Tuesday, October 14, 2014
Tomorrow, I am presenting as part ofthe University of Akron's Rethinking Gender series." The title of my talk is "Understanding Divorce Law Historically Through the Lens of Gender." It is based on a chapter of my book project, Elizabeth Cady Stanton and the Feminist Foundations of Family Law now nearing completion.
One running theme of the book is appreciating Stanton as a lay lawyer - a person trained by her father, who was a judge and lawyer who apprenticed young lawyers in their home; a person analytically inclined to "think like a lawyer;" who understood the normative function of the law; and who advocated for legislative reform and legal change. This legal understanding, I think, offers insights for us in both understanding her work in the nineteenth-century, and also incorporating its relevance today. See Tracy A. Thomas, Elizabeth Cady Stanton and the Notion of a Legal Class of Gender, in Feminist Legal History (Thomas & Boisseau, eds. NYUP 2011).
On divorce, Stanton was a vocal and persistent advocate for no-fault, or "easy divorce." But more importantly from my perspective is that she framed divorce as a woman's issue. Divorce was both a right and a remedy for woman's wrongs. Her life-long commitment to divorce reform attacked the problem of restrictive marriages, which confined women into legal obscurity under coverture, patriarchal social expectations, and sometimes domestic abuse.
Her framework of gender approached the divorce issue from the three classic feminist approaches: equality, difference, and systemic. As to formal equality, Stanton challenged the double moral standard that supported the law of divorce, for example, allowing divorce for the wife's adultery, but requiring "aggravated" adultery of adultery plus some additional fault like cruelty, dessertion, or sodomy by the husband. Her equality theories conceptualized divorce as a individual right, granting women autonomy and psychological freedom to control their own personal relations.
As to difference, Stanton argued that fault grounds for divorce should be expanded to address the different concerns of women. The law was too focused on grounds based on sexual privilege, as in adultery and failure to consummate. Instead, it needed to include grounds most relevant to women, cruelty and desertion. A cruelty divorce mechanism connected to Stanton's work on temperance and against domestic violence, arguing the necessity of releasing and protecting women and children in abusive relationships. Desertion was important for women because they needed a court to restore their legal rights as a single woman to contract, hold property, earn income, and have custody of their children. Men accomplished desertion by practice, simply walking away, often headed West, retaining their legal identity, all property rights, and the ability to earn a livelihood and thus in little need of the courts.
These specific arguments as to divorce grounds though were part of Stanton's much bigger and radical challenge to the system of marriage itself. She conceptualized marriage not as a covenant or status, but as a contract. And as a contract between two fully equal partners. And as a contract like any other employment or commercial contract that could be modified or terminated at the will of the parties. This gave her the legal foundation to justify no-fault divorce, though it didn't mollify the moral critics. Despite opposition from most other feminist reformers, Stanton continued to advocate for free access to divorce, fighting against the backlash and growing conservativism at the end of the century. See Tracy A. Thomas, Elizabeth Cady Stanton on the Federal Marriage Amendment, 22 Const. Comment. 137 (2005).
Public, single-gender schools have become more common over the last decade, but new research shows that people might choose such schools based on de-bunked ideas of differences in male and female brains.
Meagan Patterson, associate professor of psychology and research in education, co-authored a study with Erin Pahlke of Whitman College and Rebecca Bigler of the University of Texas in which they surveyed parents, teachers and students at both an all-girls school in the southwestern United States as well as parents, teachers and students from co-ed schools in the same district. They asked respondents about reasons that their district had opened an all-girls school and their personal endorsement of these reasons. The study is published in the journal Sex Roles.
They found that teachers largely embrace the idea that differences in boys’ and girls’ brains affect the way they learn. Neuroscience research fails to support that claim. But despite neuroscientists showing that such differences are small and the similarities between the two genders’ brains and learning styles are much greater, the idea has nto teaching materials, the media and acceptance in society.
Monday, October 13, 2014
From the New Republic:
“I see the Syrian revolution as not only a popular revolution of the people but also as a revolution of the woman, therefore I see myself as part of the revolution,” said Jazera, 21. “The woman has been suppressed for more than 50,000 years and now we have the possibility of having our own will, our own power and our own personality.”
