Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, June 13, 2016

Study Concludes Women Experience the Institution of Marriage as Oppressive

Is Marriage Worth the Trouble for Women?  The short answers is "No."

First, confounding the view of marriage as the female heaven and haven is the fact that marriage actually appears to benefit men more than it does women. Research has shown that the "marriage benefits"—the increases in health, wealth, and happiness that are often associated with the status—go disproportionately to men. Married men are better off than single men. Married women, on the other hand, are not better off than unmarried women.

 

Second, in contrast to the myth that marriage is a woman’s ultimate and sacred fulfillment is the reality that roughly two-thirds of divorces are initiated by women.***

 

A recent paper by Stanford sociologist Michael J. Rosenfeld analyzed longitudinal data from the How Couples Meet and Stay Together survey—a survey of a nationally representative sample of 2,262 adults in heterosexual relations followed from 2009 to early 2015.

 

The results revealed an intriguing pattern: As expected, women initiated roughly two thirds (69%) of the breakups in heterosexual marriages. However, the gendered trend in relationship breakups held only for marriages and not for other non-marital unions. Moreover, women in marriages, but not in other relationships, reported lower levels of satisfaction.*

 

This finding appears to provide support for the notion that women experience the institution of marriage as oppressive, in large part because it emerged from and still carries the imprint of a system of female subjugation.

 

H/t Marcia Zug

 

June 13, 2016 in Family | Permalink | Comments (0)

Tuesday, June 7, 2016

Why the Stanford Sex Offender Sentence is So Unusual

WashPost, What Makes the Stanford Sex Offender's Six Month Jail Sentence So Unusual

Most people accused of rape are never found guilty — the Rape, Abuse and Incest National Network estimates 97 of 100 avoid punishment. Turner’s crime, however, had witnesses. He was charged with three felonies related to sexual assault and convicted in March on all counts. He faced a maximum prison sentence of 14 years, with prosecutors recommending six.

 

But last week, Judge Aaron Persky leveled instead a punishment that ignited fury nationwide: Six months in the county jail, followed by three years’ probation.

 

The penalty sharply deviated from the sentencing norm. The majority of convicted rapists in the United States go to prison. The average sentence length is 11 years, according to the Bureau of Justice Statistics:

 

Turner, to be sure, was not convicted of rape. The two rape charges he originally faced were dropped. But at least two of the three remaining charges — assault with intent to commit rape of an intoxicated woman, sexually penetrating an unconscious person with a foreign object and sexually penetrating an intoxicated person with a foreign object — fall under the Justice Department's definition of rape: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

June 7, 2016 in Violence Against Women | Permalink | Comments (0)

Friday, June 3, 2016

Check out my new Author Page on Amazon

 Tracy Thomas Author Page amazon/author/thomast

June 3, 2016 | Permalink | Comments (0)

Book Review: Linda Greenhouse Reviews Gillian Thomas's "Because of Sex"

Linda Greenhouse, NYT, Bittersweet Victories of Women

In Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, Gillian Thomas focuses on the afterlife of the Smith amendment as part of the Civil Rights Act’s Title VII, which deals with employment. (Other titles concern voting, education, and access to public facilities and public “accommodations,” meaning hotels, restaurants, and other private businesses serving the public. Title IX, a law we hear much about these days, is not part of the Civil Rights Act but of a different law, the Education Amendments of 1972.) Thomas, a lawyer with the American Civil Liberties Union’s Women’s Rights Project who has litigated sex discrimination cases for many years, is interested not in how Title VII’s “because of sex” clause came to be, but in what has become of it since.

June 3, 2016 in Books, Equal Employment | Permalink | Comments (0)

Thursday, June 2, 2016

Woman Expelled for Campus Sexual Assault

Chronicle, Washington State U Woman Was Expelled for Sexually Assaulting a Man

A student at Washington State University was expelled for sexually assaulting a man on the campus in 2014, BuzzFeed News reports.

