Tuesday, November 21, 2017
The celebrity men are falling. Charlie Rose is the latest formerly venerated but large egoed man to fall under the weight of sexual harassment allegations. The line of the dethroned is getting longer, but the time is getting shorter.
During the 1980’s I was one of a handful of lawyers who tried divorce cases on grounds of abuse. “No Fault” divorce had arrived in all but a few states. Trying cases on any other grounds was considered distasteful. But my clients wanted their truth heard in court. The judgments my clients received would today be considered amazing. In the 80’s the judgments were viewed as just compensation for the suffered abuse.
Then came the 90’s. Domestic abuse was discussed widely and openly. Those jurisdictions that had not yet enacted civil protection order statues, did so. Slowly women, who were primarily if not exclusively the petitioners, came forward to demand protection. Judges heard stories of abuse that shocked them.
But then things changed.
So many women came forward seeking protection from abuse that judges assumed that not all of the women’s claims could be true. Judges had difficulty accepting the prevalence of gender bias. By the end of the decade, the seeds had been sown in family court culture for women seeking divorce to be found not credible in that surely women were seeking protection orders only to gain a “leg up” in the divorce proceedings. No mind that all of the data shows that seeking a protection order does not result in an advantage for the abused parent. Quite the opposite. Raise abuse when children are involved, and the mother's presumed motive will be to "alienate" the children from their father.
So I am compelled to raise the alarm. With so many women, and some men, coming forward alleging sexual harassment by celebrities what will be the tipping point where accusers are branded as liars? Am I being an unnecessary alarmist?
We have not scratched the surface of sexual harassment. Rather than #MeToo, perhaps #NotMe would give a more accurate count of who has and has not been the victim of sexual harassment. I am afraid that our non-celebrity sisters will be deprived of their opportunity to air their grievances and be believed. That is where the work needs to be done. Finding platforms for the most vulnerable to air their stories without retaliation has a short window.
So if you have a plan – whether to provide legal services to those who tell their stories and are vulnerable to immediate discharge from work or other consequences – or if you hope to publicize how common sexual harassment is in all levels of our nation- do it soon.
File legislation, record the stories of our unknown sisters, bring the powerful to the workplace to prevent firing when disclosures are made, Prepare for the backlash and have a plan to defeat it - but do it within the next fifteen minutes.
Monday, November 6, 2017
Editors' Note: This post is part of the symposium examining where we are one year after the presidential election.
by Prof. Justine Dunlap
Not too long ago, in a galaxy not too far away, I was contemplating some of the improvements in the law, procedure, and culture concerning intimate partner violence. In particular, I was pondering why those improvements had not yielded as much change as one might have hoped and had too often resulted in adverse unintended consequences to the survivor.
I concluded that implicit bias, which for these circumstances I termed soft misogyny, was a primary culprit. One of the solutions, therefore, was for people to start acknowledging implicit bias and to examine ways to counteract it. Familiarity with the work of Mahjarin Banaji, one of the founders of Project Implicit, made me hopeful. Heck, even the title of the book she co-authored--Blind Spot: The Hidden Biases of Good People—suggested that we could do better. We can become of aware of our biases. Then once aware, we can work to counteract and nullify them.
In this current era, however, with the coarsening of so much discourse and the re-emergence of hard misogyny, I now find myself wishing for “only” soft misogyny. In our President, we have a man whose objectification of women, even his own daughter, is out in the open for all to see. A man who bragged about sexual assault, dismissed it as meaningless locker-room talk, and was elected president.
The hard misogyny was also clear in the treatment of Hillary Clinton in the presidential race. Sure, soft misogyny was there too—I had to examine some of my concerns about Clinton to see my own implicit bias was at play.
But the simultaneous demonization and disqualification of Ms. Clinton by many on the basis of her gender surely flips the switch to hard misogyny. We could start with Ted Cruz’s reference to her deserving a spanking and end a long while later after reviewing the virtually endless sexist and often violent references. To make matters worse, some of the misogynistic language and behavior seems mild compared to the racial hatred that it is now acceptable to spew.
The President has made division and hatred great again. The “other” looms large as America’s boogeyman. The biases that everyone has are things to be celebrated and revered, not weaknesses to rise above.
I had harbored hope that the weight of the presidency would sober Trump. That it would call to his better angels. That he would gain awareness of the historical and moral nature of his deeds and words. That he would be more circumspect. I was wrong. And now I long for soft misogyny.
Tuesday, July 18, 2017
Last week, Education Secretary Betsy DeVos, met with selected groups to hear from stakeholders on Title IX processes when sexual assault is alleged. First she met with those who feel Title IX discriminates against males who are accused. The following day she met with survivor advocates who want the current state of hearings to continue. The controversy revolves around the "Dear Colleague" letter sent in 2011 to colleges and universities outlining a list of standards to be employed, and in some cases, aspired to, when universities deal with sexual assault complaints. Among other things, the letter instructed campuses to use the "preponderance of the evidence" language when deciding whether or not the accused student is responsible for the alleged behavior.
The letter gave other instructions, however, use of the lower standard of proof is the one most challenged by those who advocate for the accused. Criminal lawyers often demand that the "beyond a reasonable doubt" standard should be used at Title IX hearings. Title IX hearings are civil in nature and can have different goals than either the civil or criminal justice systems. The safety of the complaining students as well as the community, is paramount, as is education of the student found responsible in an attempt to avoid future troubling behavior. The process views itself as more remedial than punitive.
