike. Because the globalization discourses exclude the movement of persons and focus on the movement of goods and services, migrants become invisible. This work suggests a paradigmatic shift in the way institutions engage migration – from a system that treats migrants as disposable people and focuses on legality of presence to a human rights-inspired one that centers on migrants' well-being and dignitary interests. In support of this shift, this essay employs the overarching frameworks of glocalization and of marginableness to fill the existent void in the current conversations on migration. Three premises are foundational in the discussion: one, woman is not a monolithic category and its meaning is culturally dependent so it is imperative not to exclude any "woman;" two, there is no monolithic migrant woman and some, such as LGBT migrants, face mutidimensional challenges; and, three, the human rights system utilized is not the existent one but rather one reimagined without it being tethered to its western, heteronormative, patriarchal, colonialist, racialized, sexist origins. Such a reimagined human rights paradigm provides the foundation for migrants' protections in their perilous journeys.

March 27, 2017 in International | Permalink | Comments (0)

Monday, March 20, 2017

When Laws Held that Women (but not Men) Lost American Citizenship by Marriage

That Time American Women Lost Their Citizenship Because They Married Foreigners

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).

 

March 20, 2017 in Family, International | Permalink | Comments (0)

Thursday, March 16, 2017

Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography

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.

March 16, 2017 in Constitutional, International | Permalink | Comments (0)

Tuesday, March 14, 2017

The Limitations of the Gender Indicators in the World Bank's Women, Business and the Law Program

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.

March 14, 2017 in Gender, International | Permalink | Comments (0)

Wednesday, February 22, 2017

Empirical Research on Gender Diversity of Dutch Corporate Boards as Statutorily Required

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.

February 22, 2017 in Business, International | Permalink | Comments (0)

Tuesday, February 21, 2017

The Burden of Asylum for Gender-Related Persecution

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.

February 21, 2017 in International, Violence Against Women | Permalink | Comments (0)

Monday, February 20, 2017

The Absence of Binding Norms for Gender-Based Asylum

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)

Abstract:     

When I last studied this issue — the eligibility of domestic violence survivors for asylum in the United States — I concluded: “the absence of binding norms remains a major impediment to fair and consistent outcomes for women who fear return to countries where they confront unimaginable harms, or worse, death.” Despite a recent decision by the highest immigration tribunal in the United States accepting that women fleeing domestic violence can meet the refugee definition and qualify for protection, I could write the same words today. The 2014 ruling in a case known as Matter of A-R-C-G- marked a critical advancement in U.S. law. Notwithstanding, in the year since that decision, arbitrary and inconsistent outcomes have continued to characterize asylum adjudication in this area of the law.

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.

 

February 20, 2017 in International, Violence Against Women | Permalink | Comments (0)

Intersectionality and Anti-Discrimination Law of Gender and Race in Sweden

Eva Schomer, Sweden a Society of Covert Racism: Equal from the Outside: Everyday Racism and Ethnic Discrimination in Swedish Society, 6 Onati Socio-Legal Series (2016) 

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.

 

February 20, 2017 in Equal Employment, International | Permalink | Comments (0)