Gender and the Law Prof Blog

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

Tuesday, February 20, 2018

Exposing the Myths of Negotiating While Female

Andrea Kupfer Schneider, Negotiating While Female, 70 SMU L. Rev. (2017)

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be likeable, it is clear that not negotiating has long-term detrimental effects. The third myth, based on the limited assumption that a good negotiator must be assertive, is that women cannot negotiate as well as men. However, the most effective negotiators are not just assertive, but also empathetic, flexible, socially intuitive, and ethical. Women can and do possess these negotiation skills. This article concludes by proposing an action plan which provides advice on how women can become more effective negotiators and identifies structural changes that might encourage negotiation and reduce the gender pay gap.

February 20, 2018 in Gender, Theory, Women lawyers, Workplace | Permalink | Comments (0)

Friday, February 9, 2018

The Historical Persecution of Women and the Birth of Female Criminality

Amy Gainford,  Mad, Bad or Sad? The Historical Persecution of Women and the Birth of Female Criminality

Throughout history the notion of the ‘female criminal’ has been something of a taboo, an almost morbid curiosity to male dominated societies. As such through misogynist crusades they have attempted to eradicate the world of any women who did not meet the criteria that society dictates. Women who were outspoken and passionate were condemned. Numerous methods were employed to keep women in their place. From the early persecution of witch-hunts in the 15th-17th century to the medicalization of their melancholy in the Victorian era, women were suppressed. Early criminologists ‘discovered’ the biological elements of female criminality and contemporary Criminal Justice System and the mainstream media perpetuated this image. In doing so the disdain from the general public towards criminal women has grown. Often the combination of public hatred and the media’s macabre portrayal creates something of a modern day witch-hunt against these women. Perhaps this is because events of the past ‘demonstrate’ women behaving badly or because of misogyny so deeply ingrained within out society that we cannot escape it. These beliefs that women are fundamentally, biologically evil have seeped into mainstream societal systems that aim to serve the people but instead persecute an entire sub-section of society.

February 9, 2018 in Legal History, Theory | Permalink | Comments (0)

Shifts in Feminist Legal Theory Since the 1990s

Susan Boyd & Debra Parkes, Looking Back, Looking Forward: Feminist Legal Scholarship in SLS, (2017) 26(6) Social and Legal Studies 735

This article offers a review of shifts in feminist legal theory since the early 1990s. We first use our respective histories and fields of expertise to provide a brief overview and highlight some key themes within feminist legal theory. We then examine Social & Legal Studies (SLS), asking whether it has met its key goal of integrating feminist analyses at every level. Our review suggests that SLS has offered many important contributions to feminist legal scholarship but has not fulfilled its lofty goal of integrating feminist analyses at every level of scholarship. It features feminist work quite consistently and some degree of mainstreaming is evident, as is the international reach of SLS. Too many articles fail, however, to incorporate or even mention feminist approaches. We end with thoughts about, and hopes for, the future of legal feminism, examining efforts to revitalize the field and suggesting possible directions for the future.

February 9, 2018 in Theory | Permalink | Comments (0)

Thursday, February 8, 2018

Pink Hats and Black Fists: The Role of Women in Black Lives Matter

Jessica Watters, Pink Hats and Black Fists: The Role of Women in Black Lives Matter, 24 William & Mary J. Women & Law 199 (2017)

On January 21, 2017, nearly five hundred thousand people, many cadorned in pink, cat-eared “pussyhats,” descended on Washington, D.C.—the flagship location for the official “Women’s March.” In total, 673 “sister” marches took place across the seven continents, including Antarctica. An estimated five million people participated worldwide, and the March was the largest single-day protest in United States history.

 

One photo from the March belies the purported unity. In that photo, Angela Peoples, a Black woman, stands unbothered in a crowd of smiling White women wearing pink “pussyhats.” Ms. Peoples’ cap reads “Stop Killing Black People;” her sign says “Don’t forget: White women voted for Trump.” . . . The picture vividly demonstrates the dissonance between America’s mainstream feminist and civil rights movements, a juxtaposition further illuminated by the success of the Women’s March.