There is no doubt that some results of Title IX hearings are bewildering, and others have denied basic due process rights for the responding student. Those deficiencies must be corrected. But the problem is not the standard of proof. Nor is the answer to turn a quasi-civil proceeding into a criminal one. The answer to those deficiencies is to enforce training standards and have access to an effective appeals system. To raise the standard of proof to the criminal one is to revert to a system where the complaining student will rarely succeed.
So what do we expect from Secretary DeVos? We know that the Obama administration's guidance on transgender students was withdrawn. We know that DeVos initially opposed withdrawal of the regulation but ultimately ceded to Attorney General Sessions. We have a president who admits to sexually assaulting women. We cannot expect an objective assessment of what a fair Title IX decision making process would look like.
We can expect additional barriers to successful Title IX claims. Whether that will be accomplished through raising the standard of proof, creating a new one, or some other change, we can expect diminished rights for complaining witnesses. After all, before the ink was dry on his presidential appointment to head an education task force, Chairman Falwell announced that one target of his work will be to limit the federal government's reach into higher education's handling of Title IX obligations.
Secretary DeVos deserves credit for her defense of transgender policies and for any empathy she might have for survivors of campus assault. The predominant criticism of her is that she does not fundamentally understand Title IX. But no matter, the boys are in charge.
Wednesday, May 31, 2017
The rights guaranteed in the Universal Declaration of Human Rights are quickly being eroded in the United States.
In an assault on women, the Trump Administration has announced proposed changes that will severely curtail women’s autonomy.
The administration announced that it is reviewing rolling back a rule that mandates employers who provide health insurance to cover birth control. Closely held businesses employers were found exempt from the mandate in the Hobby Lobby decision based upon religious freedom. This executive order expands the exemption to all employers who decline to cover birth control upon grounds of conscience, that is religious grounds. This action, under cover of religious freedom, greatly expands employer choice while further limiting women's reproductive choices. The disdain and disregard in which this administration holds women has never been subtle. This latest assault particularly affects poor women. In completing the cover sheet that will accompany the rollback, the administration responded “no” to the query as to whether the change would be economically significant.
The administration has demonstrated its inability to understand circumstances of those who live outside of the white, wealthy circles in which the president confines himself. Women of the 1% are unlikely to experience adverse consequences of this rollback. While wealthy women are more likely to enjoy expansive health benefits, the out of pocket cost of birth control will not force them to make difficult budget choices. Forcing lower income women to choose between food and birth control or transportation to work and birth control, removes from them one of the few “choices” they have. The economic impact is significant.
While attending the January Women’s March, I saw an older woman carrying a sign pronouncing “I’m too old to be demonstrating against this *s__t* ” I get it. We thought we had won this battle in the 70’s. Mad Men is back.
Sunday, May 21, 2017
During a recent Boston demonstration against forced marriage of minors, word came that Governor Christie vetoed a bill overwhelmingly passed by the New Jersey legislature that would restrict marriage to those who are age 18 and older - no exceptions. Among the reasons Christie cited for his veto was that the bill was contrary to some "religious customs". Those religious customs are part of the silencing of females and undermining their autonomy.
Forced marriage is something Americans associate with foreign countries. And when the topic is raised in the US, citizens associate the practice with some immigrant cultures. While the practice may be more common with certain cultural and religious groups, forced marriage of children is not limited to those born outside of the United States. "Shotgun" weddings have a long history in US Christian tradition and resulted in no fewer forced marriages than other religions and cultures.
Unchained At Last was founded by Fraidy Reiss, herself a survivor of forced marriage. Hers
was arranged in a conservative religious community and, like the majority of teen marriages, was to an older man who abused her. After several years, Fraidy was able to escape the abusive marriage with her children. She attended Rutgers University against her husband's demands and became an investigative journalist. Fraidy graduated first in her class. She recognizes that most women are limited in their ability to escape abusive forced marriages due to lack of "finances, religious law and social customs." She founded Unchained at Last to assist women in escaping from and resisting forced marriages. Unchained is leading forced marriage prevention legislation demonstrations across the county
Representative Kay Khan and Senator Harriet Chandler filed a Massachusetts bill that would restrict marriage to those age 18 and older, without exception. Parents would no longer have the ability to assent to a minor's marriage, judges would have no ability to waive the age requirement and pregnancy would no longer provide justification for underage marriage. Currently in Massachusetts, there is no minimum age for children to marry with judicial and parental consent.
Wednesday, March 8, 2017
As millions of women around the globe celebrated International Women's Day, most were encouraged to take the day off. In Australia, for example, child care workers left their jobs at 3:20 pm, the time of day at which they begin working for free in comparison with what men are paid. In Dublin, women protested the Catholic Church's control over their bodies through anti-abortion policies. In Dakar women demonstrated their solidarity while planning a larger demonstration on July 31, African Women's Day. While women did leave their jobs in many instances, some could not afford either financially of professionally to abandon their jobs. Particularly, caregivers. But their voices were heard nonetheless.
What women could do was show up and be counted. Whether marching or wearing red at work, women gave witness to ongoing oppression. Since the Women's Marches in Washington, DC and around the world, women have been active in ways not seen since the '70s. And there is much to protest.
President Trump tweeted that he respects women (a la Billy Bush). Yesterday Trump demanded that planned parenthood agree to stop performing abortions or lose its federal funding and a threat was made to women and children at the borders. And let's not forget the global gag rule, prohibiting any overseas organization from receiving federal funding if abortion is offered as an option. The President respects the role that women play in our economy. One is hard pressed to find a women in a significant role in this administration. If the women in Trump world took the day off, the male team would hardly notice. BFF Vladimir Putin praised women for their "beauty and vitality" and for that apparently remarkable yet underappreciated ability to show up on time. Meanwhile, seven women were arrested outside of the Kremlin for demonstrating against 200 years of male leadership.
