Thursday, September 25, 2014
Presenters on US cable channel Fox News cracked a series of sexist jokes after reporting that a female pilot from the UAE had taken part in a bombing mission of Isis targets in Syria, describing her as “boobs on the ground”.
One presenter, Kimberly Guilfoyle, tried to pay tribute to Major Mariam al-Mansouri, 35, one of four UAE fighter pilots to take part in the operation. “Hey, Isis, you were bombed by a woman,” she said. “Very exciting, a woman doing this … I hope that hurt extra bad because in some Arab countries women can’t even drive.”
She continued: “Major Mariam al-Mansouri is who did this. Remarkable, very excited. I wish it was an American pilot. I’ll take a woman doing this any day to them.”
But after the segment, co-host Greg Gutfeld interrupted Guilfoyle, mocking the pilot. “The problem is after she bombed it she couldn’t park it,” he said. Another presenter, Eric Bolling, joined in, asking: “Would that be considered boobs on the ground or no?” The conversation between panellists, which was broadcast on Wednesday, was part of discussion show The Five on Fox News.
Tuesday, September 23, 2014
Speaking before the United Nations on feminism, Emma Watson (of Harry Potter fame) launched the HeforShe campaign encouraging men to support equal gender rights. Read the full speech to the UN. Some excerpts:
This is the first campaign of its kind at the UN: we want to try and galvanize as many men and boys as possible to be advocates for gender equality. And we don’t just want to talk about it, but make sure it is tangible.
I was appointed six months ago and the more I have spoken about feminism the more I have realized that fighting for women’s rights has too often become synonymous with man-hating. If there is one thing I know for certain, it is that this has to stop.
For the record, feminism by definition is: “The belief that men and women should have equal rights and opportunities. It is the theory of the political, economic and social equality of the sexes.”
I started questioning gender-based assumptions when at eight I was confused at being called “bossy,” because I wanted to direct the plays we would put on for our parents—but the boys were not. When at 14 I started being sexualized by certain elements of the press. When at 15 my girlfriends started dropping out of their sports teams because they didn’t want to appear “muscly.” When at 18 my male friends were unable to express their feelings.
I decided I was a feminist and this seemed uncomplicated to me. But my recent research has shown me that feminism has become an unpopular word. Apparently I am among the ranks of women whose expressions are seen as too strong, too aggressive, isolating, anti-men and, unattractive.
Why is the word such an uncomfortable one?
The video is Emma Watson at the UN.
Saturday, September 6, 2014
From WaPo, Feminism Unfinished
“Feminism Unfinished"... argues that the “wave” metaphor obscures the history of a continuous American women’s movement sustained by labor activists, civil rights advocates and social-reform campaigners, who may have looked placid on the surface but were paddling like hell underneath. Each of the three authors contributes a chapter to their history of American feminism, and they declare together in their prologue that “there was no period in the last century in which women were not campaigning for greater equality and freedom.” They hope that uncovering the “multiple and unfinished feminisms of the twentieth century can inspire” the women’s movements of the 21st. That’s the surprise signaled in the teasing subtitle.
Russell Robinson (Berkeley) has posted Unequal Protection, 67 Stanford L. Rev. (2015)
During the last 30 years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a “racial classification.” It has diluted the protections of intermediate scrutiny in gender discrimination and abortion cases. And it has turned its back on groups who once benefited from “animus” review, including people with disabilities and poor people. Meanwhile, the only site of vitality in equal protection jurisprudence is LGBT claims. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this re-ordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny.
Specifically, I identify three advantages that LGBT people enjoy compared to virtually every other civil rights constituency: (1) the Court has rigidly used the concept of a “classification” as a gate keeping device, but it has ignored this requirement in sexual orientation cases; (2) LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities but that the Court no longer recognizes in such cases; and (3) LGBT cases leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation — quite unlike the Court’s adverse resolution of these questions in race cases.
These findings demand that law professors and legal scholars reconsider how they teach and write about equal protection.
Wednesday, September 3, 2014
Sunday, August 31, 2014
I received a request from Prof. Charlotte Garden at Seattle to post about the upcoming Lat Crit-SALT conference, which I am happy to do.
Twelfth Annual LatCrit-SALT Call for Participation Junior Faculty Development Workshop October 9, 2014 University of Nevada-Las Vegas Las Vegas, NV
LatCrit, Inc. and the Society of American Law Teachers (SALT) are pleased to invite interested participants to the Twelfth Annual Junior Faculty Development Workshop (FDW), immediately preceding the SALT Teaching Conference. This annual workshop is designed for critical, progressive, and social justice oriented pre-tenure professors, including clinicians and legal writing professors, as well as those who may be contemplating a teaching career. However, we also encourage more senior members of the profession to attend, share their experience, and serve as resources and mentors.