 

This divide has a long history, and there is a wealth of scholarship examining how race shapes women’s experiences and discussing the importance of intersectional feminism. Feminism has historically been White-centered, while civil rights discourse largely pertains to men of color. The theories of “intersectionality” and Critical Race Feminism arose as a response to this discordance. These theories offer a critical perspective of the interplay of race, gender, and class for women of color in a patriarchal, racist system. For modern feminism to survive, it must adapt to include the significant group of people who are presently excluded by “White feminism”— those who are both women and members of racial and ethnic minorities, as well as those who are economically disadvantaged; it must fully embrace intersectionality.

 

This Comment does not offer a new justification of the importance of intersectional feminism, nor does it aim to highlight the shortcomings of the Women’s March. Instead, it uses the Women’s March as a case study to highlight the role of women in protest, and more specifically, the importance of White women’s future participation in intersectional movements.

February 8, 2018 in Pop Culture, Race, Theory | Permalink | Comments (0)

Wednesday, February 7, 2018

Carceral Feminism and MeToo

MeToo Must Avoid "Carceral Feminism"

“Carceral feminism” refers to a reliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence. A very early manifestation of this approach came with the UK’s Criminal Law Amendment Act of 1885. The act responded to public concern over slim evidence of the entrapment of British girls into the sex trade by raising the age of consent and outlawing “gross indecency” — which, as it happens, also gave the government a more effective means to arrest suspected gay men. (Famously, this was the law under which Oscar Wilde was convicted.)

 

The carceral impulse has arisen in each of feminism’s three waves and is most visible among today’s so-called sex-work “abolitionists,” who argue against decriminalizing sex work and instead for the criminalizing the purchase of sex. While intended to aid sex workers, in practice this approach leads to the isolation of workers from their systems of support and prevents them from earning a living.

 

Elizabeth Bernstein, a professor of women’s studies and sociology at Barnard, was one of the first to use the phrase “carceral feminism.” It appears in her 2007 article “The Sexual Politics of the ‘New Abolitionism.’”

 

She describes carceral feminism as failing to address the underlying economic conditions that exacerbate gendered violence. Neoliberalism shaped “a carceral turn in feminist advocacy movements previously organized around struggles for economic justice and liberation,” she writes. Instead of pushing for the preconditions necessary for feminist liberation, the “carceral turn” restricts feminist horizons to the individual and the punitive, rather than the collective and redistributive.

 

What does carceral feminism look like in practice? In the 1970s, class-action lawsuits filedby women against police departments that either ignored domestic violence calls or provided inadequate services — however well intended — spawned an approach to the issue of domestic violence overly reliant on prisons and punishment. Such cases resulted in the 1994 Violence Against Women Act, or VAWA for short, which was included in the largest crime bill in US history. It was a $30 billion piece of legislation that, among other things, funded the hiring of 100,000 new police officers across the country.

 

What grew from carceral feminism’s efforts to combat domestic violence should concern us all. Another example: Today, nearly half of all states have a mandatory arrest law, which requires that if someone places a call to law enforcement about domestic violence, the police must arrest someone in response.

 

February 7, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, February 6, 2018

Appalachian Feminism

Feminism in the Coalfields: What Appalachians of the 1970s Can Teach Today's Feminists

Appalachian feminism, which is to say feminism of working-class white and Black women who lived in a place long dominated by corporate officials, has volumes to teach us about meaningful efforts to reach gender equality, but more importantly, justice. Above all, Appalachian feminism insists upon an understanding of class oppression, which operates within a capitalism that thrives on racist and sexist social structures. It requires listening to women whose feminism is rooted in their daily experiences and charting feminist movements that will transform society for all women, not just those in positions of relative power.

 

Appalachian feminists emerged out of welfare rights and labor movements. By the early 1970s, a few dozen welfare rights groups had organized across West Virginia, eastern Kentucky, and southwestern Virginia. White and Black women led the movement and made militant calls for the rights of poor and working-class women.***

 

In recent years, the most recognized feminists have focused on representation rather than the redistribution of power and wealth. Theirs is not a feminism of deep solidarity. What does standing together truly look like? With fresh assaults on the social safety net happening seemingly daily and renewed attention to working women’s lives, the history of Appalachian feminism is one that today’s feminists would do well to emulate. At the core of Appalachian feminist activism of the 1970s was an understanding that gender justice for all meant accounting for the ways in which capitalist enterprises exploited working people’s paid and unpaid labor and how the state denied them their rights as citizens. The advice that the Appalachian Women’s Rights Organization gave to middle-class white feminists in the 1970s still holds: “take up the genuine problems of the vast majority of women.”

