Tuesday, April 13, 2021
A new law in Utah makes biological fathers responsible for half of the out-of-pocket costs a woman incurs during pregnancy and childbirth, a policy that some experts say falls short in addressing the burden of such expenses.
Experts and women’s health advocates say the new law highlights the high cost of prenatal care, but may leave the burden on women to seek financial support. They point to broader resources such as expanded health coverage they say would better help pregnant women. The bill has also been praised by antiabortion groups who argue that it could reduce the number of women seeking the procedure.
“It’s really important to acknowledge that pregnancy related costs are significant and that the burden of those costs should be shared,” said Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation. “But I think there are other ways that legislators can develop policies that protect women from out of pocket costs.”...
The bill would require a biological father to pay 50 percent of a woman’s out-of-pocket medical costs during pregnancy, including insurance premiums and other pregnancy-related costs such as a hospital birth. The bill notes that if the paternity of a child is disputed, a biological father would only be responsible for a share of the costs after paternity is confirmed. The bill also adds that the biological father would not be responsible for sharing the financial cost if the woman receives an abortion, unless the abortion is necessary to avoid death, or if the pregnancy was a result of rape or of incest.
Ohio's ban on abortions after a fetal diagnosis of Down syndrome doesn't violate a woman's ability to obtain an abortion, a divided Sixth Circuit Court of Appeals ruled Tuesday.
The law, passed by Ohio's Republican-controlled Legislature and signed by GOP Gov. John Kasich in 2017, imposes criminal penalties on doctors who perform abortions if they're aware that a Down syndrome diagnosis, or the possibility of a diagnosis, is the reason for seeking the abortion. The penalty is a fourth-degree felony.
Four abortion providers filed suit: Preterm-Cleveland, Planned Parenthood of Southwest Ohio, Women's Med, Planned Parenthood of Greater Ohio and a doctor. The law was blocked by a federal judge in March 2018, and the case has been tied up in federal court ever since.
On Tuesday, the full Sixth Circuit Court of Appeals ruled 9-7 that Ohio's law did not "create a substantial obstacle to a woman’s ability to choose or obtain an abortion." The appeals court reversed the injunction blocking the law from taking effect.
The court ruled that a woman's right to an abortion is not absolute. Ohio's law, which prevents a doctor from performing an abortion because of a Down syndrome diagnosis, is not an undue burden on the woman, wrote Judge Alice Batchelder, who was nominated by former President George H. W. Bush.
By preventing the doctor from joining the woman as a knowing accomplice to her Down syndrome-selective decision making, House Bill 214 prevents this woman from making the doctor a knowing participant (accomplice) in her decision to abort her pregnancy because her fetus has Down syndrome," Batchelder wrote. "As limitations or prohibitions go, this is specific and narrow."
Batchelder said the law only prevented doctors from knowingly performing an abortion because of Down syndrome, but if the woman doesn't provide a reason, the abortion could still proceed.
The decision is here: Pre-Term Cleveland v. McCloud (6th Cir. en banc Apr. 13, 2021)
Monday, April 12, 2021
Ninth Circuit Rules Woman Eligible for Asylum Because Domestic Abusers Persecuted her for Feminist Opinions
woman who was persecuted by domestic abusers because of a feminist political opinion is eligible for asylum in the United States, a federal appeals court ruled Monday.
Asylum applicant Maria Luisa Rodriguez Tornes didn’t have to show that her feminist opinions played the sole or predominant role in her domestic abuse, according to the 9th U.S. Circuit Court of Appeals at San Francisco. Rather, she only had to show that her political opinion was “one central reason” in the abuse.
Judge Susan Graber, an appointee of former President Bill Clinton, wrote the April 5 panel opinion.
The Department of Justice’s Board of Immigration Appeals had found that Rodriguez Tornes was protected under the Convention Against Torture. But the immigration appeals board ruled against her on the feminism claim, holding that there were no findings that Rodriguez Tornes was abused for reasons unrelated to the relationship.
The 9th Circuit disagreed on the feminism claim, finding that Rodriguez Tornes had presented evidence to show that she was persecuted because of her political opinion.