 

The student, whom BuzzFeed identified only as Rose, her middle name, said she had had sex with a classmate after playing drinking games one night in January 2014. The man later filed a complaint with Washington State’s Title IX office, saying Rose had sexually assaulted him.

 

Rose maintains that she was falsely accused and that the man complained to Washington State’s Title IX office because his friends had teased him for sleeping with her. After the incident, floor mates wrote messages on whiteboards outside their doors saying Rose had taken advantage of the man.

 

A residential adviser later reported those notes to administrators. Rose was told to move out of the dormitory immediately to protect the complainant.

 

During her first meeting with university investigators, Rose filed a countercomplaint against the man.

 

In May 2014, the man asked the Title IX office to stop the investigation, requesting that it cease contacting him and ensure he would not be contacted by Rose.

 

In August 2014 Rose was found responsible for sexual misconduct and expelled. She appealed her expulsion unsuccessfully, twice. In April 2015 she filed a complaint, which is still being investigated, with the Education Department’s Office for Civil Rights.

June 2, 2016 in Education | Permalink | Comments (0)

Not Sex Discrimination to Fire Employee Because She is too Attractive

Joanna Grossman, Say No to This: Courts Must Stop Holding that Firing Attractive Women is Not Sex Discrimination

In a recent case, Edwards v. Nicolai, a New York trial court held that a woman who was allegedly fired by a male boss because she was “too cute” and causing his wife to be jealous had not alleged facts amounting to unlawful sex discrimination. Dilek Edwards worked as a yoga and massage therapist at Wall Street Chiropractic and Wellness, located in the heart of the financial district and presumably serving a high-end clientele. Charles Nicolai co-owned the business with his wife, Stephanie Adams. Adams is the chief operating officer, but Nicolai oversees all the chiropractic and therapeutic services.***

 

The New York court in Edwards’s case reached the same conclusion—though without the benefit of any factfinding or much reasoning. The court simply said that she had no provided any evidence that she was treated differently from male employees. Of course, that isn’t the standard under local, state, or federal antidiscrimination laws. The standard is that she was subjected to an adverse action “because of sex.” There is no comparator requirement. The “because of sex” requirement can be satisfied by proof that she would not have been treated the same way if she was male. It seems pretty obvious here that that standard is met—or at least could be met after full airing of the facts—but certainly Edwards should have been the opportunity to prove it at trial.

 

The court continued, noting that “[t]here is no allegation . . . that the plaintiff was terminated because of her status as a woman.” Yet the essence of her complaint was that she was fired because she was too cute and that made her boss’s wife jealous. In what universe does that not relate to the fact that she is a woman?

June 2, 2016 in Equal Employment | Permalink | Comments (0)

Gender Bias Suit Against Law Firm Moves Forward

Gender Bias Suit Against Mintz Levin Moves Forward

The highest court in Massachusetts has revived a lawyer’s gender discrimination lawsuit against Mintz Levin Cohn Ferris & Popeo, which focuses on her employment at the firm as an associate between 2004 and 2008.

 

Kamee Verdrager, who now has an employment law practice in New Hampshire, sued Mintz Levin in 2009 claiming the firm demoted and then fired her in 2008 based on gender bias.

 

“The plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation,” wrote associate justice Barbara Lenk on behalf of a five-judge appellate panel in the Massachusetts Supreme Judicial Court.

 

The claims at the heart of the dispute center on the cause of her demotion and subsequent termination in 2008.

 

Verdrager claims that she was subject to discriminatory, negative performance evaluations following a six-month 2006 pregnancy leave, and that the firm had retaliated against her after she previously complained of gender discrimination against at least one of the firm’s members, Bret Cohen.

 

On Tuesday, the Massachusetts appellate court ruled that Verdrager has enough evidence to bring her case to trial.

