Friday, July 8, 2016
In thinking about new ways to end gendered violence, it may be time to reconsider the ways in which the law normalizes male violence and marginalizes women’s violence and how this binary treatment re-entrenches stereotypes. Consider, for example, the standards in the Kentucky Batterer’s Intervention Program (BIP). Many aspects of the Kentucky BIP requirements are the same for men and women, such as the requirements to provide content defining domestic violence, discussing the cycle of violence, and developing nonviolent methods for resolving conflict. 920 Ky. Admin. Regs. 2:020 (1)(10) (2015). Male abusers, however, are uniquely instructed in the: “confrontation of rigid sex role stereotyping” and “development of a relapse prevention technique.” Importantly, the focus on relapse prevention is in addition to the requirements of challenging a male client’s “pattern of aggression in a conflict with a victim” and exploring “a constructive and nonviolent method for resolving conflict in a relationship” that already apply to both men and women’s BIP programs.
Women share the male curriculum, except for the provisions cited above, which do not apply to women. Women do not consider sex stereotyping or the prevention of relapse. Instead, women’s programs focus on the following areas unique to women’s BIPs: “[e]xploration of life experiences and belief systems that have fostered choices for violent behavior;” and “[s]afety planning and knowledge of domestic violence resources.”
This suggests that women must uniquely account for their violence. It suggests that something went wrong for women in their lives and experiences, whereas men were expected to commit violence. Men’s violence is framed as uncontrollable and relapses are expected. Women’s violence is an aberration and a choice. Women do not plan to relapse; they prepare to be future victims accessing domestic violence resources. Instruction on safety planning and resources is a startling requirement for perpetrators of domestic violence, particularly after women under this statute are already uniquely required to qualify for eligibility.
These gendered differences in BIPs suggest that some life experience fostered violence as an aberration for women. Why should women not study the sex stereotypes that underlie their use of violence as well? Why should men not also explore the life experiences and belief systems that fostered their behavior? Is not men’s violence a choice as well? Seemingly, these differences might send a message of despair and pessimism to victims of men’s violence and a message of incredulity to victims of women’s violence. Is the law here re-entrenching gendered stereotypes about violence in problematic ways?
This blog is adapted from my research originally published in The Feminist Case for Acknowledging Women’s Acts of Violence available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790940.
In Choreographing Copyright: Race, Gender and Intellectual Property Rights in American Dance, Anthea Kraut wrestles mightily with these questions as she presents the first book by a dance scholar to focus explicitly on matters of copyright and choreography. Combining archival research with critical race and gender theory, Kraut offers new perspectives in this cross-genre history of American Dance. Professor Kraut’s research addresses the interconnections between American performance and cultural history and the raced and gendered dancing body.
Thursday, July 7, 2016
Abstract:A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their own lives must lead them refuse to sext (a widespread approach) deprives them of voice. Both books analyze law and propose legal reforms, and both also explore the relationship between social norms and legal regimes. Ross’s review finds commonality in the authors’ arguments that women “have a right to sexual expression without fear of moral or legal repercussions” and that both ultimately “look to greater self-policing by the technology industry,” and to promoting “cultural transformation” as much as legal change.
Josephine Dawuni & Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, 62 Africa Today 45 (2015)
In recent years, women have been selected as leaders of African judiciaries. This article identifies where and when women have become chief justices and presidents of constitutional courts from 1990 to 2014. We profile women from three civil-law and three common-law countries and find that the women selected meet or exceed the requirements for holding the highest position in the judiciary. We then explore why some African countries, but not others, have had female judicial leaders. We initially find that the selection method may be less important than the type of legal system, the commitment of gatekeepers, the end of major armed conflict, and regional diffusion in explaining why some countries have seen women rise to leadership positions in the judiciary.
Wednesday, July 6, 2016
The Equal Employment Opportunity Commission met its obligation to try to settle, or conciliate, a sex discrimination claim before suing a health-care provider, a federal district court in Maryland decided (EEOC v. Dimensions Healthcare Sys., 2016 BL 169980, D. Md., No 15-2342, 5/27/16 ).
After the EEOC sued alleging Dimensions Healthcare System denied a promotion to a female employee because of her sex, the company contended the agency hadn't adequately tried to conciliate the claim before the lawsuit. The EEOC didn't meet its pre-lawsuit obligations under Title VII of the 1964 Civil Rights Act, Dimensions argued.
