Gender and the Law Prof Blog

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

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)

Tuesday, November 1, 2016

The Urgency of Intersectionality

The Urgency of Intersectionality: Kimberle Crenshaw Speaks at TED6

Kimberlé Crenshaw urges us to ask this question. Through her theory of intersectionality, she explains the overwhelming underrepresentation of violence against African-American women in activism, politics and media.

 

“The problem is, in part, a framing problem,” Crenshaw says. “Without frames that are capacious enough to address all the ways that disadvantages and burdens play out for all members of a particular group, the efforts to mobilize resources to address a social problem will be  partial and exclusionary.”

 

For Crenshaw, this meant developing a language as a method of understanding this problem, she says: “When there’s no name for a problem, you can’t see a problem. When you can’t see a problem, you can’t solve it.”

November 1, 2016 in Race, Theory | Permalink | Comments (0)

Tuesday, October 18, 2016

What are Feminist Judgments?

The US Feminist Judgments Conference is this week here at Akron Law.

The background materials for the conference include articles and essays exploring the foundational ideas of the conference, including what feminism means, what feminist judgments are and why we might need them, and the difference feminist decision making might make.  To review the materials, go here:  US Feminist Judgments CLE Materials

Table of Contents:

Kathyrn Stanchi, Linda Berger, & Bridget Crawford, Introduction to the Book: Feminist Judgments (Cambridge 2016)

 

Sally Kenney, Thinking About Gender and Judging (2008)

 

Sally Kenney, Wise Latinas, Strategic Minnesotans, and the Feminist Standpoint: The Backlash Against Women Judges, Thomas Jefferson L.Review (2013)

 

Heather Roberts & Laura Sweeney, Why (Re)Write Judgments? (2014)

 

Erika Rackley, What a Difference Difference Makes (2008)

 

Rosemary Hunter, Can Feminist Judges Make a Difference? (2008)

 

Rosemary Hunter, Feminist Judgments as Teaching Resources, Oñati Socio-legal Series (2012)

 

Justice Sonia Sotomayor, Lecture: A Latina Judge’s Voice (2009)

 

Justice Sotomayor, dissenting, Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2015)

 

Gonzales v. Carhart, 550 U.S. 124 (2007)

 

Justice Ginsburg, dissenting in Gonzales

 

Beverley Baines, Why Not Nine? (2016)

 

Tracy Thomas & TJ Boisseau, Law, History & Feminism, Introduction to Feminist Legal History (NYU Press 2012) 

 

October 18, 2016 in Conferences, Theory | Permalink | Comments (0)

Wednesday, September 14, 2016

The Symmetry Principle of Anti-Discrimination Law

Bradley Areheart, The Symmetry Principle

Abstract:     

Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths—while minimizing weaknesses—from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.

 

September 14, 2016 in Theory | Permalink | Comments (0)

Monday, May 23, 2016

The Feminist Philosophy of Mary Wollstonecraft as both Equality and Complementarity

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

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

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

Friday, May 6, 2016

Republican Motherhood

  The law provides that Mother's Day is a ... flag day?

36 USC 117 - Mother's Day

(a)Designation.— The second Sunday in May is Mother’s Day.
 
(b)Proclamation.—
The President is requested to issue a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings, and on the people of the United States to display the flag at their homes or other suitable places, on Mother’s Day as a public expression of love and reverence for the mothers of the United States.
Ah, Republican Motherhood.  See Linda Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (UNC Press 1997)
 
 

May 6, 2016 in Legal History, Theory | Permalink | Comments (0)

Book Review: How Feminism Sold Out by Becoming Cool

Wash Post, How Feminism Sold Out by Becoming Cool

This new mutation can be called “marketplace feminism,” the author writes, “a mainstream, celebrity, consumer embrace of feminism that positions it as a cool, fun, accessible identity that anyone can adopt.” If any purported feminist campaign is touched by corporate or private interests, it is suspect. For Zeisler, feminism is feminism and capitalism is capitalism, and when they hook up it’s just gross....