 

The ruling said: “There is evidence… that the plaintiff was treated differently from similarly situated male colleagues, that her evaluators may have judged her through the lens of a stereotype, and that Cohen, her boss, tried to undermine her. From this evidence, a jury could, but need not, infer that a “pattern of retaliatory conduct [began] soon after” her 2004 complaint

.

Mintz Levin Suffers Setback in Discrimination Case

And, in a section of the decision that could influence other employment cases, the justices ruled that employers are in some circumstances barred from retaliating against workers who search for, copy, and share with their attorneys confidential company documents that may help them prove discrimination claims.

June 2, 2016 in Equal Employment, Women lawyers | Permalink | Comments (0)

Friday, May 27, 2016

Rethinking the Cultural Attitudes of Masculinity in Acquaintance Rape Cases

Eric Carpenter (FIU), Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases, 68 Hastings L.J. (forthcoming 2016)

Abstract:     

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man.

In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of rape.

If Kahan is right, radical change may be necessary. The institutions responsible for handling sexual assault complaints – law enforcement communities, the military, and university and college administrations – are stratified and hierarchical, and are likely over-populated by people who are attracted to hierarchical institutions and who hold hierarchical world views. These institutions may need to be overhauled – or even replaced.

However, the study has a methodological flaw: it uses the Hierarchy-Egalitarianism Scale to measure those hierarchical world views, and as this article demonstrates, this scale has reliability and validity issues.

This article then applies a different methodology to the underlying data and shows that patriarchy, not hierarchy, explains the differences in guilt perceptions. This more accurate understanding of Kahan’s data carries important policy implications. Rather than radical change, targeted training that addresses inaccurate rape beliefs may be enough to ensure accurate processing of these cases.

 

 

May 27, 2016 in Masculinities, Violence Against Women | Permalink | Comments (0)

Court Hears Appeal of Woman's 20-Year Conviction for Abortion

Purvi Patel Appeals in Feticide, Neglect Case

The fate of a Northern Indiana woman sentenced to serve 20 years in prison in connection with the end of her own pregnancy is now in the hands of the Indiana Court of Appeals.

 

Attorneys for Purvi Patel sought Monday to overturn her 2015 convictions of feticide and neglect of a dependent. While the state's interpretation of its feticide law has drawn national interest in the case, Monday's hearing heavily focused on the evidence used to secure Patel's convictions, including whether the prosecution sufficiently proved that the Granger woman knew her child had been born alive.

 

According to court documents, Patel sought medical help at St. Joseph Hospital in July 2013 after delivering a child at home. When pressed by doctors about her condition, Patel told them she had delivered a stillborn child and discarded the body in a dumpster.

 

Prosecutors, however, alleged at trial that Patel had ordered abortifacients online, and that her child had been born alive.

 

On Monday, Patel's attorney, Lawrence Marshall, outlined his case for appeal.

 

"The evidence in this case was not there whatsoever," Marshall said. "Not a single expert ever said — in any sort of declarative way — that yes, this infant would have survived had Ms. Patel done differently."

 

Critics of Patel’s convictions argue that the feticide charge was never intended to be used against a pregnant woman, but was instead meant to punish illegal abortion providers. Patel was the first Indiana woman to be convicted of feticide in a case like this.

 

Marshall lambasted the state's use of the feticide statute in court. He said the law has no role in criminalizing this type of abortion and never should have been applied in Patel's case.

 

Marshall also took issue with the prosecution's case for neglect, which he said it failed to make at trial. The state, he said, never asked its experts whether his client's child would have made any noise or shown any visible signs of life that would signal to Patel that the baby was not stillborn. Nor did prosecutors ever present any evidence that the baby, born several weeks prematurely, would have survived if taken to a hospital, he added.

May 27, 2016 in Abortion, Courts | Permalink | Comments (0)

Thursday, May 26, 2016

Using Information Disclosure to Drive Change under Australia's Workplace Gender Equality Act

Belinda Smith & Monica Hayes, Using Data to Drive Gender Equality in Employment: More Power to the People?

