Thursday, July 10, 2014
[T]he Daily Beast published a thought-provoking post–Hobby Lobbypiece by Jay Michaelson pondering why women are losing legal battles while gay people keep winning. Michaelson gives 10 reasonable hypotheses, but leaves out the two most overwhelmingly obvious possibilities. The first is that Justice Anthony Kennedy likes gay rights more than women’s rights. The second is that feminism, as insidiously framed by the Christian right, is all about sex—while LGBTQ equality has become a battle not for sex, but for dignity.
A stunning new Senate report shows nearly half of schools haven’t looked at a single case of rape and 20 percent don’t investigate all the incidents they report to the feds.
More than 40 percent of U.S colleges and universities have not conducted a single sexual assault investigation in the past five years, according to a new survey released by Senator Claire McCaskill (D-MO) Wednesday.
“That is hard to believe, and obviously very problematic,” McCaskill said. These schools, she continued, were either “in denial or incompetent” with regard to sexual assault on campuses.
Yes, still more on Hobby Lobby. For women, this is a game-changing decision with both significant legal and practical consequences. It's not going to go away quietly.
Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives
Tuesday, July 8, 2014
Could the 1964 Civil Rights be used to protect LGBT rights? Maybe:
Exactly 50 years after President Lyndon Johnson signed the Civil Rights Act of 1964, the law is being interpreted to protect LGBT workers.
The Civil Rights Act prohibits various forms of discrimination on the basis of race, color, religion, sex, or national origin. The question for LGBT advocates is whether Title VII of the Civil Rights Act, which in part prohibits workplace discrimination on the basis of sex, also applies to gay, lesbian, bisexual, transgender, and gender-nonconforming workers.
It's not Thursday, but a throwback is nevertheless appropriate today.
Supreme Court Justice Ruth Bader Ginsburg says there will be enough women on the Supreme Court when all nine justices are female.
“So now the perception is, yes, women are here to stay. And when I’m sometimes asked when will there be enough [women on the Supreme Court]? And I say when there are nine, people are shocked. But there’d been nine men, and nobody’s ever raised a question about that,” she said.
Ginsburg made the remark at the 10th Circuit Bench & Bar Conference that was held at the University of Colorado in Boulder in October.
And from Oct. 2010, Justice Ginsburg Says Nine Women on Supreme Court Would be Enough
SCOTUS granted cert in EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) involving an employer's procedural defense in a Title VII case in which the government alleged that the mining company had not hired any female miners since opening for business in 2006, despite having highly qualified applications. The Seventh Circuit ruled that "employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC) informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws."
The issue is "whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Title VII of the Civil Rights Act of 1964 directs the EEOC to try to negotiate [42 USC § 2000e-5(b)] an end to an employer's unlawful employment practices before suing for a judicial remedy. Mach Mining sought dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing. The US Court of Appeals for the Seventh Circuit ruled that "an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."
EEOC General Counsel David Lopez stated that in the landmark ruling the Seventh Circuit "carefully applied the letter of the law." And it did so, Lopez explained, "in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives. . . ." Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion." However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."
One analysis of the underlying appellate decision calls it "truly a game changing decision" to hold that the alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. It predicted the the "potential for long-lasting implications" if the EEOC "can force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith.:
On a broad scale, it seems the law of labor negotiations and the duty to bargain in good faith with its judicial oversight is set against the hands-off law of mediation and settlement negotiations.
More on the case here.
Just in case you really believed that Hobby Lobby was a narrow decision, here is ample evidence to the contrary one week after the decision.
SCOTUS granted a temporary injunction to Wheaton College exempting it from filing the form that allows the government to cover the birth control. See Dahlia Lithwick, Quick Change Justice; WSJ, Polarized Reaction to Wheaton College Injunction.
Eden Foods, makers of organic foods, claims exemption from covering all birth control medicines. Hobby Lobby Fallout
Religious entities seek exemption from the federal order banning employment discrimination for sex and sexual orientation by federal contractors. Citing Hobby Lobby Religious Groups Ask Obama for LGBT Exemptions
For more analysis of the opinion itself, see NYT, Between the Lines of the Contraception Decision.
