Gender and the Law Prof Blog

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

Tuesday, March 7, 2017

NV Prepares to Ratify ERA

Nevada is About to be the First State in More Than Three Decades to Ratify the Equal Rights Amendment

Nevada is about to do something no state has done in three-and-a-half decades: Ratify the Equal Rights Amendment.

Dusting off a decades-old debate about whether to enshrine women's rights in the Constitution is of questionable value to the amendment's prospects, say analysts. But that doesn't mean it's a meaningless gesture, and its revival certainly says a lot about the women's rights movement in 2017.

Even if Nevada becomes the 36th state to ratify the amendment, its entry into the Constitution is a loooong shot. The deadline to ratify the amendment ended long ago — in 1982 to be exact. And even if Congress reopened it, it's not clear any other state is seriously interested in playing along.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.***

A quick history/civics recap: Changing the Constitution is one of the most difficult things in all of governing, but Equal Rights Amendment supporters have come tantalizing close. In 1972, after a decade or so of debate, Congress passed it and sent it to the states for ratification. (Under one process to change or add a constitutional amendment,  38 states -- or three-quarters -- must ratify it, whether via their legislatures or a state convention.)

Congress gave the states an entire decade for 38 states to get that done. In the end, 35 did.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.

Until now. The Democratic-controlled Nevada State Senate passed it mostly along party lines on Wednesday. The Democratic-controlled State Assembly will pick it up from there, where it's expected to sail through on party lines.

"It's like a no-brainer. Equal Rights Amendment," said state Nevada Sen. Pat Spearmen (D), the author of the bill. "Equal rights. That's what it is. It's just equal rights."

Nevada's governor is a Republican, and he hasn't commented on the amendment. But Democrats in Nevada say the parliamentary logistics of this mean the legislation doesn't need Gov. Brian Sandoval's signature.

Most Republicans in the state legislature aren't impressed. Their objections to the amendment in 2017 are similar to objections in the '70s and '80s: It could require women to enlist in the draft. It's not necessary. It's symbolic.

"An equal rights amendment that doesn’t have exclusions to protect families is something I can’t support," state Sen. Beck Harris, a Republican and the sole woman to vote against the amendment, told the Reno Gazette-Journal.

March 7, 2017 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Monday, February 27, 2017

OH Bill Proposes Ending Exemption for Marital Rape

Akron Beacon J., Ohio Bill Outlawing Marital Rape Gets No GOP Support, Again

As an assistant prosecutor in Summit County, Greta Johnson made a habit of asking females on the witness stand if they had married their alleged rapists.

 

“And that just seemed crazy to me. But it was a question I had to ask,” Johnson said. “I remember occasionally thinking, what if they were married? Would that have changed the situation?”

 

The situation? Maybe not. Justice for the crime? Maybe.

 

In Ohio, husbands or wives can rape their spouses so long as there is no force or threat of force. The “spousal exemption” means husbands can drug and rape wives, and avoid a first-degree felony rape charge.

 

“As a former prosecutor,” said Johnson, who now represents part of Akron in the Ohio House, “I would argue that you could still try to prosecute under the forced rape statute, but unfortunately drugging and raping your spouse in Ohio is not illegal.”

 

In her first term, Johnson introduced House Bill 234. It would have done away with this “spousal exemption” in Ohio’s criminal code. The bipartisan, bicameral Ohio Criminal Justice Recodification Committee explored this and agreed.

 

But the 2015 bill died in a Republican-controlled committee, receiving no more than initial testimony from its Democrat sponsors, Johnson and Rep. Teresa Fedor of Toledo.

 

Johnson suspects the bill failed for partisan reasons. Obstructing legislation offered by minority parties is common practice in Ohio’s history of making laws.

 

But GOP members also pushed back on a provision of the bill that eliminated Ohio’s 20-year statute of limitations on rape and sexual assault cases. Johnson still thinks rape should be categorized with murder and aggravated murder as crimes that have no shelf life for prosecution.

 

“I’ve always called rape murder of the soul. It changes people in fundamental ways. Nobody will ever be the same,” Johnson said. “The only thing [my clients] wanted was something I could never offer, which is the day before [the rape] happened.”

 

But with more pragmatism in her second term, Johnson have compromised by dropping the provision on statute of limitations and instead crafted a cleaner bill that focuses on the marital rape exemptions.