Women protested around the world "for equal rights and in the United States against Donald Trump." Their mobilization is not a fluke. It is a sustained effort to protect women's rights globally. The movement, like their members, has staying power.
Tuesday, February 7, 2017
Editor's note: Prof. Cynthia Soohoo brings this post by her student Megan Lynch
In August 2014, a Wisconsin woman named Tammy Loerscher went to her local services agency because she believed that she was pregnant, but had serious medical conditions and could not afford health care. She was referred to the emergency room of a nearby hospital, where her urine was collected to test for pregnancy and for controlled substances. When the results returned “unconfirmed positive,” she was reported to child protective authorities. A temporary order of custody was issued to detain Tammy in the hospital. The next day a hearing was held over the phone. There was a lawyer representing the child protective agency, and a legal guardian to represent Tammy’s fetus, but Tammy herself was not given a lawyer, and the judge refused to delay the hearing to permit Tammy to find one. The judge ordered her to report to an inpatient treatment facility after being discharged from the hospital. No assessment was ever completed as to whether Tammy had a substance use disorder or needed inpatient treatment. When Tammy refused to enter inpatient treatment, she was ordered to serve 30 days in jail. While incarcerated she was denied medical care, held in solitary confinement, and threatened to be tased. Tammy was released after 18 days in jail subject to drug monitoring for the duration of her pregnancy. All subsequent drug tests were negative.
Last October, Tammy told her story to Seong-Phil Hong of the United Nations Working Group on Arbitrary Detention during the Working Group’s visit to the United States. An expert on arbitrary detention, Mr. Hong recognized that Wisconsin’s actions violated Tammy’s human rights and that there are better ways for the state to address concerns about fetal health. Late last year, the Working Group issued a statement emphasizing that confinement of pregnant women suspected of drug is inappropriate and that involuntary detention should be used only as a last resort, for the shortest period of time needed, and with appropriate due process protections. The group emphasized that “confinement should be replaced with alternative measures that protect women without jeopardizing their liberty.”
Despite the Working Group’s statement, every year, hundreds of pregnant women are involuntarily detained in the United States because they are suspected of drug use. Wisconsin is one of 5 states with laws that permit pregnant women to be detained for the supposed benefit of a fetus. These statutes were designed in the 1990s amid fears of the effects of in utero exposure to cocaine. Despite decades of research undercutting the belief that use of criminalized drugs is certainly and uniquely harmful to fetal health, these laws continue to be used to issue protective custody orders against pregnant women.
In addition to lacking scientific basis, laws that punish people who use drugs during pregnancy threaten the public health. As the American College of Obstetricians and Gynecologists has stated: “Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” Instead, threats of arrest and incarceration harm fetal and maternal health because they discourage women from seeking medical advice and prenatal care. The medical community in the United States and around the world universally condemn punitive approaches, recommending support and voluntary treatment where appropriate.
Not only do these laws harm the people they purport to protect, they also violate women’s fundamental human rights. Detaining pregnant women based on suspected drug use unfairly deprives them of liberty based on their pregnancy status. While civil commitment is permitted under U.S. law, the laws used to detain pregnant women lack the stringent standards required for civil commitment in other contexts, including a risk of imminent harm and due process protections. These statutes set no requirement that the state prove that a woman has a substance use disorder, or that the substance she is alleged to use is harmful to fetal development before detaining her. Nor do they require that the state consider alternative, less invasive measures before authorizing involuntary confinement. Rather, in most cases, simply testing positive for a drug is grounds for confinement in a treatment facility, regardless of whether it is medically appropriate.
Even if state intervention could be justified under extreme circumstances, these overbroad laws fail to provide adequate procedural protections. Indeed, in Wisconsin, a woman is not entitled to an attorney until appeal, even if she explicitly requests one. Further, the proceedings are sealed, closed proceedings, preventing public scrutiny of the process. This places the onus on women who have undergone this process to come forward to tell their stories.
The UN Working Group made clear that these laws run contrary one of the most fundamental rights under international law: the right to liberty and to be free from arbitrary detention. The right to liberty is deeply embedded in the American psyche, dating back to our nation’s birth and the Declaration of Independence’s promise of the right to life, liberty and the pursuit of happiness. The right to liberty would later be emphasized in the UN Declaration of Human Rights, and the US reaffirmed its commitment to liberty and freedom from arbitrary detention when it ratified the International Convention on Civil and Political Rights.
Because freedom from arbitrary detention is a fundamental right, international human rights standards require that individuals only be detained as a last resort, for the shortest period of time needed, and with appropriate due process protections. Any use of detention must be necessary and proportionate. According to the Working Group, Wisconsin’s law failed to meet these standards.
The Working Group’s recognition that detaining pregnant women suspected of drug use violates their human rights, and the widespread agreement that this practice actually threatens maternal and infant health, should be a call to reconsider our approach to substance use in pregnancy. Instead of spending money on counterproductive punishment and coercive treatment, we should ensure that women like Tammy are able to trust that the people they turn to will provide help, not handcuffs.
Monday, November 28, 2016
Special Rapporteur on Violence Against Women, Dubravka Simonovic, spoke about global concerns of increased risks to women as fundamentalism and "populism" rise around the globe. A group of UN human rights experts including Simonovic, Alda Facio, Chairperson-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice; and Michel Forst, Special Rapporteur on the situation of human rights defenders, issued a joint statement expressing the concerns of many women around the globe.
“In the face of rising populism and fundamentalisms and deplorable setbacks on the women's human rights agenda, we need more than ever to unite our forces to preserve the democratic space in which women human rights defenders represent an essential counter-power and a colossal force of action.”