February 6, 2018 in Poverty, Theory | Permalink | Comments (0)

Monday, February 5, 2018

Conference: Transnational Legal Feminisms

Cornell International Law Journal, Symposium: Transnational Legal Feminisms: Challenges and Opportunities

This symposium brings together feminist scholars from around the world to discuss, offer, critique or disseminate a vision of transnational legal feminisms and the challenges and opportunities it presents.


In particular, we seek to explore three contemporary developments. First, we are interested in the rise, paths, success and challenges of transnational feminism. The far and wide reach of different feminist legal ideas changed the world wherever they touched. 

 

A second development is the rise and maturation of critique within the feminist movement. Feminism has always been an introspective movement. Yet in recent years, some critical voices about feminist paths of power in the national and transnational sphere gained increased foothold within feminist thought.

 

A third contemporary development this symposium will explore, is the rise of right wing, populist, mostly conservative, politics, in many different parts of the globe, from center to periphery and back again. We are interested in exploring together the meaning of this political tidal wave to feminist politics, movement and national and transnational advocacy.

 

 

 

February 5, 2018 in Conferences, International, Theory | Permalink | Comments (0)

Catharine MacKinnon Weighs in on MeToo

I'd been waiting to hear from Catharine MacKinnon on the MeToo movement.  As one of the founders of the law of sexual harassment, I was quite interested in her view.  She is much more optimistic about the impact of MeToo than I had expected.

Catharine MacKinnon, NYT, #MeToo has Done What the Law Could Not

The #MeToo movement is accomplishing what sexual harassment law to date has not.

 

This mass mobilization against sexual abuse, through an unprecedented wave of speaking out in conventional and social media, is eroding the two biggest barriers to ending sexual harassment in law and in life: the disbelief and trivializing dehumanization of its victims.***

 

Many survivors realistically judged reporting pointless. Complaints were routinely passed off with some version of “she wasn’t credible” or “she wanted it.” I kept track of this in cases of campus sexual abuse over decades; it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person.

 

Even when she was believed, nothing he did to her mattered as much as what would be done to him if his actions against her were taken seriously. His value outweighed her sexualized worthlessness. His career, reputation, mental and emotional serenity and assets counted. Hers didn’t.

 

It is widely thought that when something is legally prohibited, it more or less stops. This may be true for exceptional acts, but it is not true for pervasive practices like sexual harassment, including rape, that are built into structural social hierarchies. Equal pay has been the law for decades and still does not exist. Racial discrimination is nominally illegal in many forms but is still widely practiced against people of color. If the same cultural inequalities are permitted to operate in law as in the behavior the law prohibits, equalizing attempts — such as sexual harassment law — will be systemically resisted.

 

This logjam, which has long paralyzed effective legal recourse for sexual harassment, is finally being broken. Structural misogyny, along with sexualized racism and class inequalities, is being publicly and pervasively challenged by women’s voices. The difference is, power is paying attention.

And on what law reforms are needed:

Sexual harassment law can grow with #MeToo. Taking #MeToo’s changing norms into the law could — and predictably will — transform the law as well. Some practical steps could help capture this moment. Institutional or statutory changes could include prohibitions or limits on various forms of secrecy and nontransparency that hide the extent of sexual abuse and enforce survivor isolation, such as forced arbitration, silencing nondisclosure agreements even in cases of physical attacks and multiple perpetration, and confidential settlements. A realistic statute of limitations for all forms of discrimination, including sexual harassment, is essential. Being able to sue individual perpetrators and their enablers, jointly with institutions, could shift perceived incentives for this behavior. The only legal change that matches the scale of this moment is an Equal Rights Amendment, expanding the congressional power to legislate against sexual abuse and judicial interpretations of existing law, guaranteeing equality under the Constitution for all.

