Gender and the Law Prof Blog

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

Monday, August 21, 2017

Replicating Gender, Race and Class Hierarchy in Virtual Reality

Mary Anne Franks, Augmented Inequality, UC Davis Law Review (forthcoming)

The world we all live in is structured by inequality: of gender, race, class, sexual orientation, disability, and more. The promoters of virtual and augmented reality often claim that they offer a more perfect world, one that offers more stimulation, more connection, more freedom, more equality. For such technologies to be considered truly innovative, they should in some sense move us beyond our current limitations and prejudices. But when existing inequalities are unacknowledged and unaddressed in the “real” world, they tend to be replicated and augmented in virtual realities. We make new worlds based on who we are and what we do in old ones. All of our worlds, virtual and physical, are the product of human choice and human creation. The developers of virtual and augmented reality make choices about which aspects of our lived history they want to replicate, enhance, or change. The design – and design flaws - of new virtual and augmented reality technologies reveal much about the values of their developers and their consumers, providing a unique opportunity to evaluate just how innovative new technologies are with regard to social inequality.

August 21, 2017 in Gender, Technology, Theory | Permalink | Comments (0)

Mainstream Hegemonic Masculinity

By Guest blogger Jamie Abrams

There is no shortage of blog posts about gender and the feminist implications of the U.S. presidential election.  Blogs, articles, and books have deeply explored how the gender of the candidates affected the election, how the gender of voters shifted the election, and more.  This blog post reminds us that feminists can use masculinities theory as an additional barometer of overall shifts in gender norms and gender equality.  This barometer is important because it measures the underlying socio-legal sentiments that catapult political movements forward and define the very ideals that Americans seek.  

With that expanded lens in mind, the U.S. presidential election and the current presidency reveal a lesson in “Hegemonic Masculinity 101” for us all.  The election and its aftermath remind us that feminist theory and activism need to engage more actively and systemically with masculinity theory to understand the current political and social threats that merit feminist responses.  Feminist theory generally seeks to explore and address the ways in which the state subordinates women.  In contrast, masculinities theory considers how men wield and maintain power over men and other women.  Masculinities theory is not so much concerned with the power of the state as it is with the institutional and internal power systems that idealize certain forms of masculinities over other forms of masculinities.  For example, imagine the forms of masculinities that are heralded in the police force today, or in the military, or in fraternities, or in corporate boardrooms. 

One strand of dominant masculinities is “hegemonic masculinity.”  This strand of masculinities suggests that there is an idealized form of masculinity that sits above others and to which men aspire to attain.  The central idea of hegemonic masculinity is not so much that many men actually hold this status or perceive themselves to hold these dominant traits, but that the quest to acquire these traits is something that men are complicit in and that the quest itself sustains the anointed status of those traits.  Key traits of a hegemonic masculinity framing include a man who holds a wealthy, successful job; a strong physical physique; and someone who never presents as feminine or gay.  

The current situation reveals dominant hegemonic masculinity in action.  It suggests that it is not any one candidate or politician who threatens gender equality norms, but the surging and swelling underlying support for these hegemonic norms that should turn feminist heads.  This perspective is cause for study and consideration because of what it reveals about what other men say that they covet and desire and value in framing modern masculinity.  It suggests that – under the backdrop of the fervor and decibels of women’s voices marching in the streets – there is a more concerning silent march of a toxic hegemonic masculinity into the mainstream political arena. 

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism.

 

August 21, 2017 in Masculinities, Theory | Permalink | Comments (0)

Friday, August 18, 2017

Response: The Multiple Feminisms of a 19th Century Women's Rights Thinker

Paula Monopoli’s point in her recent review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law,  is well taken.  She notes that “[t]he only arguable weakness in this book is that after the trenchant introduction, Thomas does not do much to connect back to the different strands of feminist theory per se.”

This actually was one of the earliest ideas I had for the book, and one that interested the editor the most in the original proposal.  But in looking back at it now, it seems that this part of the manuscript ended up on the cutting room floor. (Along with a background discussion of Protestant ideas of no-fault divorce which I still miss as it placed Stanton’s idea in greater historical and religious context).