Sunday, July 6, 2014
....the easiest place for transgendered folks to amend their birth certificates:
California's Assembly Bill 1121 went into full effect yesterday. The bill, authored by out lesbian Assembly Speaker Toni Atkins, was signed into law by Gov. Jerry Brown last fall, and makes California's name and gender change process the easiest in the nation.
North Dakota’s law bans the practice of so-called sex-selection abortion, making it illegal to terminate a pregnancy based on the gender of the fetus—an issue that reproductive rights advocates have said is “solution in search of a problem that does not exist.”
The law would punish any physician who is caught performing an abortion
because of the gender of the fetus. Under the law, doctors are required to ask women seeking an abortion a series of questions to determine if the gender of the fetus is a factor in her decision. Women seeking an abortion because of “sex-selection” would face no penalties, while abortion providers could face a class 6 felony, which carries up to a $4,000 fine and two years in prison.
A recent report debunked significant misinformation that has been used to justify sex-selection abortion bans around the country, including North Dakota. “Lawmakers have relied on misinterpretations of narrow data and faulty assumptions about sex selection practices to enact sex-selective abortion bans in the United States,” said Sital Kalantry, clinical professor of law and director of the International Human Rights Clinic at the University of Chicago Law School, in a statement following the release of the report.
Meanwhile, in Indiana, two new laws went into effect.
Saturday, July 5, 2014
Last week, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Inc., the closely watched case in which the Oklahoma-based craft store chain has challenged the Affordable Care Act's contraceptive mandate, requiring insurance policies to cover birth control without a copay. Hobby Lobby's high-profile case may have nabbed most of the headlines so far, but it's far from the only company that's taking on the Obama administration over the mandate.
Since February 2012, 71 other for-profit companies have challenged the ACA's contraceptive mandate in court, according to the National Women's Law Center (NWLC). The majority of these for-profit cases (46 in addition to Hobby Lobby's) are still pending. Jump to the full list of cases by clicking here.
Of interesting note in these and other articles on Justice Sotomayor's dissent is the journalistic choice of words used to describe the decision: searing, fierce, outraged, scold, women get together
The White House released a new report from the Council of Economic Advisors on Wednesday, detailing the healthcare and economic impact of refusing to accept Medicaid expansion, as 24 states have. Bottom line, it's 5.7 million people who would qualify for Medicaid, but be uninsured by 2016, "and these states will forgo billions in federal dollars that could boost their economies."....
But there's another part of the story that Think Progress picks up: the refusal to expand Medicaid has a hugely disproportionate effect on women.
Thursday, July 3, 2014
The statistics provided by the World Health Organization paints a picture of male tragedy that rarely makes the news. Men die at a younger age than do women; more men die from violence than do women.
What to make of the reasons for this, I suspect, is complicated.
update: Papers are due August 25, 2014, Responses are sent September 8, 2014
Call for Papers: Eleventh Annual IP/Gender Symposium
Save the Date: Friday February 27, 2015
This year, we will engage in a broad discussion of “Reimagining IP/Gender: The Next Ten Years of Feminist Engagement with Intellectual Property Law.” The symposium will take place in Washington, DC on Friday, February 27, 2015.
Rather than focus discussion on particular cultural practice, such as the creation and dissemination of fan fiction or the stewardship of traditional knowledge, this year, we seek papers and projects that address the full spectrum of feminist/queer theory and all aspects of intellectual property and information law. We encourage submissions from scholars, creators and activists who have not yet engaged with intellectual property law to explore how this legal space might open up new insights regarding the production of knowledge, commodification, definition and valuation of women’s work, and other areas of feminist and queer inquiry. We also hope to spur intellectual property scholars to explore how the tools of deliberately intersectional feminist and queer theory can shed new light on the challenge of creating intellectual property law that fosters social justice.
Accepted papers will be considered for publication in the American University Journal of Gender, Social Policy, and the Law in a special symposium volume.