February 5, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

Wednesday, January 31, 2018

The Trajectory of Feminist Theory in International Law

Karen Engle, Feminist Governance and International Law: From Liberal to Carceral Feminism, in Governance Feminism: Notes from the Field (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir, eds.) (University of Minnesota Press, 2018)

Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation. 

The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions. 

Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.

January 31, 2018 in International, Theory | Permalink | Comments (0)

Thursday, January 25, 2018

Misunderstanding Second Wave Feminism

Who are You Calling a "Second-Wave Feminist?"

Our times have been blessed in one limited way: After decades of refusing and shrugging and avoiding, women want to be called feminists.. . . . And it's nice to feel we're making history. It'd be even nicer . . .if we all knew a little more about the history of feminism.

 

Jezebel, a site that helped kick open the door to the wave now washing over us, recently published a piece by Stassa Edwards titled, "The Backlash to #MeToo Is Second-Wave Feminism."***

 

So let's talk about the second wave.

 

Lesson the first: 1960s feminists came up with the term "second wave" to distinguish themselves from the "first wave" — the suffragettes, more or less. It wasn't exactly a disowning, but second-wave feminists thought of themselves as liberating women personally as well as politically. They also thought of themselves as more sexually free than their predecessors, though historians might disagree.

 

Lesson the second: The second wave wasn't a monolith. No one could claim full ownership of it. Sure, some locate its origins in the work of Betty Friedan, who published "The Feminine Mystique" in 1963Others point to a collective called New York Radical Women. It didn't have formal leadership, but its most famous figureheads were Shulamith Firestone and Robin Morgan. Still others are interested in the strain of literary-intellectual feminism that flourished among writers such as Adrienne Rich and Kate Millett. And, in the popular imagination, Gloria Steinem gets the second-wave feminist crown, standing astride Ms., bringing radical thought to the masses.*

 

Lesson the third: Although second-wave feminism was racist in the sense that its public faces were predominantly white — as contemporary feminists often mention — it was not unaware of this fact.... 

 

This shortcoming in particular, I suspect, is what's behind the common dismissal of the second wave. It is honorable to want to keep holding feminism to a higher standard of anti-racism....But it's simply not the case that the importance of inclusivity only occurred to feminists recently.

 

Which leads to the fourth and final lesson: Although many of them are dead now, I bet quite a lot of second-wave feminists would have loved #MeToo. After all, we have the second wave to thank for sexual harassment laws.

 

Young feminists tend to dislike Catharine MacKinnon, the law professor who took on pornography, for perceived offenses against the 1st Amendment. They may not realize that it was also MacKinnon who, in the 1970s, wrote the legal theory later adopted by the Supreme Court when Mechelle Vinson sued her employer because her boss demanded that she sleep with him. Vinson and MacKinnon opened the door to countless women who would henceforth claim that their bosses' actions created a "hostile work environment."

Where Do you Think They Got These Ideas? Katha Pollitt on Second-Wave Feminism, Harassment, and Progress

In a recent article for Jezebel, Stassa Edwards wrote that “[t]he backlash to #MeToo is indeed here and it is liberal second-wave feminism.” Her piece followed a number of stories from female writers in their 40s and older—such as Daphne Merkin—taking issue with some aspects of the #MeToo movement. In Merkin’s words, there has been a “reflexive and unnuanced sense of outrage that has accompanied this cause from its inception, turning a bona fide moment of moral accountability into a series of ad hoc and sometimes unproven accusations.

Isaac Chotiner: What have you made of the generational tensions or differences between different waves of feminism that have arisen lately?

Katha Pollitt: I’m a little bewildered by it, for several reasons. One is that second-wave feministis being used as a synonym for woman writer of a certain age. I mean, Katie Roiphe is not a second-waver. Daphne Merkin, Andrea Peyser—these women are not feminists at all, in my view. And they are not old enough to be second-wavers. I mean Katie Roiphe was minus 5 years old when The Feminine Mystique was published. So I think I would wish that the young women who are making this claim would read a little bit of history.

he second point is that the very concepts that these young women are relying on—consent, date rape, acquaintance rape, sexual harassment, believing women, intimate questions of power relations between the sexes—where do they think they got these ideas? They got them from the second wave, those old harridans who are now, in fact, 75 and 80 years old. So that does bother me—the lack of history and the ageism

January 25, 2018 in Legal History, Theory | Permalink | Comments (0)

Friday, January 19, 2018

A Relational Feminist Approach to Conflict of Laws

Roxana Banu, A Relational Feminist Approach to Conflict of Laws, 24 Michigan J. L. & Gender 1 (2017)

Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century.