The latest version of affirmative action legislation in Australia, the Workplace Gender Equality Act 2012 (Cth) (WGE Act), reflects a fundamental shift from its predecessor legislation, the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (EOWW Act) and, before that, the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) (AA Act). This shift has been correctly characterised as a change in focus from processes to outcomes because employers covered by the legislation are now required to report on selected indicators intended to provide an overall picture of the actual state of affairs of gender employment within their organisation, not merely their ‘workplace programs’ for addressing gender inequality. However, the enactment of the WGE Act reflects another shift in the regulatory framework, a shift toward using information disclosure and standards to drive change.

May 26, 2016 in Equal Employment, International | Permalink | Comments (0)

Prophylactic Remedies Sought by Amicus for Migrant Woman's Forced Sterilization in Bolivia

Ciara O'Connell (Sussex Law), Diana Guarnizo Peralta (Dejusticia), Cesar Rodriguez-Garavito (Universidad de los Andes), Amicus Curiae Brief Presented to the Intra-American Court of Human Rights in the Case of IV v. Bolivia

Abstract:     

The IV v. Bolivia case examines the rights of a Bolivian migrant woman who was given a tubal ligation (sterilized) without her informed consent. In this amicus curiae, Ciara O'Connell (University of Sussex) and Diana Guarnizo-Peralta and Cesar Rodriguez-Garavito (Dejusticia) intervene in order to explain how the medical field frequently becomes a place where discrimination is exercised against women in the form of gender stereotyping and "paternalistic control." This amicus requests that the Inter-American Court issue reparation provisions in order to guarantee non-repetition of these women's reproductive rights violations. The suggested reparations consist of the adoption of education programs aimed at training medical students and medical professionals, as well as the general population, and reform of internal rules and manuals on informed consent so that they comply with international standards.

 

May 26, 2016 in Healthcare, International | Permalink | Comments (0)

Wednesday, May 25, 2016

Graduation Attire as Sex-Based Classification

This is the practice at my local high school (the two colors, but not the segregated lines), where administrators tried to go to one color for all graduates, but were flooded with online petitions from parents and female students claiming "tradition," and thus withdrew the change. (Apparently many girls find white more fashionable than blue.) 

Joanna Grossman & Katharine Bartlett, Blue for Boys, White With Flowers for Girls: When Commencement is an Exercise in Discrimination

By tradition, boys wear blue gowns at graduation; girls wear white. Also by tradition, boys and girls will file into the ceremony venue in separate lines, girls carrying flowers purchased out of class dues. This policy discriminates not only against transgender students and students with nonconforming gender identities, forced to publicly choose a gender, but also against female students who are literally draped in a symbol of female purity laden with gender stereotypes.*

 

Since early March, some students at Nathan Hale-Ray High School have been asking that the gender distinction be dropped at graduation and that students all wear graduation robes of the same color. To date, school administrators have not agreed to the change, and time seems to be running out. Last Tuesday, students were told they could choose a different color than the one that corresponded to their biological sex as long as they had the permission of their parents. The parental-permission requirement was dropped the next day, but the gender-specific robe color was not.

 

The school’s robing policy forces students to identify with a gender, and then makes gender the most visible identifying characteristic of students on the graduation stage. It divides the graduates into “male graduates” and “female graduates.” For what purpose? Only in some bygone century in which boys and girls were educated to fill prescribed gender roles could it have been said that gender was relevant to a high school graduation ceremony. It was, in fact, in the postwar period of the late 1940s and early 1950s, when clear gender roles were thought to be important to restoring social order, that most of these policies came about.

