Thursday, October 9, 2014
Julie Goldscheid (CUNY School of Law) & Debra J. Liebowitz (Drew) have posted Due Diligence and Gender Violence: Parsing its Power and Its Perils, Cornell Int'l L. J. (forthcoming).
Human rights advocates increasingly invoke the due diligence standard to hold States responsible for their actions and omissions with respect to gender violence. This paper traces the development of the due diligence obligation and analyzes how the due diligence principle has been interpreted in key international policy documents and developing gender violence caselaw from the United Nations, European, and Inter-American human rights systems. On its face, the due diligence obligation calls on the State to take responsibility for preventing gender violence, prosecuting and punishing perpetrators, and protecting and providing redress for gender violence victims. The notion of State responsibility for gender violence offered by the due diligence obligation is foundational, and is appealing in many ways, particularly when considering the near-universal history of non-responsiveness, State approval of, and all-too-frequent participation in, gender violence.
We argue that emerging interpretations of the due diligence obligation as applied to gender violence pay insufficient attention to the risks of State intervention. While State response is clearly needed, we should be cautious about the ramifications of the demand. A reflexive focus on State response can encourage an undue emphasis on criminal justice responses with adverse consequences such as arrests of survivors. It risks situating the State as the entity charged with program delivery when other entities would be more effective. An appropriate model of state responsiveness should explicitly grant the State discretion not to respond, or to delegate its response to other stakeholders such as community members, survivors, NGOs, and advocates. It should consider the impact of any intervention on those at the margins — particularly those from racial, ethnic, religious, and sexual minorities — and should take into account the experiences and recommendations of both advocates and survivors. A careful balancing of the need for State accountability with the risk of over-intrusiveness can best advance foundational human rights principles, such as non-discrimination, equality, autonomy, and dignity, in service of ending gender violence and promoting justice.
Mary Anne Franks (Miami), Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women's Syndrome and the Vindication of Male Privilege, 68 Univ. Miami L. Rev. (2014)
Proponents of Stand Your Ground laws cynically exploit the image of vulnerable women to defend expansions of self-defense doctrine, despite the fact that such laws actually reinforce and exacerbate existing gender divides in self-defense law that disproportionately harm women. The appropriation of women’s right to self-defense by Stand Your Ground supporters masks the law’s hostility toward women’s use of force and obscures the real achievement of such legislation: the normalization and promotion of (often white) male violence in an ever-expanding variety of scenarios. Battered Women’s Syndrome, the chief narrative available to women who fight back, forces women to plead for mercy and subjects their behavior to extensive scrutiny and evaluation. Stand Your Ground, the chief narrative men can now use to justify provoking deadly fights, often allows men to escape evaluation altogether by granting immunity from prosecution and even from arrest. This two-track system of self-defense — Battered Women’s Syndrome for women and Stand Your Ground for men — has far-reaching implications outside of the courtroom. Battered Women’s Syndrome sends the legal and social message that women should retreat even from their own homes in the face of objective, repeated harm to their bodies; Stand Your Ground sends the legal and social message that men can advance against strangers anywhere on the basis of vague, subjective perceptions of threats. Male violence is not only tolerated, but celebrated; women’s violence is not only discouraged, but stigmatized. Invoking the image of vulnerable women to promote aggressive self-defense rhetoric serves to distract from the reality that violence remains chiefly a male privilege.
The National Women's Law Center has this preview, Supreme Court Preview: 2014-2015
This term, the Supreme Court will decide at least one case—and possibly multiple cases—with critical implications for both women’s health and women’s economic security. The Court’s consideration of these cases comes in the immediate wake of the 2013-2014 term, when the Supreme Court’s decisions in McCullen v. Coakley, Burwell v. Hobby Lobby, and Harris v. Quinn—threatened real harm to both. In addition, this term the Court will consider two other potentially important employment discrimination cases and a significant housing discrimination case, and may again take up the issue of marriage equality; the legal issues in all these cases are important for women.
Wednesday, October 8, 2014
Several miles north of where I live, there is Sarasota, Florida. The city council there has taken steps recently to protect transgender folk from discrimination:
SARASOTA - City commissioners voted unanimously Monday to pursue including transgender people in a list of protected classes in the city's anti-discrimination code.
