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
Monday, June 30, 2014
1. Stop shopping at Hobby Lobby.
2. Stop working at Hobby Lobby.
3. Protest on the public way around Hobby Lobby stores. SCOTUS says you can. See McCullen.
4. Refuse, if an employer, to provide healthcare coverage for men's contraceptive health, V&V (vasectomy and Viagra).
5. Engage in a sex strike. Until your partner secures contraceptive healthcare coverage for you.
7. Travel back in time a century. You won't even notice the difference.
Sunday, June 29, 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?
Saturday, June 28, 2014
The US Supreme Court has issued three decisions on abortion buffer zones:
McCullen v. Coakley 573 US ___(Roberts, J.) (2014) unanimous court strikes down MA abortion buffer zone
Hill v. Colorado, 530 US 703 (2000) (Stevens, J.) 6-3 upholds CO abortion buffer zone law
Madsen v. Women’s Health Center, 512 US 753 (1994) (Rehnquist J.) upholds FLA abortion buffer zone
As legislators consider other possible options, it might be helpful to compare and contrast the factual differences:
1. Distance: 100 ft (8 ft. no approach person) Hill / 35 ft McCullen / 36 ft. Madsen
2. Place: Health care facility Hill v. Reproductive health care facility McCullen v. clinic Madsen
3. Legislature v. Judiciary: Injunction (Madsen) v. Statute (Hill & McCullen)
4. Prophylactic: imposing additional safeguards to prevent future violations of law (All)
5. Prior illegal conduct: Madsen & Hill. Not McCullen.
6. The most empathetic party:
Hill: "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases."
Madsen: The patients and employees subjected to assaults and intimidation, and also the political speech rights of the protestors
McCullen: The caring, godly, helpful counselor.
7. Content neutral: All
8. Where: Public place or sidewalk McCullen v. Public way or sidewalk area Hill v. public right-of-way Madsen
9. “Sidewalk counseling”: Offensive speech Hill v. personal, caring, consensual conversation McCullen
10. Less restrictive alternatives tried: None. McCullen v. Prior statute Hill v. narrower injunction Madsen.
Thursday, June 26, 2014
The vice-president of Facebook in Europe – one of the online industry's most powerful executives – has revealed her frustration at being portrayed in the media as a mother-of-four who "wanted it all".
Nicola Mendelsohn, speaking at a conference in London, said there needed to be an overhaul of the language used to talk about women and girls.
"When I got my post at Facebook it was all about how I was a mother-of-four who had 'won' the position, alongside pictures of my wedding," she said, noting that the male executive hired at the same time came under no such scrutiny. Reports also said she insisted on working part-time, when in fact she was working a typical five-day week.
"I was never defined by my working hours, I was defined by what I produced. That is what we need and we need to be respectful of the best way people work. I think businesses have to think about the best way to retain talent."
Such was the way with both Jimmy Connors and Andy Murray, both Wimbledon winners, when they were young (according to Connors, one of the reasons that he hit the ball like a woman--meaning, relying more on guile and inflection, than pure strength--was because that was how his mom taught him, and he never quite adopted a more "masculine" approach). Murray, the defending Wimbledon male champ, now has a female coach:
Murray had already changed the pretournament narrative, taking on Amélie Mauresmo, a former Wimbledon champion, as his new coach.
Mauresmo is not the first woman to coach on the men’s tour. Several male players, Jimmy Connors included, have been mentored by their mothers. Billie Jean King assisted the American Tim Mayotte in the early 1990s.
Not everyone approves of Murray's decision:
No less a British women’s icon than Virginia Wade, the 1977 Wimbledon champion and a longtime commentator, told reporters regarding Murray’s decision to hire Mauresmo: “I thought they were all fooling around; I think again he’s maybe trying to mess with everybody. She was a great player; she’s a great person. I think she was a little fragile mentally, because she had the capabilities of beating everybody.”
Wade added, “You like to try to get behind people’s thinking, but I can’t really with this one.”
In today’s other decision, McCullen v. Coakley, all nine justices concluded that Massachusetts’ abortion clinic buffer zone law violated the First Amendment. So here we have yet another opinion unanimous in the judgment. That makes 48 out of 71 decisions thus far this term, or 67.6 percent.
Writing for the Court, the Chief Justice concludes that the statute was content-neutral, and thus avoids strict scrutiny, but is not narrowly tailored because it burdens more speech than is necessary to advance the government’s interests in ensuring clinic access and public safety. Four justices (Scalia, Thomas, Kennedy, and Alito) concurred in the judgment would have gone further. The opinion is here.
I previously blogged about the case here.. Some observations on today's option:
1. It did seem to matter to the Court that this was legislation rather than a remedy. The opinion notes that the government did not seek "one single prosecution or injunction." Thus suggesting, as the Court has previously held in Madsen v. Women's Health Center (1994), that prophylactic injunctions to remedy particular instances of abortion protesting problems are ok.