 

This book’s critique of “marketplace feminism” offers no wiggle room: If you claim feminism without combating structural inequality, your feminism is counterproductive, prioritizing personal advancement rather than attacking the systems that perpetuate wage disparities or gender-based divisions of labor. And don’t bother suggesting that a movement might benefit from the popularization of its tenets — however superficial the interpretations may be — because Zeisler isn’t buying it. “The diversity of voices, issues, approaches, and processes required to make feminism work as an inclusive social movement,” she writes, “is precisely the kind of knotty, unruly insurrection that just can’t be smoothed into a neat brand.”

May 6, 2016 in Books, Theory | Permalink | Comments (0)

Wednesday, May 4, 2016

Debunking the Myth of Male Privilege in the Military and Assault

Jamie R. Abrams (Louisville), Debunking the Myth of Universal Male Privilege, 49 U.Mich.J.L. Reform 303 (2016)    

 
Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military's statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male violence to men, and positions women as perpetual outsiders.
Debunking the myth of universal male privilege in heavily masculinized institutions would advance gender equality and shift the law reform focus. It would bring sexual assault, domestic violence, and sexual harassment into the same frame as the military mental health crisis and even mass solidier-on-soldier shootings. This would reveal the gender equality implications of military mental health and disentangle masculinities and military efficacy. Debunking the myth of univeral male privilege would yield more vigilance to how law reforms can exacerbate hyper-masculine violence. It introduces new entry points to gendered violence in the military, expanding the focus from incident-based responses to recruiting and training.

May 4, 2016 in Gender, Masculinities, Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, May 3, 2016

Conceptualizing Rape as Coerced Sex

Scott Allen Anderson, Conceptualizing Rape as Coerced Sex

Philosophers, feminists, and legal theorists have long criticized the current definition of rape as it is formulated in most of the states of the U.S. because of its dual “force” and “consent” requirements. Several prominent writers have recently sought to reconceptualize rape as “non-consensual sex,” thus omitting the “force” requirement. While there are some unmistakable practical advantages to such proposals, I argue that such a conceptualization risks failing to grasp what is distinctively problematic about rape for women, and why rape has the effect it does in supporting women’s gender oppression. I suggest that one of the reasons why consent-focused reform proposals have been so popular is because the dominant accounts of coercion in recent philosophical writing have not been suited to help identify rape in terms of coercion. I offer an alternative approach to thinking about coercion which, I argue, can replace the focus on “force” in current conceptualizations of rape in order to avoid their main difficulties, especially with respect to identifying “acquaintance” rape as such. I further show how conceptualizing rape as coerced sex does help explain its distinctive badness both for the individual victims as well as for women as a group.
 
Robin West's review and response, On Rape, Coercion and Consent, JOTWELL
 
Scott Anderson’s article Conceptualizing Rape as CoercedSex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.”

 

May 3, 2016 in Theory, Violence Against Women | Permalink | Comments (0)

Monday, May 2, 2016

Why Feminists are Rewriting Judgments

Heather Roberts (Australian Natl) & Laura Sweeney (NSW Gay & Lesbian Rights Lobby), Review Essay: Why (Re)Write Judgements?, 37 Sydney L.Rev. 457 (2015)

Australian Feminist Judgments is a collection of fictional judgments for real Australian cases that have been rewritten by Australian scholars from the perspective of a feminist judge. Each judgment is introduced by a commentary, written by a different scholar, explaining the legal and historical context of the original decision and the choices made by the feminist judge. This review essay locates the collection within more general debates surrounding judgment writing, particularly leading Australian extra-judicial commentary on how and why judgments are written. Against this larger plane, we consider a number of the key issues raised by the collection about judgment writing, including the significance of recounting the facts of a case, the uses of formalist judicial method and the capacity of judgments to effect change. Drawing on a number of examples from the collection, this review essay contends that Australian Feminist Judgments makes a valuable contribution not only to contemporary feminist debates, but also to issues going to the heart of judicial practices and judgment.

The US Feminist Judgments rewriting projects is here

A fall conference on rewriting judgments, The US Feminist Judgments Project: Rewriting the Law, Writing the Future is planned for October 20 & 21.