“The record contains episode after episode of men stating, quite plainly, that they were beating, burning, raping and strangling her because she sought an equal perch in the social hierarchy,” Graber wrote.
An immigration judge had found that the Mexican government would acquiesce in Rodriguez Tornes’ torture, which means that the government would also be unwilling to stop future persecution by domestic abusers, the appeals court said.
Rodriguez Tornes had alleged that she was first beaten by her mother, partly to prepare her for future beatings by her husband. Her husband also beat her, according to the appeals court. On one occasion, he stuck a lit cigarette into her arm at 1 a.m. and ordered her to cook. When she refused, he dragged her by her hair into the kitchen. On another occasion, he burned her face with a cigarette because she refused to leave her teaching job.
[See rest of article]
Between 1900 and 1956, women increased from a small proportion of public company stockholders in the U.S. to the majority. In fact, by the 1929 stock market crash, women stockholders outnumbered men at some of America’s largest and most influential public companies, including AT&T, General Electric, and the Pennsylvania Railroad. This Article makes an original contribution to corporate law, business history, women’s history, socio-economics, and the study of capitalism by synthesizing information from a range of historical sources to reveal a forgotten and overlooked narrative of history, the feminization of capital—the transformation of American public company stockholders from majority-male to majority-female in the first half of the twentieth century, before the rise of institutional investing obscured the gender politics of corporate control.
Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a major change in the gender of the stockholder class. Scholars have not considered the possibility that the sex of common stockholders, which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the financial press, might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the “separation of ownership and control,” shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, the Article lays out the evidence and invites the corporate law discipline to begin a conversation about gender, power, and the evolution of corporate law.
Reva Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 SUP . CT. REV. (forthcoming 2021)
As the Supreme Court prepares to roll back protections for the abortion right, this Article analyzes the logic of pro-life constitutionalism in June Medical Services L.L.C. v. Russo.
I expand the frame on the admitting privileges law in June Medical to examine the logic of woman-protective health-justified restrictions on abortion. Do these laws protect women or the unborn—and how? By considering the history of the admitting privileges law at issue in June Medical and locating it in broader policy context, we can see how Louisiana legislators who restricted abortion to protect women’s health equated women’s health with motherhood; they supported laws that pushed women into motherhood while declining to enact laws that provided for the health of pregnant women and the children they might bear. Expanding the frame on Louisiana’s pro-woman pro-life law shows us sex-role stereotyping in action, and demonstrates the intersectional injuries it can inflict.
From this vantage point, we can see that judges who refuse to scrutinize pro-life law making—on the grounds that it would involve judges in politics—help legitimate the claims about protecting women’s health that supposedly justify the abortion restrictions, while revising the meaning of the Constitution’s liberty and equality guarantees. Reading the doctrinal debate in June Medical in this context identifies open and hidden efforts to roll back protections for the abortion right—and suggests how the Supreme Court that President Donald Trump helped fashion values women, health, life, truth, and democracy.
Ann McGinley, Masculinities Theory as Impetus for Change in Feminism and Law, THE OXFORD HANDBOOK OF FEMINISM AND LAW IN THE UNITED STATES (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds.).
Feminist legal scholars have found much in the field of masculinities to enrich the feminist analysis of law. In drawing on and incorporating masculinities theories into legal feminism, feminist scholars have added their own insight into the meaning of “masculinities.” As Nancy Dowd, Nancy Levit, and Ann McGinley explain: “Masculinities” has multiple meanings. First, it is a structure that gives men as a group power over women as a group. Second it is a set of practices, designed to maintain group power, that are considered “masculine.” Third, it is the engagement in or “doing” of these masculine practices by men or women. Finally, the term refers to a body of theory and scholarship by gender experts in various fields of social science.
Although masculinities originated in fields outside of law, legal scholars have adopted insights raised by masculinities scholars, combined with those of feminist theory, queer theory, and critical race theory, to develop a legal theory of masculinities that proposes new legal interpretations and policies that better correspond to the lived experiences of persons of different genders, races, and classes. This chapter explores how masculinities research has influenced legal feminism in the U.S.
Tuesday, April 6, 2021
I had always hated Hemingway. He was, after all, the classic misogynist.
