Gender and the Law Prof Blog

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

Tuesday, November 17, 2015

Colloquium on the Origins of Gender Equality

I had the fortune to participate in The Center for Constitutional Law at Akron's Colloquium last week, The Origins of Gender Equality.  The Colloquium scheduled for the 200th Anniversary of Elizabeth Cady Stanton's birth celebrated Stanton's vast intellectual and political contributions to the law. 

The New York Times Book Review often asks authors, if you could have dinner with any writers, who would it be?  Well the participants at the colloquium were my list of ideal dinner guests.  These scholars to me represented the best of the work on Stanton in law and history, characterized by original thinking, impeccable and thorough research, and ideas found nowhere elsewhere in the literature. It was a privilege to engage in conversation with these women and deepen our understanding of the legacy of women's rights still so unknown and unappreciated.

The papers from the Gender Equality Colloquium will be published in the spring in ConLawNOW.

Tracy Thomas, Introduction: The Origins of Gender Equality in the Life and Work of Elizabeth Cady Stanton

Lisa Tetrault (history, Carneige Mellon):  On the Meaning of the Vote

Felice Batlan (law, Chicago-Kent): Manhood Suffrage at the New York Constitutional Convention of 1867

Lisa Hogan (women's studies, Penn State):  Unveiling Gendered Notions of Marriage and Women's Sexuality

Kathi Kern (history, Kentucky): Religious Liberty Claims: From Kim Davis to Elizabeth Cady Stanton


November 17, 2015 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Remembering the Story of Woman's Suffrage

Huff Post, The Importance of Telling the Story--Crusade for the Vote

As we work to inspire, educate and empower others by integrating women's history as part of the distinctive culture of the United States, we applaud the writers and producers of Suffragette who recognized the need to expand awareness about this significant moment in Britain's history. Director Sarah Gavron, in a recent interview, talked about the timing for the movie, which had been six years in the making.


This story had never been told, the reason it's never been told before is because women keep being marginalized. What was on our side was there's a conversation now happening about the inequity in the film business, so people were aware. The story we wanted to tell had become more timely.

 Her explanation is not surprising. We know that for most Americans, their knowledge of how U.S. women won the right to vote is limited to major personalities like Susan B. Anthony and Elizabeth Cady Stanton. But the campaign stretched from the East to the West Coast, with dozens of women doing their part as local canvassers, state campaigners, White House picketers, and filling many other roles. The breadth of the suffrage story is still largely unknown.

November 17, 2015 in Constitutional, Legal History, Pop Culture | Permalink | Comments (1)

Tuesday, November 3, 2015

Lochner's Gendered Legacy


(Muller v. Oregon, 1908)

At the NE Ohio Faculty Colloquium last week, I presented on the topic derived from my forthcoming book chapter on the long history of the ERA. 

For this presentation, I focused on the early history of ERA, introduced by Alice Paul in the midst of the Supreme Court's detour into Lochnerism.  A close review of the Lochner cases on maximum hours law, shows how gendered these cases were.  The Court struck down laws like that in Lochner limiting men's work, while easily upholding the same limitation for women.  The advent of the Brandeis Brief (or more appropriately the Kelley Brief since it was mostly written by Florence Kelley) in Muller v. Oregon (1908) added sociological facts of women's weakness, primary material function, and need for protection research designed to justify the rationality of the state legislature's determination that women needed protection.

My takeaways on looking at Lochner through the gendered lends were:  

1.  It explains some of the flip-flops and seeming inconsistencies of Lochner to understand legalistic exceptions were made for women.


 2.  It shows how grounded Lochner was in masculinity: real mean don’t need “protection.”  Men were tough, strong, and could withstand or counter the abuse of workplace.  (Except maybe in the case of coal mining, see Holden v. Hardy, 1898)..


3.   And perhaps most importantly, it reveals the historical depth of what Joan Williams calls the “ideal worker.”  The ideal worker since industrialization was male, able to work unlimited hours at a moment's notice, needed the job as a family breadwinner, and never needs any accommodations like pregnancy leave, nursing breaks, or family leave.  Women are defined as "other" than the ideal, or even regular work.  Women themselves defined female workers this way, attuned to the realities of women's working class experience.  