2. The Court calls the protestors' speech "personal, caring, consensual conversation" that is just trying to "help" the women. How is intimidating, harassing, inflammatory, confrontational personal assault caring and helpful? The patients and employees might call these "fighting words." Such a characterization perpetuates the paternalistic and protectionist rhetoric of the Gonzales v. Carhart (2007) abortion decision to help women too emotionally fragile and incompetent to exercise their own autonomy. What was Ginsberg thinking in signing on to this opinion?
Bill Would Help Rape Survivors Terminate Rapists' Parental Rights. A few years ago, one of my students proposed this topic for his thesis paper. I didn't believe that this was a real issue. I asked him to document the existence of the problem he was purporting to solve in the paper by finding me the exact laws he had seen referenced in the media. And sure enough, he was right. Given the state of the law on unwed fathers that require more than biology for a legally-enforced social relationship, other than child support, it seem farfetched that the law would support criminal parents but not other unwed fathers.
From the Legal History blog: New Release: Clément on "Sex Discrimination and British Columbia's Human Rights State, 1953-84"
In Equality Deferred, Dominique Clément traces the history of sex discrimination in Canadian law and the origins of human rights legislation, demonstrating how governments inhibit the application of their own laws, and how it falls to social movements to create, promote, and enforce these laws.
Focusing on British Columbia -- the first jurisdiction to prohibit discrimination on the basis of sex -- Clément documents a variety of absurd, almost unbelievable, acts of discrimination. The province was at the forefront of the women's movement, which produced the country's first rape crisis centres, first feminist newspaper, and first battered women's shelters. And yet nowhere else in the country was human rights law more contested. For an entire generation, the province's two dominant political parties fought to impose their respective vision of the human rights state. This history of human rights law, based on previously undisclosed records of British Columbia's human rights commission, begins with the province’s first equal pay legislation in 1953 and ends with the collapse of the country's most progressive human rights legal regime in 1984.
This book is not only a testament to the revolutionary impact of human rights on Canadian law but also a reminder that it takes more than laws to effect transformative social change.
Leigh Goodmark (Maryland), Law and Justice are Not Always the Same Thing: Creating Community-Based Justice Forums for People Subject to Intimate Partner Abuse, 41 Florida State L. Rev. (2014).
What constitutes justice in cases involving intimate partner abuse has historically been determined not by the person subjected to abuse, but rather an actor within the legal system — a police officer, a prosecutor, an advocate, or a judge — and those individuals most often define justice in terms of what the legal system has to offer. People subjected to abuse may conceive of justice quite differently, however, in ways that the legal system is not well suited to address. For people subjected to abuse who are interested in punishment, whose goals are congruent with the legal system’s goals of safety and accountability (as defined by the state), and who are willing to use state based systems, society offers a response: the criminal justice system. Imperfect though that response might be, in theory it meets the justice needs of some people subjected to abuse. For people who are more interested in healing and are willing to work through state systems, society also offers a response, albeit a more limited one: restorative justice. But for those who are not interested in a state-based response, little by way of justice exists for people subjected to abuse. This article seeks to fill that void by suggesting the development of community based forums to deliver justice. In her 2003 article, Battering, Forgiveness and Redemption, law professor Brenda Smith suggested a number of alternative models that might be used to address intimate partner abuse. Building on her work, and recognizing that there are parallels between the experiences of people seeking justice for violations of human rights and people subjected to intimate partner abuse, this article borrows from the structures used to find justice after atrocity, including truth commissions and community-based courts, to flesh out what community-based justice forums to address intimate partner abuse might look like. The article imagines how international human rights processes might productively inform efforts to create new alternatives for finding individualized justice, voice, validation and vindication outside of the criminal justice system and considers the crucial questions that such a radical reimagining of justice provision raises — about the role of the state, the problems of gendered justice, the existence of community, and the provision of resources.
Wednesday, June 25, 2014
In Kenya, polygamy is not unusual among the Masai tribe. But polygamy was not recognized by the Kenyan government as a proper marriage; only monogamy was. Recently, though, the Kenyan government passed a law to recognize polygamy and it did so as a means to help women:
Before the new act was passed, they lacked legal protection because customary marriages were rarely registered and therefore not recognised in a court of law.
This left many women vulnerable. If a husband died, they could be disinherited, and their children risked losing their rights and legitimacy. Now a customary marriage will be treated as equal to Muslim, Christian, Hindu and civil ones, giving all wives legal recognition and rights.
Women's rights groups have hailed this aspect of the law. What they find absolutely unacceptable is that male parliamentarians used their majority to vote down a clause requiring a man to inform any existing wives of his intention to marry again.
Recent anti-homosexuality laws don’t just violate human rights—they might worsen the HIV/AIDS epidemic, a Johns Hopkins University epidemiologist warns in a PLOS Medicine essay published today.