A final vote will be pushed to a later date, when city staff will present an updated ordinance that makes it clear that discrimination on the basis of gender also includes gender identity and expression, said city attorney Bob Fournier.
“It's wonderful that we are at this point right now,” Commissioner Susan Atwell said before the 5-0 vote. “This inclusion for gender identity and expression gives full value and true representation to all citizens in our community.”
A group of top women’s soccer players from across the world on Wednesday sued the Canadian Soccer Association and FIFA, the sport’s international governing body, alleging gender discrimination around the 2015 Women’s World Cup, which Canada will host in June. NBC Sports first reported the lawsuit, which top players, including American stars Abby Wambach and Alex Morgan, had threatened for months over FIFA and the CSA’s decision to hold the Women’s World Cup on artificial turf fields, a decision the players say makes the game more dangerous for them and would never happen for the men’s World Cup.
The lawsuit filed in Ontario by more than 40 international women’s players claims that the decision to hold the World Cup on turf is “inherently discriminatory” and violates Canadian human rights laws for three major reasons: that it changes the way the game is played, poses “unique and serious risks of injury,” and requires them to play on a “second-class surface.”
Tuesday, October 7, 2014
Scott Cunningham (Baylor) & Manisha Shah (UCLA, Public Affairs), Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Carmen Gonzalez (Seattle), Women of Color in Legal Education: Challenging the Presumption of Incompetence, The Federal Lawyer (July 2014)
Steven Douglas Smith (San Diego),Die and Let Live? The Asymmetry of Accommodation
Aaron A. Dhir (Osgoode Hall), Homogeneous Corporate Governance Cultures, Chp. 1, Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity (Cambridge University Press. Forthcoming).
Russell K. Robinson (Berkeley), Unequal Protection, 67 Stanford L.Rev. (2015)
Ian P. Farrell & Nancy Leong (Denver), Gender Diversity and Same-Sex Marriage, Columbia Law Review Sidebar (Forthcoming)
Deborah Drake (The Open U), et. al., Sociology of Prison Life, in Wright, J. (ed), Int'l Encyclopedia Social & Behavioural Sciences (Forthcoming)
Ben McJunkin, Deconstructing Rape by Fraud, 28 Columbia J. Gender & Law (2014)
Workplace Law Prof Blog, Supreme Court Grants Cert in EEOC v. Abercrombie & Fitch
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
A "look policy"? For details of the policy and past sex discrimination claims, see Abercrombie & Fitch's Absurd Dress code is Going All the Way to the Supreme Court
Gov. Andrew M. Cuomo said on Thursday that he had instructed the State University of New York to overhaul its approach to preventing, investigating and prosecuting sexual assault, including making affirmative consent the rule on all 64 of its campuses.
Mr. Cuomo, announcing the change at a news conference in Manhattan, said SUNY’s new approach, which is to be put into effect in the next 60 days, would eventually lead to a statewide law regulating sexual assault policies at all New York colleges and universities.
Calling campus sexual assault a national epidemic, the governor said: “This is Harvard and Yale and Princeton, Albany and Buffalo and Oswego. It is not SUNY’s problem by origination. I would suggest it should be SUNY’s problem to solve and SUNY’s place to lead.”
Monday, October 6, 2014
On Wednesday, Julia Pierson, the first woman to ever lead the Secret Service in its nearly 150-year history, resigned her post amid heavy criticism over an intruder who was able to get as far as the East Room of the White House.
Reasonable people can disagree about whether, ultimately, she deserved to lose her job or whether anyone in charge during such an incident would have to resign. But it’s probably not pure chance that Pierson, who held that position for just a year-and-a-half, was a woman. Time and again, women are put in charge only when there’s a mess, and if they can’t engineer a quick cleanup, they’re shoved out the door. The academics Michelle Ryan and Alex Haslam even coined a term for this phenomenon: They call it getting pushed over the glass cliff.
