Wednesday, July 15, 2015
The Government has today launched a consultation on its commitment to introduce regulations to require private and voluntary sector businesses with at least 250 employees in Great Britain to publish gender pay gap information. A gender pay gap shows the difference between the average earnings of men and women as a percentage of men’s earnings. According to the Office for National Statistics, the current overall UK gender pay gap of 19.1% shows that a woman, on average, earns around 80p for every £1 earned by a man.
The thinking behind the proposal is to achieve greater pay parity through (a) requiring employers to think about the topic and (b) sheer embarrassment. Publishing data showing a whopping gender pay gap will still constitute compliance with the new regulations, the “sting” being in the use which may be made of those statistics in individual and collective equal pay claims and on social media. However, the existence of a reported gender discrepancy in pay across an employer does not of itself mean that there is any pay discrimination – it may instead be a function of who holds the more senior roles, who works part-time, etc. The issue will be where there are material gaps within specific roles or grades, hence the enquiry in the consultation as to whether reporting at that level of detail would be feasible for most employers. That would be a material administrative burden for larger employers but a far more useful measure of progress than the very blunt instrument of flat figures across the whole business.
And the government consultation document is here.
Tuesday, July 14, 2015
Tracy Thomas, associate dean of The University of Akron School of Law said she believes that Kennedy’s opinion answered Roberts’s objections. In particular, she praised Kennedy for going beyond Loving to examine other right-to-marry cases, particularly Zablocki.
“Zablocki is key,” she said. “It’s an underrated case” in that the law at issue does not absolutely prohibit marriage, places conditions on the timing of the plaintiff’s marriage.
Thomas said Zablocki also considers due process and equal protection claims in tandem as Kennedy does in the decision.
Thomas, who teaches family law and directs the Constitutional Law Center at the School of Law, faulted Roberts for his characterization of Loving. Contrary to Roberts’s characterization, she said she finds that the states maintaining anti-miscegenation laws at the time of Loving regarded marriage restricted to one’s race as fundamental to the definition of the institution as marriage being between a man and a woman.
Thomas also noted that Roberts argues that marriage has for millennia been defined as one man and one woman, ignoring the persistent reality of polygamy.
Justice Kennedy’s opinion treats equal protection as “connected in a profound way” to substantive due process, she said, adding that he does not engage in traditional equal protection analysis, determining whether the plaintiffs fall into a suspect class and identifying a standard of review.
On the other hand, she said, at two places in the opinion, Kennedy refers to same-sex attraction as an immutable trait, which generally serves as a starting point for determining whether a group is a suspect class.
According to Thomas, the lack of detail regarding equal protection is consistent with how Kennedy has been approaching marriage equality cases.
“This is a marriage issue for him not a same sex issue,” she said, adding, “at least since Windsor, it’s where Kennedy is coming from.”
Following up on my prior post What Does the Same-Sex Marriage Case and its "Right to Individual Autonomy" Mean for Abortion Rights, suggesting that some of Kennedy's language of autonomy and personal choice might apply to protect abortion rights, here is a view that the SSM decision is not useful to abortion rights.
I find myself increasingly disappointed in Kennedy’s articulation of the right to same-sex marriage. Not because I don’t appreciate the way he discussed marriage as a fundamental right crucial to the dignity of gay and lesbian individuals, but because he doesn’t locate a woman’s right to reproductive autonomy in that same sphere of dignity. ***
When it comes to women reserving dignity for themselves—the dignity to make the most personal choice—whether or not to have children—Kennedy has devolved into patriarchal notions about women’s frailty and inconstancy, with language steeped in stereotypes and gender-normative claptrap.
However useful Kennedy finds it for expanding constitutional protections for certain rights, dignity is a gendered double-edged sword. It’s great for men and it has turned out to be great for same-sex couples who want to get married. But dignity as a concept is worthless when it comes to reproductive rights.
In her article, “Aborting Dignity: The Abortion Doctrine After Gonzales v. Carhart,” Victoria Baranetsky examined the limitations of dignity as a useful constitutional principle, and describes its dual meaning. She wrote, “Dignity has two radically different meanings: femininesocial obligation and masculine autonomy.” (Emphases in original.)
In honor of today's release of Mockingbird II, Go Tell a Watchman, some suggested reading on the law and gender in Harper Lee's To Kill a Mockingbird.