"The experts highlighted a host of specific challenges faced by women rights defenders – including misogynistic attitudes, threats of sexual assault, travel bans, lack of protection and access to justice, imprisonment, killings, laws which violate their rights, gender-based defamation questioning their “femininity” or sexuality, and gender stereotyping which questions their engagement in public life instead of sticking to their caretaker role in the family."
US women recognize the fragility of their advances in the post-Trump climate.
What supports the concerns of US women is the fact that there has been no general outcry from men denouncing the wave of misogyny that has let lose since the Trump campaign began. If men are not willing to risk the ridicule of other men by taking a public stand against misogyny, how can women be safe? Particularly silent are the men of Congress. Are all too busy worrying about how to get along with the incoming president? Or they are concerned with how to retain their seats and have Trump's support. This is no time for cowards to represent us. But bravery has not been a hallmark of many of our male representatives for some time. The few vocal male congressional supporters are insufficient to create change. There was some hope when Republican leadership publicly stated they could not support Trump because of his videotaped remarks. But that assessment seems to have diminished in the race to preserve their status. Respecting and accepting the process is very different from silence in the face of bias.
Tuesday, August 9, 2016
While struggles over equal pay continues in the federal forum, the Commonwealth of Massachusetts, in a bi-partisan action, passed legislation that vastly enhances the likelihood of women overcoming pay inequities within the Commonwealth. Signed into law by Governor Baker, the legislation was neither speedy nor innovative. Since 1998, some variation on the Equal Pay Act was filed in the Massachusetts legislature. In Massachusetts, the pay gap for women is only marginally better than the national average- 82 cents for every dollar earned by a man. And, that figure seems not to reveal the starkly lower pay earned by women of color.
The law addressed concerns of both employers and female workers. For example, some definition is given to employers of what comparable work means. Additionally, the law provides that unequal pay cannot be remedied through a lowering of wages. Importantly, employers are prohibited from asking for an applicant's salary history during the interview process.
The Massachusetts Equal Pay law is a huge advancement for women. The law was promoted by a collaborative of women's associations and a partnership of public and private entities. As with most change, shifting local practices is essential. Perhaps the legislative success will spread beyond Massachusetts borders.
Wednesday, June 15, 2016
Yesterday the White House Summit, the United State of Women, was held in Washington, DC. The event was outstanding for many reasons. Bringing together five thousand (mostly female) advocates for women in one space was amazing. The line up of speakers was equally amazing. The list is too long to recreate here but here are some of the names of presenters you might recognize: Valerie Jarett, President Obama, Vice President Biden, Billie Jean King, Amy Poehler, Patricia Arquette, Sarah Jones, Warren Buffet and so many others whose names you may or may not recognize. To me, the highlight was listening to Oprah Winfrey interview the First Lady. As one colleague remarked, the experience felt like eavesdropping.
Many presenters began by highlighting the horrific events in Orlando with unexpected guest Attorney General Loretta Lynch addressing the events expansively in her talk. Bamby Salcedo, President and CEO of TransLatin@Coalition, made the Orlando slaughter both real and personal.
As participants moved to and from breakout sessions, they were accompanied by female musicians who played in drumming and mariachi bands, both of which historically have been closed to women. The drumming did provide a humorous moment. To the laughter and eye rolls of the women, a line of five men, presumably convention center employees, unabashedly walked between the drummers and those women watching the performers, unwittingly becoming a reminder of why we were gathered.
Significantly, participants commented on their freedom to unapologetically focus on women. Straight, lesbian, trans, queer, women of color, younger and older - all were freed. Any need to appease male supremacists with gender neutral language was unnecessary and would have been inappropriate, as it often is. In other words, minimization and denial of the special problems endured by women was absent from the room.
To the White House planners, thank you.
Editors' note: The event was recorded and may be watched on line at the Summit website.
Tuesday, May 17, 2016
by Margaret Drew
On Monday, the Supreme Court decided Zubik v. Burwell by not deciding. The court remanded the consolidated cases to their various intermediary courts. The Court suggested that the lower courts, all but one of which upheld the government mandate providing access to birth control even for those employed by religious organizations, might find that the parties are able to reach solutions that protect women's access to birth control in ways that do not infringe on religious rights. Thoughtful analyses have been written on this per curium decision, such as those noted on SCOTUSBlog.
My reflection focuses on process, rather than substance. While the Court suggests that in any settlement, women's right to birth control access must be protected, the court does not provide specific guidance on how the parties will reach settlement. The court has taken an approach more commonly found in trial courts. Encouraging settlement or engagement in ADR processes is common, if not required, in trial courts. Some appellate courts also recommend or demand settlement discussions prior to scheduling cases for argument.
In a time when angry philosophical divides inhibit discussion of finding common ground, the Court has effectively designed a plan for the parties to accommodate each other's concerns while preserving constitutional protections. The Court did so by first requiring the parties to submit written plans on what settlement might look like. Presumably the exercise informed the court on whether the parties could approach solution. This week's decision remands the cases with the knowledge that settlement is possible because the parties have already designed accommodating plans through their Court submissions.
More importantly, the court has shifted focus from divisiveness to compromise. Historically, this is the art of politics -- an art that has been rejected of late. Beyond finding resolution of the case in controversy, the Court is providing guidance to the public as well as to other government branches on how to find meaningful resolution. The Zubik controversy is an emotional one. The stakes are high for women as well as for religious employers. If common solutions can be found in this case, there is no reason why compromise should be rejected as a means of resolution in most political disputes. Even if the parties cannot accommodate the separate interests, the attempt is significant. The Justices may be best suited as leaders and teachers in demonstrating how reasoned collaboration protects interests while promoting cooperation. Indeed, the Court employed this process in reaching its per curium decision, modeling the art of reasoned cooperation.
