Gender and the Law Prof Blog

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

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)

Thursday, May 26, 2016

Using Information Disclosure to Drive Change under Australia's Workplace Gender Equality Act

Belinda Smith & Monica Hayes, Using Data to Drive Gender Equality in Employment: More Power to the People?

The latest version of affirmative action legislation in Australia, the Workplace Gender Equality Act 2012 (Cth) (WGE Act), reflects a fundamental shift from its predecessor legislation, the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (EOWW Act) and, before that, the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) (AA Act). This shift has been correctly characterised as a change in focus from processes to outcomes because employers covered by the legislation are now required to report on selected indicators intended to provide an overall picture of the actual state of affairs of gender employment within their organisation, not merely their ‘workplace programs’ for addressing gender inequality. However, the enactment of the WGE Act reflects another shift in the regulatory framework, a shift toward using information disclosure and standards to drive change.

May 26, 2016 in Equal Employment, International | Permalink | Comments (0)

Prophylactic Remedies Sought by Amicus for Migrant Woman's Forced Sterilization in Bolivia

Ciara O'Connell (Sussex Law), Diana Guarnizo Peralta (Dejusticia), Cesar Rodriguez-Garavito (Universidad de los Andes), Amicus Curiae Brief Presented to the Intra-American Court of Human Rights in the Case of IV v. Bolivia

Abstract:     

The IV v. Bolivia case examines the rights of a Bolivian migrant woman who was given a tubal ligation (sterilized) without her informed consent. In this amicus curiae, Ciara O'Connell (University of Sussex) and Diana Guarnizo-Peralta and Cesar Rodriguez-Garavito (Dejusticia) intervene in order to explain how the medical field frequently becomes a place where discrimination is exercised against women in the form of gender stereotyping and "paternalistic control." This amicus requests that the Inter-American Court issue reparation provisions in order to guarantee non-repetition of these women's reproductive rights violations. The suggested reparations consist of the adoption of education programs aimed at training medical students and medical professionals, as well as the general population, and reform of internal rules and manuals on informed consent so that they comply with international standards.

 

May 26, 2016 in Healthcare, International | Permalink | Comments (0)

Friday, May 13, 2016

European Corporate Board Quotas are Working

You Know Those Quotas for Female Board Members in Europe? They're Working

Business people tend to hate governments telling them what to do, and the quotas on female board members imposed on companies by a handful of European countries are no different. But here’s the thing: If a goal of the quotas is to bring more women into the top ranks of business, they seem to be working.

 

That’s the view of Rajeev Vasudeva, the CEO of Egon Zehnder, one of Europe’s largest executive search firms. Vasuveda said he’s no fan of quotas, but concedes they’re having an impact. “I’m not a great supporter of quotas but in this case it’s making difference,” he said in an interview. “It has changed the conversation—it clearly has been put on the agenda of companies.”

 

Norway was the first to introduce quotas for women in 2003, requiring that public companies fill at least 40% of their board seats or risk dissolution. Iceland, Spain and France followed with 40% targets—although with less severe penalties—and other countries have lower thresholds. Last year, Germany became the largest economy to impose a quota, mandating 30% of supervisory board seats be filled by women

May 13, 2016 in Business, International | Permalink | Comments (0)

Tuesday, April 12, 2016

Conference: The Origins of "Women's Rights are Human Rights" in Pan-American Feminism

Location: Massachusetts Historical Society

Katherine Marino, American Academy of Arts and Sciences

The Origins of “Women’s Rights are Human Rights”: Pan-American Feminism and the 1945 United Nation Charter

Comment: Kirsten Weld, Harvard University

In June, 1945, at the conference in San Francisco that created the United Nations, a group of Latin American feminists pushed “women’s rights” into the category of international human rights in the founding documents of the UN and proposed what became the UN Commission on the Status of Women. The Brazilian delegate and feminist Bertha Lutz called their work a “Latin American contribution to the constitution of the world.” This paper examines what “women’s rights” and “human rights” meant to these Latin American activists and how a movement of transnational, Pan-American feminism shaped their ideas and activism. It argues that the notion that “women’s rights are human rights,” often assumed to be a product of U.S./Western European liberal democratic and feminist thought, was in fact forged through transnational collaboration in a context of fraught U.S./Latin American relations.