It seemed I was forced to read Hemingway every year in school. Farewell to Arms, The Sun Also Rises, For Whom the Bell Tolls, The Snows of Kilimanjaro, The Old Man and the Sea. I read them all, against my will. To me they were boring stories about men. The words were short, cold, and devoid of beauty or lyricism. The topics were harsh and violent -- masculine topics of war, bullfighting, and big game hunting. Moreover, the works were filled with hateful depictions of women. Women were crazy harpies, tempting devils, or dead mothers. In Hemingway’s semi-autobiographical accounts, women were merely the women objects of antipathy, perhaps like the many wives that he continually traded in like cars.
So when I heard that PBS was featuring a new documentary series on Hemingway, I rolled my eyes and thought, “how tone deaf.” How misguided to hear yet again about a privileged white man, and one who had already received his acclaim. In this time of intense public debate of race and gender, in this time when so many women and people of color have not yet been recovered, why return to the same old story. For indeed, I had not encountered even famous writers like Zora Huston Neale or Daphne du Maurier until my own independent reading, long after school. But, like so many things that one dismisses, I discovered more complexity and nuance in Hemingway’s story, particular in the realm of gender.
The film reveals Hemingway not as a model of masculinity, but as a man battling with his own masculinity. Understanding this as toxic masculinity, changed the narrative for me. We learn of Hemingway’s Freudian early years with a mother who wrote him a rejection letter, and dressed him like a twin to his sister. We then understand his early attraction to two older woman, maternal figures, one of whom becomes his first wife. We see the author constrained by family demands--fighting for the time to write and feed his creative muse, diverted by screaming babies, marital demands, and unpaid bills until he can get alone, on the road or with his thoughts. This is all juxtaposed against the raucous pull of the popular writing crowd, with their carousing and attention-seeking affairs.
The film also shows us a broader range of topics that occupied Hemingway’s mind beyond bulls, bullets, and booze. One of his earliest stories, Up in Michigan, was about date rape. A shocking story that barely saw the publishing light, writer Edna O’Brien explains as actually told from the woman’s perspective, which is why it was so powerful. He wrote about abortion, suicide, STDs, childbirth, Caesarean sections, and death in childbirth – grim accounts of women (and men’s) reality. A later work, published posthumously, engages with transgender and same-sex attraction.
The short words took on new meaning for me as well. Rather than just a mimic of his journalism years, the short words were explained as a revolution in writing that left behind conventional indicators of writing prowess. I discovered the beauty of the short form, in the repetition of the same words that function as the action itself, as when repeating words form the march of the soldiers. Right, left, right, left, right, left. Like lawyers learning the impact of plain, unaffected writing, I could now appreciate the power of the staccato, and what the film describes as musical. The film reveals these words slowly on the screen, literally showing us the beauty of the typed word as Jeff Daniels' voice-over reads aloud.
This all came together for me in the discussion of the short story, Hills Like White Elephants. In this story, a man pressures his lover, “the girl,” to get an abortion. Most of the story is the man controlling the conversation, working through various points to win the argument, eventually gaslighting his partner, claiming, “I only want what you want.” He is dismissive of the way in which the young woman sees the world, whether its her vision of the looming white elephants overshadowing their lives or the personal and relational consequences of the abortion. Eventually, the young woman demands: "Would you please please please please please please please stop talking?"
PBS, Video, Hemingway, Gender and Identity
Friday, April 2, 2021
In an effort to further restrict abortion in Tennessee, two state lawmakers have introduced legislation that would allow a father to deny an abortion without the pregnant woman's consent.
The bill, sponsored by state Republicans Sen. Mark Pody and Rep. Jerry Sexton, would give a man who gets a woman pregnant the veto power to an abortion by petitioning a court for an injunction against the procedure.
Tennessee lawmakers already passed one of the nation's most restrictive abortion laws last year, although much of it is held up with legal challenges from abortion rights advocates. The ongoing court battle could stretch for months if not years.
