Friday, April 6, 2018
The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers breached their fiduciary duties and/or violated federal securities laws in connection with sexual harassment scandals at those firms. More such suits are likely to follow in the months ahead.
In this Article, we examine the role of corporate and securities law in regulating and remedying workplace sexual misconduct. We specify the conditions under which corporate fiduciaries can be held liable to shareholders under state corporation law for perpetrating sexual misconduct or allowing it to occur at their firms. We also discuss the circumstances under which federal securities law requires issuers to disclose sexual misconduct allegations against top executives and to reveal payments made to settle sexual misconduct claims. After building a doctrinal framework for analyzing potential liability, we consider the strategic and normative implications of using corporate and securities law as tools to address workplace-based sexual misconduct. We conclude that corporate and securities law can serve to publicize the scope and severity of sexual harassment, incentivize proactive and productive interventions by corporate fiduciaries, and punish individuals and entities that commit, conceal, and abet sexual misconduct in the workplace. But we also address the potential discursive and distributional implications of using laws designed to protect shareholders as tools to regulate sexual harassment. We end by emphasizing the promise as well as the pitfalls of corporate law as a catalyst for organizational and social change.
Kenneth Robert Davis, Strong Medicine: Fighting the Sexual Harassment Pandemic, Ohio State L. J. (forthcoming)
A pandemic of sexual harassment has stricken the country. A recent EEOC report shows that, depending on how the question is posed, between 25 and 85 percent of women respond that they have experienced harassment in the workplace. The report also states that 90 percent of incidents go unreported. Victims do not believe that their employers will be receptive to their complaints, and many fear censure or retaliation. The law is limited in its capacity to deter a pandemic that has psychological, sociological, and cultural causes. Nevertheless, the law has a role to play, particularly in the workplace. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sex, and the courts have long recognized sexual harassment as a form of sex discrimination. The Act has established a framework focused on conciliation, and, where efforts at settlement fail, on litigation. Regrettably, this framework has failed to achieve its mission of deterrence. In Meritor Bank v. Vinson, the Supreme Court established the elements of hostile-work-environment claim. A plaintiff must prove that she was subjected to unwelcome, discriminatory words or conduct of a sexual or gender-related nature so severe or pervasive that they altered the conditions of her employment. In applying this standard, federal courts have rejected claims alleging highly offensive and even egregious misconduct. Several reasons account for the failure of current law to curtail sexual harassment in the workplace. One of the primary reasons is the law’s focus on conciliation and litigation. Under the current model, complainants file grievances with the EEOC, which seeks to settle disputes. If efforts at settlement fail, the current approach authorizes a federal court action. Settling cases may do little to deter abuses. After entering into a settlement agreement, an employer may slip back into complacency. Litigation also fails to promote deterrence because the current framework focuses on compensating victims.
To strengthen Title VII’s deterrent impact, this Article proposes that Congress supplement the current model by granting the EEOC expanded enforcement powers. The EEOC should have broad authority to initiate civil enforcement proceedings in federal court and in quasi-judicial enforcement proceedings. Rather than compensating victims, the purpose of such proceedings would be to identify instances of workplace harassment, and, where appropriate, sanction irresponsible employers. Because the EEOC, in such enforcement proceedings, would not seek relief on behalf of victims, the elements that establish injury would be superfluous. In such proceedings the EEOC should merely have to prove that discriminatory, sexual or gender-related words or conduct would be highly offensive to a reasonable person. By adopting the “highly offensive to a reasonable person” standard, Congress would maximize prevention of sexual harassment in the workplace.