 

May 25, 2016 | Permalink | Comments (0)

Continued Use of the Term "Provocative" Entrenches Attitudes About Women's Responsibility for Men's Sexual Behavior

Jessica Wolfendale (WV, Philosophy), Provocative Dress and Sexual Responsibility, XVII Georgetown J. Gender & Law 1 (2016)

 Abstract:     

Numerous studies have found that many people believe that a provocatively dressed woman is at greater risk for sexual assault and bears some responsibility for her assault if she is attacked. Furthermore, in legal, academic, and public debates about sexual assault the appropriateness of the term ‘provocative’ as a descriptor of certain kinds of women’s clothing is rarely questioned. Thus, there is a widespread but largely unquestioned belief that it is appropriate to describe revealing or suggestive women’s clothing as ‘provocative’ and that women who wear such clothing could provoke sexual assault and harassment from men. Yet it is rarely noted that only women’s clothing is described as sexually provocative. Men’s clothing, no matter how revealing, is never described as provocative. Why is this the case?

This Article challenges the assumption that it is appropriate to describe women’s clothing as provocative. Drawing on models of the legal defense of provocation and research on objectification, this article argues that the social interpretation of women’s clothing as provocative arises from the privileged social and legal status of men’s sexual arousal and the objectification of women’s bodies. Continued use of this term thereby normalizes and entrenches deeply problematic attitudes about women’s responsibility for men’s sexual behavior. These beliefs and attitudes not only affect women’s everyday experiences but also have a profound impact on how the law treats the sexual assault and harassment of women. Describing women’s clothing as provocative thus reinforces a problematic conception of women’s bodies and sexuality that is connected to women’s experiences of their bodies, their clothes, and shapes their vulnerability to sexual assault and social and legal attitudes to such attacks.

 

May 25, 2016 | Permalink | Comments (0)

SCOTUS Constructive Discharge Case Helpful for Sex Discrimination Suits

NWLC, SCOTUS Green v. Brennan Decision a Victory for Working Women

It was clarity, common sense, and civil rights for the win yesterday when the Supreme Court announced its decision in Green v. Brennan (“Green”). And in this case—as is often the case— when the three Cs win, women who face discrimination in the workplace also win.

 

Green presented SCOTUS with the question of whether the time limit for bringing a constructive discharge claim begins to run when an employee resigns or at the time of an employer’s last discriminatory act prior to the resignation. And in an exciting decision from which only one Justice (Thomas) dissented, SCOTUS declared that it begins to run after an employee resigns!

 

So now that I write that out, that probably sounds pretty unexciting if you aren’t an employment law nerd. But the implications of this decision for working women—too many of whom still face sex discrimination and, specifically, sexual harassment at work—are incredibly important. That’s because the majority of constructive discharge claims are brought in sex discrimination cases, frequently in cases challenging hostile environment sexual harassment.

 

May 25, 2016 in Equal Employment, SCOTUS | Permalink | Comments (0)

Tuesday, May 24, 2016

Justices Most Often Appoint White Men as Friends of Court

Adam Liptak, NYT, When Appointing Friends of Court, Justices are Friendliest Toward White Men

A couple of times each term, the Supreme Court appoints a lawyer to argue a case before it as a friend of the court. Such appointments are a high honor, and they can turbocharge an already promising career.

 

Chief Justice John G. Roberts Jr.’s first Supreme Court argument, when he was 33, was as an appointed lawyer. That was a big break, and it was the result of a sort of patronage system, dominated by white male lawyers, that has received surprisingly little scrutiny.

 

“The court has this chit to give out,” Katherine Shaw, who teaches at Benjamin N. Cardozo School of Law in New York, said in an interview. “It has a lot of prestige. It can obviously be lucrative down the road. It can have significant impact on a lawyer’s future career advancement. The court is sort of anointing chosen individuals.”

 

Professor Shaw explored the court’s appointment practices in a study to be published in The Cornell Law Review. “The current approach,” she wrote, “permits the justices to dole out the valuable asset of a Supreme Court argument to friends and former employees, in a way that is reminiscent of the cronyism and patronage that characterized government employment” before the Civil Service reforms of the 19th century.

