Gender and the Law Prof Blog

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

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)

World Bank Study Measures Legal Gender Disparities in Economies Around the World

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.

 

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

Thursday, February 16, 2017

Making Peace Negotiations Responsive to Gender

Aisling Swaine, Law and Negotiation: A Role for a Transformative ApproachGlobal 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.

 

February 16, 2017 in Gender, International | Permalink | Comments (0)

Tuesday, February 7, 2017

Comparing American and French Sexual Harassment Law

Tristin Green, American is from Venus, France is from Mars: Pinupus, Policing, & Gender Equality, Employee Rgts & Employment Policy J (forthcoming)

    Abstract:      

 

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.

 

February 7, 2017 in Equal Employment, International, Workplace | Permalink | Comments (0)

A New Equal Rights Amendment Based on Social Reproduction: Lessons from Global Constitutionalism

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.
For the 100-year backstory of the ERA, see Tracy Thomas, The Long History of the ERA, discussing a forthcoming chapter in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism edited by Lee Ann Banaszak & Holly McCammon (Oxford University Press 2016).

February 7, 2017 in Constitutional, International | Permalink | Comments (0)

Thursday, February 2, 2017

The Gendered History of Citizenship by Marriage

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.

February 2, 2017 in Books, Constitutional, International, Legal History | Permalink | Comments (0)

Wednesday, February 1, 2017

Gender Parity at the Human Rights Council

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.

February 1, 2017 in Gender, International | Permalink | Comments (0)

Monday, January 30, 2017

Russia Decriminalizes Domestic Violence

Russia Parliament Votes 380-3 to Decriminalize Domestic Violence

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.

January 30, 2017 in International, Violence Against Women | Permalink | Comments (0)

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.

 

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

Monday, January 9, 2017

Reconsidering the Remedy of Gender Quotas in the US

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:

    United Nations "Planet 50-50 by 2030" Campaign for Women's Rights

    United Nations Council

    The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"

    The ABA Rule mandating diverse CLE panels

    A lawsuit challenging the gender and minority quotas for the Texas State Bar Board

    Federal contracts to small business owners

 

 

January 9, 2017 in Business, Constitutional, Courts, International, SCOTUS | Permalink | Comments (0)

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

QUESTIONS PRESENTED

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.

November 9, 2016 in Family, International, SCOTUS | Permalink | Comments (0)

Friday, October 28, 2016

A Woman's Constitutional Right to Her Surname in Japan

NYT, In Japan, More Women Fight to Use Their Own Surnames

This was the topic of a paper recently published in Akron Law's open-access constitutional law journal, ConLawNOWby our visiting scholar from Japan.  

Koji Higashikawa, Tying the Knot with a Surname? The Constitutionality of Japan's Law Requiring a Same Marital Name

October 28, 2016 in Constitutional, Family, International | Permalink | Comments (0)

Wednesday, October 26, 2016

Feminist Subversion in Iceland

Monday, August 8, 2016

Book: Irish Feminist Judgments Project

Northern/Irish Feminist Judgments Project: Judges' Troubles and the Gendered Politics of Identity (forthcoming 2017)

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.

August 8, 2016 in Books, Courts, International | Permalink | Comments (0)

Friday, August 5, 2016

New in Books: A Feminist Proposal for Using ADR to Address Marital Problems and Violence in India

Srimati Basu, The Trouble with Marriage: Feminists Confront Law and Violence in India (U. Cal. Press 2015) (with podcast):

Are solutions to marital problems always best solved through legal means? Should alternative dispute resolutions be celebrated? In her latest book The Trouble with Marriage: Feminists Confront Law and Violence in India (University of California Press, 2015) Srimati Basu answers such questions and many more through explorations of "lawyer free" courts and questions surrounding understandings of domestic violence, analyses of the way rape intersects with marriage and how kinship systems change with legal disputes and by delineating the most important acts that frame marriage law in India. Theoretically and politically astute the book offers an ethnographic insight into legal sites of marriage trouble in India.

August 5, 2016 in Books, Family, International | Permalink | Comments (0)

Tuesday, August 2, 2016

Cause-Lawyering, Gender and Transitional Justice

Anna Bryson & Kieran McEvoy, Women Lawyers and the Struggle for Change in Conflict and Transition, 42 Australian Fem. L.J. (2016)

Abstract:     

This article examines the particular experiences of female "cause lawyers" in conflicted and transitional societies. Drawn from an ongoing comparative project which involved fieldwork in Cambodia, Chile, Israel, Palestine, Tunisia and South Africa, the paper looks at opportunities, obstacles and the obduracy required from such lawyers to "make a difference" in these challenging contexts. Drawing upon the theoretical literature on the sociology of the legal profession, cause-lawyers, gender and transitional justice, and the structure/agency nexus, the article considers in turn the conflict\cause-lawyering intersection and the work of cause-lawyers in transitional contexts. It concludes by arguing that the case-study of cause-lawyers offers a rebuttal to the charge that transitional justice is just like ‘ordinary justice’. It also contends that, notwithstanding the durability of patriarchal power in transitional contexts, law remains a site of struggle, not acquiescence, and many of these cause-lawyers have and continue to exercise both agency and responsibility in ‘taking on’ that power.

 

August 2, 2016 in International, Women lawyers | Permalink | Comments (0)

Thursday, July 7, 2016

The Rise of Women Judicial Leaders in Africa

Josephine Dawuni & Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, 62 Africa Today 45 (2015)

In recent years, women have been selected as leaders of African judiciaries. This article identifies where and when women have become chief justices and presidents of constitutional courts from 1990 to 2014. We profile women from three civil-law and three common-law countries and find that the women selected meet or exceed the requirements for holding the highest position in the judiciary. We then explore why some African countries, but not others, have had female judicial leaders. We initially find that the selection method may be less important than the type of legal system, the commitment of gatekeepers, the end of major armed conflict, and regional diffusion in explaining why some countries have seen women rise to leadership positions in the judiciary.

July 7, 2016 in International, Judges, Women lawyers | Permalink | Comments (0)

Friday, June 17, 2016

South Africa's Public Protector

WashPost, How a Quiet Wonky Lawyer Became South Africa's Corruption Buster

It’s not every day that a constitutional lawyer gets treated like a rock star. But at South African President Jacob Zuma’s State of the Union address in February, reporters jostled to hear what Thulisile Madonsela had to say about it, and onlookers took to Twitter to gush about her and her canary-yellow dress.

“Please, can we have her as president!” one pleaded.

Madonsela is not just a lawyer. She is also South Africa’s public protector, an ombudsman-like post that has come to symbolize for many a struggle for rule of law and better governance in this young democracy.

June 17, 2016 in International, Women lawyers | Permalink | Comments (0)