November 3, 2015 in Constitutional, Courts, Equal Employment, Gender, Legal History | Permalink | Comments (0)

Sunday, November 1, 2015

Law, Gender & Halloween

Bridget Bishop Hanged at Salem

Which means the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

November 1, 2015 in Courts, Legal History | Permalink | Comments (0)

Tuesday, October 27, 2015

Remembering the Battle for Women's Suffrage

Lots in the media with the advent of the release of the movie Suffragette on the British women's suffrage movement.

Time, The Real Women's Suffrage Milestone that Just Turned 100

Remembering the mammoth women’s suffrage parade of October 1915

They came on horses and carriages. They marched on foot. There were old women with canes and young mothers with babies. They dressed in white and carried banners with phrases like “A vote for suffrage is a vote for justice” and “You trust us with the children; trust us with the vote.” It was Oct. 23, 1915, and tens of thousands of women flooded Fifth Avenue in a spectacular, five-mile suffrage parade that all but shut down New York City.

Pop quiz: when did women in the United States get the right to vote?

If you answered June 4, 1919, or Aug. 18, 1920 — the dates on which the 19th Amendment was passed and ratified — then you’re almost right. Yes, the Amendment guaranteed that the right to vote could not be denied on account of sex. But the right wasn’t fully secured until this day, Feb. 27, in 1922. That’s when the Supreme Court decided Leser v. Garnett.

Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.

NPR, American Women Who Were Anti-Suffragette


As the 19th century ended and the 20th began, the American wave of women pushing for access to the ballot box gathered momentum. But it wasn't until the 19th Amendment to the Constitution was ratified in 1920 that voting rights were guaranteed for all women.


Hard as it is to imagine today, there were certain women — mostly forgotten — during that period of duress who did not believe that women deserved the right to vote. Some called these naysayers "anti-suffragettes" or "anti-suffragists." Some called them "remonstrants" or "governmentalists." Some called them just plain "antis."



October 27, 2015 in Legal History, Pop Culture | Permalink | Comments (0)

Saturday, October 17, 2015

Colloquium: The Origins of Feminist Equality

Presenting work from my forthcoming book at the upcoming conference at the Center for Constitutional Law at Akron.  Please join us - details below.



October 17, 2015 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Thursday, October 15, 2015

The Western Story of American Women's Suffrage

Ms., Once Upon a Time in the West

Few people outside of women’s rights historians understand that American women fought for political enfranchisement for nearly 75 years—from when Elizabeth Cady Stanton made suffrage a rallying cry at the Seneca Falls Convention in 1848 until the ratification of the 19th Amendment in 1920. And while a chunk of that time was referred to as “the doldrums” by eastern suffragists, in the West, women’s rights activists had far more exciting experiences. In fact, by the time national suffrage passed, 14 western states had already enfranchised women voters.


In pop culture, the American West belongs to rugged cowboys and macho gunslingers. Left out of those depictions are the women, immigrants, former slaves and Native Americans who also made homes on the range. Far from just the wives, mothers, daughters and playthings of frontiersmen as portrayed in books and films, women arrived in the West, single or with their families, for the same reasons men did—for adventure, for livelihood or to escape the oppressive social mores that dominated the eastern United States.


“The West is supposed to be he-man country, not some place where the little ladies mattered, or were even present,” notes Dr. Virginia Scharff, distinguished professor of history at the University of New Mexico and chair of Western Women’s History at the Autry National Center. “But there were indigenous women in the West long before there were Marlboro Men, and they were absolutely essential to the survival of their communities. And once American migrants started showing up, women were a big part of conquest and resistance in the West.”


As Scharff alludes, some of western women’s early political advancement was inherently tied up in the goals of white Americans. “Early western suffragists often referred to ‘frontier’ egalitarianism and ‘chivalry,’” as reasons why western states were more amenable to politically active women, “but this was an ethnocentric conclusion that privileged white women,” writes Dr. Rebecca Mead in her book How the Vote was Won. Indigenous women would not realize the right to vote as American citizens until 1924 (sometimes much later in certain states). Similarly, women of color struggle against tacitly sanctioned racial and ethnic discrimination that continues to impact their ability to vote. Nevertheless, for the women who stood to benefit most from suffrage, frontier territories—anxious to attract more white families and often understanding of the equal work demanded of both male and female homesteaders—were the earliest successful battlegrounds for suffrage.