The generality of the point of multiple feminisms survived in the book, challenging the characterization of Stanton as a simplistic thinker, a mere “first generation” advocate seeking to treat women the same as men.  (And Sue Davis makes a similar point in her book The Political Thought of Elizabeth Cady Stanton about the multiple feminisms seen in Stanton’s political theory).

However, the specifics of contexts illustrating each type of feminism must be pieced together by the reader herself through the book. So let me try and explain better here.

Liberal feminism. This is the most known about Stanton, that she support a formal equality approach to treating women the same as men.  This meant reversing laws of coverture which denied women equal rights to property, inheritance, and child custody.  It meant giving women the same right to vote, hold public office, and enter the professions by college and work.  Women should be lawyers, reverends, and medical doctors.  Women should be able to own their own bank accounts.  She would have eliminated all instances where law created a separate rule based on gender, much like Ruth Bader Ginsburg advocated during her years of women’s rights work with the ACLU Women’s Rights Project.

Difference feminism.  However, Stanton did not only advocated formal equality between genders.  She also advocated specific legal and social rules for women only, for situations where women were differently situated.  Stanton advocated a maternal custody rule, giving child custody to women only.  She supported a widow’s exception for dower, tax and bankruptcy due to women’s different need.  And she advocated a women-only right to control sexual relations and procreation through abstinence, challenging the existing standard of male sexual prerogative. 

Her justification for these was an understanding that it was women who biologically bore children, and socially raised them.  She considered women’s role in raising children to be a powerful one.  Indeed, she argued that women should use this power to raise the next generation of children up with equal virtues and coeducation, so that women could transform society by their feminist parenting. 

While society used the maternal role to “protect” and restrict women’s rights, Stanton used maternity as a basis for power and a justification for right.  It’s not that men could not share in parenting, which she also advocated, but that they simply did not.  As such, women were differently situated and needed rights that corresponded to that reality.

Radical feminism.  Stanton also appreciated that the structures of law, society, and the family themselves were barriers to women’s full autonomy.  Like modern legal theorist Catharine MacKinnon, she attacked the sexualization of women -- in romantic Victorian notions and revealing décolletages -- and advocated dress reform and coeducation.  Stanton endorsed an equal moral sexual standard, that idea of men as needing to indulge their sexual passions by affairs, adultery, and command of marital relations was wrong, and that men should be restrained and liable for consequences, and that women also entitled to sexual express and sexual control.  And she would also restructure marriage from hierarchy to joint partnership.  Not just that women would retain their own separate property earned or inherited, but that marriage would have joint property belonging to both partners regardless of where obtained. 

Finally, Stanton quite radically took on the structure of the church.  After fifty years of work for women’s rights, Stanton learned that the foundational sticking point was that the basis of social and legal gender norms of women’s subordination were based in religious teachings.  She took on the Christian church’s doctrines and teachings, reinterpreting biblical passages and deconstructing the male bias in those rules. 

Overall, Stanton’s use of feminist methodology of deconstruction, critical suspicion of seemingly objective rules, and understanding of male privilege allowed her to approach legal and social critique with an all-encompassing feminist theory that shows her to be an advance and radical legal thinker.

Monopoli concludes in her review, that “the main strength of the book lies in Thomas as legal historian pulling together the arguments out of Stanton’s own writings, making them available to us and linking them to Stanton’s surprisingly modern legal theories. This book should be included on reading lists for upper-level seminars in jurisprudence, family law, and legal history, in addition to gender and the law. Reading it will introduce students to a significant legal mind, albeit an informally trained one, not traditionally included in the canon of prominent American legal thinkers.”

August 18, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Wednesday, August 16, 2017

Gender and Political Discourse

By Guest Blogger Jamie Abrams

This is my third summer guest blogging with the Gender and Law blog.  In prior years, I have comfortably crafted an idea, polished the text, and published the blog for critique and discussion.  I have always received thoughtful engagement on the blog posts and the process of writing them has made me a better writer, scholar, and teacher.  For some reason, however, this approach has not worked this summer.  I have struggled greatly with why that is so, particularly in a year in which the battle for gender equality seems to be slipping so far in the wrong direction.  Indeed there are endless articles and current events on which I could be writing.   