Applying Mach Mining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (U.S. 2015) (82 DLR AA-1, 4/29/15), the district court said evidence that the EEOC invited Dimensions to “informally resolve” the sex bias claim, sent a conciliation proposal to the employer and informed Dimensions that conciliation had failed after two months had elapsed satisfied the agency's obligation.
“We are pleased that courts consistently apply” Mach Mining in a way “that recognizes the ‘expansive discretion' the [EEOC] has in the conciliation process, and that ensures the focus of commission litigation is on the merits of the case,” EEOC General Counsel P. David Lopez said in a June 1 e-mail to Bloomberg BNA.
Melanie Randall &Vasanthi Venkatesh, Why Sexual Assault in Intimate Relationships Must be Criminalized as Required by International Human Rights Law, American Journal of International Law Unbound, May 17, 2016.
Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women,rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.
Tuesday, July 5, 2016
Jamie R. Abrams joins us as a guest blogger for July. She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.
Merriam-Webster’s Dictionary defines the term “crisis” to mean a “turning point for better or worse in an acute disease or fever,” an “attack of pain, distress, or disordered function,” or “an emotionally significant event or radical change of status in a person’s life (e.g., midlife crisis).” Dictionary.com likewise defines a “crisis” as a “turning point” in a sequence of events, “a condition of instability or danger, as in social, economic, political, or international affairs, leading to a decisive change,” or “a dramatic emotional or circumstantial upheaval in a person’s life.” The word “crisis” itself is of late Middle English origin, rooted in “kri,” meaning to decide, separate, or judge.
These definitions align well with many political and social uses of the word “crisis.” The Cuban Missile Crisis was a turning point in a sequence of events. It was a condition of instability leading to decisive change. It was a dramatic upheaval. The refugee crisis of families fleeing Syria can be defined as a condition of instability or danger, an upheaval, or a turning point. These definitions work well for most humanitarian crises following earthquakes, tsunamis, floods, etc. The word crisis, however, is notably not used in other occurrences. We do not think of cancer, debilitating illnesses, poverty, terrorism, or child abuse through the lens of “crisis.” Nor do we think about being victims of other types of crimes generally as creating a “crisis,” like arson or assault. Rather, these comparative examples are thought of as either more systemic, more longstanding, perhaps with more permanence or enduring complexities than a “crisis,” or, alternatively, as episodic and isolated.
The rape crisis model has dominated community responses to sexual assault since the 1970s and 1980s. We send women to “crisis centers,” staff “rape crisis” hotlines, and deploy “crisis response” teams. In this capacity, rape is framed as creating a “crisis” for individual survivors of it, needing quick responses and interventions. That language has carried over into campus sexual assault responses as well, but in the context of campus sexual assault, it has been used in two distinct ways. First, campus sexual assault responses have transported the crisis response model applied in communities directly to college campuses. Colleges likewise offer crisis counseling, crisis hotlines, and crisis teams to assist students who have been sexually assaulted. Second, the language of crisis on college campuses has also been used in a very different way. It has also been used on a systemic level to frame a “campus sexual assault crisis” in the frequency and the normalization of campus sexual assault. This framing has been used regularly in news stories and political calls to action.
Both uses of “crisis” seem to merit more thoughtful consideration in the campus sexual assault context. First, in its micro application to individual victims, this language of crisis denotes urgency, decisiveness, judgment, action, and mobilization, all leading to closure. These descriptions are problematic when mapped on to the lived experiences of campus sexual assault victims. The National Institute of Justice reports that an assailant known to the victim perpetrates 85%-90% of sexual assaults reported by college women. Campus sexual assaults are more often happening at parties, on dates, and in the victim or assailant’s residence. According to the National Institute for Justice, these complexities lead more than half of student victims to not define the incident as “rape” and just a small fraction of victims to report. Absent an obvious physical injury in many cases and without the complexities of identifying or “catching” the assailant, the language of “crisis” may not resonate with the experiences of campus sexual assault victims. For campus sexual assault victims, the experience is often dominated by confusion, self-doubt, isolation, and loneliness. It is not hallmarked by decisive action leading to closure for many, if not most, women. Might there be collateral consequences to this framing? Might the language of crisis, for example, suggest urgency to reporting that is not consistent with existing statute of limitation laws? Might it suggest a need for decisive action, even beyond that which the law requires? Might it communicate implicitly to victims that closure or decisive judgment are to be expected, when the lived experiences reveal that the harms of sexual assault endure far beyond the immediate aftermath? Second, on a systemic level, while the language of crisis seems to invoke an urgent call to action, which is to be applauded, this language of systemic crisis also risks blurring the long history of sexual assault on campus and erasing a legacy of inaction. It also suggests a beginning and an end. It suggests that closure is attainable, when ongoing monitoring, responsiveness, and engagement are critically necessary. Transporting the language of “crisis” from community response models to campus sexual assault might complicate our understanding of and responses to campus sexual assault in ways worthy of further examination.