Additional information, including some possible topics, can be found at:pijip.org/2015-ipgender-call/
We are interested in projects that relate to specific case studies, as well as more synthetic studies of these topics. We also welcome projects that include performance and demonstrations in connection with specific projects or overall themes. Please visit pijip.org/ip-gender/ for a complete list of past presentations. Proposals from all disciplines, including law, women’s studies, queer studies, education, communication, cultural anthropology, development, medicine, sociology, and the arts are not only welcome, but encouraged.
If you are interested in taking part, please submit a 250-500 word précis of your project, with some indication of where your work on it stands, as well as a current C.V., by Sunday, July 27, 2014, using this submission form. We will notify you of whether we will include your proposal in the program no later thanFriday, August 8, 2014.
International studies tell us that more than one out of every three women worldwide (35 per cent) has experienced sexual violence at some point in their lives. That's more than one billion people. When it comes to children, up to 1.5 billion annually experience some sort of sexual, physical or psychological violence because they are girls.
Rosemary Carney, the HuffPost blogger, writes:
I often wonder why the media pays attention, and the public takes note, only when the atrocity level crosses a certain tolerance line? Why is it that there is no universal outrage when we report that one-third of girls worldwide are sexually assaulted before they turn 16?
Violence against women is so systemic and pervasive, that being on guard against it has become part of the female DNA. Instinctively, they check out sidewalks and look over their shoulders, even for such routine activities as walking to their car in the office parking lot after a day's work.
What can be done?
Tuesday, July 1, 2014
From the Billings Gazette:
CASPER, Wyo. — Wyoming's only openly gay lawmaker says the state should pass a bill that bars discrimination against gays at the same time as various courts consider the legality of gay marriage.
In many states where gay marriage is legal, people can still be fired for being lesbian, gay, bisexual or transgender. Rep. Cathy Connolly, D-Laramie, described instances in which couples published wedding notices in newspapers and were promptly fired because their states don't include sexual orientation and gender identity as protected classes in anti-discrimination laws.
The question presented is whether an employer must provide workplace accommodations to a pregnant employee similar to those it provides to temporarily disabled employees?
In Brief: Peggy Young "is a driver for United Parcel Service, Inc. (UPS). She had asked UPS for a 'light duty' assignment after her doctor recommended that she not lift more than twenty pounds while pregnant. UPS denied her request, even though it had a practice of giving light duty assignments to other employees who were temporarily unable to perform their jobs. As a result of UPS’s denial, Young was forced to take unpaid leave and lost her medical coverage for the period during which she gave birth, until she was able to return to work at UPS two months later."
The Fourth Circuit CoA affirmed a grant of summary judgment to the employer holding that neither the Pregnancy Disrimination Act nor the Americans with Disabilities Act requires an employer to provide accomodations.
Some highlights on yesterday's Hobby Lobby case:
- SCOTUS Gets Hobby Lobby Horribly Wrong
- Several posts on Reproductive Rights Blog
- What Nuva Rings and Peyote Have in Common Today
- Why Today's Hobby Lobby Ruling Actually Hurts People of Faith
Some of my own thoughts:
1. This is a gender issue. Period.
- As Justice Ginsburg said: It's about "women's autonomous choice."
- The Court's distinction between contraception v. immunizations or blood transfusions is starkly sex-based. So its ok to discriminate against women, but not kids or Jehovah's Witnesses? There should be a challenge in there somewhere. I know, state action? Hybrid classification with other contraception covered.
- See Not That Anyone Cares, But Hobby Lobby
2. Good faith belief in other legal contexts usually requires some credible support. How can HL simply assert it has a religious belief that IUDs and morning after pills are abortive, when they are not? Elsewhere in the law--labor negotiations, putative spouse doctrine, termination of injunctions--good faith requires some factual basis upon which the party relied to form the good faith. Since religion has been used historically to discriminate against women, it is a very dangerous legal holding to give men carte blanche to excuse their sexism under the guise of religion without question.
3. Here's an interesting idea. Congress can amend RFRA to remove corporations from its protection. Lose the battle, but win the war. Senate Democrats Mull Response to Hobby Lobby Decision