Saturday, November 21, 2015
Times Higher Education, US Law Reviews' Dirty Game: Review by Student
Submissions for almost all American general law reviews and for more than half of the specialised ones are reviewed by law students, selected by more senior law students based on their first-year academic performance. Unfortunately, however intelligent and ambitious they are, students just don’t have the expertise to judge the quality of submissions. As a result, an article’s fate is determined by the application of several superficial criteria.
First is the author’s name and affiliation. If she is unknown to the students and either does not teach (but, for example, works at a law firm) or teaches at an institution that places lower in U. S. News and World Report’s most recent annual rankings of law schools, they generally disregard her submission. Never mind that the U. S. News rankings are based on algorithms that embed highly subjective and controversial judgements.
Second, if an author’s obligatory CV indicates prior publications in journals at schools ranked lower in U. S. News, many students will deem her current efforts to be unworthy of consideration.
Third, students feel obliged to accept submissions by their own professors. This much is forgivable, I suppose. What is less forgivable is the professors’ willingness to put them in this position to begin with. They are in effect compelling the students to publish their work, no matter how weak it may be, thereby monopolising the few available slots in their own schools’ journals. This is just one more reason to doubt the common assumption that the most original and insightful legal scholarship can be found in the highest-ranked law reviews.
Fourth, students typically prefer some areas of law over others, based not so much on informed legal judgement as on the politics of the day and what they happen to perceive as simpler, more “colourful” topics.
Thursday, October 29, 2015
Stephanie Hunter McMahon (Cincinnati) has posted Gendering the Marriage Penalty, in Controversies in Tax Law (Ashgate 2015):
In 1969 Congress amended the Internal Revenue Code to create a marriage penalty. The penalty was not felt by all married couples: Only those couples in which spouses earned roughly equal amounts and who filed joint tax returns paid a penalty. Thus, the 1969 change in law had a gendered effect of discouraging some wives from earning income, but the alternative was not without its own gendered results. If gender marks the impact of the 1969 legislation, was gender what motived the change in law? It would be easy to assume that at the end of the 1960s, a socially conservative legislature reacted to a developing women’s movement. From the legislative debates, sexism certainly pervaded congressional discussion of women’s role in the family and the economy. However, this only tells part of the story and does so by focusing on the result that remains of interest today. Economic forces were a larger part of the story. The context of the 1969 revision shows it as part of an economic movement evolving since the end of World War II as policymakers adopted tax legislation in an attempt to improve the economy and fight the Cold War. Not only policymakers in Washington but also many women’s groups shared this focus on national economics. The focus on economic issues resulted in a lack of analysis of how this change in tax policy would affect various groups of women. The development of the marriage penalty highlights the need to consider the consequences of legislation prior to its enactment. In this case, particular concerns (largely economic) drove legislation that imposed most of its cost on a segment of society that was not focused on this issue.
Tuesday, October 20, 2015
The second part of the chapter proceeds to articulate a relational approach to children’s subjectivity. Building on the work of Martha Minow, this approach highlights children’s experiences as active participants in multiple relationships directly and indirectly mediated by law. Children’s relationships are not confined to the family, nor do they solely involve hierarchal dynamics of development and control. Children instead experience a broad range of interactions as children, separate from or in addition to their interests in becoming adults, even as they remain dependent on adults for many aspects of their lives. Children’s relationships therefore blur the traditional distinction between subjects and objects, providing a foundation for law to acknowledge and foster children’s intrinsic interests as children.
Tuesday, October 13, 2015
I just posted TJ Boisseau & Tracy Thomas, After Suffrage Comes Equality? ERA as the Next Logical Step, forthcoming as a chapter in the book 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism edited by Lee Ann Banaszak and Holly McCammon (Oxford University Press 2016).
The chapter traces the long, and surprising, history of the Equal Rights Amendment, first proposed in 1923.
From the abstract:
Almost a full century in the making, the campaign for an ERA far exceeded in longevity the campaign for woman suffrage, however much a “logical next step” women's equality seemed to some following the spectacular achievement of the Nineteenth Amendment. The history of the amendment reveals how resistant to the idea of equality between men and women a political system—even one that includes women as voters—can be. In this chapter, we re-examine the route taken by the ERA through its many permutations in the century since the passage of woman suffrage. Proposed by Alice Paul in 1923 and immediately opposed by social feminists advocating protective labor laws, the ERA wound itself in and out of feminist, conservative, and public favor before its final defeat in 1982, three states short of adoption. Woven into the Supreme Court's analysis of Lochner and substantive due process, and the later evolution of equal protection law, women's equality--or difference--has been the foundation of much of the development of modern constitutional doctrine.