Wednesday, April 4, 2018
CFP The Legal Consequences of Living a Long Life: The Differential Impact on Marginalized Communities
Call for Proposals for the Section on Aging program at the 2018 AALS Annual Meeting, which the Section on Women in Legal Education is pleased to co-sponsor:
The Legal Consequences of Living a Long Life: The Differential Impact on Marginalized Communities
Thanks to advances in health care people are living longer. Longevity has legal consequences. People can outlive their family, friends, and finances. Longevity has differing impacts for women, people of color, low-income people, and LGBT individuals. Statistically, women make less money than men and they live longer than men. People of color are less financially secure than Americans as a whole. In the United States, approximately 80 percent of long-term care for older people is provided by family members, such as spouses, children, and other relatives. This places an undue financial burden on low-income persons. LGBT individuals may face conscious and unconscious discrimination when seeking long-term care and other assistance, and they have historically formed various kinds of family structures. This panel will explore the intersection of the legal system and longevity, examining systems that are in place or should be in place to help people plan for living longer. Topics might include: paying family caregivers, working conditions of nursing home assistants, and differential patterns of wealth accumulation. This call for paper seeks authors of published or unpublished papers that consider law and longevity.
Please submit a 1 or 2 page proposal to Naomi Cahn, Secretary of the Section, at firstname.lastname@example.org by May 1, 2018. The Executive Committee will review all submissions and select proposals for presentation as a part of our AALS 2019 Program. Presenters may have the opportunity to publish their paper in the Journal of Health Law and Policy at Cleveland State University.
The program is co-sponsored by the following sections: Family and Juvenile Law; Minority Group; Trusts & Estates; and Women in Legal Education
Tuesday, April 3, 2018
Michael P. Fix & Gbemende E. Johnson, Public Perceptions of Gender Bias in the Decisions of Female State Court Judges, 70 Vanderbilt L. Rev. 1845 (2017)
How are women on the bench, and their decisions, perceived by the public? Many scholars find that gender influences the voting behavior of judges and the assessment of judges by state judicial systems and the American Bar Association. However, few scholars have examined how judge gender affects the way in which the public responds to judicial outcomes. Does the public perceive the decisions of female state court judges as being “biased” by their gender identity, particularly in cases involving reproductive rights/family law? Also, does the public view female judges on state courts as more likely to rely on ideology when ruling in cases? Using a survey experiment that varies judge gender in a state child custody case, we examine whether respondents exhibit less support for judicial decisions authored by female state court judges. Additionally, we test whether respondents are more likely to perceive the decisions of female state court judges as ideologically biased or as a product of gender influences (as compared to male judges). Finally, we assess whether these effects are conditional on or exacerbated by respondent characteristics such as gender, race, and religiosity. The influence of gender on public response to state court decisions has important implications for our understanding of why certain court decisions find public support and acceptance.
Julie Goldscheid & Rene Kathawala, State Civil Rights Remedies for Gender Violence: A Tool for Accountability
This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that.
In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable.
In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.
"When it comes to silencing women," writes Mary Beard, "Western culture has had thousands of years of practice." Academe is no exception. A recent conference at Stanford University featured 30 speakers — all of them men, all of them white. The incident sparked ridicule and outrage, as well as a sense that higher education is facing a reckoning. Over the past few months, amid mounting revelations of sexual harassment, The Chronicle Review asked presidents and adjuncts, scientists and humanists, senior scholars and junior professors to take on the theme of women and power in academe. Here are their responses.
Wednesday, March 28, 2018
Older women compose a large share of labor force in the U.S. There are two federal statutes that can provide protection for older women against employers’ discriminatory behavior: the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). Theories and empirical evidence suggest that older women are more discriminated against for being old and female, but there is a concerning policy implication that current legislation does not provide adequate protection for older women. The main reason for this concern is that older women’s intersectional discrimination invokes age-plus-sex or sex-plus-age cause of action. However, the courts do not recognize this cause of action under the ADEA and they have mixed views on this issue under Title VII. This article discusses evidence of older women’s intersectional discrimination and the importance of recognizing this intersectionality in proof structure. It also reviews case laws and the effectiveness of the age discrimination laws on older women’s labor market outcomes. The findings indicate that the ADEA does not provide equal employment opportunities for older women. Older women’s legal recourse for their unique intersectional discrimination for being old and female is constrained under the ADEA and Title VII strictly due to legislative peculiarities in statutes intended to solve this exact problem.