October 15, 2015 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, October 13, 2015

New Book Chapter on the Long History of the ERA

I just posted TJ Boisseau & Tracy Thomas, After Suffrage Comes Equality? ERA as the Next Logical Step, forthcoming as a chapter in the book 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism edited by Lee Ann Banaszak and Holly McCammon (Oxford University Press 2016).

The chapter traces the long, and surprising, history of the Equal Rights Amendment, first proposed in 1923.

From the abstract:

Almost a full century in the making, the campaign for an ERA far exceeded in longevity the campaign for woman suffrage, however much a “logical next step” women's equality seemed to some following the spectacular achievement of the Nineteenth Amendment. The history of the amendment reveals how resistant to the idea of equality between men and women a political system—even one that includes women as voters—can be. In this chapter, we re-examine the route taken by the ERA through its many permutations in the century since the passage of woman suffrage. Proposed by Alice Paul in 1923 and immediately opposed by social feminists advocating protective labor laws, the ERA wound itself in and out of feminist, conservative, and public favor before its final defeat in 1982, three states short of adoption. Woven into the Supreme Court's analysis of Lochner and substantive due process, and the later evolution of equal protection law, women's equality--or difference--has been the foundation of much of the development of modern constitutional doctrine.


October 13, 2015 in Books, Constitutional, Courts, Legal History, Scholarship | Permalink | Comments (0)

Saturday, September 26, 2015

New issue Journal of Women's History

The new issue of the Journal of Women's History (Fall 2015).



"I Wouldn't Be No Woman If I Didn't Hit Him": Race, Patriarchy, and Spousal Homicide in New Orleans, 1921 - 1945          

Jeffrey S. Adler

"As Potent a Prince as Any Round About Her": Rethinking Weetamoo of the Pocasset and Native Female Leadership in Early America          

Gina M. Martino-Trutor

Dode Akabi: A Reexamination of the Oral and Textual Narrative of a "Wicked" Female King       

Harry N.K. Odamtten

From Anne to Hannah: Religious Views of Infertility in Post-Reformation England          

Daphna Oren-Magidor

Sex Scandals and Papist Plots:The Mid-Nineteenth-Century World of an Irish Nurse in Quebec          

Lisa Chilton

Sanitizing the Domestic: Hygiene and Gender in Late Colonial Bengal          

Srirupa Prasad

Constructing Women's Citizenship: The Local, National, and Global Civic Lessons of Rajkumari Amrit Kaur         

EmIly Rook-Koepsel



Single Girls and Working Women: Gender, Power, and Feminism in American History and Culture 

Elizabeth Fraterrigo

Sexual Labor and the Transnational Sphere          

Michelle K. Rhoades

Personal and Political: Love's Revolutions in Recent Historical Research          

Mark Seymour

New Views on Left Feminist Activism Before the 1960s          

Kate Weigand

September 26, 2015 in Legal History, Scholarship | Permalink | Comments (0)

Monday, September 7, 2015

On Labor Day: The Legal History of Protective Labor Laws for Women

Legal History Blog, Woloch's "Class By Herself"

A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws—such as maximum hour laws, minimum wage laws, and night work laws—from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s

September 7, 2015 in Books, Equal Employment, Legal History | Permalink | Comments (0)

Tuesday, September 1, 2015

Ziegler on Writing Abortion History

Monday, August 3, 2015

"Andy Burnham: men convicted for being gay should get automatic pardons"

From the Guardian UK: 

An automatic legal pardon should be given to all men convicted under historical homosexuality laws without the need for families or individuals to apply to the government, the Labour leadership contender Andy Burnham has proposed. His pledge, following consultation with Sir Keir Starmer, the former director of public prosecutions and current Labour MP, means it would be possible to quash up to 50,000 convictions for acts that would be not be illegal today.

Burnham, who currently shares roughly the same number of constituency nominations as Jeremy Corbyn, said he will press prime minister David Cameron to make a relatively simple change to the law, but if he does not do so, it would form part of the first legislative programme of a Burnham-led government. The move comes two years after the royal pardon granted to second world war codebreaker Alan Turing.

Were there any women convicted the referenced law?  