 

One of the study’s notable findings, Professor Shaw said in the interview, was that “gender and race diversity numbers for invited advocates lag behind even the already low overall numbers in Supreme Court advocacy.”

 

Professor Shaw found that about 10 percent of appointments went to women. By comparison, according to a tally by Tony Mauro of The National Law Journal last week, women presented 23 percent of the arguments over all this term.

May 24, 2016 in Courts, SCOTUS | Permalink | Comments (0)

Women Bring Successful Baby Powder Lawsuits

NYT, Lawsuits Over Baby Powder Raise Questions About Cancer Risk

Ms. Berg was the first of thousands of women with ovarian cancer to file a lawsuit against the consumer products giant Johnson & Johnson, claiming that baby powder caused their disease and pointing to a long trail of studies linking talc to the cancer. The research dates to 1971, when scientists in Wales discovered particles of talc embedded in ovarian and cervical tumors. 

 

Since then, numerous studies have linked genital talc use to ovarian cancer, including a report earlier this month that among African-American women, genital use of powder is linked with a 44 percent increased risk for invasive epithelial ovarian cancer. 

 

Johnson & Johnson says its trademark baby powder is safe, and it plans to appeal two multimillion-dollar jury awards, including $55 million in damages awarded to a cancer survivor earlier this month and a $72 million award in February.

 

The International Agency for Research on Cancer in 2006 classified talcum powder as a possible human carcinogen if used in the female genital area. But the agency, part of the World Health Organization, has also said pickled vegetables and coffee are possible carcinogens and that hot dogs cause cancer.

 

Johnson & Johnson says research implicating talcum powder is flawed and points to studies that absolve talc of any cancer risk.

 

“We have children ourselves,” said Tara Glasgow, the research and development lead for the company’s baby products franchise worldwide. “We would never sell a product we didn’t believe was safe.”

 

So did the juries get it right or wrong?

NY Mag, Johnson & Johnson Loses Another Baby Powder Lawsuit

Johnson & Johnson lost its second lawsuit this year over claims that adult women using its baby powder on their vaginas developed ovarian cancer.

 

A 62-year-old South Dakota woman said she used Johnson & Johnson's powder and Shower-to-Shower product for feminine hygiene for decades, and she developed ovarian cancer in 2011; she had a hysterectomy and other surgeries, and her cancer is now in remission.

 

Her suit claimed that the company was aware of the possible link between talcum powder and ovarian cancer and didn't warn customers about the potential dangers of using it on their genitals. The jury awarded her $5 million in compensatory damages and $50 million in punitive damages.

 

In February, a jury awarded $72 million to the family of an Alabama woman who died from ovarian cancer after using the same products. J&J is facing more than 1,000 other cancer lawsuits over talc-containing powders that it marketed to women. (In the '80s, 70 percent of baby-powder users were adults.)

 

Studies on the topic have mixed results and there is not a medical consensus. The company maintains that the cosmetic talc in its baby powder is safe to use, but it does also sell cornstarch-based formulas. Johnson & Johnson plans to appeal this verdict.

NLJ, Big Talcum Verdicts Stemmed from Lawyers' Deep Data Drive

 

May 24, 2016 in Courts, Healthcare | Permalink | Comments (0)

New Hotline for Native American Domestic Violence

Advocates' Hopes High for Domestic Violence Hotline for Native Women

Rape and domestic violence against Native women have reached “epidemic proportions,” but the hotlines that could help are often unprepared for the unique cultural needs of tribal women who may live in rural areas with little support and a bewildering legal system.

 

But that could be changing.

 

Sometime this year, the National Domestic Violence Hotline expects to take the first call at a hotline created specifically to respond to tribal victims.

 

The hotline, four years in the making, will be staffed either by tribal women or specially trained advocates “who can answer calls from Native women to help them … problem-solve around these issues,” said Katie Ray-Jones, CEO of the national hotline.