The FDW is designed to familiarize critical, progressive, and social justice oriented junior faculty with LatCrit and SALT principles and values and support them in the scholarship, teaching, and service aspects of professional success. In addition, the FDW seeks to foster scholarship in progressive, social justice, and critical outsider jurisprudence, including LatCrit theory, among new and junior faculty, students, and practitioners. Finally, the FDW aims to cultivate a community of scholars interested in the continuation of this and similar projects over the years.
To facilitate community building through shared experiences and the exchange of ideas, we strongly encourage all participants to attend the entire workshop.
If you have questions about the workshop or would like to attend, please email SALTLatCritFDW@gmail.com. Although we will make efforts to accommodate all interested participants, RSVPs are strongly suggested by September 30, 2014.
Registration for the SALT Biennial Teaching Conference is available at http://www.saltlaw.org/conference_registration/
Saturday, August 9, 2014
From Slate, It is Good to be a "Bad" Feminist
I bristled a little at the title of Roxane Gay’s new collection of essays: Bad Feminist. Was that “bad” a backhanded boast, a Cool Girl’s rejection of all the supposedly militant and humorless “good” feminists out there?
Then I started reading the book, and I realized the professor cum novelist cum voice-on-the-Internet isn’t proclaiming herself a chiller, smarter, funnier feminist than anyone else. She is exploring imperfection: the power we (we people, and especially we women) wield in spite and because of it. Her essays, which are arresting and sensitive but rarely conclusive, don’t care much for unbroken skin. They are about flaws, sometimes scratches and sometimes deep wounds. Gay studies the cracks and what fills them.
Thursday, July 31, 2014
....as many as a third of all women serving in the military are raped by fellow soldiers during their tours of duty, compounding whatever traumas they may have experienced in combat.
Sunday, July 13, 2014
Saturday, June 14, 2014
The video is here: High School Boys Talk About Why They're Feminists. Some of their thoughts: Because its about more than equal rights for women. Because its humanistic. Because of intersectionality - no one is one dimensional. Because of misogynist song lyrics and behaviors.
Friday, June 13, 2014
Sure, Clinton jokes in the book about scrunchies and outfits and nail polish to make her point that woman in public life are forced under a microscope. "There is a persistent double standard applied to women in politics," she writes, "regarding clothes, body types, and of course hairstyles."
But Clinton is still not ready to talk – at least not in a substantive way – about what it meant to be the first woman to go so far, yet still fall short, in the race for the 2008 Democratic nomination. And she is certainly not saying, in Hard Choices or in the rounds of interviews and appearances surrounding its release, how she would overcome biases on women seeking power when and if she decides to run in 2016.
It's about time she did.
Thursday, June 5, 2014
Recommended reading by women's studies profs as excellent introduction to feminism and making it real for students.
Victoria Bromley, Feminisms Matter: Debates, Theories, Activism (U. Toronto Press 2012)
INTRODUCTION: As you sit on the bus, in the library, at home in the living room, or in a commons on campus, you might find people looking over your shoulder and asking you what you’re reading. When you respond, “I’m reading Feminisms Matter: Debates, Theories, Activism,” they might ask you why. Why indeed? Perhaps it’s because you’re interested in feminisms or because the book has been assigned as part of a course you’re taking. The word on the street, on the other hand, is that feminism is dead, so what could possibly be important about feminism? The short answer is, “Everything!”...
CHAPTER ONE: DON’T CALL ME THAT! FEMINISM AND OTHER “F-WORDS”
When you hear the word “feminism” or “feminist,” you might find yourself in a quandary. You might be curious, furious, or you might just want to run for cover. Feminism is a word that is frequently used and often abused. Where you hear it, who says it, and the context in which it is used often influences your reaction. How can the “F-word” stir up such emotion?
CHAPTER TWO: WHAT’S FEMINISM DONE (FOR ME) LATELY? FEMINIST CONTRIBUTIONS
We made it! We are equal. Feminism is no longer necessary. And, of course, feminism is dead. The struggle is over and we can put our concerns to rest. These are some of the tenets that we often hear. It makes us feel good to think that things are not as bad for women and other marginalized groups as they were in the past. Social commentary of this brand is often paired with the familiar preface for gender equality assertions: “I’m not a feminist but…” What follows is a laundry list of values or aspirations that most people can agree...