Michele Goodwin & Erwin Chemerinsky, Pregnancy, Poverty and the State, 127 Yale L. J. (forthcoming)
In Pregnancy, Poverty, and The State, we argue that the core bundle of rights contained in reproductive privacy have been hollowed out through new legislation and court decisions, affecting the actual practice of reproductive privacy. We show how increasingly, even judicial opinions affirming reproductive rights fail to constrain state governments seeking to eviscerate those rights through new legislation. Though court rulings recognize these rights, they ultimately render them meaningless for poor women, particularly poor women of color. These groups are the first victims since they are largely unseen and unheard by those who make the law and policy. As the policies that substantially burden women’s reproductive rights become normalized, these norms will affect broader segments of the population, placing greater numbers of women at risk.
We view these issues as not simply matters of law, but of human rights, morality, and dignity. The moral hypocrisy of the state is clear in the reproductive health context. That is, when the state coerces women and girls into pregnancies they do not want and to bear children they do not desire to have, it not only creates unconstitutional conditions, but it also acts immorally. Even though legal scholars typically refer to lawmaking that unduly burdens the poor as unjust, we suggest that legislative efforts to eviscerate reproductive rights is far worse than that.
This project, launches with a review of Professor Khiara Bridges’s daring book, The Poverty of Privacy Rights to problematize the intersections of privacy and morality. We view the state as not only a fallible and problematic arbiter of women’s morality, but argue the state acts immorally when it deprives poor women of privacy, bodily autonomy, and threatens to rob them of life itself. As we document in detail, bounded in the state’s immoral actions toward poor women of color are its historical struggles and campaigns against their personhood and citizenship as well as conscription of their bodies in service to malevolent state agendas such as eugenics and forced sterilization. As we show, this is more than mere indifference, but an historic pattern. We illustrate how the continued effects of more than a century of negative state interventions in the reproductive lives of poor women of color is actually deadly. Finally, we predict that the continued interference in the reproductive lives of poor women creates cultural norms and precedents in medicine, law, and society that will spill over and constrain the rights of all classes of women, regardless of race. That is, historical disregard for the lives and rights of Black women inscribed by judicial doctrine and court opinions as well as state and federal legislation serve as vehicles for contemporary and future disparagement of all women.
Foreign Secretary Boris Johnson has been reprimanded by Commons Speaker John Bercow for using sexist language.
Speaker Bercow intervened - to applause from some Labour MPs - after Mr Johnson referred to shadow foreign secretary Emily Thornberry as Lady Nugee.
Ms Thornberry is married to High Court judge Sir Christopher Nugee - but chooses to go by her maiden name.
Mr Bercow said it was "inappropriate" and sexist to refer to her as Lady Nugee.
He said MPs should be called by their names and not by the titles of their spouses.
Mr Johnson had to be reminded of Ms Thornberry's title by MPs, as he answered a question from a Conservative MP on the Commonwealth, calling her "the Baroness, whatever it is, I cannot remember what it is... Nugee".
Mr Bercow rebuked the foreign secretary, telling him: "We do not address people by the titles of their spouses.
"The shadow Foreign Secretary has a name, and it is not 'Lady something'. We know what her name is. It is inappropriate and frankly sexist to speak in those terms, and I am not having it in this Chamber.
"That is the end of the matter. No matter how senior a Member, that parlance is not legitimate. It will not be allowed, and it will be called out."
Mr Johnson subsequently apologised for his "inadvertent sexism."
Ms Thornberry has occasionally been teased about her formal title by Conservative critics and in February last year complained to Mr Bercow when Theresa May referred to her as Lady Nugee in the Commons.
"Is it in order for the prime minister to refer to a member of this House not by her own name, but by the name of her husband?" the Islington South MP said in a point of order.