Despite the outlook for potential lawsuits, state lawmakers appear adamant in pushing for stricter abortion laws this legislative session. Including Pody and Sexton's legislation, six bills to further restrict abortion have been filed this year
Pody said Wednesday that he introduced his bill after a Tennessee resident expressed concerns that fathers do not have a say over abortion under the current law. He said his bill would assure fathers' right to make a decision about an unborn child.
"I believe a father should have a right to say what's gonna be happening to that child," Pody said
The US Supreme Court declared a spousal veto to be unconstitutional in Planned Parenthood of Missouri v. Danforth (1976), and spousal notification to be unconstitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).
Sixth Circuit Allows Professor's First Amendment Suit to Proceed, Challenging Discipline for Refusal to use Transgender Student's Preferred Pronouns
The Cincinnati-based 6th U.S. Circuit Court of Appeals has reinstated a First Amendment lawsuit by a public college professor in Ohio who violated school policy by refusing to use a transgender student’s preferred pronouns.
The 6th Circuit ruled for Shawnee State University philosophy professor Nicholas Meriwether in a March 26 opinion by Judge Amul Thapar, an appeals court appointee of President Donald Trump. Thapar was viewed as a potential U.S. Supreme Court nominee during Trump’s presidency.
Meriwether, a devout Christian, believed God created humans as male or female, and said using preferred pronouns to refer to a student in his class violated his religious beliefs.
The student had protested after Meriwether referred to her as “sir.” University policy required professors to use students’ preferred pronouns, and Meriwether received a written warning.
Meriwether proposed a compromise where he would refer to the student only by her last name. At first it was accepted, but was later rejected. The university said Meriwether should either stop using all sex-based pronounds in his classroom, or he should refer to the transgender student as a female.
Meriwether sued for free speech and free exercise violations under the First Amendment, and due process and equal protection violations of the 14th Amendment. A federal judge tossed the claims, but the 6th Circuit reversed as to the First Amendment claims.
March Madness Could Spark a Title IX Reckoning, The Atlantic
The gender inequality in college sports runs far deeper than a few social-media posts can reveal. As Cheryl Cooky, a professor studying sport sociology at Purdue University, told me in a recent phone conversation: “The problem is not the weight room itself, but what kind of groundwork has been laid that produced this moment where the weight-room controversy occurred. Nobody looked at that space and said, ‘Something’s not right here.’ It took someone posting on social media to bring attention to the issue.”
Although the NCAA is a nonprofit that organizes athletic tournaments for college athletes, it acts more like a professional-sports organization. And the deeply entrenched sexism in intercollegiate sports means that male athletes are treated with red-carpet fanfare, and women are treated as second-class citizens. That swag-bag gear, forinstance? The women’s paraphernalia doesn’t say march madness, because the NCAA refuses to use the name of its highly marketable men’s tournament to refer to the parallel women’s tournament, which is held at the same time. If you download the NCAA March Madness Live app, you might be under the impression that the women’s tournament doesn’t exist at all—no women’s schedule, bracket, or game highlights are available. This is the first year in which the entirety of the women’s tournament will be shown on national television, whereas the men’s tournament has been taking over airwaves for decades. And still, Sunday’s women’s championship game will be available only on ESPN, while the men’s championship game will air on CBS, a national broadcast network, making their game more widely available.
Broadcast and advertising deals are private-market decisions. But these issues involve student athletes, who are playing for schools beholden to Title IX—the statute that prohibits gender inequality at any educational institution receiving federal financial assistance (basically every school in the NCAA, via student financial aid). So is it legal that the NCAA calls its women’s tournament by a different (and far less marketable) name? Or that the broadcast deals it strikes for the men’s tournament are so much larger than those for the women’s? According to the Supreme Court’s decision in NCAA v. Smith, it is.
In 1999, the Court ruled that, although the NCAA runs sports tournaments for schools—and collects money from those schools—the league itself does not receive direct funds from the federal government. But Neena Chaudhry, the general counsel and senior adviser for education at the National Women’s Law Center, says a legal argument could be made that the NCAA should be held to Title IX when it comes to these tournaments. Chaudhry, who worked on NCAA v. Smith, has successfully argued at the state level that high schools have essentially given sports leagues controlling authority over their federally funded athletic programs.