CHAPTER THREE: HOW DO I KNOW WHAT I KNOW? EPISTEMOLOGY AND THEORY
In the last chapter, we discussed the complex and interconnected histories of feminist and social justice movements. Feminism, however, is not simply a movement. It is also a theory. So, to understand feminisms more fully, we must also understand what theory is and why we need it. Yes, theory. OMG! Don’t run for cover just yet.
CHAPTER FOUR: MAKING MY HEAD SPIN: CRITICAL INTERSECTIONALITY
Intersectionality is a conceptual tool for analyzing differences. It allows us to think about multiple identities and how they may be interconnected in complex ways. It is also a tool for understanding how multiple systems of oppression may be interrelated. Feminists use the concept of intersectionality, a term coined by legal scholar Kimberlé Crenshaw, to consider how interlocking systems of oppressions, complex identities, and social inequalities affect people’s lives (Crenshaw 1989). The concept of intersectionality has long been used by black feminists to explore the lives of racialized women.
CHAPTER FIVE: SO MANY DETAILS AND SO MUCH READING: FEMINIST THEORIES
Thinking through the intersectionalities of identities, the complexities of people’s lives, and the very real struggles that people face every day is not simple. Nor is it easy to understand how people confront and resist oppressions, exploitations, and marginalization. Yet resistance on multiple fronts continues and theories help us to understand not only the struggles towards social justice but also the triumphs of achieving justice. Feminist theorizing, then, is an ongoing process. It does not assume that one theory can address all the complexities of women’s and men’s lives in vastly diverse social, political, economic, and geographic spaces or across...
CHAPTER SIX: FROM UNIVERSALIZING TO QUEERING AND GLOBALIZING THEORIES
In the previous chapter we noted an ongoing dialogue among feminist theorists and activists. The dialogue continues in this chapter with the exploration of postmodern, “Third World,” postcolonial, queer, and transnational feminist theories. The purpose here is to introduce some current feminist debates and discover some of the key questions and arguments being raised in these debates. We will also reflect on some of the limitations and critiques of these theories as a way for us to think about feminisms. We will question how different theories, feminist and otherwise, might influence the way we think, not only about theory but...
CHAPTER SEVEN: TAKING FEMINISM ON THE ROAD: FEMINIST METHODS
Theory is all very well, but what is the point in theorizing if we have nothing concrete about which to theorize? Where is the evidence? Where is the research? How do we collect it? Feminist research draws on insights from the struggles and lived experiences of women and marginalized people. Feminist perspectives, informed by theory and practice, encourage feminist researchers to ask different questions. It makes sense that the evidence to answer our questions must also come from different places. Feminist research is complex and sometimes, rather than just answering the research questions posed, it leads us to more and...
CHAPTER EIGHT: IT’S NOT DEAD? CONNECTING THE DOTS ACROSS THE WAVES OF FEMINISMS
The link between feminist theory and women’s movement is not always immediately visible. Nonetheless, doing feminist theory means you have to be grounded in lived experiences. It is this connection to women’s lives that gives meaning to feminist theory. Feminist activists have long been struggling to increase the value of women’s experiences in order to achieve women’s equality and their inclusion at all levels. However, it is through the process of theorizing these activist practices and the lives of women that activism becomes more effective. This means that theory and practice must become praxis.
CHAPTER NINE: DON’T MEN COUNT, TOO? FEMINISMS AND MASCULINITIES
As a feminist, I know it is important to think about men and masculinities. However, to write about them with a sense of authority is a challenge. This is not because I have no understanding of the issues, debates, and research—I do. Men are important in my life; they are my family members, my friends, and my colleagues. Still I struggle. Perhaps this struggle is related to my identity as a “woman” and all that it encompasses.
CHAPTER TEN: THE STRATEGIES THAT EMPOWER US: FEMINIST ACTIVISM Feminists today have entered a new era of thinking about and doing feminism. We continue to struggle and succeed, but we are still committed to ending oppression and advancing social justice. As feminists, we need to continue to ask new questions and develop new strategies to meet our goals. We must learn from our past, rethinking past actions and strategies, so that we don’t have to reinvent the wheel every time a new challenge emerges. Re-examining what we think and how we know about our world is critical. These are not easy tasks.