"I have never been a Lady and it will be a great deal more than being married to a Knight of the Realm in order to make me one."
Mrs May said: "If the Honourable Lady is concerned about the reference that I made to her, of course I will apologise for that.
"I have to say to her, though, that for the last 36 years I have been referred to by my husband's name."
Tuesday, March 27, 2018
Petra Foubert, The Enforcement of the Principle of Equal Pay for Equal Work or Work of Equal Value: A Legal Analysis of the Situation in the EU Member States, Iceland,Liechtenstein and Norway (July 2017)
Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States. Although there is a big difference between the countries with the lowest pay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called "unadjusted" gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference), there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated.
When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining process and how it operates, such information greatly enhances their likelihood of interacting effectively. Well-prepared minorities and women should thus be able to seek advantageous terms for themselves in ADR, even when dealing with white-male counterparts. Conversely, there is no guarantee that members of ethnic groups or women would achieve more advantageous outcomes in judicial proceedings. Even the formal rules of judicial proceedings may be influenced by subconscious stereotypes that still influence the ways that judges, jurors, and arbitrators assess litigant situations. Therefore, this article posits that adjudication is not clearly preferable to ADR procedures for minority group members and women.
Foundations of Modern Penal Theory that Ignore the Gender Inequality of the Social and Family Context
Catalina Correa, The Foundations of Modern Criminal Law and Gender Inequality, 16 Seattle J. Soc. Justice 1 (2017)
Modern penal theory, like prevalent western theories of law, adopts a determined model of autonomy, one in which people are separable from social and family contexts. Taken to the criminal law context, this model proposes people can be defined without taking into account the social context. The use of prisons thus presupposes that individuals can be removed from their communities and families to be reeducated, readapted, treated or—in the retributive approach—simply punished. This notion of autonomy, however, hides from sight the group of people who not only maintain family ties with the men and women in prison, but who also, in contexts such as the Latin American one, take on the responsibility of supporting the prisoners economically. As this paper shows, this group is not heterogeneous or plural but defined by gender and primarily constituted of the mothers, daughters, wives and sisters of the people who are imprisoned. The data presented in this paper shows that this group of women is marginalized, impoverished and abused by a criminal justice system that not only omits to recognize the serious costs that the system imposes on them, but also omits to acknowledge their existence. This paper argues that this lack of recognition is possible because it is premised on a penal model that assumes a certain idea of autonomy, one which enables societies to erroneously affirm that prison sentences are individual sentences.
Monday, March 26, 2018
Jennifer Hendricks, The Wages of Genetic Entitlement: The Good, The Bad, and the Ugly in the Rape Survivor Child Custody Act, 112 Northwestern L. Rev. Online 75 (2017)
This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.
Amidst a crowd of students and advocates rallying for stronger gun regulations, Oregon Gov. Kate Brown signed Monday the first piece of legislation addressing the issue since the deadly shooting at Marjory Stoneman Douglas High School last month.
The law expands the prohibition of gun ownership to people convicted of domestic violence against non-married intimate partners — closing the so-called "boyfriend loophole."
It also blocks people convicted of misdemeanor stalking from owning a gun.
"Closing the 'intimate partner' is an important step to keep Oregonians safer from gun violence," Brown said. "I'm hopeful that the tide is turning on our nation's gun debate."
The legislation was one of Brown's top priorities coming into the short legislative session, which ended Saturday.
Deborah Epstein & Lisa Goodman, Discounting Credibility: Doubting the Testimony and Dismissing the Experience of Domestic Violence Survivors and Other Women, 167 U. Penn. L. Rev. (forthcoming)
In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight-style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed. To fully grasp the nature of this new moment in gendered power relations—and to cement the significant gains won by these public campaigns—we need to take a full, considered look at when, how, and why the justice system and other key social institutions discount women’s credibility.