In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism—specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements.

Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging—to Conflict of Laws theory and methodology.

January 19, 2018 in International, Theory | Permalink | Comments (0)

Remedying Sex Discrimination in the Sale of Goods and Services through Federal Law

Whitney Brown, The Illegality of Sex Discrimination in Contracting, 32 Berkeley J. Gender, Law & Justice 137 (2017) 

Sex discrimination in contracting is rampant and is largely tolerated in a variety of economic markets. Federal law prohibits discrimination on the basis of sex only in certain circumscribed markets, including employment, housing, and education. Sex is not a protected class under federal public accommodations law, which prohibits discrimination only on the basis of race, color, religion, or national origin by business establishments offering goods, services, or facilities to the general public. And no federal law is currently understood to prohibit sex discrimination in the sale of goods or services. Merchants may, for instance, lawfully refuse to sell a car—or a paperclip or any other good—to a woman because of her sex, or may charge a woman twice as much as a man for the same item.

 

This gap in our civil rights regime is not merely academic. Without the enforcement of a federal law prohibiting sex discrimination in contracting, women suffer manifold and measurable consequences in the marketplace. Women are charged more than men for clothing and personal care products, from deodorant and razor blades to canes and other supports. Studies in multiple states have found that women consistently pay more for haircuts and for dry cleaning, even where the services or products purchased are essentially the same as those purchased by men. The federal tariff schedule, which imposes different rates of duty on goods imported into the United States, contains over one hundred sex-classified tariff rates. Research also suggests that women, despite having better credit scores than men on average, are more likely to receive subprime mortgages. Taken together, the cumulative cost to women of such price inequities in goods and services—a product of unequal contracting rights—is substantial. Indeed, prior to passing a state law that prohibited sex-based price discrimination in retail service establishments (leaving sex discrimination in the price of goods still unregulated), the state of California found that women paid an average “gender tax” of $1351 per year in added costs for similar goods and services as compared to men. Attempts to solve the problem of sex discrimination in contracting through new legislation have failed, in part because of the lobbying efforts of manufacturers and retailers that charge women more for their products and services.

 

This Article argues that while practices that discriminate on the basis of sex in the sale of goods and services are widespread, and are largely regarded as lawful, such forms of sex discrimination in contracting were prohibited over one hundred fifty years ago by the passage of the first civil rights statute in our nation’s history—the Civil Rights Act of 1866.

January 19, 2018 in Legal History, Theory | Permalink | Comments (0)

Thursday, January 11, 2018

Third Generation Gender Discrimination in the Workplace

Catherine Ross Duhnam, Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace, 51 Akron Law Rev. 55 (2017)

This Article will begin by examining the [Ellen] Pao [Silicon Valley] and [Betty] Dukes [Wal-Mart] cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The Article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the Article will explore generally the evolution of second generation discrimination as a legal theory, connecting that analysis back to Dukes’ and Pao’s cases. The Article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The Article will argue that gender based implicit bias against female litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that their employer allowed bias against them to curb their opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.

January 11, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Tuesday, January 9, 2018

New Books: Eloquent Rage: A Black Feminist's Journey Through Sexism, Racism, and Classism

Brittney Cooper (professor, Women and Africana Studies,Rutgers University), Eloquent Rage: A Black Feminist Discovers her Superpower

A professor explores the ways “sexism, and racism, and classism work together to fuck shit up for everybody” and how feminism can begin undoing the damage.