Wednesday, October 7, 2015
Prof. Keith Cunningham-Parmeter has uploaded a new article onto SSRN. The article is titled "Marriage Equality, Workplace Inequality: The Next Gay Rights Battle," and its abstract reads:
Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.
This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.
Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.
Tuesday, September 29, 2015
I just published the 2015 edition of Women and the Law for West.
This is an annual collection of what I call the "greatest hits" in legal scholarship from the past year on women's rights. It includes sections on reproductive rights, family, employment, domestic violence, feminist theory, and sometimes education.
Here's this year's awesome lineup.
Introduction and Summary, Tracy Thomas
Abortion Distortions, Caroline Mala Corbin
Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, Michele Goodwin
Abortion and the Constitutional Right (Not) to Procreate, Mary Ziegler
Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States, Sara L. Ainsworth
Feminism and the Family Law
Unprotected Sex: The Pregnancy Discrimination Act at 35, Deborah L. Brake & Joanna L. Grossman
Reframing the Work-Family Conflict Debate by Rejecting the Ideal Parent Norm, Jennifer H. Sperling
Spousal Support in the 21st Century, Judith G. McMullen
Digging Beneath the Equality Language: The Influence of the Fathers' Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, Kelly Alison Behre
Violence Against Women
Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women's Syndrome, and Violence as Male Privilege,Mary Anne Franks
Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders, Jane K. Stoever
Love Matters, Tamara L. Kuennen
Financial Freedom: Women, Money, and Domestic Abuse, Dana Harrington Conner
A Home with Dignity: Domestic Violence and Property Rights, Margaret E. Johnson
Women in the Workplace
Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination, Lynn Ridgeway Zehrt
Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Martha Chamallas
It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The United States and the U.K. as Examples, Susan Bisom-Rapp and Malcolm Sargeant
Feminist Legal Theory
State Responsibility for Gender Stereotyping, Barbara Stark
Rights of Belonging for Women, Rebecca E. Zietlow
The New Sex Discrimination, Zachary A. Kramer
Saturday, September 26, 2015
The new issue of the Journal of Women's History (Fall 2015).
TABLE OF CONTENTS
"I Wouldn't Be No Woman If I Didn't Hit Him": Race, Patriarchy, and Spousal Homicide in New Orleans, 1921 - 1945
Jeffrey S. Adler
"As Potent a Prince as Any Round About Her": Rethinking Weetamoo of the Pocasset and Native Female Leadership in Early America
Gina M. Martino-Trutor
Dode Akabi: A Reexamination of the Oral and Textual Narrative of a "Wicked" Female King
Harry N.K. Odamtten
From Anne to Hannah: Religious Views of Infertility in Post-Reformation England
Sex Scandals and Papist Plots:The Mid-Nineteenth-Century World of an Irish Nurse in Quebec
Sanitizing the Domestic: Hygiene and Gender in Late Colonial Bengal
Constructing Women's Citizenship: The Local, National, and Global Civic Lessons of Rajkumari Amrit Kaur
Single Girls and Working Women: Gender, Power, and Feminism in American History and Culture
Sexual Labor and the Transnational Sphere
Michelle K. Rhoades
Personal and Political: Love's Revolutions in Recent Historical Research
New Views on Left Feminist Activism Before the 1960s
Monday, September 7, 2015
Current Issue: Volume 22, Issue 1 (2015)
Anastasia M. Boles
Thursday, July 16, 2015
Vicki Schultz (Yale), Taking Sex Discrimination Seriously, 91 Denver L. Rev. (2015).
Abstract:The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that the primary limit on legal reform has been attitudinal. Since Title VII’s enactment, both private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles, and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.
How, then, has progress occurred under Title VII? The answer lay in reformers challenging essentialist claims about sex difference.
During Title VII’s first decade, this Article shows, agencies and courts adopted an expansive reading of Title VII’s first decade only because the leaders of the emerging women’s rights movement pulled activists together to mount a strong, clear, concerted challenge to the existence and relevance of sex difference. Crafting a new conception of equality that captured American women’s growing sense of discontent while promising greater freedom to both women and men, early feminists overcame governmental resistance and achieved genuine legal progress. By the mid-1970s, they secured favorable rulings from the agencies, the Supreme Court, and the lower courts under both Title VII and the Constitution and consolidated these gains in Congress.