August 3, 2015 in International, Legal History, Legislation, LGBT | Permalink | Comments (0)

Saturday, July 25, 2015

Upcoming Big Screen Movies on Women and the Law

Suffragette - on the British women's suffrage movement starring Meryl Streep, Carey Mulligan, and Helena Bonham Carter 

She's Beautiful When She's Angry - on the second-wave US feminist movement

Justice Ruth Bader Ginsburg Biopic

Ms., Lilly Ledbetter's Fight for Equal Pay is Coming to the Big Screen



July 25, 2015 in Legal History, Media | Permalink | Comments (0)

Saturday, June 20, 2015

SCOTUS Relies on Coverture in Marriage Visa Case

My colleague, Will Huhn, analyzes the Supreme Court's recent decision in Kerry v. Din.  In Kerry, the Court, in numerous divided decisions, denied that a woman's constitutional right to marry was infringed by a refusal to grant her husband a visa.  Scalia in a plurality of 3 took the occasion to challenge the existence of all liberty interests in privacy rights of the family. 

Huhn reveals Justice Scalia's reliance on coverture, yes, coverture, and the historical denial of citizenship to women who married foreign nationals.

Huhn writes:  Utilizing this “tradition” standard Justice Scalia rejected any possibility that Din had a constitutional right to live with her husband in the United States. Justice Scalia pointed out that traditionally American women who married foreign nationals were considered to have assumed the nationality of their husbands and were stripped of their American citizenship. While Justice Scalia admits that such discriminatory laws would be unconstitutional today, he nevertheless asserts that this history proves that Din does not have a constitutional right to live with her husband in the United States. Here is Justice Scalia’s analysis that is predicated on the concept of “coverture”:

 Most strikingly, perhaps, the Expatriation Act of 1907 provided that “any American woman who marries a foreigner shall take the nationality of her husband.” Thus, a woman in Din’s position not only lacked a liberty interest that might be affected by the Government’s disposition of her husband’s visa application, she lost her own rights as a citizen upon marriage. When Congress began to impose quotas on immigration by country of origin less than 15 years later, with the Immigration Act of 1921, it omitted fiances [that is, a woman’s fiancé] and husbands from the family relations eligible for preferred status in the allocation of quota spots. Such relations were similarly excluded from the relations eligible for nonquota status, when that status was expanded three years later. Immigration Act of 1924.
To be sure [Justice Scalia stated], these early regulations were premised on the derivative citizenship of women, a legacy of the law of coverture that was already in decline at the time. [citing] C. Bredbenner, A Nationality of Her Own 5 (1998). Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Nevertheless, this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” [citing] Glucksberg.

June 20, 2015 in Constitutional, Courts, Family, Legal History | Permalink | Comments (0)

Tuesday, June 16, 2015

Marital Rape is Semi-Legal

Marital Rape is Semi-Legal in 8 States

Not too long ago, the term “marital rape” was considered an oxymoron. In some U.S. states, it might as well still be one.


Lawmakers in Ohio are trying to remove archaic forms of “marital privilege” in state laws pertaining to rape, The Columbus Dispatch reports. Although marital rape is illegal in Ohio as well as nationwide, the notion of marital privilege or exemption dates from an era when a man could only be charged with rape if the alleged victim was not his wife—an era that only ended in the United States on July 5, 1993 when North Carolina criminalized marital rape, becoming the final state to do so.


But although marital rape is illegal in the United States, Ohio is one of several states in which marital rape continues to be handled in a substantially different way than rape outside of marriage, whether it is charged under a different section of criminal code, restricted to a shorter reporting period, held to a different standard of coercion and force, or given a different punishment.

The classic historiography of marital rape laws is Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 California Law Rev. 1373 (2000).

June 16, 2015 in Family, Legal History, Violence Against Women | Permalink | Comments (0)

Tuesday, April 14, 2015

Book: Regulating Desire

J. Shoshanna Ehrlich (U Mass, Women's Studies), Regulating Desire (SUNY Press 2014).

Starting with the mid-nineteenth-century campaign by the American Female Moral Reform Society to criminalize seduction and moving forward to the late twentieth-century conservative effort to codify a national abstinence-only education policy, Regulating Desire explores the legal regulation of young women’s sexuality in the United States. The book covers five distinct time periods in which changing social conditions generated considerable public anxiety about youthful female sexuality and examines how successive generations of reformers sought to revise the law in an effort to manage unruly desires and restore a gendered social order. J. Shoshanna Ehrlich draws upon a rich array of primary source materials, including reform periodicals, court cases, legislative hearing records, and abstinence curricula to create an interdisciplinary narrative of socially embedded legal change. Capturing the complex and dynamic nature of the relationship between the state and the sexualized youthful female body, she highlights how the law both embodies and shapes gendered understandings of normative desire as mediated by considerations of race and class.