Julia Ernst, The Exoneration of Mayella Ewell in "To Kill a Mockingbird," 47 Akron L. Rev. 1019 (2015)
Karla Holloway, Legal Fictions:Constituting Race, Composing Literature 114-16 (Duke U Press 2014)
Iris Halpern, Rape, Incest, and Harper Lee's To Kill a Mockingbird: On Alabama's Legal Construction of Gender and Sexuality in the Context of Racial Subordination, 18 Colum. J. Gender & Law 743 (2009) (WL link)
This is the fifth year the Harper Lee Prize for Legal Fiction has been awarded. The prize is intended for the best novel-length work of fiction published that year to illuminate the role of lawyers in society and their power to effect change. It is sponsored by the ABA Journal and the University of Alabama School of Law, and named for the author of To Kill a Mockingbird.
The Secret of Magic is the story of Regina Robichard, an African-American attorney working for the Legal Defense Fund with Thurgood Marshall in the 1940s. She receives a packet detailing the disappearance and death of Joe Howard Wilson, a young black World War II veteran, and she travels to Mississippi to investigate. When she arrives, she discovers that nothing about the case, the town or its inhabitants is quite what it initially seemed.
Johnson is the first woman and the first African-American to be awarded the prize
Monday, July 13, 2015
WHITE PLAINS, N.Y. (CBSNewYork) — It’summer wedding season, and as couples prepare to say “I do,” some lawmakers have been looking to change hundreds of laws on the books.
As CBS2’s Lou Young reported, a proposal in the U.S. House of Representatives would remove the terms “husband” and “wife.”
In White Plains, the sculpture “Contact” by J. Seward Johnson depicts a man and woman embracing. They are married – as the rings on their fingers demonstrate.
But are they “husband and wife?” Are they “two spouses?” Does it matter?
“I’m a husband. I’m married to a wife,” said James Kindro of Ardsley, “and if you want to say ‘married couple,’ I really don’t bother me one way or the other.”
The recent revolution in same-sex unions has prompted a proposal to gender-neutralize federal law, deleting references to “husband and wife” and opting for “spouse” or “married couple.
A bit dated by cyberspace terms but still worth reading from the New Republic:
We cannot talk about the violence that Dylann Roof perpetrated at Emanuel AME last Wednesday night without talking about whiteness, and specifically, about white womanhood and its role in racist violence. We have to talk about those things, because Roof himself did. Per a witness account, we know that he said: “You rape our women and you’re taking over our country.” “Our” women, by whom he meant white women.
There is a centuries-old notion that white men must defend, with lethal violence at times, the sexual purity of white women from allegedly predatory black men. And, as we saw yet again after this shooting, it is not merely a relic of America’s hideous racial past. American racism is always gendered; racism and sexism are mutually dependent, and cannot be unstitched.
Saturday, July 11, 2015
NYT, Regulating Sex
THIS is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship. But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?
According to the doctrine of affirmative consent — the “yes means yes” rule — the answer is, well, yes, he is. And though most people think of “yes means yes” as strictly for college students, it is actually poised to become the law of the land.
About a quarter of all states, and the District of Columbia, now say sex isn’t legal without positive agreement, although some states undercut that standard by requiring proof of force or resistance as well.
Codes and laws calling for affirmative consent proceed from admirable impulses. (The phrase“yes means yes,” by the way, represents a ratcheting-up of “no means no,” the previous slogan of the anti-rape movement.) People should have as much right to control their sexuality as they do their body or possessions; just as you wouldn’t take a precious object from someone’s home without her permission, you shouldn’t have sex with someone if he hasn’t explicitly said he wants to.
Friday, July 10, 2015
Casey Hoke would spend an average of two minutes out of his seven-hour school day in the restroom. “That’s it. Business as usual. No one bats an eye,” Hokewrote in January, back when he was a high-school senior in Louisville, Kentucky. “How we go about our business is none of yours.”
By “we,” Hoke was referring to transgender students. He was primarily addressing Kentucky’s legislature, which at the time was considering a bill that would’ve cracked down on transgender students’ use of K-12 bathrooms. The legislation would’ve legally required schools to ensure that children follow anatomical conventions when using gender-segregated school facilities: that children who were born boys but identify as girls use the boys’ restroom, and vice versa. What Hoke found particularly egregious about the “Kentucky Student Privacy Act” was that, in its original version, the legislation also would’ve entitledstudents who sued offenders in state court to damages of $2,500 each. Hoke compared this proposed system to a witch hunt.
South Carolina's decision to take down the Confederate Flag reminded me of the flag's symbolic associations with rural masculinity.