In struggling to understand this newfound writer’s block, I came across the article The Believing Game – Methodological Believing by Peter Elbow.  This article resonated with me on a deep level in thinking about the status of modern political discourse and its relevance to gender equality.  In summary, the author argues that we are born as methodological “believers.”  We begin life inherently believing the things our parents and those in authority tell us.  We are welcome to new ideas and open to listening eagerly and sincerely.  Over time, we are taught to engage instead in what Elbow calls “The Doubting Game.”  This, Elbow explains, “represents the kind of thinking more widely honored and taught in our culture” in which we learn the “disciplined practice of trying to be as skeptical and analytic as possible with every idea we encounter.”  This doubting game dominates modern thinking and indeed it dominates the traditional law school curriculum.  Applying Elbow’s thesis to modern times, the doubting game seems to govern how we process news, how we vote, how we interact with others in nearly every political and social respect.

As a culture, however, Elbow argues that we have not developed methodological believing to match our skills for doubting.  By this he means that we don’t know how to use belief as a tool to decide whether to accept or reject a particular position.  Yet the believing game offers critical additional tools to help us find flaws in our own thinking.  It allows us to test our very assumptions by trying to understand what is valid and worthy of belief in a different viewpoint.  It allows us to find “hidden virtues” in positions as a tool to strengthen our own thinking.  The “believing game” pushes us to “dwell in an idea” to try to understand it.  The question of rejecting or accepting the idea is another matter entirely, but it is through belief in the idea that we process and understand the idea in the first instance.

These methodological approaches are also closely connected to gender norms.  The doubting game – which dominates so much of our political and social discourse today – is associated with masculinity, Elbow notes, in its emphasis on arguing, challenging, resisting, pushing back.  Whereas the believing game is much more associated with femininity in that it emphasizes listening, relating, understanding. 

Elbow ultimately concluded in 2008 that we are losing the lens and the language to engage in methodological believing.  This thesis seems even truer today.  As I absorbed this article, a lot of things began to fall into place for me.  I wondered if my struggle to blog, or even to engage in any political discourse on social media since the election comes from the painful realization that such efforts are largely futile to the extent that they try to promote a greater understanding. 

This article leads me to a few conclusions.  First, it reminds me that the stagnant role of women in politics is deeply concerning for the longstanding critique of who is governing and the representativeness of our political leadership.  But also that gender inclusion and diversity more broadly in politics stands to shape how we are governing and engaging in political discourse generally.  Second, it reminded me that rather than digging in deeper on defending and supporting our views, we need to better frame the rigor of political discourse.  How to do that, of course, is the bigger question to which I have no answers.  All that I share here is that diagnosing the problem as one rooted in our very approach to the methodology of critical thought helped me for a moment to see past the “fake news” and ideological divides that govern the headlines today.  It helped me to realize that the gender equality project is about more than just a group of individual legislative reforms or initiatives.  It is connected to the very values that we embrace and idealize in political discourse.

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism.

August 16, 2017 in Guest Bloggers, Theory | Permalink | Comments (0)

Wednesday, August 9, 2017

How Feminist Theory and Methods Affect the Process of Judgment

Bridget Crawford, Kathryn Stanchi & Linda Berger, Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment, Univ. of Balt. L. Rev. (forthcoming).

The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle first to realize the right of women to vote and then to eliminate from the nation’s laws explicit discrimination against women. For others, it is a political movement whose purpose is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy – a system of thought and a community of belief entering on attaining political, social, and economic equality for women, men, and people of any gender.

 

For us, the editors of Feminist Judgments: Rewritten Opinions of the United States Supreme Court, it is all of those things and more. Feminism is both a movement and a mode of inquiry. In its best and most capacious form, feminism embraces justice for all and seeks to ally itself with rights-based movements for people of color, the poor, immigrants, refugees, religious minorities, disabled individuals, LGBTQ+ people, and other historically marginalized groups.


This essay presents feminism as the foundation for a developing form of rich, complex, and practical legal scholarship, the lens and the means through which we may approach and resolve many legal problems. First, the essay explores the intellectual foundations of feminist legal theory and situates the U.S. and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory, a move that made the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court an especially fitting topic for the 10th Annual Conference held at the Center for Applied Feminism.