February 27, 2017 in Legislation, Women lawyers | Permalink | Comments (0)

Tuesday, January 31, 2017

OH Proposes Legislation to Extend Domestic Violence Laws to Dating Relationships

Victims of Dating Violence Could Finally Get Legal Protection in Ohio

Closing what many regard as a gaping loophole in Ohio's domestic-violence laws has become a top priority for state legislators.

Currently, only Ohio and Georgia do not offer specific legal options for victims of dating violence, such as civil-protection orders.

A protection order from a judge can legally prevent contact between a victim and perpetrator, including ordering that person to move out of a home that a couple shares. It also can grant child custody and require the offender to relinquish any firearms.

But currently, such orders are limited to family members.

"It's not necessarily about definitions; it's about the relationship and what type of violence arises out of that relationship," said Rep. Emilia Sykes, a Columbus Democrat given an unusual co-sponsorship of a prime bill in the GOP-dominated Ohio House.

"Our statutory law has not caught up to that here in Ohio, so that leaves victims in this state unprotected for the purposes of obtaining civil-protection orders, simply because they don't meet that very specific and narrow definition of domestic violence."

 

January 31, 2017 in Legislation, Violence Against Women | Permalink | Comments (0)

Friday, July 29, 2016

Studies Show Women Legislators Get More Work Done

The Research is Clear: Electing More Women Changes How Government Works

Hillary Clinton clinching the Democratic nomination is, on one level, a symbolic breakthrough. Yesterday we lived in a country where no woman had ever won a major political party’s presidential nomination. Today that's no longer true. This is a huge and momentous step forward.

 

But it’s not purely symbolic. As more and more women start to occupy the White House and Congress, we should expect them to govern differently.

 

Political science research has found this over and over again: Women legislators are more likely to introduce legislation that specifically benefits women. They’re better at bringing funding back to their home districts. And, to put it bluntly, they just get more shit done: A woman legislator, on average, passed twice as many bills as a male legislator in one recent session of Congress.

 

Women bring a different background to Congress. They face different obstacles to success — and sometimes more obstacles to winning office. That shapes how they govern and what issues they choose to focus their time on.

July 29, 2016 in Legislation | Permalink | Comments (0)

Thursday, June 16, 2016

Senate Overwhelming Votes to Require Women to Register for Draft

Senate Overwhelming Votes to Require Women to Register for the Draft

The Senate voted to require women to register for the draft when they turn 18, just like men, as part of a large military authorization bill Tuesday. The new provision, passed by the Senate 85 to 13, is still far from becoming law, but comes at a time when the U.S. military has gradually lifted previous restrictions on women serving in combat roles in the armed forces.

The vote signals a changing national—and political—mood on the issue, particularly by conservative lawmakers, with the staunchest conservative wing of the Republican party still actively opposing the change.

For a related prior post, see 9th Circuit Hears Challenge to Men Only Draft

For the legal history of the draft and other military exclusions, see Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

June 16, 2016 in Legislation | Permalink | Comments (0)

Monday, May 23, 2016

MD Passes Equal Pay Law

Wash Post, The Thing Americans Don't Want to Talk About Might be Holding Women Back

On Thursday, Maryland became the latest state to protect a worker’s right to ask colleagues one of the most taboo questions in American society: How much money do you make?

 

With Gov. Larry Hogan's signature on the equal pay law, the state joined at least a dozen others that explicitly shield compensation-curious workers from employer retaliation. The move to boost pay transparency comes four months after President Obama laid out new rules that would require companies with more than 100 employees to report to the government salary data based on race, gender and ethnicity, drawing ire from some in the business community.

 

Advocates hope the simultaneous efforts pushing employers to scrutinize their own wage breakdowns — and guarding the employees who choose to discuss them — will help reduce pay disparities between white men, women and employees of color in similar jobs.

May 23, 2016 in Equal Employment, Legislation | Permalink | Comments (0)

Thursday, May 12, 2016

New MD Contraceptive Equity Act Insures Coverage of Birth Control

NWLC Blog, Victory for Birth Control in Maryland

The Maryland Contraceptive Equity Act of 2016 makes sure that women have insurance coverage of the specific birth control that their health care provider prescribes without out-of-pocket costs and requires insurance plans to cover up to six months of birth control dispensed at once....

 

While the federal Affordable Care Act’s (ACA) birth control benefit eliminated many cost barriers to birth control, even women eligible for this benefit may face difficulties getting coverage without cost of the specific birth control recommended by their health care providers.