Which got me thinking about country music. Which got me thinking about contemporary country music. Yes, music, and not law, but to the extent popular culture informs and influences law, I wanted to share some excerpts from this essay from the New Republic:
Contemporary country masculinity is all about working hard, drinking harder, and doubling down on the kind of old-fashioned manliness that is now rejected—or that is seen to be rejected—by hipsters, nouveau bros, metrosexuals, and myriad other manifestations of the decline of manhood. It’s a deeply reactionary vision of masculinity, rooted in class, race, and a desire to define oneself as not a woman and as definitely, absolutely, supremely heterosexual.
They hate their jobs, unless they work on a farm, in which case they revere their work—for its symbolism, for its inherent and authentic goodness—even though it’s hard. With the extolling of small-town values and the rhapsodic waxing about dirt roads comes the class-conscious assumption that work is a paycheck, not a path to self-actualization. Men in country work hard, but they’d clock out for good at the end of today’s shift if they could.
And when they clock out, they drink. A lot
The third component of the masculinity espoused by bro country is straightness. Super straightness.
This is what masculinity looks like in country today: work hard in a “real” job, blow off steam drinking and ogling women with your boys, then demonstrate your heterosexuality by picking one of them up. As Noah Berlatsky wrote in this magazine earlier this year, the male gaze has become central to the genre’s authenticity. “To be normal, to be real, to be rural, to be unaffected on country radio … You just have to be a guy who likes staring at women.”
Such impressions, if accurate, would suggest that contemporary country music isn't especially charmed by the picture of masculinity presented, generations earlier, by the likes of Johnny Cash, George Jones and Willie Nelson: the subtlety, the irony, and the episodes of witty paradox, often mixed with wry home-truths that sounded like nuggets of wisdom about what it meant to be a man.
The report, now a bit dated, but still interesting:
TrustLaw, an organization that provides legal aid and information on women's rights, set out to determine which countries were the most dangerous for women. By polling more than 200 international gender experts on general perception of danger and six other issues – health threats, discrimination, cultural and religious norms, sexual violence, nonsexual violence, and trafficking – TrustLaw determined that women were at the most risk in the following five countries.
* Afghanistan tops expert poll of dangers to women
* Congo plagued by rape as weapon of war
* Pakistan blighted by acid attacks and 'honour killings'
* India cited for trafficking and sexual slavery
* Somalia seen as having full gamut of risks
Thursday, July 9, 2015
Women in many other countries have also benefited from the Convention on the Elimination of all Forms of Discrimination Against Women, or CEDAW.
For girls and women in the United States--where gun violence, rape, sex harassment and domestic violence are all major problems --treaty approval is unlikely any time soon. That's because the United States is one of only a handful of countries--including Iran, Somalia and Sudan--that hasn't ratified the longstanding, U.N.-backed treaty, which is continually updated to strengthen human and civil rights for women.
U.S. presidents have given the treaty their backing. The Clinton and Carter administrations supported the treaty and in 2009 the Obama administration backed ratification. But for more than 30 years the U.S. Senate has refused to take the treaty to a vote.
In light of that, CEDAW backers are now turning to city governments to try to put pressure on the Senate.
At least 40 cities have expressed interest in putting in place their own version of CEDAW, says Karen Mulhauser, chair of the United Nations Association of the USA, which is pushing for ratification at the local level and by the U.S. Senate.
D.C. Seeks to Amend Law
The immediate target of opportunity, she says, is in the District of Columbia. In March, the D.C. City Council unanimously proposed a law that would amend the city's Human Rights Act to incorporate the principles of CEDAW, affirming human rights and equality for women and eliminating discrimination. Hearings are likely this fall.
The District is especially intriguing to CEDAW's backers because all of its legislation must also undergo congressional review, which could then force a debate on CEDAW in Congress. In other words, the District could open a backdoor that could draw more attention to the cause.
Wednesday, July 8, 2015
White Americans make up 95% of elected prosecutors across the US, according to a study that cites the non-indictments of white police officers in the high-profile deaths of unarmed black men as the “shocking” reality of a disproportionate and non-diverse criminal justice system that relies on prosecutorial power.
The study, from the San Francisco-based Women’s Donor Network, also found that that just 17% of elected prosecutors in the US are women – and just 1% are women of color.
The combination of these racial and gender disparities means that white men, who represent 31% of the population, hold 79% of the 2,437 elected prosecutors in the country at a time when growing attention to issues of misrepresentation in the criminal justice system has led to calls for reform.