Jelke Boesten, University of Leeds, UK, has recently published Sexual Violence During War and Peace (Palgrave Macmillan). The abstract reads:
The idea that rape is widely used as a weapon of war has taken root in international institutions, influencing how post-conflict justice and transitional justice are perceived and pursued. Despite this global attention, there has been no progress eradicating or even mitigating sexual violence in war or in peace and very little progress prosecuting crimes of sexual violence. With particular reference to post-conflict justice, this book asks what sexual violence means from a socio-political perspective and in what ways contemporary "peacetime" violence is linked to wartime rape. Evidence from Peru and the internal armed conflict of 1980-2000 shows that acts of wartime rape are deeply embedded in existing configurations of gender and power and that sexual violence serves not only wartime terror but also peacetime hierarchies.
Saturday, October 4, 2014
Isn't that an oxymoron? Slate, Iceland Announces U.N. Men Only Gender Equality Conference
Iceland announced on Monday an unusual plan to tackle the problematic state of gender equality in the world, particularly violence against women. The plan, as explained by the country’s foreign minister, Gunnar Bragi Sveinsson, to the U.N. General Assembly is to hold a conference on the issue in January. The twist: Only men and boys are invited to participate.
Here’s what Sveinsson had to say:[W]e want to bring men and boys to the table on gender equality in a positive way. Iceland and Suriname will convene a “Barbershop” conference in January 2015 where men will discuss gender equality with other men, with a special focus on addressing violence against women. This will be a unique conference as it will be the first time at the United Nations that we bring together only men leaders to discuss gender equality.
It’s been a bit of slow slog for women in the upper echelons of BigLaw, where leadership roles are still largely dominated by men.
But October brings notable firsts at two well-known law firms, as women take the reins for the first time in each firm’s history. They join a small but growing group of women leaders that includes Kim Koopersmith of Akin Gump Strauss Hauer & Feld LLP and Jerry K. Clements at Locke Lord LLP.
On Wednesday litigator Jami Wintz McKeon officially became the new chair at Morgan, Lewis & Bockius LLP, where she has held a number of management roles over the past three decades. Ms. McKeon succeeds Francis M. Milone, who held that role since 1999 and guided the firm through a period of significant expansion. ***
It’s also a big day at Bryan Cave LLP, where white-collar litigator Therese Pritchard became the firm’s first female chair—and its first leader based outside the firm’s historic home turf of St. Louis. She succeeds Don Lents, who was first elected chair in 2004.
Jeffrey Toobin, New Yorker, On Hobby Lobby, Justice Ginsburg was Right
In Hobby Lobby, a narrow five-to-four majority of the Court held that the Religious Freedom Restoration Act of 1993 gave the proprietors of a chain of retail craft stores the right to exempt themselves from certain provisions of the Affordable Care Act. Specifically, the A.C.A. requires firms with more than fifty employees to provide insurance that includes birth-control coverage, or else pay a fine. There was an exemption already for religious institutions. Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ” Ginsburg, though, wondered where the guidance was for the lower courts when faced with similar claims from employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).
The exchange between the two Justices gets to the heart of the issue in Hobby Lobby. When do religious convictions allow individuals (or corporations) to excuse themselves from obligations that are binding on everyone else?
A sampling of court actions since Hobby Lobby suggests that Ginsburg has the better of the argument. She was right: the decision is opening the door for the religiously observant to claim privileges that are not available to anyone else.
Friday, October 3, 2014
Thus reads an interesting blog post from the Good Men Project. An excerpt:
Last night I was searching the Internet for a video on “women abusing men” to run here on The Good Men Project. Not only were there just a few actual hits, most of which I’d already seen, but I also found that most of the results that did come up were for men abusing women. Even though I typed “men” first, Google found more results for the reversed phrase, indicating the huge imbalance of available online material. And yet, recent statistics confirm that men represent approximately 40% of the victims in cases of abuse.
Susan Ayres, Texas A & M Law, has uploaded to SSRN "Using Dramatic Narratives to Teach Domestic Violence." The abstract reads:
The 2003 call of the ABA for teachers to incorporate domestic violence into the law school curricula remains gravely important today. Domestic violence intersects many areas — from family law, to torts, to criminal law. Along with sexual assault, it is one of the most difficult subjects to teach. Students, like the general public, find it hard to comprehend why a person batters, or why a victim stays with the batterer. While students may learn about domestic violence from case law and scholarly excerpts, the best lessons may be learned through narratives, which provide a window into the reasons for battering and the multi-faceted reasons a victim stays with a batterer. In this article, I describe a teaching approach that incorporates narratives by the award-winning, multi-racial writer, Ai (1947-2010). This valuable approach offers a picture of domestic violence that is more compelling than that of casebooks or statistics, and provides students — as future lawyers — with the ability to respond to clients experiencing domestic violence with greater empathy and understanding.