 

That is because the ACA requires coverage without out-of-pocket costs of at least one item within each birth control method category for women, but plans can still use medical management techniques within a birth control method category, such as imposing costs on some pills while covering others without cost. Women often go without preventive health care because of costs, even small costs.  So, if a plan is still charging for the specific birth control a woman has chosen with her health care provider, that cost can be a barrier to accessing the care she needs.  The Maryland Contraceptive Equity Act of 2016 ensures that women have coverage without cost-sharing of the specific birth control recommended by their health care provider, facilitating women’s access to birth control and enabling them to use it more consistently.

May 12, 2016 in Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, May 2, 2016

CA Proposes Equal Gender Pricing Bill

CA Senator Wants to Pass "Equal Gender Pricing Bill"

“It is unfair that female products are priced higher than men’s,” declared [Ben] Hueso. “Why are retailers pulling extra money from women when data already shows that they earn about 84 cents for every dollar men earn? This needs to change. It’s about time we stand up to the retailers and fight for equal product pricing for all.”

 

His bill would force the companies to “eliminate price discrepancies on like products for men and women.” The companies also need “to notify customers of their right not to be charged differently for comparable merchandise.”

 

“All consumers, regardless of their gender, should pay the same price for the same product. Pink packaging or gender-based marketing is no justification for charging more,” stated Richard Holober, executive director of the Consumer Federation of California. “Anything less than an equal price is discrimination and blatantly unfair.”

 

If passed, companies must change their pricing within 30 days.

May 2, 2016 in Legislation | Permalink | Comments (0)

Tuesday, December 15, 2015

SC Legislator Proposes Informed Consent Law for Viagra

Really.  2015-16 Bill 4544: Erectile Dysfunction-South Carolina Legislature.

Applying limitations on women's reproductive rights equally to men. 

H/t Ann Bartow.

December 15, 2015 in Abortion, Legislation | Permalink | Comments (0)

Thursday, November 5, 2015

How Bathroom Fears Conquered Transgender Rights in Houston

From the Atlantic: 

A city ordinance protecting residents from discrimination based on sexual orientation and gender identity is defeated after a fierce campaign.

The nation’s fourth-largest city has elected a lesbian mayor three consecutive times without much controversy, and in 2014, its city council approved an ordinance protecting residents from discrimination based on sexual orientation, gender identity, and 13 other factors. But when that same proposal came before the electorate on Tuesday, it lost out to an opposition campaign armed with a startlingly simple message: “No men in women’s bathrooms.” Opponents led 61 to 39, with 66 percent of the precincts reporting on Tuesday night.

November 5, 2015 in Legislation, LGBT | Permalink | Comments (0)

Thursday, October 29, 2015

Gendering the Marriage Penalty in Tax

Stephanie Hunter McMahon (Cincinnati) has posted Gendering the Marriage Penalty, in Controversies in Tax Law (Ashgate 2015):

Abstract:

    

In 1969 Congress amended the Internal Revenue Code to create a marriage penalty. The penalty was not felt by all married couples: Only those couples in which spouses earned roughly equal amounts and who filed joint tax returns paid a penalty. Thus, the 1969 change in law had a gendered effect of discouraging some wives from earning income, but the alternative was not without its own gendered results. If gender marks the impact of the 1969 legislation, was gender what motived the change in law? It would be easy to assume that at the end of the 1960s, a socially conservative legislature reacted to a developing women’s movement. From the legislative debates, sexism certainly pervaded congressional discussion of women’s role in the family and the economy. However, this only tells part of the story and does so by focusing on the result that remains of interest today. Economic forces were a larger part of the story. The context of the 1969 revision shows it as part of an economic movement evolving since the end of World War II as policymakers adopted tax legislation in an attempt to improve the economy and fight the Cold War. Not only policymakers in Washington but also many women’s groups shared this focus on national economics. The focus on economic issues resulted in a lack of analysis of how this change in tax policy would affect various groups of women. The development of the marriage penalty highlights the need to consider the consequences of legislation prior to its enactment. In this case, particular concerns (largely economic) drove legislation that imposed most of its cost on a segment of society that was not focused on this issue.

October 29, 2015 in Family, Legislation, Scholarship | Permalink | Comments (0)

Thursday, October 15, 2015

OH Introduces Equal Pay Bill

Cleveland.com Democratic Ohio Lawmakers Introduce "Equal Pay" Bill

Two Northeast Ohio representatives introduced legislation aimed at closing the pay gap between Ohio men and women by requiring state employers to review employee salaries and encouraging all employers to adopt policies supporting equal pay among men and women working comparable jobs.