Inside Higher Ed, Encouraging Female Faculty to Publish Research
For professors, finding time to do research can be difficult. Especially if they are women.
Numerous studies have found that female professors work the same number of hours as their male counterparts, but they spend less time on research and more time on other commitments. In a 2008 study by professors at the University of North Carolina at Greensboro and the University of Georgia, female participants spent an hour and a half less per week on research than their male counterparts. A big reason was that they spent an hour more on service and a half hour more on teaching.
The Women Faculty Writing Groups at Texas Tech University aim to combat this gender gap in research. Founded this fall, the program seeks to offer female professors a three-hour chunk of time each week to pursue writing and publishing their research without getting sidetracked by other demands, said Caroline Bishop, assistant professor of classical and modern languages at Texas Tech and a co-founder of the program.
“We really wanted to have a safe, protected time,” Bishop said. “A time when women can say no to other things.”
The overarching goal of the program is to help women prioritize research, which is often the biggest factor in promotion, said Kristin Messuri, associate director of the University Writing Center at Texas Tech and another co-founder of the program. “Women faculty tend to be promoted at lower rates than male faculty,” she said. “They go up for promotion less often. When you get into full professors, there are fewer of them.”
While the program’s goal is ambitious, its structure is simple. At the beginning of each three-hour session, participants discuss articles on productivity and share their progress and goals, Messuri said. The remaining two and a half hours are devoted to writing for publication.
I've done something like this over the years, though it has fallen off. Early on we had the Momus group (we met at Cafe Momus), a mixed group (three women, two men) who bi-weekly shared rough drafts and writing problems. It was here that I really learned how differently people write, and what works and what doesn't.
Then for a few wonderful years we had a small group of women faculty who went to a lake house for a week retreat. The peace and energy jump started our research each summer, and we walked away from the week with a good chunk of work begun. (Not to mention how wonderful it was to have 4 women thoughtfully making coffee, cleaning up the kitchen, making snacks, and conversing over dinner). The realities of life and family made it hard to keep this going, though we tried a "day" retreat for a few years meeting off campus and discussing progress over lunch.
As a trailblazing attorney, Bessie Margolin lived a life of exceptional achievement. At a time when the legal profession consisted almost entirely of men, she earned the esteem of her colleagues and rose to become one of the most successful Supreme Court advocates of her era. Doing so, as Marlene Trestman demonstrates inFair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin(Louisiana State University Press, 2016), required overcoming not just the ingrained assumptions that men had towards professional women during that time but also the poverty of her early childhood and the loss of her mother when Margolin was only three years old. As Trestman reveals, Margolin exploited to the full the opportunities she was given as a ward of the Jewish Orphans Home in New Orleans, which provided her with a comfortable upbringing and a good education. From Newcomb College and Tulane University, Margolin went on to a fellowship at Yale University and a career in the federal government, which she began by participating in the defense of some of the most important laws to come out of President Franklin Roosevelt’s New Deal program and concluded by championing measures mandating equal pay and opposing age discrimination. And yet Trestman shows that for all of the sacrifices she made to establish a career for herself, Margolin did so on her own terms and in a way that many Americans can relate to today.
PluriCourts/GQUAL/IntLawGrrls are proud to announce a conference on Gender on the Bench scheduled in the Hague January/February 2018. At present, women judges make up an average of 17% of international courts and tribunals. There is significant disparity regarding the participation of women in the bench of different legal regimes. This conference seeks to promote a higher level of understanding of both current challenges and best practices in promoting women onto international courts.