 

“We [black women] are told we are irrational, crazy, out of touch, entitled, disruptive and not team players,” writes Cooper (Women and Gender Studies, Africana Studies/Rutgers Univ.). But as her feminist foremother Audre Lorde once remarked, this anger was not only legitimate; it was also “a powerful source of energy serving progress and change.” Here, Cooper brings together essays tracing her evolution as a feminist while giving voice to the political (out)rage seething within. The author begins by detailing the difficult journey that led her to “disidentify with [the] whiteness” of mainstream feminism and learn to embrace her “particular Black girl magic.” Her quest for political authenticity meant fighting with white women over racism and black men over sexism. Participating in these separate battles did not blind her to the need for alliances with both groups, however; they only made her more aware of the need for creating solidarity across communities to topple patriarchy. Cooper’s feminist journey also forced her to shed cultural “baggage”—such as the racism of a white society that questioned her movements on American streets and the sexism of black society that sought to control her sexuality through the church—that limited her passage through the world. Once uncovered and focused, however, the rage that inevitably comes from such injustices is of tremendous benefit to all. Cooper points to tennis star Serena Williams, former first lady Michelle Obama, and singer Beyoncé as contemporary black feminist role models. By learning how to channel their rage in their areas of endeavor, they have earned game-changing respect that has transcended race and gender. Sharp and always humane, Cooper’s book suggests important ways in which feminism needs to evolve for the betterment not just of black women, but society as a whole.

 

A timely and provocative book that shows “what you build is infinitely more important than what you tear down.”

January 9, 2018 in Books, Race, Theory | Permalink | Comments (0)

Saturday, December 30, 2017

The Partisanship of Feminism

The Atlantic, The Partisanship of Feminism

The Growing Partisan Divide Over Feminism
Democratic men are 31 points more likely to say that the “country has not gone far enough on women’s rights” than Republican women.

***

This September, Leonie Huddy and Johanna Willmann of Stony Brook University presented a paper at the American Political Science Association. (The paper is not yet published, but Huddy sent me a copy.) In it, they charted the effects of feminism on partisanship over time. Holding other factors constant, they found that between 2004 and 2016, support for feminism—belief in the existence of “societal discrimination against women, and the need for greater female political power”—grew increasingly correlated with support for the Democratic Party. The correlation rose earlier among feminist women, but by 2016, it had also risen among feminist men. A key factor, the authors speculated, was Hillary Clinton. A liberal woman’s emergence as a serious presidential contender in 2008, and then as her party’s nominee eight years later, drove feminists of both genders toward the Democratic Party and anti-feminists of both genders toward the GOP.

 

In other words, Clinton, along with Donald Trump, has done for gender what Barack Obama did for race. Obama’s election, UCLA political scientist Michael Tesler has argued, pushed whites who exhibited more racial resentment into the Republican Party and whites who exhibited less into the Democratic Party. Something similar is now happening around gender. But what’s driving the polarization is less gender identity—do you identify as a man or a woman—than gender attitudes: Do you believe that women and men should be more equal. Democrats aren’t becoming the party of women. They’re becoming the party of feminists.

December 30, 2017 in Pop Culture, Theory | Permalink | Comments (0)

Friday, December 8, 2017

Sexism and Misogyny are not the Same Thing

What Everybody Gets Wrong About Misogyny

What is misogyny? How is it different from sexism? And why does the male-dominated status quo seem to persist?

 

new book by Cornell philosophy professor Kate Manne has answers. She argues that misogyny is not about male hostility or hatred toward women — instead, it’s about controlling and punishing women who challenge male dominance. Misogyny rewards women who reinforce the status quo and punishes those who don’t.

 

In this interview, we explore how sexism and misogyny are different, how misogyny is embedded in our customs and institutions***

One way of looking at it is we have these patriarchal social structures, bastions of male privilege where a dominant man might feel entitled to (and often receive) feminine care and attention from women.

I think of misogyny and sexism as working hand-in-hand to uphold those social relations. Sexism is an ideology that says, “These arrangements just make sense. Women are just more caring, or nurturing, or empathetic,” which is only true if you prime people by getting them to identify with their gender.

So, sexism is the ideology that supports patriarchal social relations, but misogyny enforces it when there’s a threat of that system going away.

A prior post on Prof. Manne's book, Down Girl: A Theory of Misogyny is here.

