Wednesday, September 10, 2014
A story by Michael Cassidiy, Boston College Law, from WBUR (the Boston NPR station). The introduction:
The current spotlight on campus sexual assault will no doubt raise awareness among college students of their legal rights and obligations. One hopes that it will also hold universities accountable for the social cultures they tolerate, if not create, on their own campuses. But difficult conversations about sexual responsibility need to be raised well before our children head off to college. As a law professor who has taught rape for more than a decade, and as a father of teenage boys, I believe that if we want to change behavior, we need to train young men to recognize sexual assault when it occurs and to internalize norms against it. Our conversations about rape need to start in our homes, at our dining room tables.
For nine years, Barbara Webb, 33, taught honors chemistry and coached sports at Marian High School, a private Roman Catholic girls’ school in Bloomfield Hills, a Detroit suburb.
When she told her employer she was pregnant, she says she was given two options: resign or be fired.
Because she got pregnant “outside the Catholic way,” as she put it in a Facebook post in late August announcing her pregnancy with Kristen Lasecki, her partner of more than five years. In same post, she announced the news of her dismissal.
In August, the school offered to pay for her healthcare through May if she left quietly, Webb said. She refused. Not just because the offer was insulting to her, but she felt it sent the wrong message to her students.
“It is part of Marian’s mission to educate women about human diversity and in this have really missed out on a true life opportunity to set an example. Instead they are only perpetuating hate,” she wrote. She added: “It is a shame because Marian is an amazing school with a wonderful staff and a very promising student body. I feel horrible for the students that I was forced to leave behind and wish them only the best.”
The president of the school, Sister Lenore Pochelski, confirmed to the Detroit Free Press that Webb was no longer at the school as of Aug. 19, but refused to comment further.
Tuesday, September 9, 2014
Gender & the Law Blog celebrates its first year with over 50,000 visits!
Thank you all for your readership and support. Keep sending us your posts. Let us know if you are interested in contributing as a weekly or monthly editor.
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Celebrate Constitution Day with The Constitutional Sources Project (ConSource), The Institute for Constitutional History at the New-York Historical Society and the George Washington University Law School. Tune in to a live webcast of Justice Ruth Bader Ginsburg's Constitution Day Lecture on September 12, 2014 at 1 p.m. ET: http://bit.ly/1ystgOc
The two Raiderette cheerleaders who revolted against the team this year—suing the Oakland Raiders for paying them less than minimum wage, withholding paychecks until the end of the season, and never reimbursing them for business expenses—have declared victory. Lacy T. and Sarah G., who filed a class-action suit on behalf of their fellow Raiderettes this spring, have reached a settlement with the NFL franchise. The team will pay out a total of $1.25 million to 90 women who cheered between 2010 and 2013. That translates to an average $6,000 payout per cheerleader per season for the first three seasons covered by the suit, and an average of $2,500 each for the final season. (Right before Lacy’s lawsuit hit, the Raiders unexpectedly padded the 2013 cheerleaders’ checks with additional cash). According to Sharon Vinick, lawyer for the Raiderettes, future Raider cheerleaders will be paid minimum wage for all hours worked, receive checks every two weeks, and be reimbursed for business expenses they incur in the course of the job.
“We are excited that the Raiders have decided to pay their current cheerleaders in accordance with the law,” Sarah G. said in a statement through her attorney. “This was our goal and I am pleased to say I was a part of an organization whose management decided to make these changes. Now we can just go back to dancing, being respected and taking down the Niners when they try to step onto our field!”
Is the settlement fair? $1.25 million sure sounds like a big number, and for many current and former Raiderettes, the split ain’t bad: The women who cheered for all four seasons covered by the suit could stand to receive checks for more than $20,000. (As for the naysaying cheerleaders who complained that Lacy T. and Sarah G. were making them look bad by speaking up: If they fail to cash their checks, the money will be donated to Girls Inc., an Alameda County nonprofit that provides enrichment activities for local girls.)
Sunday, September 7, 2014
....according to UNICEF. More:
About one in 10 girls around the world experiences serious sexual violence, the UN children's agency has said in a major report detailing the "staggering extent" of sexual, physical and emotional abuse faced byyoung people.
The Unicef report found that 120 million girls and female adolescents under 20 had endured rape or other forced sexual acts, with such experiences especially common in some developing countries – about 70% of girls suffer sexual violence in the Democratic Republic of the Congo and Equatorial Guinea, and an estimated 50% in Uganda, Tanzania and Zimbabwe, Unicef said.
The report also pointed to problems in richer countries, with many girls reporting "sexual victimisation", for example, by harassment or exposure to pornography.
Many young victims did not report abuse, the authors found, with data showing that nearly half of all girls aged 15-19 who said they had faced physical and/or sexual violence had never told anyone about it.
The report also highlighted the high numbers of young people murdered every year, totalling about 95,000 deaths in 2012. In some countries, for example Panama, Venezuela, Brazil and Colombia, murder is the leading cause of death for males aged 10-20. Nigeria alone had 13,000 child and adolescent homicides in 2012, with some 11,000 in Brazil.