CHAPTER ELEVEN: STILL STRUGGLING: MAKING CHANGE
Just when we thought we had equality, reality sets in. While feminism has been struggling for equality for well over a century, we have yet to meet this goal. When we look at the world in which we live, we know that we cannot abandon our struggles. We must continue to fight for social change to end exploitation and oppression in all its various forms. In this chapter, we will look at some of the ongoing struggles in which feminists are engaged. We will explore what is at stake in the struggle for equality and social justice in the area
Thursday, May 29, 2014
More from this month's guest blogger, Professor Jamie Abrams from the University of Louisville School of Law. Her scholarly interests include integrating masculinities theory in feminist law reforms such as military integration and domestic violence; examining the tort complexities governing standards of care in childbirth; gendered conceptualizations of citizenship; and legal education pedagogy.
Perhaps this post is just legitimizing my excessive consumption of media coverage of celebrity scuttlebutt, but I am at least thinly veiling it under my attempt to consider the longevity and adaptability of feminism. The NYT covered the question of “Who is a Feminist Now” describing yet another celebrity who distanced herself from feminism. Most recently, Shailene Woodley said she was not feminist “Because I love men, and I think the idea of ‘raise women to power, take the men away from the power’ is never going to work out because you need some balance.” Putting aside the obvious logical flags in her suggestion that women and men in positions of power is not “balance,” the larger point of the article is the trend of young celebrities distancing themselves from feminism.
The undercurrent of this article, and so many others like it, reveals a troubling disconnect in the definition of feminism’s goals and its application as a movement. Part of the issue is the framing of the question “are you a feminist?” The article ends with an interesting profile of students at the University of North Carolina who conducted a successful public relations campaign for feminism in which individuals needed to complete the sentence “I need feminism because . . .” By reframing the question, the UNC project then concluded that “rather than claiming it as an identity, young people were able to say this is a toolkit I can use without making it ‘this is who I am and this is only who I am.’”
This connects to a broader point about the education of young people about women and feminism. Youth are taught about events in women’s history, such as the Seneca Falls Convention and the ratification of the 19th Amendment. They are taught about people in women’s history, such as Susan B. Anthony, Clara Barton, Elizabeth Cady Stanton, and Harriet Beecher Stowe. Are they, however, taught about feminism as a tool for achieving historical and modern social and legal change? If not explicitly taught, from what sources are women framing their definitions?
I certainly am not overly alarmist regarding the longevity of feminism based on the views of a handful of celebrities, but the question remains, how did they develop their definition of feminism that frames the need for distancing? In thinking about the sustainability of feminism, we must think about how, when, and why young people are introduced to feminism itself, if at all. Just as the UNC project revealed, it needs to be presented as an adaptive tool to achieve a specific result that can address individual needs and achieve change that benefits all. Such an approach reveals that historical celebration of the who and what of women’s history is insufficient without the why and how, which feminism addresses much more directly.
Tuesday, May 6, 2014
Barbara Stark has written, State Responsibility for Gender Stereotyping,, 17 J. Gender, Race & Justice 333 (2014)
Scholars have recently re-discovered Justice Ruth Bader Ginburg’s early anti-stereotyping work. As Cary Franklin notes, Justice Ginsburg’s approach "was grounded not in a commitment to eradicating sex classifications from the law, but in a far richer theory of equal protection involving constitutional limitations on the state’s power to enforce sex-role stereotypes." Some of these scholars believe that this approach holds great promise for issues at the "frontiers of equal protection law" such as same-sex marriage and the work-family conflict. As Ginsburg herself has come to realize, however, anti-stereotyping is only the beginning. This Article explains why anti-stereotyping is insufficient, what else is needed, and why the Constitution cannot be relied upon to provide it. It explains why the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW or Women’s Convention) is far more promising. The Article concludes that CEDAW’s bar on stereotyping is not only better for women than the Constitution’s grant of equal protection, but better for men as well.
Thursday, May 1, 2014
This Article presents a new way to think about women’s equality, a theory of rights of belonging — those rights that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community. Rights of belonging are an alternative to the conventional, identity-based civil rights paradigm, which is based on combating discrimination based on identifiable characteristics. In the past half century, women’s equality law has been based primarily in the Equal Protection Clause of the Fourteenth Amendment and statutes prohibiting discrimination based on identifiable characteristics. While the equal protection model has reduced such discrimination, it has failed to address deeply rooted economic inequality in our society. Because equal protection law only addresses discrimination based on easily identifiable characteristics, including race and gender, it has masked the significance of other fundamentally important, but less visible, characteristics, such as poverty. The persistent poverty of women is a sex equality issue, and pursuing economic rights is crucial to empower women to overcome economic barriers. Thus, rights of belonging must include not only the right to be free of discrimination based on identifiable characteristics, but also economic rights — the material conditions necessary to empower women to participate effectively in the world around them.