Yet progress was not universal and the initial momentum did not last. Rather, this Article argues, in areas of the law where feminist groups failed to establish a significant presence, or where they began to take a divided or less decisive stance as the women’s movement fractured and faded, the activist void and resulting lack of accountability permitted courts to retain or revert back to older views attributing workplace inequality to women’s difference. Two areas of law illustrate these dynamics. In cases raising women’s lack of interest as a defense to sex discrimination, women’s rights groups’ failure to regularly contest this arcane defense in the courts and agencies, coupled with resurfaced internal division that sent mixed signals about the existence and sources of women’s allegedly different work preferences, freed conservative judges to accept this defense and legitimate the underlying stereotypes in a wide swath of cases. Pregnancy discrimination law provides a second example, showing how courts stalled, and later backpedaled, as feminists initially wavered and later split over whether to characterize pregnancy as uniquely female reproductive experience unlike other medical conditions or as a temporary disability comparable to others that may affect an employee’s ability to work. Despite federal laws and agency rulings adopting the latter approach, images of pregnancy as unique and distinct from other disabilities have continued to resurface, limiting the law’s capacity to address this persistent form of discrimination.
Progress under anti-discrimination law is thus difficult to achieve and sustain: It requires committed, cohesive efforts to contest difference as a rationale for inequality and galvanize public support for change. This Article suggests that, going forward, civil rights reformers can make further headway by challenging not only the existence and relevance of such alleged differences, but also their nature and sources. New evidence highlights that many sex, race, and other-group differences typically thought to explain and justify workplace inequalities are actually created and fostered there through employment policies and practices. The hope is that, by coming together to contest and change those practices, reformers can erode both enduring patterns of employment discrimination and the essentialist ideas about difference that have undermined the law’s promise.
Friday, June 26, 2015
The summer is available online:
|Feminism in Yellowface
|The Future of Polyamorous Marriage: Lessons From the Marriage Equality Struggle
Hadar Aviram & Gwendolyn M. Leachman
|A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers
Karen Oehme, Nat Stern & Annelise Mennicke
|The Long American Plan: The U.S. Government’s Campaign Against Venereal Disease and its Carriers
Scott Wasserman Stern
|Why Originalism Needs Critical Theory: Democracy, Language, and Social Power
Annaleigh E. Curtis
Monday, June 1, 2015
Keith Cunningham-Parmeter has published "(Un)Equal Protection: Why Gender Equality Depends on Discrimination." It's available for download here and its abstract reads as follows:
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses— laws that give families additional parental leave when fathers stay at home with their newborns—have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.
On SSRN, Stuart Chinn has uploaded "Situating 'Groups' in Constitutional Argument: Interrogating Judicial Arguments on Economic Rights, Gender Equality, and Gay Equality." The abstract reads:
The New Deal transformation in Commerce Clause and Due Process jurisprudence marked, among other things, a shift in judicial attention from groups defined by economic relationships to groups defined by social status. Hence, one might plausibly see judicial activism in defense of freedom of contract during the Lochner era subsequently giving way, in part, to the judicial protection of racial minorities, women, and gay persons in the decades after Brown v. Board of Education.
In this paper, I attempt to illuminate this shift in judicial attention by examining the Supreme Court's rhetoric surrounding groups in the context of the Lochner era cases on wages and hours regulations and the post-Brown v. Board of Education era cases on gender and gay equality. I situate my inquiry in the context of broader themes in American political thought, with particular attention to the core concepts and principles of American liberalism. In examining the recurrent modes of argument surrounding groups in these Supreme Court cases, I discuss how the Court's concept of groups — and how its views of American society more broadly — has varied in different constitutional doctrinal contexts.
My examination of these cases yields two key findings. The first finding speaks to a similarity across these contexts of Supreme Court jurisprudence: when confronted by reforms calling for special or different legal treatment of specific groups, both pro-reform and anti-reform Supreme Court justices in these three doctrinal contexts put forth arguments about group-sameness and group-difference. That is, group-sameness and group-difference arguments were deployed by Justices on both sides of the various legal controversies in these doctrinal areas. The second finding speaks to a difference between these doctrinal contexts: while arguments in defense of special legal treatment for groups in the Lochner era cases on wages and hours regulations were linked to larger, broader, more systemic goals, no such sensibility informs the judicial protection of groups in the post-Brown cases on gender and gay equality. Rather, in more recent years, the judicial defense of groups largely proceeds from a judicial concern for only the groups in question. Thus, we see in the more contemporary cases examples of judicial arguments about “societal segmentation” — a significant mode of legal and political argument that, I assert, has appeared episodically throughout American history. In the final Part, I set forth a more general definition of societal segmentation arguments, and I discuss how notions of segmentation may be situated in relation to the principles of American liberalism.