 

When they write feminist judgments (using feminist perspectives or methods to produce revised versions of actual court opinions), feminist authors translate feminist theory into the language of law practice and judging. Their translations demonstrate the potential for lawyers to incorporate feminist theory and methods into oral and written arguments, for law students to gain deeper insights from and to learn the practical utility of feminist theory, and for judges to recognize how incorporating feminist perspectives may transform the reasoning or outcome of a case without changing the law or the facts of the underlying lawsuit. Finally, the essay uses contemporary examples of feminist judging to illustrate that the gap between feminist theory and judicial decision making is narrowing, a real-world advance that suggests a widening judicial audience for Feminist Judgments.

August 9, 2017 in Theory | Permalink | Comments (0)

Why Feminist Legal Theory Still Needs Mary Joe Frug

Elizabeth M. Schneider, Why Feminist Legal Theory Still Needs Mary Joe Frug: Thoughts on Conflicts in Feminism, 51 New England L.Rev. (2017)

Mary Joe Frug was murdered in Cambridge, Massachusetts in 1991, more than twenty-five years ago. Some of us who were close to Mary Joe, or whose lives and/or work have been influenced by Mary Joe, were invited to contribute the New England Law Review’s
Memorial Symposium on the twenty-fifth anniversary of her tragic death.

 

Today, twenty-five years after her death, I see even more of a need for the integration of Mary Joe’s perspectives into ongoing work on feminist legal theory and practice. We are in the midst of a very fragmented time, where there seems to be little appreciation of, and sensitivity to, the history of feminist legal theory and practice, and there has been considerable scholarly and activist dispute.***

 

Mary Joe called herself a post-modernist but her approach had many different dimensions. She was not simple and reflexive. Both Minow and Rosenbury highlight the flexibility of her thinking and her constant questioning and re-questioning of her own views. Martha Minow identifies several aspects of Mary Joe’s thinking: she “introduced, elaborated, or demonstrated a range of strategies and tactics” in every situation, and saw “the danger of turning any form of critical analysis into a formula or mechanical application . . . .” There was no freezing of one single approach; no rigidity. Laura Rosenbury emphasizes the complex dimensions of Mary Joe’s attitude toward law: she saw law as not simply a tool of repression or liberation. Law could also play a constructive force, and law reform strategies were important to her in concrete settings.
Mary Joe focused on specifics, such as: a particular doctrinal issue, the contested interpretation of a particular legal strategy. Contingency and context were both central to her approach to law.

August 9, 2017 in Theory | Permalink | Comments (0)

Friday, July 14, 2017

Gender Essentialism & American Law: Why and How to Sever the Connection

Melina Constantine Bell, Gender Essentialism and American Law: Why and How to Sever the Connection

American law presumes that all persons are born either female or male, and rests a surprising number of legal entitlements on this presumption. Persons’ legal rights to express their identity at work, to use public accommodations, and to retain legal parenthood status with respect to their children may all depend on whether they are female or male. Yet we, as individuals, generally have no choice regarding whether we are legally designated female or male, just as people had no choice as to whether they were designated “colored” or “white” under past racial discrimination schemes. The American legal system plays a significant role in the construction, maintenance, and coercive enforcement of the binary gender system that requires people to conform their identities in distorting ways to be included politically. By sustaining the gender system, legal institutions unnecessarily undermine human well-being, and unjustly and disrespectfully constrain individual liberty. The United States and state governments should re-examine laws that use sex or gender as a category by adapting the Law Commission of Canada’s methodology in Beyond Conjugality. In this fashion, American law can begin to move gradually away from the creation, maintenance, and enforcement of the gender system.