Monday, March 31, 2014
It turns out that the research suggesting that teenagers and pornography are a hazardous mix is far from definitive. In fact, many of the most comprehensive reports on this subject come to conclusions that amount to “we can’t say for sure” shrugs.
Based on a recent report commissioned by the British Prime Minister, the results:
...the report found a link between exposure to pornography and engagement in risky behavior, such as unprotected sex or sex at a young age. But little could be said about that link. Most important, “causal relationships” between pornography and risky behavior “could not be established,” the report concluded.
Thursday, March 20, 2014
This article commences a feminist critique of the unjust enrichment liability model. Together with other legal categories such as contract, tort and equity, unjust enrichment is an independent source of rights and obligations. However, unlike areas of private law that have been the subject of sustained feminist analysis and critique, there has been little attention paid by feminist scholars to understanding the pattern and impact of gender in unjust enrichment reasoning. This article offers some first steps towards filling that gap. We explore the concept of enrichment, evaluating from a feminist perspective how the tests of enrichment are constructed and applied. Our analysis interrogates the extent to which gendered assumptions, patterns or structures are instantiated within enrichment.
In examining the tests of enrichment, we pay particular attention to the ways in which unjust enrichment responds to the provision of domestic services and care. A paradigm concern within feminist scholarship is private law's treatment of women's work, including domestic services, and the recognition of non-financial contributions in the ownership of property within a domestic relationship. There are thus useful comparisons to be made between the treatment of such services in unjust enrichment and, for example, tort and other sources of rights and obligations in private law, which have already been the subject of feminist analysis. Research reveals cases in which these services have been the subject of claims in unjust enrichment. Our initial conclusion is that while the tests of enrichment are vulnerable to gendered assumptions and structures, they also appear to provide protections against these assumptions and their consequences. The same can be said of the methods of valuation of that enrichment, which show a strong commitment to market valuation. The obvious limit to this observation is that the market price must be attentive to embedded hierarchies, including the gendered division of labour. Nonetheless, unjust enrichment's commitment to this market measure has the potential to limit a defendant's ability to devalue women's work.
Tuesday, March 11, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. Her post last week introduced her topic of exploring feminist legal history.
What do we mean when we talk about feminism? My book project has forced me to reconsider how I would answer this question. My scholarship fits comfortably within any classic definition of feminist legal history: I focus on the intersection of law and history in the context of reproductive health, divorce, marriage, and abortion. I consider myself a feminist and a historian. I brought these understandings of myself and my work to the book and the question at its core: how did Roe v. Wade impact social-movement debate and what can the history of the decision teach us about law as a tool for social change, in the context of gender relations more broadly? Research for the project took me to over seventeen archives, to the basement of convents, and the offices of anti-feminists. The most fun came in the oral histories I conducted with over 100 of those who participated in the abortion wars in the decade after Roe. I spoke with men and women, doctors and homemakers, lawyers and activists, abortion opponents and population controllers, and feminists of every stripe. What I learned made me wonder what it meant to be “pro-choice” or “pro-life.” As importantly, the research made me question who should count as a proper object of study for women’s legal history.
At the beginning of my research, I had treated pro-choice activism as synonymous with the women’s movement—unquestionably a core subject for feminist legal historians. I learned that the relationship between women’s rights and the legalization of abortion was much more contested than I had predicted. Identifying a cause with women’s rights had profound ideological and strategic ramifications. Physicians, population controllers, and even feminists wondered if embracing the rhetoric of women’s rights would set back the progress of abortion reform.
Law also played a surprising and unanticipated role in the creation of the abortion-rights cause. On the one hand, feminists could use the Roe decision in arguing that their movement should frame abortion as an issue of women’s rights. The Supreme Court’s approval made the idea of abortion as a woman’s right more legitimate, more mainstream, and more politically palatable. On the other hand, feminists’ wish to preserve that victory created damaging internal debates about the proper scope of a reproductive-justice agenda, about protections against sterilization abuse, and about what counted as true reproductive liberty.
I wonder how often causes and social movements we identify as feminist have a more troubled history. Did different legal movements once count as feminist? Might social causes associated with feminism today once have had a radically different meaning, both legally and politically? It is questions like these that make Women’s History Month more exciting than ever for feminist legal historians.
Tuesday, March 4, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.