Please submit an abstract and CV to: c.m.bailliet@
Final Date for Submission of Abstract and CV: March 2017
Friday, July 1, 2016
Why aren’t there more women arbitrators? Chris Poole, chief executive officer of JAMS, the dispute resolution company, says it’s primarily because of stereotyping in the legal profession.
Law.com spoke with Poole following last week’s pledge by hundreds of individuals and organizations worldwide to increase the number of women arbitrators, who make up just 10 to 15 percent of appointments to international matters.
Poole acknowledged that JAMS, which has boosted its number of women arbitrators recruited during the past three years to 50 percent, still has work to do to increase the overall supply.
But he pointed to the “institutional bias” of lawyers—men and women—who select arbitrators as the main reason.
It mirrors other findings. See Gina Brown & Gender Differences in Dispute Resolution Practice: Report on the ABA Dispute Resolution Practice Section Snapshot Survey, 47 Akron L.Rev. 975 (2015)
Wednesday, June 29, 2016
From a prior post here on Gender Law Prof Blog, on Justice Thomas in Voisine oral argument, Justice Thomas Breaks 10-Year Silence to Question Federal Ban on Guns in Domestic Violence
On the interesting affiliation of Thomas and Sotomayor in the dissent, see Noah Feldman, When Opposites Converge Over Domestic Violence, Chicago Tribune.
What Thomas and Sotomayor share in common -- along with being the court's two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.
Thomas's worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor's concern is more with the status of the individual defendant, who may be subject to long federal sentences.
Federal labor regulators have concluded that sexual harassment prevention training is often ineffective and sometimes even harmful, in a new report that strengthens growing claims that US universities are failing to combat gender discrimination.
A taskforce of the US Equal Employment Opportunity Commission found that workplace initiatives targeting harassment are generally focused on avoiding legal liability instead of stopping misconduct, echoing concerns of faculty at theUniversity of California at Berkeley, which has received international attention for its high-profile scandals.
The new report from two commissioners of the EEOC, which enforces employment discrimination laws, comes as experts have increasingly called into question the standard responses to harassment. In the face of public scrutiny, employers and college administrators typically emphasize training initiatives, but critics say there is little evidence that courses make a difference.
“We were surprised at the research that showed that the type of anti-harassment training that has been done to date … is not as effective in actually changing behaviors,” said Chai Feldblum, EEOC commissioner and co-author of the report.
Some researchers have found that training courses can reinforce gender stereotypes, make men less capable of perceiving inappropriate behavior, and may increase the likelihood that people discount victims.
Monday, June 27, 2016
Wednesday, June 22, 2016
Andrew Gray, Comment, Club Chariot for Women: No Boys Allowed, Stanford Law & Policy Rev. (forthcoming)
On April 19th, an app named Chariot for Women (Chariot) launched around the United States. The app is strikingly similar to ridesharing apps like Uber and Lyft: download the app, provide your payment information, request a ride, and you’re good to go. Yet Chariot comes with one major difference—both drivers and passengers are exclusively women. The goal of the app is simple: providing safe travel for women, by women, who fear the risk of violent crimes in taxicabs or traditional ridesharing methods.
The app’s creator, Michael Pelletz, may see himself as a real-life equivalent of the feminist-friendly Dev Shah from Aziz Ansari’s Master of None,5 but in reality, he may be breaking federal law. Chariot, by design, may violate Title VII of the Civil Rights Act of 1964. The law stops employers from hiring, or refusing to hire a person because of their “race, color, religion, sex, or national origin.” It is fairly obvious, given Chariot’s business model, that their hiring practices would qualify as a prima facie violation of Title VII. However, Chariot will argue that the Bona Fide Occupational Qualification (BFOQ) exception applies here.
While the app’s purpose may be noble, noble intentions don’t excuse discrimination. This short essay gives a three-part overview of the legal issues Chariot will inevitably face, and argue that allowing Chariot to fall under the BFOQ exception would overextend a purposefully narrow rule. Part II argues that the plain text of the law does not support Chariot. Part III explains that Chariot will fail a multi-part test for establishing a BFOQ. Part IV will show examples of reasonable, nondiscriminatory alternatives available to chariot. The essay concludes by mentioning policy arguments for and against Chariot, and arguing that ultimately, Chariot does not have a place within the law.