Monday, February 29, 2016
On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.
As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.
But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.
Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”
The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.
Impact of lack of clinical abortion services on women’s health: Another important factor for the Court to consider is the impact that the Texas law will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.
Sunday, February 21, 2016
By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
Women in the United States have strived for, and achieved, equality in many areas, and have rights and freedoms unparalleled in many countries around the world. However, despite an array of legal protections, women continue to face barriers to equality.
The ways that human rights might level the playing field was the focus of the recent visit of the U.N. Working Group on discrimination against women in law and practice. The Group spent two weeks in the U.S., meeting with government representatives, lawyers, and advocates in Washington, D.C., Alabama, Texas, and Oregon. The Working Group’s conclusion: the United States “lags behind” human rights standards in protecting women’s rights. As the Working Group opined “[t]here is a myth that women already enjoy all these rights and protections under U.S. law. However, there are missing rights and protections.”
One area where the Working Group was taken aback was the degree of U.S. workplace hostility to women workers, particularly when it comes to pregnant workers and workers with caregiving responsibilities. And rightly so. There are significant gaps in protections in the arenas of gender pay equity, workplace accommodations for pregnancy, and paid leave, among others.
What does the lack of legal protection mean for American women? The answer depends, in part, on where you live.
Alabama, one of the states visited by the Working Group, demonstrates some of the harshest challenges facing women – it ranks 48th nationally with respect to support services for working parents, making it one of the worst states in which to be a caregiver of children. In Alabama, women are paid 73 cents for every dollar paid to men, with a yearly wage gap of $12,109. For women of color in Alabama, the disparity is even greater, as black women earn 57 cents for every dollar that white men make, while Latina women earn less than 41 cents.
Alabama has no state level protection requiring employers to provide accommodations for pregnant women in the workplace so that they can remain employed. Employers do not have to allow pregnant workers to carry around a water bottle or sit down when needed, for example, and can push these workers out on leave rather than allow them to work through their pregnancies. As a result of the lack of policies that ensure common sense pregnancy accommodations, pregnant women are exceptionally vulnerable to discriminatory treatment by their employers. In many cases, women in Alabama and around the country are forced to choose between a paycheck and a healthy pregnancy. With infant mortality rates above the national average in Alabama, and maternal mortality rates on the rise in the rural South, there is an urgent need for policies to ensure that pregnant workers can maintain their health.
Of course, these challenges do not end at the conclusion of pregnancy. Women with children continue to face myriad challenges in balancing workplace responsibilities and caregiving.
The U.S. is the only industrialized country that fails to ensure workers are provided paid parental leave. This is not just a global embarrassment. It is the reason that only 12 per cent of the private sector workforce is eligible for paid family leave, offered voluntarily by their employer. Yes, that means the majority of working women do not have access to paid family leave when they have a baby. This has real and tangible psychological, physical, emotional, and economic consequences.
The U.S. also fails to provide paid leave to care for ill family members and there is no national guarantee of paid sick time. Nationally, upwards of 40 million workers are not entitled to a single paid sick day, and 38 per cent of employees in the private sector have no paid sick time. In Alabama, which lacks any sick time protections, 44.6 per cent of private sector employees (more than 670,000 workers) have no ability to earn paid sick time. There are also significant implications for the approximately 700,000 children who live in families in which both parents work, or in single-parent households.
In many states, like Alabama, existing protections are a far cry from human rights standards. Yet there are cities and states that are working hard to make progress.
Human rights call for equal pay for men and women; for maternity leave with pay; for policies that enable parents to balance family obligations with work responsibilities; as well as for special workplace protections for pregnant women. These protections are laid out in CEDAW, the comprehensive treaty on women’s rights. International human rights experts have also specifically called on the U.S. to introduce paid parental leave and to address the pay gap.
There is cause for optimism that the U.S. is moving in the right direction. In the absence of federal movement on paid family leave, paid sick time, and pregnancy accommodations, three U.S. states have enacted legislation requiring employers to provide paid family leave insurance to their workersNew York began to offer paid parental leave to non-union city employees, four states, the District of Columbia, and twenty localities now have paid sick time laws insuring a minimal amount of paid sick time to most workers, and sixteen states, the District of Columbia, and four localities have protections that offer at least some accommodations for pregnant workers. Obama has used his executive authority to make incremental improvements, including by fostering transparency in wages.
These are positive steps, but further action is needed at the state and federal level. Federal legislation that has been introduced such as the Paycheck Fairness Act, the Pregnant Workers Fairness Act, the Schedules that Work Act, the FAMILY Act, and the Healthy Families Act would contribute to gender equality for working women and provide better support for families. If enacted, these laws would bring the U.S. much closer to human rights standards for fair treatment in the workplace. Standards that offer stronger support for women, children, and families.
Editors' Note: This post is based on a piece that originally appeared on HuffingtonPost, co-authored by JoAnn Kamuf Ward and Hillary Scrivani, the Kennedy Fellow at A Better Balance. A Better Balance and the Columbia Law School Human Rights Clinic drafted this submission to the U.N. Working Group.
Monday, January 4, 2016
Three Ohio legislators plan on filing a bill that would require women who miscarry or abort to cremate or bury the fetus. Significantly, the drafters made no attempt to appear gender neutral. They have placed the burden for cremation or burial exclusively on mothers. Misogyny undisguised. The legislators gave no thought to the trauma that women can experience when miscarriage occurs. Whether an abortion is spontaneous or planned, many women struggle with the often difficult decisions and emotions that surround both. Disregard toward women is exposed in this bill, as is the assumption that women alone are responsible for their pregnancies.