Jazera, like thousands of other women in Rojava, the Kurdish region of Syria, is a member of the women’s wing of the People’s Protection Unit (YPG)—an offshoot of the Kurdistan Workers’ Party (PKK), the Turkish-Kurdish guerrilla group designated as a terrorist organization by the U.S. and European Union because of its three-decade insurgency against NATO ally Turkey.
Of the 40,000–50,000 Kurdish troops in Syria, 35 percent are women, according to YPG spokesman Redur Khalil. Most women are not married, he added, but said there had been exceptional circumstances in which even mothers had joined the women's wing, known as YPJ.
Sunday, October 12, 2014
Slightly old news now, but from the NYT:
If you are a man speaking at a conference celebrating women in computing, it is probably all right to flatter the largely female audience members by telling them they possess “superpowers.”
It is probably unwise, though, to imply that they should avoid asking for a pay raise.
Just ask Satya Nadella.
Mr. Nadella, the chief executive of Microsoft, suggested on Thursday that women who do not ask for more money from their employers would be rewarded in the long run when their good work was recognized. The comments, made at the Grace Hopper Celebration of Women in Computing in Phoenix, drew swift and negative responses on Twitter.
And some commentary from Forbes magazine:
Lots of men don’t “get it.” Lots of men don’t want to. And many men “get it” only imperfectly, but are open to course correction.
What we need now – all of us who have been working for gender equality in leadership, position and compensation – is a nuanced conversation focused on swift and effective action – not soapbox slogans. Women can not do this alone, and we can recruit those who are willing to our side…not alienate them for life. I for one think that Satya Nadella is the perfect candidate for an activist ally. Why not concentrate on that?
Saturday, October 11, 2014
New Republic, How the Pill Overcame Impossible Odds and Found a Place in Million of Women's Purses. Purses?? Well... whatever.
In The Birth of the Pill: How Four Crusaders Reinvented Sex and Launched a Revolution, Jonathan Eig chronicles the decades-long effort to make that fantasy a reality. In his telling, this transformation is thanks to a unique alliance between feminists and scientists: the spotlight-seeking activist Margaret Sanger, the rebel researcher Goody Pincus, the single-minded heiress Katherine McCormick, and the photogenic family doctor John Rock. These four people provide a formula for what it takes to create scientific breakthroughs that are ahead of their time politically: an incredible amount of drive and little concern for traditional values, a willingness to flout powerful institutions and their rewards, a tremendous amount of money, and, eventually, a way to appeal to the mainstream. It’s no wonder that, despite lots of modern talk about disruption and innovation, truly world-changing breakthroughs are so rare.
The Malala Scholarship Act at Congress.gov
Friday, October 10, 2014
If you’re a woman in Sudan, it's easy to find yourself on the wrong side of the law. Last year in South Darfur, 150 female tea vendors were arrested and fined for the crime of wearing “tight” clothes and failing to wear socks.
A report released last week, In Search of Confluence: Addressing Discrimination and Inequality in Sudan, detailed the jail time, fines, and beatings that Sudanese women are subjected to for violating article 152 of the Criminal Law Act of 1991, which makes “indecent or immoral dress” punishable by 40 lashes, a fine, or both.
Thursday, October 9, 2014
Julie Goldscheid (CUNY School of Law) & Debra J. Liebowitz (Drew) have posted Due Diligence and Gender Violence: Parsing its Power and Its Perils, Cornell Int'l L. J. (forthcoming).
Human rights advocates increasingly invoke the due diligence standard to hold States responsible for their actions and omissions with respect to gender violence. This paper traces the development of the due diligence obligation and analyzes how the due diligence principle has been interpreted in key international policy documents and developing gender violence caselaw from the United Nations, European, and Inter-American human rights systems. On its face, the due diligence obligation calls on the State to take responsibility for preventing gender violence, prosecuting and punishing perpetrators, and protecting and providing redress for gender violence victims. The notion of State responsibility for gender violence offered by the due diligence obligation is foundational, and is appealing in many ways, particularly when considering the near-universal history of non-responsiveness, State approval of, and all-too-frequent participation in, gender violence.