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Thursday, April 1, 2021
Kyle Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, Minnesota L. Rev. (forthcoming)
In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity (“SOGI”) discrimination is sex discrimination under Title VII. Yet, LGBT people continue to face discrimination in many contexts, a prominent example of which is the national campaign by Christian business owners to obtain religious exemptions from state public accommodation laws. What does women’s suffrage have to do with today’s religious exemption debates? This Article contends that there is a through-line from a radical, antisubordination strand of the history of the Nineteenth Amendment to today’s fight over religious exemptions from SOGI antidiscrimination laws.
The antisubordination strand of Nineteenth Amendment history envisioned women’s suffrage as about more than just the right to cast a ballot. This capacious view of the Nineteenth Amendment—as a means of dismantling sex-based hierarchies and ensuring full citizenship rights regardless of sex—would allow women to engage in all aspects of life, both political and civic. Between the ratification of the Nineteenth Amendment and today’s battles over SOGI religious exemptions stands 100 years of sex discrimination law. That era saw state legislatures enact public accommodation laws prohibiting sex discrimination in the public square; these laws extended to women the right of civic engagement and thus full citizenship. This body of sex discrimination law included the Court’s 1984 decision in Roberts v. United States Jaycees, which involved a challenge to one such law. The Jaycees Court upheld a public accommodation law against a claim that enforcement of the law—which would compel the Jaycees organization to admit women as full members—would violate the Jaycees’ First Amendment free speech rights. The Court reasoned that states have a compelling interest in eradicating sex discrimination in public. Jaycees expands the reach of the equality-enhancing aspect of the suffrage movement. It embodies the antisubordination strand of the women’s suffrage movement and stiches it into the fabric of the legal doctrine governing sex discrimination.
In today’s religious exemption cases, the Christian business owners argue that although the state has a compelling interest in eradicating race discrimination in the public square, it does not have a compelling interest in eradicating SOGI discrimination. This distinction, they argue, dictates that an exemption be granted vis-à-vis SOGI discrimination, even though such an exemption would be rejected vis-à-vis race discrimination. Bostock is the contemporary bridge that connects Jaycees to the SOGI religious exemption cases. Jaycees, in turn is the bridge back to the radical strand of the Nineteenth Amendment’s history: The Nineteenth Amendment was generative not simply of the right to vote, but of a commitment to full citizenship rights regardless of sex. That equality was formalized in state public accommodation laws, which Jaycees teaches serve a compelling state interest. Bostock, when coupled with Jaycees, directs the same conclusion for public accommodation laws that prohibit SOGI discrimination, namely that such laws serve a compelling state interest that defeats claims for religious exemptions.
Friday, March 19, 2021
Honored to receive the 2021 Beyer Award for Best Faculty Publication for my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, XV Stanford J. Civil Rights & Civil Liberties 349 (2020).
The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.
This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.
This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.
Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)
From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.
A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.
Hat tip Lisa Tetrault
Courtney Joslin, Surrogacy and the Politics of Pregnancy, 14 Harvard L. & Policy Rev. 365 (2020)
This Essay examines the regulation of pregnancy through a less commonly explored lens — surrogacy legislation. Initially, the dominant position of feminist advocates was to understand the practice of surrogacy as antithetical to women’s equality and reproductive autonomy. Due in part to their active and persuasive involvement, the early legislative trends tracked this position; most of the legislation enacted in the 1980s and early 1990s banned surrogacy. By the mid-1990s, however, the legislative tide turned. All of the comprehensive surrogacy statutes enacted since that time permit and regulate surrogacy. This shift was due in part to a growing sense among some feminists and others that permitting surrogacy can promote the goals of liberty and equality.