 

Democratic Reps. Stephanie Howse of Cleveland and Kathleen Clyde of Kent said Wednesday the bill is necessary because Ohio women make 78 cents for every dollar a man earns. Nationally, black women earn 63 cents and Hispanic and Latina women earn 54 cents for every $1 earned by white men.

 

"Part of our bill seeks to root out the systemic undervaluing and undperpaying of women's work," Clyde said at a Wednesday news conference.

House Bill 330 has little chance of clearing the Republican-controlled Statehouse. The bill has 24 co-sponsors, all Democrats.

 

The Ohio Equal Pay Act would require state and local governments to evaluate employee pay for comparable work across job categories and eliminate pay associated with "women's work." Positions that have similar duties, responsibilities, and general requirements would be considered in the same "class." A class would be considered women-dominated if more than 70 percent of those employees are female and men-dominated if more than 80 percent of those employees are male.

October 15, 2015 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, September 8, 2015

Cal Senate Passes Strongest Equal Pay Bill in Country

New California Law is a Big Step Forward for Working Women

On Monday, the California Senate unanimously passed an equal pay bill with the strongest measures aimed at closing the gender wage gap in the country. Gov. Jerry Brown (D) has said that he’ll sign it into law.

 

The bill has a number of provisions, but the piece that stands out the most is one that requires employers to pay men and women the same for “substantially similar work,” not just the exact same job, unless differences are based on productivity, merit, and/or seniority.

 

This provision is what used to be called pay equity: not just requiring the same pay for the same job, but for different jobs that are similar in terms of effort, responsibility, and skill. While it isn’t mentioned much anymore, in the 1980s there was a strong movement toward laws that would require pay equality based on this concept. By 1989, 20 states had made adjustments among their own workforces based on “comparable worth,” or the idea of paying the same for substantially similar work in different jobs. More than 335,000 women got a raise and 20 percent of their gender wage gap was eliminated. That reduced the overall wage gap, and in five states it closed by 25 to 33 percent.

September 8, 2015 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, August 25, 2015

Women's Equality Day

Women's Equality Day

At the behest of Rep. Bella Abzug (D-NY), in 1971 the U.S. Congress designated August 26 as “Women’s Equality Day.”

 

The date was selected to commemorate the 1920 passage of the 19th Amendment to the Constitution, granting women the right to vote. This was the culmination of a massive, peaceful civil rights movement by women that had its formal beginnings in 1848 at the world’s first women’s rights convention, in Seneca Falls, New York.

 

The observance of Women’s Equality Day not only commemorates the passage of the 19th Amendment, but also calls attention to women’s continuing efforts toward full equality. Workplaces, libraries, organizations, and public facilities now participate with Women’s Equality Day programs, displays, video showings, or other activities.

 

Joint Resolution of Congress, 1971
Designating August 26 of each year as Women’s Equality Day

 

WHEREAS, the women of the United States have been treated as second-class citizens and have not been entitled the full rights and privileges, public or private, legal or institutional, which are available to male citizens of the United States; and

 

WHEREAS, the women of the United States have united to assure that these rights and privileges are available to all citizens equally regardless of sex; and

 

WHEREAS, the women of the United States have designated August 26, the anniversary date of the passage of the Nineteenth Amendment, as symbol of the continued fight for equal rights: and

 

WHEREAS, the women of United States are to be commended and supported in their organizations and activities,

 

NOW, THEREFORE, BE IT RESOLVED, the Senate and House of Representatives of the United States of America in Congress assembled, that August 26th of each year is designated as Women’s Equality Day, and the President is authorized and requested to issue a proclamation annually in commemoration of that day in 1920, on which the women of America were first given the right to vote, and that day in 1970, on which a nationwide demonstration for women’s rights took place.

August 25, 2015 in Legislation | Permalink | Comments (0)

Thursday, August 20, 2015

The New E.R.A.

CNN, The New Women's Movement: Reviving the ERA Fight

[Bettina] Hager, 30, grew up to run marathons. She reads Ms. Magazine while working out. A few years back, while working for the National Women's Political Caucus, she once deployed a crew of interns to slip copies of Ms. -- an alternative to Cosmopolitan -- into Washington-area nail salons.