James Gray Pope, The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women and Seamen, 39 Seattle L. Rev. (2016)
In Robertson v. Baldwin , the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. According to the Court, seamen were “deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults,” and therefore could—along with children and wards—be deprived of liberty. From a present-day perspective, the Court’s casual deprecation of seamen’s intelligence and character might seem anachronistic, even shocking. ***
Robertson’s domestic exclusion raises intertwined issues of class and gender. As a general rule, the Thirteenth Amendment limits inequalities of class, where class is conceived as “power relationships among groups involved in systems of production.” Regardless of contractual consent, workers may not be legally or physically compelled to work. The Supreme Court has explained this principle in terms of class power, as necessary to prevent the “master” from dominating the “laborer”: “When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Robertson carves out a gendered exception to this protection, relegating seamen to what political theorist Carole Pateman has described as “the private sphere of natural subjection and womanly capacities.”
By contrast, it is an open question whether the Amendment reaches gender relations. On that issue, Robertson has historically served to block jurisprudential development by preserving the domestic sphere as a zone where services can be coerced free from Thirteenth Amendment scrutiny. As Joyce McConnell has shown, Robertson’s domestic exclusion has operated to deprive women, married or not, of protection against coercion by intimate partners. When a woman enters into an intimate relationship with a man, then, she departs the public sphere of class relations and loses her Thirteenth Amendment protection against coercion of services. Over the past few years, however, several courts have applied statutory bans on “involuntary servitude” and “forced labor” (a “species of involuntary servitude”) to protect women and children in domestic settings.
Tuesday, June 21, 2016
M. Christian Green, "Graceful Pillars": Law, Religion, and the Ethics of the "Daughter Track", Journal Law & Religion (forthcoming July 2016)
What is striking in these responses is the interplay and ethical tension between concepts of virtue and necessity, in a way that construes and constructs the “daughter track” as emblematic of a particular kind of filial virtue that manifests itself in what is often a situation of necessity, in which someone must step up to provide care in the face of scant resources afforded by the surrounding society. In other words, these daughters step up to bear the burden of eldercare because no one else will.
The plight of women on the “daughter track” raises crucial ethical questions about justice, care, and gender connection with eldercare. It does so in a moral and ethical context often shaped not only by the choice to care, but also by virtues forged in contexts of necessity. There are a number of conceptual frameworks in feminist philosophy and feminist legal theory that might be used to analyze the “daughter track” problem. One of the newest and most promising frameworks is the “vulnerability” framework that has been argued powerfully and eloquently about Martha Albertson Fineman. Another longstanding and influential framework is that of the “ethics of care.” With origins in the developmental psychological work of Carol Gilligan, who famously identified and juxtaposed a masculine “ethic of justice” with a feminine “ethic of care,” the ethics of care framework, originally.
While the ethic of care framework might seem to be the most obvious framework for analyzing the “daughter track,” since it involves daughters providing care to elderly parents, it is not the framework that I have chosen to apply here. The origins of the ethics of care in maternal experience do not fully track the daughter care experience, as suggested by contrasts between the “Mommy Track” and the “Daughter Track” in the popular media. Motherhood is most often chosen and eagerly awaited with positive expectations of giving birth and raising to maturity a child who may end up taking care of the parents someday. Eldercare needs, while in a certain sense universal and inevitable, since we all age and most of us have parents who live into old age, often strike out of the blue or build gradually and then hit like a tsunami when a parent’s need for care becomes acute, and the process is one of decline and ultimately death, leaving the caregiver with significantly depleted energy and funds to provide for their own care.
An Oregon judge has allowed a 52-year-old retired Army tank mechanic to change gender identity. Not from male to female, or vice versa. But to a new, third gender.
Jamie Shupe is now legally non-binary — widely believed to be a first for the United States.
Oregon joins several countries in recognizing a third gender. In 2014, India became the largest country in the world to have an official third option, following in the footsteps of Pakistan, Australia and Germany.
Friday, June 17, 2016
It’s not every day that a constitutional lawyer gets treated like a rock star. But at South African President Jacob Zuma’s State of the Union address in February, reporters jostled to hear what Thulisile Madonsela had to say about it, and onlookers took to Twitter to gush about her and her canary-yellow dress.
“Please, can we have her as president!” one pleaded.
Madonsela is not just a lawyer. She is also South Africa’s public protector, an ombudsman-like post that has come to symbolize for many a struggle for rule of law and better governance in this young democracy.