July 14, 2017 in Gender, Theory | Permalink | Comments (0)

Tuesday, July 11, 2017

Analyzing the Impact of Catharine MacKinnon's Key Work, Toward a Feminist Theory of the State

Max Waltman, Appraising the Impact of Toward a Feminist Theory of the State: Consciousness-Raising, Hierarchy Theory, and Substantive Equality Laws, 35 Law & Inequality (2017)

The philosophical, political, and legal impact of Catharine MacKinnon's groundbreaking work Toward a Feminist Theory of the State (1989) is discussed, specifically the merging of consciousness-raising of subordinated groups with critically informed scholarship, producing a problem-driven approach engaging in informed policy-making. As a comprehensive political theory of the relationship between male dominance and the state, one of Toward's central features was to draw from consciousness-raising as a feminist research method to further ground its approach to equality, particularly in its prescription for substantive equality laws. The article illustrates how such central concepts have influenced real changes in the world, specifically using legal challenges to pornography and prostitution as examples.

Parts I and II demonstrates how Toward departed from conventional epistemologies, in part explaining its revolutionary appeal to students, practitioners, and scholars. Part III continues the analysis by using real world applications of its approach to pornography and prostitution, beginning with the anti-pornography civil rights ordinances drafted by Catharine A. MacKinnon and writer Andrea Dworkin in 1983, six years before the publication of Toward a Feminist Theory of the State. Part III illustrates how the ordinances mobilized MacKinnon’s same cutting-edge approach to advancing women’s legal substantive equality about which she later theorized. A similar approach was instrumental in grounding a substantive equality prostitution law, proposed by MacKinnon in a public speech in Stockholm, Sweden, November 2, 1990, situating that law within her broader approach to equality. The Swedish national umbrella organization for women’s shelters, ROKS, lobbied for the law and rallied other actors to support it, precipitating its passing in Parliament in 1998, with the law taking effect in 1999. Similar laws have now been adopted by many more countries (attesting to MacKinnon’s extraordinary influence as a legal and social theorist), although not until ten years or more after Sweden’s law, which makes Sweden’s unique data availability a “revelatory case.” Part III concludes by analyzing its comparative impact in terms of reducing sexual exploitation and abuse and offering an exit for people in prostitution, thus promoting substantive equality.

July 11, 2017 in Theory | Permalink | Comments (0)

Friday, June 30, 2017

Sex is to Gender as Property is to Intellectual Property

Sonia Katyal, The Numerus Clauses of Sex, U. Chicago L. Rev. (forthcoming)

Abstract

There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity.

Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris’s groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.

June 30, 2017 in Gender, Theory | Permalink | Comments (0)

Wednesday, June 28, 2017

Books: New Directions in the History of Conservative Women

Karen Patricia Heath, New Directions in the History of Conservative Women

Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).
 
Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).
 
Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).
 
Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).

As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?

June 28, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Wednesday, May 31, 2017

Bringing a Restorative Justice and Public Health Approach to the Problem of Campus Sexual Assault

Donna Coker, Crime Logic, Campus Sexual Assault, and Restorative Justice, 49 Texas Tech L. Rev. 47 (2017)

Abstract

The dominant campus sexual assault narrative that emerges from both media and regulatory accounts is that of a male “sexual predator” assaulter who penetrates without consent a white heterosexual female victim. In contrast to the paradigm case, LGBTQ students face considerable risk of experiencing campus sexual assault; campus administrators see a range of sexual misconduct with a dramatic range in severity, including at the low end “sexual coercion”; the conclusion that most campus assaulters are “predators” is based on misapplied research and is unsubstantiated by more sophisticated longitudinal research. Furthermore, the paradigm occludes the ways in which intersectional forms of oppression based in race, gender, class, sexual orientation, and sexual identity, define not only risks for assault, but risks for administrator bias (both with regard to those accused and those who claim to have been harmed).

Schools face intense political pressure to import “Crime Logic” into administrative regulations that address campus sexual assault. Crime Logic refers to a set of beliefs and attitudes characterized by a focus on individual culpability rather than institutional or collective accountability; disdain for policy attention to social determinants of behavior; and a preference for narratives that center on simplistic bad actors and innocent victims and for banishment/incapacitation over rehabilitation for those who harm others. The potential to use Civil Rights law as a means to change the social norms that promote sexual mistreatment is compromised when administrators employ punitive responses based in Crime Logic over responses that educate, rehabilitate, and better meet the varied needs of victims of assault.