Thursday, October 2, 2014
Lynn Zehrt (Belmont) has posted Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination, 25 Yale J. L. & Feminism249 (2014).
This article takes a novel approach and reexamines the legislative history surrounding the enactment of the Civil Rights Act of 1991 with a central focus on exploring the issue of capped damages. Part I begins by briefly contrasting and summarizing the diverging remedies available under 42 U.S.C. § 1981 and Title VII. The article then shifts in Part II to an examination of the political climate and legislative history that forged the enactment of the 1991 Act, paying particular attention to the debate surrounding damages. This history reveals that many members of Congress had a discriminatory motive in capping damages for victims of sex discrimination under Title VII, and therefore, that these capped damages represent a codified version of injustice. Although prior scholarship documents the legislative history of the 1991 Civil Rights Act, it fails to adequately address the issue of capped damages. Thus, this legislative history is a substantial contribution to contemporary Title VII scholarship, as it provides necessary context for the current debate about whether to abolish the existing Title VII damage regime.
The Daily Collegian (Penn State), Decoding the Mystique of Feminism
I’m a feminist.
No, I don’t hate men or go around burning my bras.
I like both of those. Plus – let’s be honest – bra burning is far too expensive.
My belief in the ideals of feminism is not new. My adoption of the term, however, is.
I have always believed that women (and all people) should have equal rights; I have always believed – passionately – that as a woman, I am entitled to the same rights and opportunities as my male friends.
And that’s exactly what feminism is. Nothing more.
To clarify, according to “The Oxford English Dictionary,” feminism is the “advocacy of equality of the sexes and the establishment of the political, social, and economic rights of the female sex.”
But until I came to Penn State, I hesitated to use the term “feminist” as an adjective to describe myself.
On the role and obligation of law faculty on social media, see The Professor as Node
I've come to the opinion that Tweeting, "LinkedIn-ing", and blogging -- along with other forms of online networking -- are exactly what our students are paying us to do.
Wednesday, October 1, 2014
In one leap, Denmark has changed its law on trans rights, taking it from a country where transgender people were forced to undergo sterilisation in order to be legally recognised as a different gender, to one of the most progressive countries on the issue in the world.
Unlike in most of the countries that allow new gender recognition, trans people in Denmark now do not even need a medical expert statement, but can simply self-determine. There are still restrictions – the minimum age is 18, and there is a six-month waiting period before the person has to reconfirm their wish to have their gender legally changed – but the law seems to be moving in the right direction.
But Denmark's new law – which came into force on Monday – raises questions for the other European countries where forced sterilisation – either as a result of hormone treatment or surgery – is still the only route for someone transitioning to gain legal status. This requirement ignores the fact that many trans people don't want to undergo a major operation, or to irretrievably lose their fertility as a result of it, as part of their transition.
From the Jurist:
Advocates and opponents of same-sex marriage are breathlessly waiting for news from the Supreme Court that a marriage equality case will be heard this term. The expectation of an imminent nationwide ruling comes after scores of lower courts have declared bans on same-sex marriage unconstitutional, relying heavily on the Supreme Court's reasoning in its landmark 2013 decision, United States v. Windsor. To date only one federal ruling has broken the consensus: the September 2014 decision by Judge Martin Feldman upholding Louisiana's ban.
At this juncture, it is worth asking why Windsor, which declared a section of the Defense of Marriage Act (DOMA) unconstitutional, has made the legal landscape so lopsided toward marriage equality. Appreciating the answer requires us to put to rest the idea that Windsor is actually a federalism decision supporting a state's right to define marriage however it wishes. As I will argue, the near unanimity among recent lower court decisions is not a product of judicial activists licking their chops at the opportunity to impose their political ideology on the nation, but rather a logical consequence of Windsor itself.