We argue that emerging interpretations of the due diligence obligation as applied to gender violence pay insufficient attention to the risks of State intervention. While State response is clearly needed, we should be cautious about the ramifications of the demand. A reflexive focus on State response can encourage an undue emphasis on criminal justice responses with adverse consequences such as arrests of survivors. It risks situating the State as the entity charged with program delivery when other entities would be more effective. An appropriate model of state responsiveness should explicitly grant the State discretion not to respond, or to delegate its response to other stakeholders such as community members, survivors, NGOs, and advocates. It should consider the impact of any intervention on those at the margins — particularly those from racial, ethnic, religious, and sexual minorities — and should take into account the experiences and recommendations of both advocates and survivors. A careful balancing of the need for State accountability with the risk of over-intrusiveness can best advance foundational human rights principles, such as non-discrimination, equality, autonomy, and dignity, in service of ending gender violence and promoting justice.
Mary Anne Franks (Miami), Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women's Syndrome and the Vindication of Male Privilege, 68 Univ. Miami L. Rev. (2014)
Proponents of Stand Your Ground laws cynically exploit the image of vulnerable women to defend expansions of self-defense doctrine, despite the fact that such laws actually reinforce and exacerbate existing gender divides in self-defense law that disproportionately harm women. The appropriation of women’s right to self-defense by Stand Your Ground supporters masks the law’s hostility toward women’s use of force and obscures the real achievement of such legislation: the normalization and promotion of (often white) male violence in an ever-expanding variety of scenarios. Battered Women’s Syndrome, the chief narrative available to women who fight back, forces women to plead for mercy and subjects their behavior to extensive scrutiny and evaluation. Stand Your Ground, the chief narrative men can now use to justify provoking deadly fights, often allows men to escape evaluation altogether by granting immunity from prosecution and even from arrest. This two-track system of self-defense — Battered Women’s Syndrome for women and Stand Your Ground for men — has far-reaching implications outside of the courtroom. Battered Women’s Syndrome sends the legal and social message that women should retreat even from their own homes in the face of objective, repeated harm to their bodies; Stand Your Ground sends the legal and social message that men can advance against strangers anywhere on the basis of vague, subjective perceptions of threats. Male violence is not only tolerated, but celebrated; women’s violence is not only discouraged, but stigmatized. Invoking the image of vulnerable women to promote aggressive self-defense rhetoric serves to distract from the reality that violence remains chiefly a male privilege.
The National Women's Law Center has this preview, Supreme Court Preview: 2014-2015
This term, the Supreme Court will decide at least one case—and possibly multiple cases—with critical implications for both women’s health and women’s economic security. The Court’s consideration of these cases comes in the immediate wake of the 2013-2014 term, when the Supreme Court’s decisions in McCullen v. Coakley, Burwell v. Hobby Lobby, and Harris v. Quinn—threatened real harm to both. In addition, this term the Court will consider two other potentially important employment discrimination cases and a significant housing discrimination case, and may again take up the issue of marriage equality; the legal issues in all these cases are important for women.
Wednesday, October 8, 2014
Several miles north of where I live, there is Sarasota, Florida. The city council there has taken steps recently to protect transgender folk from discrimination:
SARASOTA - City commissioners voted unanimously Monday to pursue including transgender people in a list of protected classes in the city's anti-discrimination code.
A final vote will be pushed to a later date, when city staff will present an updated ordinance that makes it clear that discrimination on the basis of gender also includes gender identity and expression, said city attorney Bob Fournier.
“It's wonderful that we are at this point right now,” Commissioner Susan Atwell said before the 5-0 vote. “This inclusion for gender identity and expression gives full value and true representation to all citizens in our community.”
A group of top women’s soccer players from across the world on Wednesday sued the Canadian Soccer Association and FIFA, the sport’s international governing body, alleging gender discrimination around the 2015 Women’s World Cup, which Canada will host in June. NBC Sports first reported the lawsuit, which top players, including American stars Abby Wambach and Alex Morgan, had threatened for months over FIFA and the CSA’s decision to hold the Women’s World Cup on artificial turf fields, a decision the players say makes the game more dangerous for them and would never happen for the men’s World Cup.
The lawsuit filed in Ontario by more than 40 international women’s players claims that the decision to hold the World Cup on turf is “inherently discriminatory” and violates Canadian human rights laws for three major reasons: that it changes the way the game is played, poses “unique and serious risks of injury,” and requires them to play on a “second-class surface.”