An intersectional public health approach that avoids the punitive and simplistic individually-focused accounts dictated by Crime Logic will reap better results in intervening and lessening campus sexual assault. Such an approach should intervene in the social and psychological factors most frequently correlated with campus sexual assault.

May 31, 2017 in Theory | Permalink | Comments (0)

Friday, May 5, 2017

How Women Could Save the World: Questions of International Law, Equality Theory, and Feminism

Catherine Powell, How Women Could Save the World, If Only We Would Let Them: From Gender Essentialism to Inclusive Security, 28 Yale J. L. & Feminism 271 (2017)

Abstract

We increasingly hear that empowering women and placing them in positions of leadership will lead to a safer, more prosperous world. The UN Security Council’s groundbreaking resolutions on Women Peace, and Security (WPS) — and U.S. law implementing these commitments — rest on the assumption that women’s participation in peace and security matters will lead to more sustainable peace, because women presumably “perform” in ways that reduce conflict, violence, and extremism. This idea is of heightened importance today because women are still vastly underrepresented in positions of leadership in the peace and security field, having yet to “shatter that highest and hardest glass ceiling” as Commander-in-Chief in the United States or rise to the role of Secretary-General in the United Nations. Before her own historic race to become the first woman Commander in Chief, Hillary Clinton had prominently made the claim we increasingly hear that women’s empowerment is not only the right thing to do, but the smart thing to do for global and economic security.

Such claims raise fundamental questions for international law, equality theory, and feminism. Assertions that the world would be a better — more peaceful, more prosperous — place, if women assumed leadership positions in peace and security matters are unapologetically instrumentalist and reinforce essentialist views of women. At the same time, evidence suggests that these claims are to some extent accurate. Thus, these assertions should be carefully examined. Reviewing new research, this Article argues that while some evidence supports these claims, the statistical evidence supporting these claims suffers from methodological flaws. Moreover, the forms of gender performance reflected in the data — which international law has organized itself around — are based on the socially constructed roles women play as caregivers, nurturers, and collaborators, not necessarily on their inherent biological roles. Yet, international law reifies these roles and the stereotypes that surround them, even as it tries to open up opportunities for women beyond traditional sex-segregated positions that have long relegated women around the world to the pink ghetto of economic inequality and inferior political and social status. Having to maneuver around formal equality, on the one hand, and instrumentalist claims that women will “save” the world, on the other, means that the category of “woman” can restrict even as it liberates. After all, not all women are “peace-loving,” particularly in a world where the women who succeed are often those who can succeed on terms defined by men.

Two prevailing theoretical frameworks — antisubordination and securitization—shape the current debate about WPS, but each ultimately falls short. This Article identifies democratic legitimacy as a novel third approach missing from the existing debate. As an alternative view, the democratic legitimacy account effectively reframes the WPS debate as one concerning inclusive security — emphasizing that women’s participation enhances the representativeness, democracy, and fairness of the process as a whole — rather than privileging the “special interests” of a particular group (as the antisubordination approach is accused of doing) or reinforcing gender essentialism (as the securitization approach does). Notably, a democratic legitimation paradigm is grounded in a model of inclusion that can be applied to vectors of inequality beyond gender, as well as to inequality at the intersection of various forms of inequality. Moreover, by emphasizing democratic representation, this approach insists on local ownership and bottom-up solutions, thereby emphasizing participation and leadership by women in conflict zones, rather than female global elites. Under a democratic legitimacy paradigm, women can still “save” the world, but in a different way than the predominant discourse would have us believe.

May 5, 2017 in Gender, International, Theory | Permalink | Comments (0)

Thursday, April 27, 2017

Feminist Legal Academics

Carrie Menkel-Meadow, Feminist Legal Academics: Changing the Epistemology of American Law Through Conflicts, in Gender and Careers in the Legal Academy (Ulrike Schultz, ed. Hart Publishing-Onati Series, forthcoming)

In this Chapter I will describe the inter-generational contributions of the first few decades of women law professors who have created a contested “canon” of new understandings of legal concepts in American jurisprudence and legal practice. I describe here the way in which several generations of women law professors (some working with legal practitioners) have forged new legal ideas or “memes” (cultural units of understandings), and legal causes of action that have reframed not only “women’s issues” (reproductive rights, employment and labor rights, family law, violence, rape and criminal law, as well as constitutional jurisprudence and different conceptions of “equality”), but have also contributed new conceptions or interpretations of mainstream legal concepts (e.g. in contracts, property, and torts etc.).