A group of psychologists have published a paper about a social axiom whose substance, I suspect, had already been intuitively grasped by every single man without the aid of empirical research: when a man feels that his manliness is threatened, he tends to overcompensate. The paper's abstract:
‘‘It seems I had to fight my whole life through. Some gal would giggle and I’d get red And some guy’d laugh and I’d bust his head, I tell ya, life ain’t easy for a boy named ‘Sue’.’’ Johnny Cash, ‘‘A Boy Named Sue (1969)’’
How do people react when one of their important social identities is threatened? In the song ‘‘A Boy Named Sue,’’ Johnny Cash tells the story of a boy with an emasculating name. Faced with this ever-present threat to his masculinity, Sue overcompensates by becoming ‘‘quick and mean’’ and fighting his ‘‘whole life through.’’ The lyrics attest to the pressure that is placed on males to be masculine and the psychological discomfort felt when masculinity is questioned (e.g., Massad, 1981). The song also suggests that rather than simply living with the threat, men actively respond to recover their masculinity. We tested two basic strategies that men might use to compensate for masculinity threats: (i) exaggerating their masculinity and (ii) avoiding stereotypically feminine preferences. We further examined whether some strategies of reestablishing a threatened identity were favored over others, and if so, why.
Tuesday, July 7, 2015
The Ohio Supreme Court issued an order today to provide some guidance to Ohio’s courts governing references to familial relationship terms found in the Rules of Superintendence for the Courts of Ohio and related forms and the Uniform Domestic Relations Forms found in the Ohio Rules of Civil Procedure.
The terms husband, wife, father, mother, parent, spouse and others are to “be construed as gender neutral where appropriate to comply with the decision of the United States Supreme Court in Obergefell v. Hodges, Case No. 14-556.”
The order further states that it will remain in effect until the rules and forms “are amended to reflect the changes contained in this Order.”
h/t Kyle Passmore
Buried among the Supreme Court's orders on Monday was a decision to vacate a Fourth Circuit ruling requiring North Carolina to make pro-choice license plates. Before that ruling, North Carolina made anti-abortion license plates—but refused to make any plates supporting abortion rights. The Fourth Circuit held that its rejection of pro-choice plates violated the First Amendment, and ordered the state to make plates reflecting both sides of the debate.
But then, in mid-June, the Supreme Court ruled, by a 5-4 vote, that Texas could ban Confederate flags on its license plates. License plate designs, the court held, constituted "government speech," not private speech. Thus, states may refuse to make a proposed plate—purely on ideological grounds—without violating the freedom of speech. As I noted then, the decision, called Walker v. Sons of Confederate Veterans, seemed destined to have ramifications in the abortion debate. Some states (like New York) permit only pro-choice plates. Some states (like North Carolina) permit only anti-abortion plates. The justices' decision in Walker, I suggested, implicity condoned this blatant censorship.
On Monday, the court proved me right. By vacating the Fourth Circuit's pro-speech ruling and directing it to reconsider the case in light of Walker, the justices all but ordered Fourth Circuit to reverse itself and allow the state's censorship. Despite its rejection of a Confederate flag plate, Walker was not a victory for civility or tolerance. It was an invitation for states to engage in the suppression of expression
Monday, July 6, 2015
Scott Walker, the governor of Wisconsin and GOP presidential hopeful, publicly condemned the Supreme Court's recognition of gay marriage as a fundamental right. His sons--both college students--were "disappointed" by their father's intolerance. From WaPo:
In the political world, Walker drew immediate scrutiny for being particularly strident. In their house, Tonette Walker heard immediately about her husband’s response from the couple’s two sons, Matt and Alex, who are taking time off from college to help their father’s campaign. She told them to talk directly to him.
“That was a hard one,” Tonette said, pausing and choosing her words carefully. “Our sons were disappointed. . . . I was torn. I have children who are very passionate [in favor of same-sex marriage], and Scott was on his side very passionate.”
“It’s hard for me because I have a cousin who I love dearly — she is like a sister to me — who is married to a woman, her partner of 18 years,” she said.
She said her son Alex was her cousin’s best man at their wedding last year.
Wisconsin Governor Scott Walker
“As a result of this decision, the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage. I call on the president and all governors to join me in reassuring millions of Americans that the government will not force them to participate in activities that violate their deeply held religious beliefs.”
Former Florida Governor Jeb Bush
“Guided by my faith, I believe in traditional marriage. I believe the Supreme Court should have allowed the states to make this decision. I also believe that we should love our neighbor and respect others, including those making lifetime commitments. In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”
Former Arkansas Governor Mike Huckabee
“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do — redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.”
“This ruling is not about marriage equality, it’s about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court’s most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.”
“The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity. Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.”
Louisiana Governor Bobby Jindal
“The Supreme Court decision today conveniently and not surprisingly follows public opinion polls, and tramples on states’ rights that were once protected by the 10th Amendment of the Constitution. Marriage between a man and a woman was established by God, and no earthly court can alter that.”