A student at the University of California at Santa Barbara who allegedly drugged and sexually assaulted a female undergraduate was punished by being removed from campus for three months, a federal complaint filed Wednesday claims.
Myra Crimmel, a 2014 UCSB graduate, submitted a Title IX complaint to the U.S. Department of Education's Office for Civil Rights against her alma mater for allegedly failing to inform her of all her options as a rape victim, delaying adjudication and eventually giving her assailant what amounted to a single-quarter suspension.
Saturday, September 6, 2014
From WaPo, Feminism Unfinished
“Feminism Unfinished"... argues that the “wave” metaphor obscures the history of a continuous American women’s movement sustained by labor activists, civil rights advocates and social-reform campaigners, who may have looked placid on the surface but were paddling like hell underneath. Each of the three authors contributes a chapter to their history of American feminism, and they declare together in their prologue that “there was no period in the last century in which women were not campaigning for greater equality and freedom.” They hope that uncovering the “multiple and unfinished feminisms of the twentieth century can inspire” the women’s movements of the 21st. That’s the surprise signaled in the teasing subtitle.
Russell Robinson (Berkeley) has posted Unequal Protection, 67 Stanford L. Rev. (2015)
During the last 30 years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a “racial classification.” It has diluted the protections of intermediate scrutiny in gender discrimination and abortion cases. And it has turned its back on groups who once benefited from “animus” review, including people with disabilities and poor people. Meanwhile, the only site of vitality in equal protection jurisprudence is LGBT claims. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this re-ordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny.
Specifically, I identify three advantages that LGBT people enjoy compared to virtually every other civil rights constituency: (1) the Court has rigidly used the concept of a “classification” as a gate keeping device, but it has ignored this requirement in sexual orientation cases; (2) LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities but that the Court no longer recognizes in such cases; and (3) LGBT cases leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation — quite unlike the Court’s adverse resolution of these questions in race cases.
These findings demand that law professors and legal scholars reconsider how they teach and write about equal protection.
Slate, The Meaning of Pink and
Friday, September 5, 2014
(a cathedral in Copenhagen)
Even in countries that are nominally supportive of transgender people, sterilization—whether by surgery or hormones—is often the price a trans individual must pay in order to receive legal recognition of his or her transition. It’s a paradigm that theWorld Health Organization has called "counter to respect for bodily integrity, self-determination and human dignity," and it’s one that doesn’t acknowledge the fact that for many trans people, transition is not necessarily tied to invasive physical changes.
Earlier this week, Denmark moved beyond this inhumane legal logic when its new gender recognition law came into effect. Under the new policy, trans people in the country are now only required to fill out some paperwork in order to receive a new social security number and accompanying personal documentation for their gender. Medical intervention, including surgery, psychological diagnosis, and official statements, are no longer necessary prerequisites—in Denmark, gender identification is now based solely on self-determination.
KINGSTON, JAMAICA - Young Jamaican gay rights activist who brought a legal challenged to the Caribbean island's anti-sodomy law has withdrawn the claim after multiple threats and violent backlashes, advocacy groups and colleagues said Aug. 29.
Javed Jaghai made headlines in 2013 after he initiated a constitutional court challenge to Jamaica's 1864 law that bans sex between men. Jaghai argues the law fuels homophobia and violates the 2011 adopted Human Rights Charter that guarantees people the right to privacy. However, Jaghai is withdrawing his challenge due to threats of violence.
TOKYO — Prime Minister Shinzo Abe of Japan unveiled a reshuffled cabinet on Wednesday that included five women, an apparent nod toward his promises to raise the status of women in the workplace. The appointments tie the record for the number of women in top political positions in Japan.
Since taking office in December 2012, Mr. Abe has spoken of the need to revive Japan, the world’s third-largest economy, by more fully unleashing the potential of its huge pool of highly educated women, who have long been relegated to relatively low-ranking positions in the work force.
Thursday, September 4, 2014
Ian Farrell and Nancy Leong (Denver) have posted, Gender Diversity and Same-Sex Marriage.
Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow opposite-sex marriage while banning same-sex marriage — even if the ban triggers heightened scrutiny under equal protection or due process — because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.
The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah's same-sex marriage ban in the Tenth Circuit and Kentucky's same-sex marriage ban in the Sixth Circuit.
Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.
The Domino's Pizza chain isn't responsible for the alleged sexual harassment of a 16-year-old female employee of one of its stores because the franchise agreement left all personnel decisions up to the now-bankrupt store owner, says a closely divided California Supreme Court.
A lawyer for Domino's hailed Thursday's 4-3 ruling as "a great victory for the franchise industry" - which, according to a 2007 Census Bureau study quoted by the court, accounted for nearly $1.3 trillion in annual sales nationwide.