Saturday, May 9, 2015
Pleased to announce that my article, Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Law, Gender & Soc'y 47 (2014), received the annual award for best faculty scholarship granted by the Alumni Association.
The article tracks the backstory of the U.S. Supreme Court decisions in Akron v. Akron Center for Reproductive Health and Ohio v. Akron Center for Reproductive Health. It draws on original research of oral histories and recovered documents to explore the historical and legal context that spawned informed consent laws so early after Roe v. Wade seemingly resolved the legal question over abortion.
Tuesday, April 14, 2015
Naomi Cahn, Author Diversity in Legal Scholarship
One impetus for the conference was Minna Kotkin’s article, Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the “Top Ten” Law Reviews, 31 Women’s Rts. L. Rep. 385 (2010). Kotkin published the results of a study examining the percentage of female authors in elite journals, finding that just over 20% of articles in those law reviews were written by women even though women make up 31% of the tenured/tenure-track faculty nationally. When she first began discussing the results of the study, she faced lots of criticism and support in the blogosphere. Nancy Leong has usefully pointed out that these disparities certainly exist outside of the law review context as well. On the other hand, a later study mentioned at the conference concerning gender disparity in citation rates found that “women publishing in the field of legal studies do not experience significant gender bias in citation rates to their articles. If anything, the opposite appears to be true.” (p. 20). While the authors are not certain as to why this is, they offer numerous speculations as to why this is so, such as “legal scholars [may be] less likely than other scholars to bias citation by gender of author”. One possibility they don’t mention is that women’s articles are simply better than men’s; as the famed quote (from Charlotte Whitton) goes: “Whatever women do, they must do twice as well as men to be thought half as good. Luckily, this is not difficult.” If this is true, then the gender disparity in law review authors is even more shocking.
Moving forward, we discussed a variety of potential changes. For example, when it comes to law review selection, we discussed the pipeline process: who is mentored to write on and join the law review, the topic selection for the write on process; the guidance given to law review staff on how to become senior editorial board members. While some participants advocated author-blind review of submissions by law reviews, others suggested affirmative action might be more appropriate (an issue discussed in this prior thread.
On the faculty side, we discussed the importance of both formal and informal mentoring, of finding colleagues from both within and outside of one’s own faculty who can engage in an informal peer review process. We discussed how schools can support diversity in faculty scholarship, including a shout-out to Martha Minow’s field guide to legal scholarship. One school actually has developed postings of sample (and successful) cover letters for articles.
Monday, March 16, 2015
A trio of economists have uploaded on SSRN a study about executive compensation and gender. The abstract:
We document three new facts about gender differences in executive compensation. First, female executives receive lower share of incentive pay in total compensation relative to males. This difference accounts for 93% of the gender gap in total pay. Second, the compensation of female executives displays lower pay-performance sensitivity. A $1 million dollar increase in firm value generates a $17,150 increase in firm specific wealth for male executives and a $1,670 increase for females. Third, female executives are more exposed to bad firm performance and less exposed to good firm performance relative to male executives. We find no link between firm performance and the gender of top executives. We discuss evidence on differences in preferences and the cost of managerial effort by gender and examine the resulting predictions for the structure of compensation. We consider two paradigms for the pay-setting process, the efficient contracting model and the “managerial power” or skimming view. The efficient contracting model can explain the first two facts. Only the skimming view is consistent with the third fact. This suggests that the gender differentials in executive compensation may be inefficient.
Wednesday, March 4, 2015
Irene Velkova, University College London, has uploaded "Quotas for Women on Corporate Boards: The Challenge for Europe." The abstract reads:
“Bringing more women on boards is not just the right thing to do. More women on boards is the bright thing to do!”, argues Viviane Reding, the Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship in 2009-2014 when promoting European Union quota law. And then she adds: “…I do not like them (quotas) either. But I like the results they bring.”
The debate for higher female representation on corporate boards has become particularly intensive during the recent financial crisis. Scholars advocate that women are more risk-averse, more engaged with longer-term issues and tend to draw more attention to governance and ethics. Thus, it is suggested that due to the behavioural differences between men and women, more gender – balanced boards would have prevented a number of financial collapses. This assertion has triggered more detailed analyses of current statistics for women on boards in the European Union. The numbers that are found follow the global pattern. Women are well underrepresented on boards and even less visible as CEOs or chairpersons of companies. In particular, at the end of 2013 women held 17.8% of the seats on boards in Europe, 16.6% in the US, 12.3% in Canada, 12.3% in Australia and 17.1% in South Africa. Women serve as chairpersons on 3.2% of the biggest companies in Europe , 3.1% in the US, 4.2% in Canada, 3% in Australia and 5.5% in South Africa. The country in the world that excels with the highest number of female directors on boards is Norway, which has achieved 42% women on boards by 2013. These strikingly low ratios and the general finding in the empirical literature that women bring positive change to firms’ performance have generated a phenomenal drive for promoting initiatives that strive to increase the number of women on boards.