“This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision. This ruling must not be used as pretext by Washington to erode our right to religious liberty.”
“The government should not force those who have sincerely held religious beliefs about marriage to participate in these ceremonies. That would be a clear violation of America’s long held commitment to religious liberty as protected in the First Amendment.”
Former Pennsylvania Senator Rick Santorum
“This is a watershed moment in American history. It’s the most egregious rejection of traditional values and the Bill of Rights since Roe v. Wade.”
Saturday, July 4, 2015
Though it may have generated the most buzz, Governor Cuomo’s new sexual assault bill was not the only legislative gain for New York women’s rights to come out of this year’s session in Albany. Capital New York points out that New York lawmakers also passed nine out of ten bills in the Women’s Equality Act — a significant advance for gender equality in the state, and, strangely, one that no one seems to be talking about.
Cuomo first introduced the package back in January 2013, and after failing to pass it, made it a keystone of his 2014 re-election campaign. The 10-point legislative plan is impressive in scope: It includes strengthening equal pay laws, outlawing discrimination against parents and pregnant women in the workplace, increasing protections for victims of domestic violence, strengthening laws against human trafficking, and safeguarding reproductive health by codifying Roe v. Wade into New York State law.
It’s this last component of the bill — the abortion plank — which proved to be a sticking point with Senate republicans. Supporters point out that the existing New York abortion law, which decriminalized the procedure, dates back to 1970 — three years before the Supreme Court decision on Roe v. Wade. Most important, the current law does not protect the woman’s health if serious complications develop late in pregnancy; legally, the woman is only protected if her life is deemed to be in danger.
The proposed abortion bill included in the Women’s Equality Act would ensure that women can get an abortion up to 24 weeks into their pregnancy, or when necessary to protect their life or health, and would also protect physicians who offer abortions within the scope of their practice from being criminally prosecuted. Though Cuomo asserted that the language of the bill “in no way expands abortion rights but only codifies federal law,” he ultimately agreed to drop the provision from the Women’s Equality Act in the face of opposition this March.
Without the abortion bill, the other nine measures of the act passed through the assembly with little opposition. While there are still plenty of other legal measures that would help advance gender equality — paid family leave and raising the minimum wage, to start — we shouldn’t ignore these significant legislative gains.
Friday, July 3, 2015
Those keeping up with the Women's World Cup know the story. For those who don't, here it is:
It was a soccer player’s worst nightmare. With seconds left in a World Cup semifinal on Wednesday, Laura Bassett of England lunged for the ball and accidentally kicked it into her own net.
Seconds later, the whistle blew. Japan had won, 2-1, and Bassett and many other England players were left in tears. And members of the sometimes vicious British news media sharpened their pens and offered ... sympathy?
The most common word in British newspaper and website headlines on Thursday was “heartbreak,” and photos of the weeping Bassett dominated the coverage.
“England Women Have Done Their Country Proud,” The Times of London wrote. Even the tabloids were gentle, with The Mail grumbling that the better team had lost: “Own Goal Gives Japan Lucky Win Over Lionesses.”
The reaction to Bassett’s error was in sharp contrast to the aftermath of high-profile World Cup failures by the England men’s team over the years. In a 1998 round-of-16 game against Argentina, David Beckham kicked out at Diego Simeone and was given a red card. The ejection seemed a little harsh, but sympathy for the 23-year-old Beckham was not forthcoming after England lost the game on penalties. The Mirror’s headline was typical: “10 Heroic Lions, One Stupid Boy.”
The same thing--the own goal, as it is called in soccer--had befell Andres Escobar of Colombia in the 1994 World Cup. Known as the "Gentleman of the Field," Escobar was publicly ridiculed by his countrymen (and countrywomen) for his mistake. Eventually, someone murdered him.
(photo of Escobar)
This double standard for men versus women for what is acceptable in the realms of the masculine (like World Cup soccer) seems to me one more instance of the unique burdens shouldered by men.
Wednesday, July 1, 2015
The fact that the women’s vote could be a deciding factor in Canada’s forthcoming federal election is not lost on any of the three main parties.
For the first time in the country’s history, all three have women in charge of their national campaigns.
The Conservative national campaign manager, Jenni Byrne, New Democrat national campaign director, Anne McGrath, and Liberal national campaign co-chair, Katie Telford, will be engaged in the battle for votes in roles long dominated by men.
“The reality is that you can’t do poorly among women and win an election in Canada,” said pollster Nik Nanos.