December 8, 2017 in Books, Theory | Permalink | Comments (0)

Wednesday, November 15, 2017

Considering Gender Performitivity in Anti-Discrimination Law

Ido Katri (Toronto), Transgender Intrasectionality: Rethinking Anti-Discrimination Law and Litigation, U. Penn. J. Law & Social Change 20.1

This article will puts a gender variant perspective on anti-discrimination law and litigation. It analyze trans right claims by synthesizing queer theory’s concept of performativity and critical race theory’s concept of intersectionality, to offer a new and original concept of legal “intrasectionality”, with far-reaching implications for rights-based litigation. Instead of considering how “legal men” are treated different than “legal women”, this article will ask whether a given gender variant individual is treated differently than one whose gender performance coheres to social standards. These inquiries into the intrasectionality of the sex category with respect to equality will set the stage for the claim that anti-discrimination law and litigation intertwines with performativity.

Ido Katri, The Banishment of Isaac: Racial Signifiers of Gender Performance, Univ. Toronto L.J. 68.1

This article suggests that a performative reading of discrimination cases allows for recognition of intersectional harms and facilitates a broader systemic account of exclusion from resources and opportunities. Revealing the protected category of sex as a prohibition against discrimination on the basis of gender performance, the article considers how signifiers marked on the gendered body constitute the protected categories relating to race and ethnicity as well. The article suggests that racial/ethnic signifiers and sex/gender performance function reciprocally to construct material realities of exclusion from resources and opportunities. Drawing on the trans position in anti-discrimination, the article offers a nuanced reading of discrimination suffered by Jews of Arab decent, the Mizrahim, under Israeli law. It shows that courts could address systemic aspects of individual claims by looking for the intersecting differentiating logics at the root of private discrimination. The article argues that protected legal categories do not reflect pre-legal truths but constitute them; that when the law prohibits discrimination on the basis of sex it prohibits discrimination on the basis of gender performance; and that gendered performance is always already marked by racial signifiers. Thus, by turning the legal gaze to racial signifiers of gender performance, intersecting harm can be accounted for.

November 15, 2017 in Gender, Theory | Permalink | Comments (0)

Wednesday, November 8, 2017

The Difference Feminist Knowledge Might Make to Domestic Violence Death Review Committees

Elizabeth Sheehy, A Feminist Reflection on Domestic Violence Death Reviews ,  in Myrna Dawson, ed. Domestic Homicides and Death Reviews: An International Perspective (Hampshire: Palgrave Macmillan, 2017) 373-398.

This paper interrogates what contribution feminist knowledge and praxis might make to assessing and deepening the work of Domestic Violence Death Review Committees (DVDRCs). While DVDRCs may be struck by governments or civil society and may differ in terms of the form and content of their governance, all DVDRCs have their origins in the work of frontline feminist activists who documented the unique features that differentiate woman killing from other forms of homicide and demonstrated that intimate femicide is predictable and therefore preventable. Another uniting characteristic of DVDRCs is that their work is overwhelmingly focused on the deaths of women, since women account for the vast majority of domestic violence deaths -- 83% of such deaths in Canada. 

DVDRCs build on the important work of frontline feminists by studying domestic violence homicides, identifying risk factors, ascertaining points of contact with legal and social structures that might have intervened, and making recommendations for change in law, policy, and practice for the purpose of preventing such deaths in the future. Yet when one reads the reports of DVDRCs, feminists, feminist analysis, and feminist practice are almost entirely absent from the overwhelming majority. This paper will investigate what imperatives a feminist framework might bring to this work.

November 8, 2017 in Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, October 10, 2017

New Book: The Theory of Misogyny

Cover

Kate Manne, Down Girl: The Logic of Misogyny (Oxford Press. Nov. 2017)

From the publisher:

Misogyny is a hot topic, yet it's often misunderstood. What is misogyny, exactly? Who deserves to be called a misogynist? How does misogyny contrast with sexism, and why is it prone to persist --or increase-- even when sexist gender roles are waning? This book is an exploration of misogyny in public life and politics, by the moral philosopher and writer Kate Manne. It argues that misogyny should not be understood primarily in terms of the hatred or hostility some men feel toward all or most women. Rather, it's primarily about controlling, policing, punishing, and exiling the "bad" women who challenge male dominance. And it's compatible with rewarding "the good ones," and singling out other women to serve as warnings to those who are out of order. It's also common for women to serve as scapegoats, be burned as witches, and treated as pariahs.