We use the lens of intimate partner violence to examine the ways in which women’s credibility is discounted in a range of legal and social service system settings. First, judges and others improperly discount as implausible women’s stories of abuse, based on a failure to understand both the symptoms arising from neurological and psychological trauma and the practical constraints on survivors’ lives. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on both inaccurate interpretations of survivors’ courtroom demeanor and negative cultural stereotypes about women and their motivations for seeking assistance. Moreover, even when a woman manages to overcome all the initial modes of institutional skepticism that minimize her account of abuse, she often finds that the systems designed to furnish her with help and protection dismiss the importance of her experiences. Instead, all too often, the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse.
Two distinct harms arise from this pervasive pattern of credibility discounting and experiential dismissal. First, the discrediting of survivors constitutes its own psychic injury--an institutional betrayal that echoes the psychological abuse women suffer at the hands of individual perpetrators. Second, the pronounced, nearly instinctive penchant for devaluing women’s testimony is so deeply embedded within survivors’ experience that it becomes a potent, independent obstacle to their efforts to obtain safety and justice.
Friday, March 23, 2018
Marcia Zug, Make Immigration Great Again: How Morales-Santana Could Signal the End of Sexist Immigration Law and Provide a Way to Fight the Travel Ban, Wake Forest L. Rev. (forthcoming)
Gender plays a surprisingly important, and arguably unjust, role in immigration law. Explicit gender divisions and gender stereotypes are widespread. However, prior to the Supreme Court's recent decision in Morales-Santana, these distinctions have been consistently upheld. Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is extremely important. It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination. Moreover, given immigration law’s long history of gender bias, the possibilities for discrimination claims are numerous and thus, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project. International Refugee limited the scope of the government’s proposed travel ban and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.Reading the two cases together, this essay suggests that gender discrimination claims may provide a new and effective means of challenging the travel ban, particularly if the current race and nationality based challenges fail.
“Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession” is an updated version of a manual first developed by the ABA’s Commission on Women in the Profession in 2007.
This latest version focuses on issues of sexual harassment and bullying within the legal profession and provides more explicit policy advice and guidance for legal industry leaders to follow in order to help eradicate misconduct among their ranks.
“[Zero Tolerance] updates our understanding of workplace abuse and expands it to include non-sexual abusive behavior, such as bullying and protection for individuals who may be targeted because of their sexuality, gender identity, race and ethnicity, alone or in combination,” said the preface by Hill, who has accused U.S. Supreme Court Justice Clarence Thomas of sexual harassment. “The commission’s manual offers ABA members invaluable information that will benefit the profession.”
The new manual outlines sample policies that legal organizations can use in drafting their own policies to prohibit sexual harassment. It also outlines key elements of what a comprehensive policy against sexual harassment should include, as well as guidelines for complaint channels and reporting procedures.
The manual also suggests possible sanctions or disciplinary actions that could be used against a harasser or if there was a retaliatory response taken against the victim of such harassment.
“The legal profession must have zero tolerance of sexual harassment against any person working within our law firms, our justice system or our law schools,” wrote ABA president and Greenberg Traurig co-president Hilarie Bass in the manual’s foreword. “This book provides a roadmap for our profession to move forward to ensure that sexual harassment is something that the next generation of lawyers can describe as a challenge of the past that has been overcome.”
The publication of the updated “zero tolerance” manual comes on the heels of the adoption of a sexual harassment resolution by the House of Delegates at the ABA’s midyear meeting in Vancouver last month, which encouraged all employers in the legal profession to adopt and enforce policies and procedures that “prohibit, prevent, and promptly redress harassment and retaliation.”
Back in the late 1800s, when "brain fever" was used as an argument for why women shouldn’t receive a formal education, Mount Holyoke College was among the first to offer an all-female undergraduate program.
But a lot has changed since the first women’s colleges were founded — today there are nearly 40 — and many of them have been grappling with one specific aspect of that identity in recent years: How should transgender applicants be considered?