In what appears to be an unintended offense, the bill ignores the reality for many men, as well. Men often participate with their partners in decision making on whether or not to carry a pregnancy to term. Men also suffer when unwanted miscarriage occurs.
The legislators are not original, however, because Arkansas and Indiana have already passed similar laws. The legislators took up the cause once Attorney General Mike DeWine was proven wrong on his claims around Planned Parenthood's fetal donation program. Searching for a way to keep fetus disposal alive as a political issue, these legislators took up the cause in promoting the cremation or burial scheme. DeWine moved on to claims that Planned Parenthood is disposing of fetus in landfills. Planned Parenthood has had enough. The organization obtained an injunction against DeWine from taking any action to block its fetus disposal.
Perhaps these men are unable to see themselves as part of a global anti-female culture. The New York Times reported on the sexual and other violence against Syrian women refugees as they attempt to make a new life in another country. Women are victims of war in ways that men are not, notably because of the sexual violence they experience. Whether the abuse is sexual, physical or legislative, the ultimate impact, if not one goal, is to remove women's control over their bodies and their lives. It is all one.
Friday, December 11, 2015
Following up on Cindy Soohoo's post earlier this week, this post examines the ongoing denial of autonomy to women. The denial is promoted by the federal and state governments.
In yesterday's post, Prof. Soohoo mentioned a particularly brave abortion provider in Alabama. This past week, representatives of the Working Group on Discrimination Against Women in Law and Practice visited Birmingham. As reported by Amy Yurkanin, Committee members made the stop to explore abortion restriction, criminalization of drug use during pregnancy and restrictions on contraception.
The committee noted that women are denied access to reproductive choice not by directly outlawing abortion, but by making access so restrictive as to create virtual abortion bans. Yurkanin quoted Frances Raday of Israel saying "America looks as though it is joining the regional plague. They are doing it by making abortion not accessible instead of illegal." This term, the Supreme Court will address restrictions that lead to abortion clinic closures in the case of Whole Woman's Health v. Cole.
As Yurkanin further reported, "Lucia Hermo of the ACLU of Alabama described the laws that have been passed to restrict abortion, including one that would assign lawyers to the fetuses of pregnant teens seeking abortion without parental consent. That law is under review by a federal judge." While Alabama seems eager to appoint counsel for a fetus an underage teen seeks to have an abortion, should that child be born, the state will not provide counsel for either the child or the child's mother when protection from an abusive father is sought or when the child is in the middle of custody dispute.
The widely accepted substitution of the medically correct term "fetus" for "unborn child" has created the climate where state prosecutors manipulate laws designed to protect living children into tools of female prosecution. Both Tennessee and Alabama are enforcing their chemical endangerment of a child statutes by arresting and prosecuting women who use drugs during pregnancy. In Wisconsin, a similar law has been in effect since 1998, and is used in cases where pregnant women with a history of drug use are arrested and confined against their will. In a phrase that rejects treating all with dignity, those women are referred to as "cocaine moms." The enforcement against pregnant women discourages them from disclosing past drug use and seeking help for current addictions.
We have sanitized the discussion. Many hold sincere religious beliefs that are the source of their moral opposition to abortion. But those beliefs do not justify laws that result in disparate gender impact and does not excuse legislators who lack the courage to oppose legislation based in the promotion and imposition of those beliefs. Likewise, community religious beliefs do not eliminate the obligation of lawyers and judges to begin any analysis with the gender discriminatory impact of laws that purport to promote health. Reproductive rights restrictions and other legislation targeted toward women, and in particular mothers, are not gender neutral and must be redefined in the broader framework of the ongoing oppression of women. Any other rationale is a disguise.
Tuesday, December 8, 2015
Has anti-choice propaganda led to an increase in violence and attacks on abortion clinics? Following last week’s tragic attack on the Colorado Springs Planned Parenthood, the news has focused on the impact of videos released by the Center for Medical Progress and political rhetoric targeting Planned Parenthood. Meanwhile, the New York Times and Washington Post have published pieces trying to figure out what motivated Robert Dear, Jr.
But, regardless of how the media depicts this latest act of violence, it’s clear that there’s a long and well-documented history of attacks on abortion clinics and providers. The Colorado shooting should remind us of the dedication and bravery of abortion providers who daily face intimidation, threats and harassment designed to prevent women from accessing health services and rob them of their right to make their own reproductive rights decisions. For their work, abortion providers are often stigmatized, but they should be acknowledged as human rights defenders.
In an op ed in the New York Times, Dr. Willie Parker describes how he gave up his OB practice in Chicago and moved to Alabama to provide abortions full-time. He explains “[i]n public health, you go where the crisis is. If there is an outbreak and you have the ability to relieve suffering, you rush to the site of the need. This is why, a year and a half ago, I returned to my hometown, Birmingham, Ala., to provide abortions.”
Despite physical threats and threats to their livelihood, abortion providers remain committed to providing care to women. A recent article in Rolling Stone profiled a doctor who was bombarded with harassing calls and “veiled threats online (‘I wonder if someone will shoot the new provider...’).” She eventually gave up her family medicine practice after anti-choice activists picketed her practice and pressured the building where the practice was located. “I wasn't about to let awful tactics like that work, because that would just encourage them to keep doing that to others. So the ultimate effect was that I became a full-time provider of abortion care.”