Manne examines recent and current events such as the Isla Vista killings by Elliot Rodger, the case of the convicted serial rapist Daniel Holtzclaw, who preyed on African-American women as a police officer in Oklahoma City, Rush Limbaugh's diatribe against Sandra Fluke, and the "misogyny speech" of Julia Gillard, then Prime Minister of Australia, which went viral on YouTube. The book shows how these events, among others, set the stage for the 2016 US presidential election. Not only was the misogyny leveled against Hillary Clinton predictable in both quantity and quality, Manne argues it was predictable that many people would be prepared to forgive and forget regarding Donald Trump's history of sexual assault and harassment. For this, Manne argues, is misogyny's oft-overlooked and equally pernicious underbelly: exonerating or showing "himpathy" for the comparatively privileged men who dominate, threaten, and silence women.

October 10, 2017 in Books, Gender, Theory | Permalink | Comments (0)

Monday, September 25, 2017

Rethinking the Legislative History of Title VII and Sex Discrimination

Arianne Renan Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Prohibition, 28 Yale J.L. & Feminism 55 (2016)

It is a pillar of employment discrimination law that Title VII’s prohibition of “sex” discrimination lacks prior legislative history. When interpreting the meaning of sex discrimination protection under Title VII, courts have stated that it is impossible to fathom what Congress intended when it included “sex” in the Act. After all, the sex provision was added at the last minute by the Southern arch conservative congressman Howard “Judge” Smith in an attempt to frustrate the Civil Rights Act’s passage. Courts have often interpreted the sex provision’s passage as a “fluke” that has left us bereft of prior legislative history that might guide judicial interpretation. It is not surprising, then, that Title VII’s sex discrimination prohibition has been rather narrowly construed. 

This Article rethinks this received narrative and emphasizes its implausibility in light of the pre-Civil Rights Act contributions feminists made to the national discourse on sex discrimination. It considers not only scholarship on Equal Rights Feminists’ role in passing Title VII’s sex provision, but also scholarship on the often-overlooked Working-Class Social and Labor Feminists. The Article also explores the contestations between these two groups over the meaning of sex discrimination. It provides a more complex narrative of the provision’s parentage than the one previously recognized. 

The Article reframes the narrative by broadening the scope of inquiry in two ways: first, by focusing on Working-Class Social and Labor Feminists’ agitation for equality in the workplace, and second, by looking further back in time in order to reconceptualize debates over workplace equality as formative of the discourse on sex discrimination. The Article begins with early twentieth century contestations over protective labor legislation and argues that Working-Class Social Feminists supported labor regulation based not merely on sex stereotypes, but on their understanding of labor regulation as a means to combat sex discrimination. It continues through the New Deal, when an early sex anti-classification provision was inscribed in federal law by Social Feminists to provide equal pay for men and women. It examines the debates over workplace sex discrimination that reverberated in the decades following World War II and persisted through the early 1960s—when Congress passed the Equal Pay Act and the President’s Commission on the Status of Women issued its report. The Article considers these developments as part of feminists’ sustained efforts to combat sex discrimination, and as stage-setters for the sex provision’s passage. It claims that Working-Class Social and Labor Feminists’ long agitation for women’s equality de-facto constitutes decades’ worth of legislative history for the sex provision. When Congress voted to include “sex” discrimination in Title VII, it was already well aware of its robust meanings, thanks in large part to these feminists’ efforts to ameliorate systemic disadvantages facing women in the workforce. 

Working-Class Social and Labor Feminists’ actions and ideology should be considered important influences on the context of the sex provision’s birth. As law is the dynamic and indeterminate product of human interaction, its interpretation must account for the complexity of the legacies that infuse it with meaning. To this end, after re-conceiving the history of the sex provision’s birth, the Article suggests this history may provide a richer notion of Title VII sex discrimination, one that emphasizes structural features of the market and requires employers to take affirmative measures to offset the features that often result in discrimination.

September 25, 2017 in Equal Employment, Legal History, Legislation, Theory | Permalink | Comments (0)