 

Today, in her new job, she sits in her small and sparse "cubicle that could," helping to mobilize a crusade that began more than 90 years ago.

 

Her marching orders, as the D.C. director of the ERA Coalition, are to help pass and ratify the Equal Rights Amendment, a proposed addition to the U.S. Constitution that would explicitly protect women's rights and prohibit discrimination on the basis of sex.

 

Hager is just one fresh face in a rejuvenated movement to make this happen.

 

Though first introduced in 1923, the last time the country really paid attention to the ERA was in the 1970s and early '80s, before Hager was even born. That was when feminist activists brought the issue to a boil. But after failing to secure the required number of state ratifications to pass the ERA by its 1982 deadline, the campaign was reduced to a low simmer.

August 20, 2015 in Constitutional, Legislation | Permalink | Comments (0)

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)

Monday, July 27, 2015

"For Transgender Americans, Legal Battles Over Restrooms"

An editorial from the NYT: 

Gavin Grimm sat quietly in the audience last November as dozens of parents at a school board meeting in Gloucester County, Va., demanded that he be barred from using the boys’ restrooms at school. They discussed the transgender boy’s genitals, expressed concern that he might expose himself and cautioned that being in a men’s room would make the teenager vulnerable to rape. One person called him a “freak.”

When Gavin, 16, got his turn at the podium, he was remarkably composed. “I didn’t ask to be this way,” Gavin said. “All I want to do is be a normal child and use the restroom in peace.”

And: 

On Monday, Judge Robert Doumar of Federal District Court in Virginia is scheduled to consider whether the school board’s decision to prohibit Gavin from using the male restroom is unlawful discrimination. The case addresses one of the main unresolved battles in the fight for transgender equality.

A favorable decision for the student would be the first time a federal court has ruled that refusing transgender students access to proper restrooms is discriminatory. Any other outcome would reinforce cruel policies that deny dignity to some of the most vulnerable students and subject them to more bullying and stigmatization.

July 27, 2015 in Legislation, LGBT | Permalink | Comments (0)

Saturday, July 25, 2015

Equality Act Introduced in Congress

Huff Post, The Equality Act is a Visionary Piece of Legislation--And Way Overdue

Something extraordinary happened Thursday to advance fairness and equality in the United States. Members of Congress introduced legislation to amend the landmark Civil Rights Act of 1964 to embrace a more robust vision of equality.

 

The bill -- aptly named the Equality Act -- would amend existing law to explicitly prohibit discrimination based on sexual orientation and gender identity and expand protections against discrimination for women. The bill would also extend the reach of protections against discrimination by businesses and stop the use of religion to discriminate. It's historic -- and it may also be a surprise because many people think such discrimination is already illegal

Slate,"The Equality Act": Democrats Push Bill Banning LGBT Discrimination

The Equality Act Could End Legal LGBT Discrimination for Good

Sweeping LGBT Rights Bill to be Introduced this Week

July 25, 2015 in Legislation, LGBT | Permalink | Comments (0)

Friday, July 17, 2015

taking gender out of the tax code

From the Detroit Free Press: 

WASHINGTON – A Michigan congressman today proposed to do formally what the U.S. Supreme Court effectively accomplished last month: take the gender references out of the federal tax code.

U.S. Rep. Sander Levin, D-Royal Oak, introduced legislation intended to make clear that all married couples, regardless of gender, are equal under the tax code, removing gender references such as “husband and wife” and replacing them with nongender references like “married couple.”

July 17, 2015 in Legislation, LGBT | Permalink | Comments (0)

Thursday, July 16, 2015

New Law Allows Pharmacists to Prescribe Birth Control

Ms., Oregon Pharmacists Can Now Prescribe Birth Control

Women in Oregon will soon be able to receive birth control prescriptions from pharmacists, thanks to a new law signed by Gov. Kate Brown this week. Under the new rule, birth control can be obtained without the added burden of scheduling a doctor’s visit. The bill passed the state’s house in a 50-10 bipartisan vote.

 

To get birth control from a pharmacist, women over 18 will have to fill out a simple health questionnaire so that pharmacists can recommend the best contraceptive method for them. Those under 18 will need proof of a previous birth control prescription, but aren’t required to get a new one. The contraception will still be covered by the patient’s insurance.

 

State Rep. Knute Buehler (R) celebrated the bill in a press release, saying that his background as a medical professional informed his beliefs on access to contraception.

July 16, 2015 in Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)