April 14, 2015 in Books, Legal History | Permalink | Comments (0)

Thursday, April 9, 2015

Re-examining the Legal History of Domestic Violence


Legal History Blog, Katz on Judicial Patriarchy, Domestic Violence, and the Family Privacy Narrative

Elizabeth Katz, a doctoral candidate in History at Harvard University, with an JD and MA in history from the University of Virginia,has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, which is forthcoming in the William and Mary Journal of Women and the Law 21 (Winter 2015): 379-471.  Ms. Katz received the Kathryn T. Preyer Award of the American Society for Legal History for an earlier version of this article.


According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.

See also a previous post on related scholarship,A Surprising History of Domestic Violence Protection

And see also Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence from Colonial Times to the Present (2004)



April 9, 2015 in Legal History, Violence Against Women | Permalink | Comments (0)

Tuesday, March 3, 2015

Presidential Proclamation: Women's History Month

Presidential Proclamation: Women's History Month

But not all of the rules that govern our workplaces have caught up with this reality, and today, too many of the opportunities that our mothers and grandmothers fought for are going unrealized.  That is why I am committed to tearing down the barriers to full and equal participation in our economy and society that still exist for too many women.  All women deserve equal pay for equal work and a living wage; the Congress needs to raise the minimum wage and pass a law that ensures a woman is paid the same as a man for doing the same work.  I continue to call for increased workplace flexibility and access to paid leave -- including paid sick leave -- so that hardworking Americans do not have to choose between being productive employees and responsible family members.  And I have proposed a plan that would make quality child care available to every middle-class and low-income family in America with young children.  These are not only women's issues -- they are family issues and national economic priorities.

March 3, 2015 in Legal History | Permalink | Comments (0)

Thursday, February 19, 2015

Pauli Murray: The Most Important Legal Scholar You May Never Have Heard Of

Some of us certainly know Pauli Murray and her work, but glad to see a higher profile of her legacy here.  

Salon, Black, Queer, Feminist, Erased from History: Meet the Most Important Legal Scholar You've Likely Never Heard Of

Pauli Murray is one of the most pivotal figures in 20th century African-American civil rights history, but beyond academic circles, she is not very well known. In 1944, she graduated as the valedictorian of her Howard University law class, producing a senior thesis titled “Should the Civil Rights Cases and Plessy Be Overruled?” Trained by William Howard Hastie and Leon Ransom at Howard, Pauli Murray had been witness to their early legal strategy of combating separate but equal doctrine by forcing states to either make black institutions equal to their white counterparts or integrate white institutions, if they failed to do so. However, she argued that Plessy v. Ferguson was inherently immoral and discriminatory and should be overturned. When she brought up this argument to her classmates, she noted that her suggestion was received with “hoots of derisive laughter.” Murray coined the term “Jane Crow” to name the forms of sexist derision she frequently encountered during her time at Howard. It was the piece she co-authored in 1965 called “Jane Crow and the Law” that Ginsburg cites as so influential in her thinking about legal remedies for sex discrimination. Nearly 10 years later, in 1953, Spottswood Robinson, Thurgood Marshall and others pulled out a copy of her senior paper and used it as a guide to strategize how they would argue the Brown v. Board case. They didn’t bother to mention this until about 10 years later, when she ran into Robinson at Howard Law School.

February 19, 2015 in Legal History | Permalink | Comments (0)

Putting the Women in Central Park

Central Park: Where are the Women?

The Elizabeth Cady Stanton and Susan B. Anthony Statue Fund advocates placing a statue of the two women’s rights pioneers in New York City’s Central Park where there are 22 statues honoring men and none honoring real women.  The statue will celebrate the largest nonviolent revolution in our nation’s history – the movement for women’s right to vote. 

February 19, 2015 in Legal History | Permalink | Comments (0)