If it’s March, it’s time once again to celebrate Women’s History Month. With the rise of important new scholarship, we also have a perfect reason to assess the state of women’s legal history itself. When New York University Press published a volume of essays on feminist legal history in 2011 (co-edited by Tracy Thomas), feminist legal history was still relatively new. At its heart was a narrative about the history of feminism, starting with the Seneca Falls Convention of 1848, continuing through the battle for the Equal Rights Amendment, suffrage, and temperance in the early twentieth century, the rise of the “second-wave” in the 1960s and 1970s, and the backlash to it in the 1980s. Three years later, feminist legal history is unquestionably alive and well—the subject of many books, law review articles, and symposium events. The flourishing of the field makes it more important than ever to question what we mean by both “law” and “feminism.”
Over the course of the month, I’m hoping to blog about the ways in which scholars are testing the boundaries of current understandings of women’s legal history. Some historians have found law in unconventional places: in the stories of those operating in administrative agencies, legislative hearings, abortion clinics, doctors’ offices, and grassroots organizations. These histories invite us to rethink whether women make law even when they do not transform existing doctrine, relate their claims to a lawyer, or change black-letter rules. In this way, women’s legal history stands at the forefront of a larger reevaluation of the relationship between law and social change. How we view that relationship, as women’s legal historians increasingly recognize, depends on how much we recognize something as law even when it fails to conform to our expectations.
Other historians have tested the relationship between feminism and the law. Whom should we consider a feminist? Should we treat as feminist any historical actor who identified herself (or himself) as such, or can we recognize feminists from their substantive commitments? Should feminist legal historians study those who obstructed legal progress for women? Can feminist politics obscure as well as illuminate our understanding of where we are and how we got here?
I am not sure I’ll answer these questions by the end of women’s history month, but it’s crucial to start a conversation about them. Women’s legal history teaches us not to take for granted legal rules, relationships, and institutions that now seem natural. It is a history of society’s blind spots and forgotten opportunities. For that reason, Women’s History Month seems to be as good a time as ever to consider what we as historians might have missed.
Sunday, March 2, 2014
Michael Higdon at Tennessee Law has uploaded Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men.
Just last month, in the state of Utah, twelve biological fathers filed suit, challenging the state’s adoption laws — laws the fathers allege permit “legalized fraud and kidnapping.” Specifically, these laws require nonmarital fathers to promptly take legal action in Utah to preserve their paternal rights. A problem arises, however, as mothers from other states have started traveling to Utah specifically to surrender newborn children for adoption. The fathers, unaware that their children are being placed for adoption in another state, fail to take action in Utah and, as a result, are permanently deprived of all parental rights. In that sense, these laws — which actually are not much different than the adoption laws of other states — permit nonmarital mothers to effectively thwart a man’s desire to father a resulting child.
Although not the subject of the Utah lawsuit, at the other end of the spectrum, many are surprised to learn that the law also permits a nonmarital mother to force fatherhood on men who never even consented to the sexual act that produced the child. Male victims of statutory rape, for example, in every case to consider the issue, have been ordered to pay child support for children that were a product of the rape. Likewise, adult men who are victims of sexual assault as well as men whose sperm was taken without their consent (and subsequently used to artificially inseminate a female) have also been consistently ordered to pay child support for the resulting child. In all of these cases, the mother’s wrongdoing has been ruled irrelevant.
In the enclosed article, Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, I explore examples of both kinds of fathers — I refer to them as “Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy.
Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other. In the attached Article, I argue that the laws relating to the reproductive rights of nonmarital males have effectively evolved into a modern day form of coverture and, thus, must be opposed for the very same reasons coverture was opposed. In addition, given the parallel these laws share with coverture, the reaction to which has greatly shaped modern feminism, feminist legal theory is an ideal lens through which analyze the harms befalling nonmarital fathers.
Of course, feminists have, understandably (and often justifiably), looked at the fathers’ rights movement with some skepticism. After all, a victory for fathers could very much come at the expense of those rights feminists have fought long and hard to secure for mothers. As I analyze in the article, however, this concern need not always be the case. And indeed, when it comes to the law as it relates to the reproductive freedom of nonmarital males, feminists are not only the group best situated to wage that battle, but also a group that should have a vested interest in victory. Specifically, as I explore in the Article, the laws in question not only harm nonmarital males, but at the same time, pose significant harms to women. For this reason, I conclude with a list of potential solutions to these problems, identifying areas where change can be instituted so as to offer greater protection for men, but at the same time, preserve current protections afforded women.