 

 

May 2, 2016 in Books, Conferences, Courts, Theory | Permalink | Comments (0)

Monday, April 11, 2016

CFP Feminist Experiences of Law

Feminist Experiences of Law

Feminist Experiences of Law

Provocations III: IILAH

27-28 October 2016

Room 920, Level 9, Melbourne Law School

Experience is central to feminist thinking and praxis. Understood as the personal, as the subjective, as political formation, as method, or as a contested concept in philosophy, history, sociology, literary and cultural theory, experience had long shaped debates and struggles about what it means to think and act as a feminist. The work that experience does, and has done, in how feminists understand, contest and live with law has official and unofficial histories, and distinct and diverse forms of contemporary argument. This conference seeks to draw together a broad community of scholars and activists to consider, and reconsider, feminist experiences of law. We invite papers from a range of disciplinary, practice and experiential perspectives - reform and socio-legal projects, legal and feminist theories, legal histories and life writing, institutional and doctrinal analysis. We are interested in new ideas, new scholarship, new experiences, and encourage papers that deploy a range of styles and genres.

Following the successful ‘Post feminism/ post critique’? workshop convened at ANU in 2015, the Feminist Experiences of Law workshop will adopt a similar collaborative and egalitarian format. There will be opportunity for 18 participants to present papers; but we encourage others to attend to broaden the conversation. The workshop will however be capped at 40 participants, to enable opportunities for close engagement. There is no registration cost.

Call For Papers

If you would like to give a paper at the Workshop, we invite you to submit a 300-word abstract that addresses the broad themes of the workshop by 30 May 2016 to provocations-iilah@unimelb.edu.au. Successful participants will be notified by 30 June 2016. Paper presenters will be expected to read and engage closely with the other papers in their session in the lead up to the workshop. Details of the form of this engagement will be circulated closer to the workshop date. We welcome abstracts from Early Career Researchers and Doctoral Candidates. Please note we have some capacity to provide travel bursaries for up to 5 PhD candidates and early career researchers, if selected to give papers. Please indicate in your abstract if you would like further information about this.

Participants

If you would like to participate in the workshop although not give a paper, please register by email to provocations-iilah@unimelb.edu.au by 30 May 2016.  We would encourage all participants to be available for the two days of the workshop, and be prepared to engage in conversation. Successful participants will be notified by 30 June 2016.

The Organizing collective are Ann Genovese (a.genovese@unimelb.edu.au), Di Otto (d.otto@unimelb.edu.au), Jenny Morgan (j.morgan@unimeb.edu.au), Teresa Gray (tgray@student.unimelb.edu.au), and Margaret Davies (margaret.davies@flinders.edu.au)

The Feminist Experiences of Law conference is sponsored by the Institute of International Law and The Humanities (IILAH) at the Melbourne Law School.

April 11, 2016 in Call for Papers, Theory | Permalink | Comments (0)

Monday, April 4, 2016

The Limits of Intersectionality for UN Treaties and Human Rights

Pok Yin Stephenson Chow (Nottingham), Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights-Treaty Body Practice and the Issue of AmbivalenceHuman Rights Law Review, 2016 (Forthcoming)

Over the past two decades, ‘intersectionality’ has become one of the most celebrated notions in international human rights law and discourse. Outside of the US where the concept originated, the sweeping influence of intersectionality has extended to the UK and other members of the European Union where intersectionality has ‘become part of policy initiatives’. It was remarked that intersectionality ‘has acquired considerable conceptual purchase in international human rights law and activism’  and has become the standard multi-disciplinary approach ‘for analyzing subjects’ experiences of both identity and oppression’.  

 

The recognition that intersectionality gained over the years was also evident in the express and implicit references across UN human rights treaty-bodies practice, where the concept was used to highlight how gender discrimination is often intertwined with discrimination on other grounds, such as race, ethnicity and socio-economic background, thus ‘complicating simplistic, singular understandings of the nature of women’s disadvantage.’  In particular, the Committee on the Elimination of Discrimination against Women (‘CEDAW’) acknowledged intersectionality as a ‘basic concept for understanding the scope of the general obligations of States parties [of the Convention]’.  Nevertheless, despite such express acknowledgements, the effectiveness of the concept remained uncertain. In particular, it remained unclear whether the juridical understanding of ‘intersectionality’ could fully honor the complexity that intersectional analysis demands.  Conaghan thus argues that although intersectionality has contributed tremendously to the feminist movement, the concept has ‘reached the limits of its theoretical potential’.  She argues that inequality is a sophisticated and multi-dimensional phenomenon, and that intersectionality, having its roots in law, does not seem to fully address that complexity. 