While many countries and communities are expanding civil rights to the LGBT community, such as marriage equality, some nations including Nigeria, Uganda, Russia and India are criminalizing homosexuality or intensifying present anti-gay statutes. More nations are poised to follow, putting public health initiatives at risk, Dr. Chris Beyrer writes in “Pushback: The Current Wave of Anti-Homosexuality Laws and Impacts on Health.”
“These laws and policies make it much more difficult to provide HIV services particularly gay and bisexual men who have sex with men, who really need these services,” Beyrer tells Newsweek. “It can definitely lead to a worsening of the HIV epidemic in these countries.”
Tuesday, June 24, 2014
Updated June 25: New Additions to the List
I thought I would try and track the new law deans that are women. Please help me add to this list by sending me an email (email@example.com) or posting a comment below. For background, see Laura Padilla (Cal Western), A Gendered Update on Women Law Deans: Who, Where, Why and Why Not? (2007)
Jocelyn Benson, (Interim Dean, Wayne State), Dean, Wayne State
Jennifer Collins (Vice-Provost, Wake Forest), Dean, SMU
Phyllis Crocker (former Interim & Assoc. Dean, Cleveland State), Dean, Detroit Mercy
Danielle Holley-Walker (Assoc. Dean, South Carolina), Dean, Howard
Jean Holloway (corporate attorney), Dean, Hamline
Jennifer Johnson (professor, Lewis & Clark), Dean, Lewis & Clark
Gillian Lester (acting Dean, Berkeley), Dean, Columbia
Andrea Lyon (criminal attorney), Dean, Valparaiso
Wendy Scott, (former Associate Dean, NC Central), Dean, Mississippi College
Nancy Staudt (Vice Dean, USC), Dean, Wash U
Judith Areen (former Dean, Georgetown), Executive Director, AALS
Samuel Wolfe Calhoun (Washington & Lee), has posted Justice Lewis F. Powell's Baffling Vote in Roe v. Wade, 71 W&L Law Rev. 925 (2014):
This article explores Justice Powell’s vote with the majority in Roe v. Wade. The piece builds upon the unissued 1970 abortion opinion of Judge Henry J. Friendly, who, although personally pro-choice, concluded that the Fourteenth Amendment does not require abortion freedom. The article also presents research from the Powell Archives at Washington and Lee University School of Law. On its face, Powell’s Roe vote is perplexing due to its inconsistency with his stated philosophy of judicial restraint.
Calhoun quickly dismisses what seems to me to be the most pursuasive explanation: that Powell voted based on his own personal experience. As I noted in my recent article, Back to the Future of Regulating Abortion Rights in the First Term , 29 Wis. J. L, Gender & Soc'y 47, 70 (2014), that's how Powell himself explained it.
When the conservative Justice Powell was later asked why he supported abortion, he answered based on personal experience rather than constitutional theory. Linda Greenhouse, Lewis Powell, Crucial Centrist Justice, Dies at 90, N.Y. TIMES, Aug. 26, 1998, at A1; David Westin, Eulogy: Lewis Powell, TIME, Sept. 7, 1998. He told the story of a young, black messenger at his old law firm in Richmond, Virginia who was terrified that he would be arrested for the death of his girlfriend, for whom he had helped get an illegal abortion from a “back-alley butcher.” Greenhouse, supra. Powell helped negotiate with the city prosecutor and no charges were ever brought. Id. Powell gained an appreciation for the practical implications of the legal issue of abortion and its impact of people of different races and economic class. Id.
This is familiar as a basic precept of feminist legal theory--that realities and personal experiences do matter to the interpretation of law. And reminds me of the conclusion of a recent study that conservative judges vote for women's rights in discrimination cases when they have a daughter.
From the WSJ, Obama Calls for Family-Friendly Workplace Policies
President Barack Obama on Monday called for paid parental leave and other family-friendly policies, part of a broader effort to win more flexibility for workers.
"There is only one developed country in the world that does not offer paid maternity leave," Mr. Obama told a summit on working families hosted by the White House. "And that is us. And that is not the list you want to be on by your lonesome."
Mr. Obama stopped short of offering a federal plan that would grant paid leave, instead offering modest steps such as directing federal agencies to implement existing flexible workplace policies, urging Congress to enact a law mandating "reasonable accommodations" for pregnant women and releasing funds to help workers access child care while in training.
Monday, June 23, 2014
I usually don't publicize older articles on SSRN but I saw this interesting piece (recently uploaded) by Syracuse's Keith Bybee, who is always interesting. The abstract reads:
What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically motivated policymaker. These two conceptions provide the only current options for making sense of gender imbalance. Calls for gender equity do not fit easily with the conventional conception of impartial adjudication; as a result, arguments about the importance of increasing the number of female judges tend to be assimilated into the conventional conception of preference-driven policymaking. Thus, given this structure of debate, discussions about the meaning of gender imbalance typically devolve into bickering about politicized courts. I conclude by considering how arguments about gender imbalance might be productively re-cast by moving beyond the basic conceptions that currently structure debate over the courts.