RSVP so we know how many will attend. To respond, email seminars@masshist.org or phone 617-646-0568.

As usual, there will be four programs in this series, two each at the Schlesinger Library and the Massachusetts Historical Society.  The complete schedule is available at http://www.masshist.org/2012/calendar/seminars/women-and-gender

Each seminar consists of a discussion of a pre-circulated paper provided to our subscribers. (Papers will be available at the event for those who choose not to subscribe.) Afterwards the host institution will provide a light buffet supper.

We look forward to seeing you at the program!

April 12, 2016 in Conferences, International | Permalink | Comments (0)

Monday, April 4, 2016

The Limits of Intersectionality for UN Treaties and Human Rights

Pok Yin Stephenson Chow (Nottingham), Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights-Treaty Body Practice and the Issue of AmbivalenceHuman Rights Law Review, 2016 (Forthcoming)

Over the past two decades, ‘intersectionality’ has become one of the most celebrated notions in international human rights law and discourse. Outside of the US where the concept originated, the sweeping influence of intersectionality has extended to the UK and other members of the European Union where intersectionality has ‘become part of policy initiatives’. It was remarked that intersectionality ‘has acquired considerable conceptual purchase in international human rights law and activism’  and has become the standard multi-disciplinary approach ‘for analyzing subjects’ experiences of both identity and oppression’.  

 

The recognition that intersectionality gained over the years was also evident in the express and implicit references across UN human rights treaty-bodies practice, where the concept was used to highlight how gender discrimination is often intertwined with discrimination on other grounds, such as race, ethnicity and socio-economic background, thus ‘complicating simplistic, singular understandings of the nature of women’s disadvantage.’  In particular, the Committee on the Elimination of Discrimination against Women (‘CEDAW’) acknowledged intersectionality as a ‘basic concept for understanding the scope of the general obligations of States parties [of the Convention]’.  Nevertheless, despite such express acknowledgements, the effectiveness of the concept remained uncertain. In particular, it remained unclear whether the juridical understanding of ‘intersectionality’ could fully honor the complexity that intersectional analysis demands.  Conaghan thus argues that although intersectionality has contributed tremendously to the feminist movement, the concept has ‘reached the limits of its theoretical potential’.  She argues that inequality is a sophisticated and multi-dimensional phenomenon, and that intersectionality, having its roots in law, does not seem to fully address that complexity. 

 

The limitation of intersectionality is exemplified in the works of the UN human rights treatybodies in the context of minority women. Many often cultural and religious practices are deemed ‘harmful’ and discriminatory, but the women who practice them may not agree that these practices are discriminatory.  This raised difficult issues regarding whether human rights law could properly accommodate their multiple identities (both as women and as members of their cultural group).  Moreover, it is increasingly recognized that the engagement of such practices is often characterised by a form of ‘ambivalence’, i.e. a feeling of ‘open-endedness, incompleteness [and] uncertainty’.  Niec observed that while individuals may identify certain manifestations of their traditions as violations of their rights, they may at the same time seek to preserve the group’s culture and religion, because it is the latter that ‘shaped and defined [her] identity as a member of that collective’. Radhika Coomaraswamy, UN Special Rapporteur on Violence against Women, its Causes and Consequences, remarked that even in situations where women have migrated from the community of their birth, the vast majority continued to retain a deep emotional attachment to group identity, and in this respect, the advocacy of the prohibitionof certain practices might offend their sense of dignity and belonging. While it may be reasonably expected that intersectionality could play a greater role in resolving such conflicts – that the application of intersectionality would better address the multiple identities of minority women – the concept have only yielded partial solutions, as shall be demonstrated below.

 

This article examines the application of intersectionality across the practice of the UN human rights treaty-bodies. Echoing the concerns raised by Conaghan, it ponders the question: whether intersectionality has reached its limits?  In particular, it seeks to examine whether intersectionality as applied by the UN treaty-bodies offer a satisfactory solution to situations of ‘ambivalence’. 

April 4, 2016 in International, Theory | Permalink | Comments (0)