 

Those of us who have written about these developments over the years all acknowledge the inter-generational differences in meanings attributed to our goals as participants in the making of new legal epistemology—the interpretation of law and doctrine, the creation of new concepts, causes of actions, or legal “memes,” the creation of new courses and methods for learning law, whether and how our new epistemology should be integrated (or more controversially “assimilated”) into mainstream American law doctrine and education, how we have or have not influenced the legal academy and legal thought generally, as well as legal practice and law reform measures, and what lessons we offer for future generations of “outsiders” who are increasingly populating our profession with more diverse bodies and ideas.

April 27, 2017 in Law schools, Theory, Women lawyers | Permalink | Comments (0)

Tuesday, April 25, 2017

Challenging the Idea that Feminism Occurred in Waves

The Future is Feminist: The new book Finding Feminism embraces queer women and argues that feminism does not occur in waves.

In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.

 

Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”

 

Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***

 

 

Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.

April 25, 2017 in Gender, Legal History, LGBT, Theory | Permalink | Comments (0)

Thursday, April 13, 2017

The Banality of Contemporary Feminism

A Feminist Makes the Case Against Feminism

“Making feminism a universal pursuit might look like a good thing,” author Jessa Crispin writes, “but in truth it progresses, and I think accelerates, a process that has been detrimental to the feminist movement.”

 

Crispin has written a polemic titled Why I am Not a Feminist, in which she laments the banality of contemporary feminism. Her thesis is simple enough: At some point, feminism lost its political moorings; it became vapid and toothless in its quest for universality. Feminism became a catch-all term for self-empowerment, for individual achievement.

 

Feminists, she believes, forsook their values for the sake of assimilation, which is another way of saying they were co-opted by the system they once rejected.

April 13, 2017 in Books, Theory | Permalink | Comments (0)

Thursday, March 30, 2017

Why the Pence Rule of Working with Women is Sexist

Much ado in the news today about the Pence Rule of Working with Women. There are reports of Vice-President Mike Pence’s practice that he “that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side.” It was mentioned in the context of discussing he and his wife Karen have preserved their marriage.  Pence’s rule is actually a version of the "Billy Graham Rule" adopted by the famous evangelist.  Rev. Graham refused to meet, travel, or dine with a woman alone.  A similar story about a similar practice among conservative members of Congress appeared in 2015.  The rule is also sometimes thrown around (by non-lawyers) in sexual harassment training as a “best practice” and way for men to protect themselves against false accusations by women.

Commentary has pointed out how the Pence/Graham practice penalizes women by denying them access to fully do their job, as well as advancement.  See How Mike Pence's Refusing to Eat with Women Hurts Women And that it is illegal sex discrimination because it denies women equal opportunity in the workplace.  The current discussion serves as a reminder of the more subtle ways in which sex discrimination exists in the workplace today, evolved from the days of segregated help-wanted ads into segregated access to full workplace responsibilities.

Missing so far from the discussion is something more fundamental to understanding the law against sexism. What is discriminatory about the Pence-Graham practice is that it reinforces sexist ideas of women. It depicts women as sexual objects, regardless of context. As primarily sexual objects, they are controlled and dominated by male-led society. Systemically this is a legal problem because all women are treated as inferior based on subordinate ideals of women’s true nature as sexual object.  This is the core of legal theorist Catharine MacKinnon’s work showing the deeper social and systemic nature of sexism when law and business practices allow it to continue.

MacKinnon made her argument initially in the context of sexual harassment. The Pence Rule is an overcorrection of the same problem.  While not encouraging the sexual behavior of women, it still conveys the same message that women exist only for sex and control by men. 

Moving from the theoretical to the practical, the Pence Rule also clearly reinforces the notion that women at work are not equally relevant.  Men in power have no real need to meet with women in a confidential setting.  The judge does not need to deliberate in confidence with a law clerk, the dean does not need to discuss confidential matters with the associate dean, and the president does not need to dine with the prime minister.