 

“I think our commitment from the hotline side just accelerated so quickly because of the number of stories, heartbreak, hardship, the lack of hope that many women were feeling,” Ray-Jones said about the first meeting with Native leaders. “(It) just became crystal clear to us that we need to do something.”

 

With the help of the National Indigenous Women’s Resource Center, the tribal hotline will offer crisis intervention, safety planning assessments and referrals to local resources tailored to Native women.

 

Leanne Guy, executive director of the Southwest Indigenous Women’s Coalition, said it was important to have a tribal-specific hotline where people answering the phone understand cultural nuances, how tribal governments function and what it’s like living on a reservation where police may be understaffed, underfunded and serving a large, rural area.

May 24, 2016 in Violence Against Women | Permalink | Comments (0)

Monday, May 23, 2016

The Feminist Philosophy of Mary Wollstonecraft as both Equality and Complementarity

Paul Kerry (BYU, History), Mary Wollstonecraft on Reason, Marriage, Family Life, and the Development of Virtue in A Vindication of the Rights of Woman, 30 BYU J. Public Law 1 (2015)

The aim of the argument here is to show how A Vindication of the Rights of Woman presents a view of the equal dignity and intellectual capacity of the sexes embedded in the proposition that males and females are beholden to the same standard of virtue and chastity. Wollstonecraft further argues that both women and men have the same obligation to develop virtue by living lives that are ordered to duties by reason. Reason guides the passions and is exercised through the use of moral agency. Although her treatise calls for certain kinds of female independence, there are also spheres of interdependence and complementarity on which she insists in marriage, childrearing, and family life, but also in the development of virtue. Indeed, in the quest to develop virtue, men and women need each other: “The two sexes mutually corrupt and improve each other. This I believe to be an indisputable truth, extending it to every virtue.” Although Wollstonecraft accords religion a central teaching role as well, it is critical to the philosophical underpinnings of her treatise that human reason (God given, in her view) can derive the principles she puts forward and as such her arguments resonate with those made by natural law advocates. Without this set of arguments, Wollstonecraft's compelling philosophical insights are only partially understood if not largely missed, reduced as they are to calls for specific kinds of action rather than understood as reasoned contributions to political thought. A part of the work here must include restoring Wollstonecraft's argument through her own words by close reading.
This begs an important question: How could Wollstonecraft's many words on key elements of complementarity between man and woman in marriage, childrearing, family life, and the development of virtue and the role of reason go undetected or be neglected? Some of Wollstonecraft's ideas are explained away strategically by suggesting that she had to work within the accepted idioms of her time to revolutionize from within the prevalent discourse. On this view, Wollstonecraft is seen to pose her arguments “within a framework that was minimally acceptable to popular prejudices.” The implication is that she cloaked her real arguments inside of language and tropes that would allow other, less acceptable ideas of the time, to be granted passage into the public discourse. Yet, her ideas, those presented here, are strongly present, in some cases tirelessly omnipresent, in her treatise. She holds these up not as the husk in which to hide the real kernel of her meaning, but as essential to her argument--they are the root of her philosophical thinking. It is strangely myopic to classify her thinking on chastity, marriage, the family, and the complementarity of the sexes as mere window dressing because her views are not radical nor break decisively with traditional thinking.
Another answer to the question is that Wollstonecraft's insights are often placed onto a procrustean bed of feminist theory. Wollstonecraft's place in intellectual history has changed along with the political fortunes of the women's movement. Sometimes it appears as if A Vindication of the Rights of Woman is caught in an interpretative struggle over the meaning of feminism, rather than allowing the treatise to challenge and broaden what feminism means. It is tempting to confer on this text a status as a forerunner of modern feminism, but, depending on what a critic defines this to be, such a status can lead to distortions in understanding the text. The risk of “vile anachronism”is always present when studying any thinker from an ideological or theoretical perspective. Finely textured ideas of past thinkers run the risk of becoming flattened to fit an agenda. This apprehension is conveyed in the words of one critic: “One can see how the moral analysis and the social description in A Vindication could be appropriated for a more conservative social theory, which . . . would confine [women] to a desexualized domestic sphere as wives and mothers.” Certainly the multivalent meanings in A Vindication of the Rights of Woman might disturb a tidy reading that would grant it some kind of prototypical status or bind it to one end of a political spectrum. The high aim of scholarship, of course, is to attempt to understand Wollstonecraft's treatise without pressing it tendentiously into one's particular agenda, theoretical, political, or otherwise. Yet, warning about conservative appropriation can easily chill legitimate efforts to rehabilitate a key text in ways that might threaten the dominant feminist paradigms that have confined A Vindication of the Rights of Woman to a narrower reading than is borne out by the evidence. Rather than pre-emptively silencing or ignoring potentially “contradictory implications” it could be that the most interesting insights are to be found in exploring the tensions rather than in pulling or pushing the text in one ideological direction or another.