Propelled by increasing social pressures and Title IX guidelines issued during the Obama administration, many of these institutions have rewritten their admissions policies to change and clarify who will be counted.
Mount Holyoke, for example, now says students who self-identify as women can be considered for admission, according to a policy statement: "We recognize that what it means to be a woman is not static. Traditional binaries around who counts as a man or woman are being challenged by those whose gender identity does not conform to their biology."
The college further emphasizes its commitment as a historic place for women, partly founded on the motto "Go where no one else will go, do what no one else will do."
Thursday, March 22, 2018
Patrick Shin, Sex and Gender Segregation in Competitive Sports: Internal and External Normative Perspectives, 80 Law & Contemporary Problems 47 (2018)
What are the justifications for mandatory sex segregation in competitive sport, and what are the arguments against it? This article takes up these questions. I argue that justifications of sex segregation in sport should be sensitive to two distinct perspectives that can come into play. The “internal” perspective emphasizes considerations rooted in an ethos of athletic competition. The “external” perspective brings into focus broader social norms such as anti-discrimination principles and equality goals. Both perspectives support the general idea of separate men’s and women’s competitions, at least in elite levels of sports that reward physical strength and power. The perspectives may diverge, however, on specific questions about who should be permitted to compete in each division, and more particularly, on the appropriate treatment of transgender athletes. What is important to see is that objections that arise from the external vantage point of equality and anti-discrimination cannot be fully answered by appeal to internal considerations about the competitive integrity of sport. Institutional decisions to exclude classes of individuals from participating in men’s or women’s competitions must consider not only what would be best for the sport, but what is required by antidiscrimination principles and genuine commitment to respect for gender identity and expression.
Mary Anne Case, Heterosexuality as a Factor in the Long History of Women's Sports, 80 Law & Contemporary Problems 25 (2017)
Too many accounts of the development of women’s sports tend to posit their origin in the late nineteenth or even the twentieth century, as a belated, slowly developing, and sometimes vehemently resisted addendum to the development of sports for men. To begin a history of women’s sports at such a late date has several important distorting effects. Most simply, it ignores both the much longer history of women’s participation in many kinds of sports and the fact that the history of organized men’s sports as presently conventionally understood itself does not date back appreciably farther than the last century and a half. The history of women’s sports is more complicated than a progress narrative. Rather than seeing women being gradually admitted into more and more sports over time, we have to acknowledge that a variety of sports — from wrestling and boxing to polo and baseball — were played by women and were seen as suitable for women over long history. Women’s recent readmission to competition in some of these sports follows an intervening period of exclusion.
More significantly, to begin the history of women’s sports in the nineteenth century is to begin it in a time period in which men and women were seen, as both a descriptive and a normative matter, to be as different as possible from one another, with men strong and active, women delicate and passive. Thus, the modern history of sport is often seen to begin at precisely the time women were seen as least suited to participate in sports.
This article views the history of sports through a heterosexual matrix. It argues that from the dawn of time through the development of the modern Olympic movement, a culture’s openness to women’s participation in sports was tied to whether that participation was seen to have a heterosexual payoff. In ancient Greece and Africa as well as in medieval and early modern Europe, women’s sports often formed part of mating rituals, and a successful female competitor was seen as a desirable mate. In the nineteenth century, however, athletic and other sporting competition often was seen as doubly debilitating to a woman’s chances for heterosexual success: not only would sweating and the development of muscles make her unattractive, but strenuous physical exercise was thought to risk physiologically compromising her reproductive capacity. Rather than seeing physical fitness as conducive to reproductive fitness as had their ancestors, men like Pierre de Coubertin, founder of the modern Olympic movement, saw the two as in tension with each other.
After considering the extent to which these competing views of women’s athleticism in relation to heterosexuality influenced the development of women’s sports, the article will conclude by observing the remnants of a heterosexual matrix in twenty-first century sports, from figure skating and synchronized swimming to gymnastics and crew.