Mother Jones describes the heroic efforts of abortion providers to keep clinics open in the face of new and frequently arbitrary requirements and regulations imposed on them by anti-choice legislatures each year. And Pro Publica describes the constant barrage of personalized harassment providers face, including picketing of private homes and the targeting of families for harassment. To avoid harassment and threats of violence, providers register their homes in their spouses’ names; they change their path to work; they buy bullet-proof vests. All to ensure that women are able to make their own reproductive health decisions.
The international community has recognized that medial and health services professionals are human rights defenders when they provide services to ensure that women can exercise their reproductive health rights. In 2010 the Special Rapporteur on Human Rights Defenders, a U.N. human rights expert who monitors and speaks out about attacks on human rights defenders, stated that “[i]n certain countries . . . health professionals, as a result of their work, are regularly targeted and suffer harassment, intimidation and physical violence.” The report recognizes that attacks have led to “killings and attempted killings of medical professionals.”
Last month, the Special Rapporteur on Human Rights Defenders, joined by five other human rights experts, issued a statement emphasizing the need to protect sexual and reproductive rights defenders in the Americas. The statement recognized that sexual and reproductive rights defenders “face the same risks as many other activists, but they are further exposed to retaliation and violence because they challenge power structures based on patriarchy and deeply-held gender stereotypes about the role of women in society.”
For their commitment to women’s rights and the challenges that they face to provide services, abortion providers should be recognized as human rights defenders. Let’s change the dialogue and recognize them as the heroes they are.
Wednesday, October 14, 2015
Last week, the Nuestro Texas campaign—a joint project of the Center for Reproductive Rights and the National Latina Institute for Reproductive Health—issued a report documenting a women’s human rights hearing held last March in the Rio Grande Valley. Lately, Texas has made front-page headlines because a challenge to HB 2 a Texas abortion statute is making its way to the Supreme Court. Abortion access was very much an issue at the hearing, but the testimony made it clear that the human rights problems in the Valley are much broader and deeper.
I served as an expert, along with 6 other human rights experts from the U.S. and Mexico for the hearing. In addition to attending a community meeting in a colonia (an unincorporated area that lacks paved roads and other infrastructure) and touring the last remaining abortion clinic, the experts listened to a full day of women’s testimony. The testimony illustrated multiple human rights issues, including the historic lack of health care infrastructure and affordable services for poor and rural women, the profound barriers that immigrants face in accessing health care in Texas, and the impact of recent Texas laws and policies that have gutted family planning services through cuts in funding and the exclusion of Planned Parenthood from receiving state funds for preventive care. (Although the funding was reinstated during the most recent session of the Texas legislature, the facilities that served women in poor and rural communities—dozens of clinics across the state that were forced to close or severely cut back on services—will not receive this new funding).
During the hearing, women shared stories about being turned away from clinics that did not have appointments available or funding only to later learn they had cancer. They described fears about their families’ future as they live with the uncertainty of undiagnosed breast lumps. They described the lack of available and affordable family planning, and the difficulties that an unplanned pregnancy creates for a mother struggling to care for her family or a woman trying to pursue her education.
The women who took part in the hearing also conveyed their vision for Texas’s future, and their commitment to fight for change. As Lucy Felix, field coordinator for the Texas Latina Advocacy Network stated, “We are all fighting together for a different Texas—a just Texas. What we want is a Texas with human rights for all.”
Monday, September 21, 2015
Cindy Soohoo introduces one of her CUNY students, who writes the following post:
By Katy Naples-Mitchell
This year marks the 20th Anniversary of the Fourth World Conference on Women – a convening on women’s human rights that produced the landmark Beijing Declaration and Platform for Action. Recent press coverage of the anniversary has focused on the Beijing Declaration’s relationship to the new sustainable development goals. But a new campaign called GQUAL by the Center for Justice and International Law (CEJIL) is taking a different tack by focusing on women’s representation in international positions of power.
What does Beijing+20 have to do with GQUAL?
Part G of the 1995 Beijing Declaration addressed “Women in Power and Decision-making,” focusing on the strategic objective to “Take measures to ensure women's equal access to and full participation in power structures and decision-making.” Although the Declaration was primarily aimed at gender parity commitments within Member States, the Declaration also targeted obligations to bring women into the fold in the upper echelons of international decision-making. For example, in paragraph 193(a), the Declaration explicitly called on the UN to “achieve overall gender equality, particularly at the Professional level and above, by the year 2000….”
Fast-forward to today:
CEJIL’s new GQUAL campaign reveals the significant shortfalls in reaching these gender equality goals and frames the issue as a violation of states’ obligations to respect the principle of non-discrimination. According to the GQUAL campaign launch materials, as of June 2015, women occupied only 21% of all positions within the main international and regional tribunals. In most cases, member states are responsible for nominating and electing candidates for these positions. Not only are they falling short on their non-discrimination obligations, but states also continually fail to circulate transparent guidelines that respect gender parity to ensure equality in candidate nominations and voting processes.
GQUAL calls for bringing awareness to, and ultimately correcting, the severe gender imbalances in international tribunals and monitoring bodies – putting the onus on states to nominate qualified women judges to serve on international tribunals. The GQUAL campaign’s strategies will include:
Publicizing the current lack of gender parity within international mechanisms and tribunals
- Growing grassroots support for gender parity
- Disseminating information regarding available positions
- Demanding transparency behind selection processes and enforcement guidelines
The campaign launch is timely, not only because of the Beijing+20 anniversary but also because of statements out of Geneva just this week. On Tuesday at the 30th Session of the UN Human Rights Council, UN High Commission for Human Rights Zeid Ra’ad Al Hussein spoke about the lack of gender parity in UN human rights bodies and the “need to do better than our societies…to lead by example.” Mr. Al Hussein reminded Member States that at its 6th session in 2007, the Human Rights Council had encouraged states to nominate more women to human rights treaty bodies, mechanisms, and international courts and tribunals. He remarked that he pledged to undertake his own efforts to correct continuing imbalances, including refusal to take part in any panel that does not include women experts and to improve gender parity within his office, where “although women are 57% of staff graded ‘Professional’ and above, they still represented barely one-third of senior managers.”