The ruling comes a month after the general counsel of the National Labor Relations Board reached a much different conclusion in another franchise case, saying McDonald's can be held jointly liable under federal law for wage violations at its restaurants.
The court case comes from Thousand Oaks (Ventura County), where the teenager, Taylor Patterson, said the assistant store manager groped her and made lewd comments soon after she started work in November 2008.
Wednesday, September 3, 2014
David Orentlicher, Indiana University, has uploaded to SSRN Abortion and Compelled Physician Speech. The abstract reads:
As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent. On one hand, the First Amendment precludes the government from forcing individuals to voice the government’s views. On the other hand, legislatures and courts can insist that physicians properly explain to patients about their medical conditions and potential treatments so patients can make informed decisions about their health care. When taking care of patients, doctors assume a duty to speak, as well as a duty to speak responsibly.
Ordinarily, the doctrines of free speech and informed consent coexist without much difficulty. But as states have expanded the kinds of information that abortion providers must disclose to pregnant women, First Amendment concerns have become increasingly salient. In this article, I will use several examples of speech mandates for abortion and other health care services to identify principles for distinguishing between legitimate regulation of the informed consent process and illegitimate interference with the freedom of speech.
First, speech mandates should be permissible when they provide material information to patients about their health care decisions. If the state is trying to ensure that patients are fully informed, the mandates should be allowed. As a corollary, the information must be truthful and not be misleading. The goal is to inform not to misinform. Second, speech mandates that pertain to moral considerations should not be permitted. Rather than informing the patient’s decision, these mandates force the physician or other health professional to espouse the state’s ideology.
Courts and legal scholars have proposed other ways to distinguish permissible from impermissible mandates (e.g., whether the government takes sides, manipulates emotions, or uses graphic images). However, these additional distinctions raise their own concerns and should not be needed. If courts strictly apply the requirements that compelled speech pertain to medical facts about abortion and its alternatives rather than abortion ideology and that the compelled speech be truthful and not misleading, then the interests of pregnant women and their physicians should be protected.
Jason Potter Burda, UMass School of Law, has uploaded to the SSRN When Condoms Fail. The abstract reads:
Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known in the media as “PrEP”) has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for use by certain HIV-negative individuals to prevent infection. Despite an effectiveness of up to 92 percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement.
In this article, I address the social, legal, and policy challenges that will shape future implementation of this game-changing HIV prevention modality. I develop a framework for understanding these challenges by dividing them into two dimensions: acceptability and accessibility. I argue that self-imposed, individual, and institutional stigma affects PrEP acceptability among high-risk groups, and among healthcare providers. In addition, I speculate that utilization management for PrEP is likely to increase as a result of PrEP rollout, and that PrEP is vulnerable to benefit denials based on medical necessity exclusions.
One solution to overcoming these challenges is mandating benefits for, and eliminating accessibility hurdles to, PrEP under the Affordable Care Act’s Preventive Services and Essential Health Benefits provisions, as well as mandating PrEP coverage through state action. Health content regulation, although controversial particularly after the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, will be necessary both to ensure that PrEP treatment reaches the populations most at risk of spreading the virus and to overcome antiquated assumptions about HIV prevention.
Tuesday, September 2, 2014
Bloomberg News took the campus sexual assault backlash to a new low last week with a piece describing how “hook-up culture” is on the decline at elite colleges now that there’s a heightened awareness of sexual assault on campuses. The focus of the article is the “burden” male students carry as a result of new interest in the campus rape epidemic. So what is the burden that is so heavy it warrants an entire article?
- Having to be more cautious about gauging the interest of a romantic pursuit
- Having to avoid making romantic pursuits “feel uncomfortable”
- Having to learn what constitutes consent
- Having to be more cautious about making decisions while drunk
- Having to be more cognizant of how social media comments may appear to others
In other words, the new campus anti-rape movement has made male students more thoughtful and less predatory, but journalist John Lauerman and former Bloomberg intern Jennifer Suraneframe this in negative terms.
Men punished for sexual misconduct in the wave of cases sweeping college campuses are fighting back against what they call unfair student disciplinary systems and publicity that threatens to shatter their reputations.
The current and former college students describe themselves as victims of false accusations amid a national campaign — led by the White House — to stamp out sexual violence on campuses. While the federal push to increase awareness of sexual assault is aimed at keeping students safe and holding the nation’s colleges and universities accountable, some of the accused say the pressure on their schools has led to an unfair tipping of the scales against them.
They fiercely dispute the validity of internal investigations that rely on a lower standard of proof for determining misconduct than what is required for a conviction of a sex crime. They also contest accounts circulating on campuses and the Internet that label them as sexual assailants or rapists.
Joshua Strange, 23, of Spartanburg, S.C., said he was stunned that Auburn University expelled him in 2012 for sexual misconduct even though an Alabama grand jury found insufficient evidence to prosecute him for a sex crime. The internal disciplinary proceeding began, he said, after an ex-girlfriend falsely accused him of sex assault.