Tuesday, October 7, 2014
Scott Cunningham (Baylor) & Manisha Shah (UCLA, Public Affairs), Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Carmen Gonzalez (Seattle), Women of Color in Legal Education: Challenging the Presumption of Incompetence, The Federal Lawyer (July 2014)
Steven Douglas Smith (San Diego),Die and Let Live? The Asymmetry of Accommodation
Aaron A. Dhir (Osgoode Hall), Homogeneous Corporate Governance Cultures, Chp. 1, Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity (Cambridge University Press. Forthcoming).
Russell K. Robinson (Berkeley), Unequal Protection, 67 Stanford L.Rev. (2015)
Ian P. Farrell & Nancy Leong (Denver), Gender Diversity and Same-Sex Marriage, Columbia Law Review Sidebar (Forthcoming)
Deborah Drake (The Open U), et. al., Sociology of Prison Life, in Wright, J. (ed), Int'l Encyclopedia Social & Behavioural Sciences (Forthcoming)
Ben McJunkin, Deconstructing Rape by Fraud, 28 Columbia J. Gender & Law (2014)
Workplace Law Prof Blog, Supreme Court Grants Cert in EEOC v. Abercrombie & Fitch
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
A "look policy"? For details of the policy and past sex discrimination claims, see Abercrombie & Fitch's Absurd Dress code is Going All the Way to the Supreme Court
Gov. Andrew M. Cuomo said on Thursday that he had instructed the State University of New York to overhaul its approach to preventing, investigating and prosecuting sexual assault, including making affirmative consent the rule on all 64 of its campuses.
Mr. Cuomo, announcing the change at a news conference in Manhattan, said SUNY’s new approach, which is to be put into effect in the next 60 days, would eventually lead to a statewide law regulating sexual assault policies at all New York colleges and universities.
Calling campus sexual assault a national epidemic, the governor said: “This is Harvard and Yale and Princeton, Albany and Buffalo and Oswego. It is not SUNY’s problem by origination. I would suggest it should be SUNY’s problem to solve and SUNY’s place to lead.”
Monday, October 6, 2014
On Wednesday, Julia Pierson, the first woman to ever lead the Secret Service in its nearly 150-year history, resigned her post amid heavy criticism over an intruder who was able to get as far as the East Room of the White House.
Reasonable people can disagree about whether, ultimately, she deserved to lose her job or whether anyone in charge during such an incident would have to resign. But it’s probably not pure chance that Pierson, who held that position for just a year-and-a-half, was a woman. Time and again, women are put in charge only when there’s a mess, and if they can’t engineer a quick cleanup, they’re shoved out the door. The academics Michelle Ryan and Alex Haslam even coined a term for this phenomenon: They call it getting pushed over the glass cliff.
Jelke Boesten, University of Leeds, UK, has recently published Sexual Violence During War and Peace (Palgrave Macmillan). The abstract reads:
The idea that rape is widely used as a weapon of war has taken root in international institutions, influencing how post-conflict justice and transitional justice are perceived and pursued. Despite this global attention, there has been no progress eradicating or even mitigating sexual violence in war or in peace and very little progress prosecuting crimes of sexual violence. With particular reference to post-conflict justice, this book asks what sexual violence means from a socio-political perspective and in what ways contemporary "peacetime" violence is linked to wartime rape. Evidence from Peru and the internal armed conflict of 1980-2000 shows that acts of wartime rape are deeply embedded in existing configurations of gender and power and that sexual violence serves not only wartime terror but also peacetime hierarchies.
Saturday, October 4, 2014
Isn't that an oxymoron? Slate, Iceland Announces U.N. Men Only Gender Equality Conference
Iceland announced on Monday an unusual plan to tackle the problematic state of gender equality in the world, particularly violence against women. The plan, as explained by the country’s foreign minister, Gunnar Bragi Sveinsson, to the U.N. General Assembly is to hold a conference on the issue in January. The twist: Only men and boys are invited to participate.
Here’s what Sveinsson had to say:[W]e want to bring men and boys to the table on gender equality in a positive way. Iceland and Suriname will convene a “Barbershop” conference in January 2015 where men will discuss gender equality with other men, with a special focus on addressing violence against women. This will be a unique conference as it will be the first time at the United Nations that we bring together only men leaders to discuss gender equality.