 

The limitation of intersectionality is exemplified in the works of the UN human rights treatybodies in the context of minority women. Many often cultural and religious practices are deemed ‘harmful’ and discriminatory, but the women who practice them may not agree that these practices are discriminatory.  This raised difficult issues regarding whether human rights law could properly accommodate their multiple identities (both as women and as members of their cultural group).  Moreover, it is increasingly recognized that the engagement of such practices is often characterised by a form of ‘ambivalence’, i.e. a feeling of ‘open-endedness, incompleteness [and] uncertainty’.  Niec observed that while individuals may identify certain manifestations of their traditions as violations of their rights, they may at the same time seek to preserve the group’s culture and religion, because it is the latter that ‘shaped and defined [her] identity as a member of that collective’. Radhika Coomaraswamy, UN Special Rapporteur on Violence against Women, its Causes and Consequences, remarked that even in situations where women have migrated from the community of their birth, the vast majority continued to retain a deep emotional attachment to group identity, and in this respect, the advocacy of the prohibitionof certain practices might offend their sense of dignity and belonging. While it may be reasonably expected that intersectionality could play a greater role in resolving such conflicts – that the application of intersectionality would better address the multiple identities of minority women – the concept have only yielded partial solutions, as shall be demonstrated below.

 

This article examines the application of intersectionality across the practice of the UN human rights treaty-bodies. Echoing the concerns raised by Conaghan, it ponders the question: whether intersectionality has reached its limits?  In particular, it seeks to examine whether intersectionality as applied by the UN treaty-bodies offer a satisfactory solution to situations of ‘ambivalence’. 

April 4, 2016 in International, Theory | Permalink | Comments (0)

Thursday, March 3, 2016

Special Issue on Feminist Legal Theory

Feminist Legal Theory

SPECIAL ISSUE, 69 STUDIES IN LAW, POLITICS AND SOCIETY (2016)
 
Half a century after the beginning of the second wave, feminist legal theorists are still writing about many of the subjects they addressed early on: money, sex, reproduction, and jobs. What has changed is the way that they talk about these subjects. Specifically, these theorists now posit a more complex and nuanced conception of power. Recent scholarship recognizes the complexities of power in contemporary society, the ways in which these complexities entrench sex inequality, and the role that law can play in reducing inequality and increasing agency. The feminist legal theorists in this volume are emblematic of this effort. They carefully examine the relationship between gender, equality, and power across an array of realms: sex, reproduction, pleasure, work, money. In doing so they identify social, political, economic, developmental, and psychological and somatic forces, operating both internally and externally, that complicate the expression and constraint of power. Finally, they give sophisticated thought to the possibilities for legal interventions in light of these more complex notions of power.
 
Maxine Eichner and Claire Huntington - Introduction  PDF

Susan Appleton and Susan Stiritz - Going Wild
PDF

Katharine Baker and Michelle Oberman - Women's Sexual Agency PDF

Angela Harris - Care and Danger PDF

Maxine Eichner - Market-Cautious Feminism PDF

June Carbone and Naomi Cahn - Unequal Terms PDF

Jennifer Hendricks - Schrodinger's Child PDF
 
 

March 3, 2016 in Scholarship, Theory | Permalink | Comments (0)

Tuesday, February 2, 2016

Judge Weinstein's Feminist Jurisprudence

Anita Bernstein (Brooklyn), The Feminist Jurisprudence of Jack B. Weinstein, 64 DePaul L Rev. 2015

Abstract:     

As this Symposium demonstrates, Jack B. Weinstein continues to write decisional law that has edified and stimulated expert readers for many decades. The Weinstein trove also contains feminist jurisprudence. Starting no later than 1974 and into the current millennium, Judge Weinstein has been ameliorating the burdens of gender-oppression. This Article groups decisions published by the Judge into six gender-related themes: women of low income, sentencing female offenders, women’s civil rights, “the woman’s Constitution,” women’s redress for personal injury, and feminism beyond women. It also identifies what is feminist about this extraordinary compendium.

 

h/t Larry Solum

February 2, 2016 in Courts, Theory | Permalink | Comments (0)