At times, however, too little attention was paid to the details of these permissive surrogacy schemes. As a result, permissive surrogacy statutes in some states may undermine these aims. This Essay focuses on one such type of statute: surrogacy provisions that authorize potentially sweeping control over the lives, bodily integrity, and decision making of people acting as surrogates. For example, a number of permissive surrogacy schemes expressly authorize contract clauses that require people acting as surrogates to undergo risky and invasive medical procedures over their clearly stated, contemporaneous objection. But such schemes are not inevitable. This Essay concludes by highlighting recent examples that illustrate how permissive surrogacy legislation can foster, rather than impede, the ability of people to control decisions about their own bodies
Thursday, March 11, 2021
"Reverse Title IX" Procedures Favoring Mostly Male Respondents as Continued Structural Discrimination Rather than Overcorrection
Sarah Lynnda Swan, Discriminatory Dualism in Process: Title IX, Reverse Title IX, and Campus Sexual Assault, 73 Oklahoma L. Rev. (2020)
For decades, the Title IX process of adjudicating campus sexual assault has been heavily weighted against complainants (usually women). However, at some universities, this weighting has recently flipped, such that Title IX procedures at these institutions now seem weighted not against complainants, but against respondents (usually men). This “reverse Title IX” trend is typically described as an overcorrection, stemming from schools’ over-zealous attempts to comply with the Title IX requirements the Obama Administration imposed in 2011.
This Article offers a different account of Title IX’s procedural flip. It argues that Title IX’s procedural switch can be productively viewed through the lens of discriminatory dualism. Discriminatory dualism posits that structural discrimination frequently divides into two seemingly opposite—but in fact mutually supportive—strands. Applying the theory of discriminatory dualism here suggests that reverse Title IX is not a mere overcorrection. Instead, it is part of a patterned, recurring, and common way that structural discrimination upholds existing social hierarchies.
Echoing other examples of discriminatory dualism, Title IX’s twinned procedural problems work to sustain existing gendered and social hierarchies in three main ways. First, procedural unfairness to respondents functions to “confirm” the stereotype underlying the initial procedural problems with Title IX: that women are not credible witnesses and are committed, at all costs, to punishing men for perceived slights and imagined harms. Second, the emergence of the reverse Title IX strand undermines the complaints about unfairness to complainants, suggesting that they are misplaced and that the “real” problem is discrimination against men. The confusion created by these dueling complaints undermines the legitimacy of the Title IX system of adjudication as a whole, rendering all findings potentially suspect. Finally, Title IX’s discriminatory dualism creates a double bind, under which universities are portrayed as only capable of adjudicating in ways that are either unfair to complainants or unfair to respondents. These consequences all work to the detriment of
those seeking gender equality.
Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.
The Supreme Court found that both arguments flopped: when suffrage had been granted to all male citizens regardless of race the Amendment had held up, despite the change to the electorate, and the ratification powers Leser questioned had in fact been granted by the Constitution. (And in a few states where things were iffy, it didn’t matter because enough other states had ratified.)
So, while the 19th Amendment granted women the right to vote, Leser made sure that the right could actually be used, even where the state constitution said otherwise. It’s not one of the more famous Supreme Court decisions in American history, but without it the electorate would be, well, lesser.
For scholarship on Leser v. Garnett, see Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Press 2020) and Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115 Harvard L. Rev. 945 (2002).
Erika Rackley & Rosemary Auchmuty, The Case for Feminist Legal History, 40 Oxford J. Legal Studies 878 (Dec. 2020)
It may be that we are witnessing a highpoint of interest in the lives of early women lawyers, and women’s legal history generally, both within and outside the academy, fuelled by the twin centenaries of the (partial) extension of the vote to women in 1918 and the formal admission of women to the legal profession the following year.1 Without doubt the anniversaries provide an opportunity to insert women into legal history (and history generally) and to mark the dedication, commitment and sacrifice of those involved in bringing them about. But without a strong scholarly method, politics and purpose, there is a danger that these celebrations will also encourage the proliferation of well-meaning but uncritical heroine narratives replete with myths and anecdote.