 

March 30, 2017 in Equal Employment, Theory | Permalink | Comments (0)

Thursday, March 23, 2017

Reinventing Antidiscrimination Law

Nancy Levit, June Carbone, Naomi Cahn, Gender and the Tournament: Reinventing Antidiscrimination Law in the Age of Inequality, Texas L. Rev. (forthcoming)

Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises of antidiscrimination law. The Article draws on a pending case challenging the “rank and yank” evaluation system at Microsoft, as well as social science literature regarding narcissism and stereotype expectations, to illustrate how consideration of the legitimacy of competitive pay for performance schemes is essential to combating the intrinsically gendered nature of advancement in the new economy.

March 23, 2017 in Equal Employment, Theory | Permalink | Comments (0)

Monday, January 23, 2017

What is Intersectional Feminism

It's not everyday that you see "Intersectional Feminism" in the newspapers.

USA Today, What is Intersectional Feminism?

"Intersectional feminism" is a term you may be hearing a lot.

 

If feminism is advocating for women's rights and equality between the sexes, intersectional feminism is the understanding of how women's overlapping identities — including race, class, ethnicity, religion and sexual orientation — impact the way they experience oppression and discrimination.

 

A white woman is penalized by her gender but has the advantage of race. A black woman is disadvantaged by her gender and her race. A Latina lesbian experiences discrimination because of her ethnicity, her gender and her sexual orientation.

 

Intersectionality has received increased attention in part due to how the Women's March on Washington, taking place Saturday, came together. The rally, which began organically on Facebook, was initially criticized for failing to include any women of color as organizers. Now its leaders include Tamika Mallory, an African-American civil rights activist and former director of the National Action Network; Linda Sarsour, a Muslim who heads the Arab American Association of New York; and Carmen Perez, a Latina activist who directs Harry Belafonte’s Gathering for Justice. The march's policy platform is called "Unity Principles," which include the belief that "gender justice is racial justice is economic justice."

See prior posts:

The Urgency of Intersectionality

Let's Talk About Intersectional Feminism

The Limits of Intersectionality for UN Treaties and Human Rights

January 23, 2017 in Theory | Permalink | Comments (0)

Tuesday, January 10, 2017

Recovering US Socialist Feminism for Legal Theory

Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 Connect.L.Rev. (2016)

Abstract:     

This Article argues that a significant strand of feminist theory in the1970s and 1980s — socialist feminism — has largely been ignored by feminist jurisprudence in the United States and explores potential contributions to legal theory of recapturing the insights of socialist feminism. It describes both the context out of which that theory grew, in the civil rights, anti-war, and anti-imperialist struggles of the 1960s, and the contents of the theory as developed in the writings of certain authors such as Heidi Hartmann, Zillah Eisenstein, and Iris Young, as well as their predecessors in the U.K., and in the practice of socialist feminist groups in the United States during the same period. Although many American feminist legal theorists themselves participated in or were influenced by the progressive movements of the 1960s and 1970s, socialist feminism is virtually absent from their writings, except for those of Catharine MacKinnon, who, despite sympathy with the approach, disagreed with it and went on to develop her own version of feminist equality theory. The author argues that the time is now ripe to recapture this strand of feminism and explore what it would add to the study and pursuit of women’s equality.

 

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

Tuesday, November 22, 2016

Unifying Antidiscrimination Law Through Stereotype Theory

Stephanie Bornstein, Unifying Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L.Rev. 919 (2016) 

This Article argues that theoretical and doctrinal advances in sex stereotyping cases have broad application, with the potential to reinvigorate employment discrimination litigation under Title VII as a whole. The Article suggests that precedent from pioneering sex discrimination cases can and should be applied to cases alleging discrimination on other bases, including race and national origin. It proposes a more coherent, unified approach to antidiscrimination law that capitalizes on recent courts’ recognition of the operation of sex stereotypes at work. In an era in which the advancement of equality has stalled in both the workplace and the Supreme Court, a unified approach to Title VII litigation framed around stereotype theory offers an important path forward for antidiscrimination law.

November 22, 2016 in Equal Employment, Theory | Permalink | Comments (0)