May 23, 2016 in Legal History, Theory | Permalink | Comments (0)

MD Passes Equal Pay Law

Wash Post, The Thing Americans Don't Want to Talk About Might be Holding Women Back

On Thursday, Maryland became the latest state to protect a worker’s right to ask colleagues one of the most taboo questions in American society: How much money do you make?

 

With Gov. Larry Hogan's signature on the equal pay law, the state joined at least a dozen others that explicitly shield compensation-curious workers from employer retaliation. The move to boost pay transparency comes four months after President Obama laid out new rules that would require companies with more than 100 employees to report to the government salary data based on race, gender and ethnicity, drawing ire from some in the business community.

 

Advocates hope the simultaneous efforts pushing employers to scrutinize their own wage breakdowns — and guarding the employees who choose to discuss them — will help reduce pay disparities between white men, women and employees of color in similar jobs.

May 23, 2016 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, May 17, 2016

New $10 Bill Appropriately Features Elizabeth Cady Stanton, But She's About More than Suffrage

More from me blogging on why it is appropriate that Elizabeth Cady Stanton will appear on the new $10 bill.

Who is Elizabeth Cady Stanton and Why is She on the New $10 Bill

Elizabeth Cady Stanton, however, stands out from this respectable group [of women suffrage leaders on the new $10 bill] as the leading philosopher and advocate of the nineteenth-century women’s rights movement. As I discuss in my book Elizabeth Cady Stanton and the Feminist Foundations of Family Law, Stanton was the “radical conscience” and founding mother of feminism. She was also a leading legal thinker advancing a full array of women’s rights. Stanton is memorialized today at the National Women’s Rights Museum located in Seneca Falls, New York. There, a waterfall pours over her prophetic words written in the Declaration of Sentiments.

 

In Stanton’s Declaration, she laid out seventeen demands for women’s rights in addition to the vote. These included the right to equal opportunity in education, employment, and religion. And they included rights within the family designed to assure gender equality, such as joint marital property, no-fault divorce, domestic violence protections, maternal child custody, and equal access to lawmaking through women jurists, lawyers, and juries. Stanton rejected the prevalent idea of the separate sphere of domesticity confining women to the “protection” and isolation of the home. Instead, she saw integrating women into the public sphere of political action and employment as important, while also elevating women as an equal power in the family with rights to property, autonomy, and parenting.

 

 

Stanton’s advocacy for sex equality is integrated into the legal history of family law. She advocated for change to the laws of marital property, equal marital partnerships, no-fault divorce, domestic violence remedies, women’s reproductive control, maternal custody, and de-gendered parenting. It turns out that almost all of Stanton’s radical ideas for the family seem innocuous today only because they have become the law. Turns out she was right, even if she was one hundred years too early.

 

 

May 17, 2016 in Legal History | Permalink | Comments (0)