Saturday, February 14, 2015
What would United States Supreme Court opinions look like–and what would their influence be–if key decisions on gender issues were written with a feminist perspective? The US Feminist Judgments Project seeks to answer these questions by pulling together a group of leading feminist legal scholars in the United States to rewrite, using feminist reasoning, the most significant Supreme Court cases on gender from the 1800s all the way to the present day.
Editors Linda Berger (UNLV), Bridget Crawford (Pace) and Kathy Stanchi (Temple), along with an Advisory Panel of diverse and distinguished scholars, targeted 24 influential Supreme Court cases related to gender for feminist revision. Those 24 rewritten opinions, along with introductory commentary explaining the issues and context of the decision, will be published by Cambridge University Press in a volume entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. You can see the final list of cases, as well as the authors of the rewritten opinions and commentaries, here.
The US Feminist Judgments Project was inspired by the successful collection and publication in Britain of Feminist Judgments: From Theory to Practice, by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 to wide acclaim.
Like its British counterpart, the US Feminist Judgments Project seeks to illustrate how decision-makers with feminist viewpoints could have arrived at different decisions using different reasoning in critical Supreme Court cases despite the restrictions of stare decisis. The rewritten decisions are framed within the same precedent that bound the Supreme Court at the time of the opinion, but bring to the decision making and the opinion writing a feminist perspective on the facts and the law. The rewritten decisions show not only how feminist theory can apply to real-world judgments, but also the ways that stare decisions can mask the law’s masculine perspective and bias. In this way, the volume will help uncover the manner in which hidden and often-unrecognized gender bias drives the results and the reasoning in much of our jurisprudence.
Friday, February 13, 2015
This study suggests so. The abstract available on SSRN:
We formulate theory on the effect of board of director gender diversity on the broad spectrum of securities fraud and generate three main insights. First, based on ethicality, risk aversion, and diversity, we hypothesize that gender diversity on boards can operate as a significant moderator for the frequency of fraud. Second, we hypothesize that the stock market response to fraud from a more gender-diverse board is significantly less pronounced. Third, we hypothesize that women are more effective in male-dominated industries in reducing both the frequency and severity of fraud. Our first-ever empirical tests, based on data from a large sample of Chinese firms that committed securities fraud, are largely consistent with each of these hypotheses.
Monday, January 19, 2015
A recent student Note in the Hastings Constitutional Law Quarterly examines the status of intersex prisoners. It's available here and the abstract reads:
Miki Ann DiMarco spent 438 days in the most restrictive and isolated housing pod at Wyoming Department of Corrections due to the fact that she was “classified as an individual of ambiguous
Even though DiMarco identified herself as female since puberty, she was segregated from the general prison population because of her gender ambiguity. Biologically speaking, she “has a
nearly complete set of male reproductive organs however [sic] does not have testicles . . . [or] female reproductive organs.”
People who are intersex, such as DiMarco, “fail to fit neatly into the traditional male/female binary construct.” DiMarco’s case demonstrates the difficulty in determining appropriate housing arrangements in the prison system for people whose bodies do not conform to the
traditional male/female dichotomy.
This Note seeks to examine the problems that arise due to the insistence upon a binary society with regards to sex. First, this Note sheds light on sex as a spectrum, rather than the classic male/female dichotomy—particularly focusing on the different conditions of intersex people. Next, this Note discusses the ways in which prison authorities house and treat intersex prisoners. The potential constitutional violations of these housing classifications is analyzed with special emphasis on the DiMarco case.
Monday, January 12, 2015
The recent terrorist attack against Charlie Hebdo may not have raised explicit issues of gender (although I couldn't help but think about the subject of male rage and attendant claims of patriarchal authority), but readers might find an article I wrote to be of interest. It argues that humor--especially a certain variety of barbed humor--should be protected as a principle of antiauthoritarianism: John Kang, "In Praise of Hostility: Antiauthoritarianism as Free Speech Principle," 32 Harv. J. L. & Public Policy 351 (2012).