Feminist legal history provides a counter to this. Anchored in a commitment to disciplinary, social and political change, feminist legal history seeks not only to inform about women in law in the past, to uncover new histories, but also to challenge, and ultimately transform, our understandings of the past and present, and indeed the future. Its purpose is twofold: unlike its popular dopplegangers, typically focusing on women in the legal professions, feminist legal history is concerned with both ‘the production of knowledge of the past’ (an important end in itself, when so little is still known about women’s history) and, crucially, setting down ‘the substantive terms for a critical operation that uses the past to disrupt the certainties of the present’, opening up the possibility of imagining different futures.2
However, the doing of feminist legal history as an academic discipline and method remains largely undeveloped in the UK.3 This article seeks to address this absence by delineating its method, scope and purpose. We begin by exploring the exclusion of women and women’s engagement with policy and law reform more generally within traditional accounts of legal history. We go on to consider the methodological and substantive goals of feminist legal history, which relate both to the production of knowledge (by including women’s stories and establishing women as agents of change) and to feminist legal history’s disruptive purpose (by asking the ‘women’ question, challenging assumptions of progress, debunking heroine narratives and (re)locating the position and role of men). Drawing on examples of women’s experiences in and of law in the UK and Ireland, we seek to demonstrate the agency of women—both individually and in groups—in effecting legal, political and social change. We conclude with a call for scholars to take up the insights and methods of feminist legal history—to acknowledge the existence and different experiences of women in/and law, the ways they negotiated and fought to overcome the legal obstacles and opposition they faced (and still face)—before climbing onto their shoulders and continuing the fight for justice.
Historian TJ Boisseau and I similarly have argued for a feminist legal history in our book, aptly titled, Feminist Legal History (NYU Press 2011). See also Tracy A. Thomas & Tracey Jean Boisseau, Law, History & Feminism, introduction to Feminist Legal History.
h/t Kimberly Hamlin
President Biden on Monday ordered Education Secretary Miguel Cardona to re-examine his predecessor Betsy DeVos’s controversial rule strengthening the rights of those accused of sexual harassment or assault on the nation's campuses. And, raising the hopes of the rule's critics, Biden said in his order that Cardona should consider “suspending, revising, or rescinding” it.
To mark International Women’s Day, Biden signed an executive order spelling out that it’s his administration’s policy “that all students should be guaranteed an educational environment free from discrimination on the basis of sex.” And discrimination, he said, includes sexual harassment and violence, as well as discrimination based on sexual orientation or gender identity.
The order directed Cardona to review within 100 days the Education Department’s regulations and policies to make sure they comply with the antidiscrimination policy. Biden specifically mentioned the department’s policy on Title IX of the Education Amendments of 1972.
DeVos last May reversed the Obama administration’s policies on campus sexual assault and harassment, angering women’s and civil rights groups but bringing praise from those who believe the rights of the accused are often trampled upon by institutions.
Saying her rule would balance campuses’ response to allegations of harassment and abuse that have “often stacked the deck against the accused,” DeVos required colleges to hold live hearings and allow for the cross-examination of those alleging misconduct. Women’s rights groups said it would discourage victims from coming forward.
DeVos’s rule, among other things, also allowed colleges and universities to raise the bar on deciding whether sexual misconduct took place to a “clear and convincing” standard instead of whether there was a “preponderance of evidence” against the accused. The rule also allowed institutions to ignore allegations of misconduct that happened off campus, except at fraternities and sororities or at events that are part of a university program.
DeVos took the stance after critics said guidance issued by the Obama administration in 2011 and 2014 was skewed against the accused. T
Friday, March 5, 2021
Cornell Law School & London South Bank University are hosting an exciting global online conference on Friday, March 26, 2021, entitled "Beyond Western Hegemonies of International Law and Feminist Theory." The central theme of this conference will focus on the legacies and repercussions of the hegemony of Western thought within both feminist research and practice in the sphere of international law and attempts and proposals for overcoming these. Professor Chandra Mohanty, a pioneer and expert in women's and gender studies will be delivering the keynote entitled “Transnational Feminism as Insurgent Praxis.”
The full conference schedule and registration details are available here: https://support.law.cornell.edu/conferences/TLF/
the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.
The week March 8th, International Women’s Day, was chosen as the focal point of the observance....
In 1979, Molly Murphy MacGregor, a member of our group, was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.
The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981...
By 1986, 14 states had already declared March as Women’s History Month. This momentum and state-by-state action was used as the rational to lobby Congress to declare the entire month of March 1987 as National Women’s History Month. In 1987, Congress declared March as National Women’s History Month in perpetuity. A special Presidential Proclamation is issued every year which honors the extraordinary achievements of American women.