Wednesday, May 13, 2015
Title IX is the foundation for the progress of female students on campus.
With the recent controversies around campus sexual assault, Title IX is the standard (and indeed the enforcement remedy) through which we view appropriate and effective responses. Some schools do better than others. As do some faculty.
Most schools consider faculty as responsible employers under Title IX.. This means that if a student discloses sexual harassment on campus the faculty member is required to make a report to the campus employee designated to receive Title IX complaints. But nowhere in Title IX is there an obligation to report the names of the parties when making reports. The Department of Education interprets the mandatory reporting obligation as including the obligation to name the parties involved. The Department is not insensitive to concerns of survivor autonomy. DOE suggests that faculty members warn students that faculty have an obligation to report the details, including names, of allegations of sexual harassment, including sexual assault. The Department then suggests that the faculty member refer the students to campus resources that provide confidentiality. Suggested referrals are to campus medical a counseling centers.
Most universities fail to provide faculty information on warning the student survivor early in the conversation,however, so many faculty do not know of the suggested caution. Those of us who are attorneys can claim privilege, as can faculty members who are therapists. But the majority of faculty are not so fortunate.
The lack of survivor autonomy in whether to disclose is disturbing. Nearly all university and colleges students have reached the age of majority. Yet faculty are obligated to report the most intimate details of a student experience simply because the student trusted that faculty member in disclosing what happened.
While the campus Title IX officer may decide whether or not to take the claim further, that decision is not the student's. The campus Title IX officer has a dilemma. The officer may honor student requests for anonymity and face possible public repercussions should the same perpetrator repeat the offensive behavior. Typically, protection of the employer will prevail and a complaint pursued by the Title IX investigator.
Presumably, if the student's initial thought was to pursue a complaint through the criminal justice system, s/he would report to the police in the first instance rather than engage the school's administrative process. As with domestic violence survivors, the police are often not the desired first step in disclosure or remedy. Students understand the complications that arise when a survivor reaches out for help. But most do not recognize that their trusted faculty advisor will be part of those complications.
I advocate for policy change so that faculty Title IX reporting obligations permit reporting that does not include the parties' names, if that is what the student chooses.
Monday, March 9, 2015
International Women's Day (March 8) receives little attention in the U.S. when compared with other nations. Sometimes we neglect to recognize those close to home who contribute so much to advancing human rights. I encourage you to honor the woman in front of you. In that spirit, I would like to recognize my co-editor, Martha Davis, with whom I am honored to work on this blog. Martha recently answered a series of questions on the status of women, reprinted below.
Martha F. Davis
Issues of equal pay and workplace discrimination affect a huge number of women, and make it more difficult for women to leave poverty. Violence against women also cuts across racial and class lines.
What factors, financial or otherwise, should women consider when choosing a city to live in?
I would look for women in civic leadership positions, percentages of women in the police force and other indicators that show a commitment to women's economic and civic equality.
There are also many factors that, because of gender inequality, men probably never think about, like safety (e.g., street lighting), and (for parents) access to affordable child care and after school care.
How can local health authorities better meet the needs of women?
Violence against women has huge impacts on women's health -- both directly, through the violence itself, and indirectly as it increases women's stress and may make it more difficult for them to care for themselves in other ways.
Many organizations have developed interventions for both men and women, and approaches to curtailing the violence. Violence against women includes stranger violence as well. Media images certainly play a role in opening the door to gender-based violence. Local health authorities can help through public education campaigns, partnerships with public schools and other institutions, and interventions with youth, hopefully before the violence begins.
How can local authorities encourage more women entrepreneurs and support women-owned businesses?
Equal pay initiatives would, of course, indirectly assist with this, since entrepreneurial women would have more access to the seed funds necessary to start a business.
Role models, mentoring programs and support groups, prioritizing these initiatives at the local level, can have a tremendous impact. Similar programs have been very effective in, for example, encouraging women to run for office.
A number of studies have indicated that many women are not great negotiators, that women in general are more ready than are men in general to accept an initial offer even if a better deal is available. Negotiating is a teachable skill. Local authorities could help by mediating negotiations and by offering training to women to equip them to negotiate in a wide range of settings.
What programs should local authorities develop in order to make their cities more women friendly?
San Francisco is the only city in the country that has adopted the international Convention on the Elimination of Discrimination Against Women as its local law and it has made an important difference there.
City agencies have conducted gender audits and found a lot of low-cost reforms that they can implement that make a big difference for women. For example, they expanded the hours when people could apply for various permits so that they did not always conflict with school drop-off and pick-up times; they added street lighting to enhance women's safety and job options; they created new programs to support young girls, and so on. Now, the SF Women's Commission has spearheaded the development of guidelines for city contractors to ensure that they meet international standards for women's equality. Adoption of CEDAW has been a vehicle for SF leaders to discuss, prioritize and integrate women's equality into local policies.
How can local authorities encourage more civic engagement among women, including running for political office?
Again, role models, mentors and support groups are critical. The Women in Public Policy Program at Harvard is a good model for this approach. In today's election climate, however, it's money that ends up being more important. Women can learn how to ask for money and connect with supporters, but workplace equality will also make a difference here, as women have more leadership positions and receive equal pay at a level that will enable them to consider a run for office.