Tuesday, October 19, 2021
By: Sania Islam
This research examines the reasons why and the circumstances in which Pakistani women began a common-law relationship against their will, and the role played by their families. A recent national survey shows that 4.1 percent of indigenous women were obliged to marry and 4.8 percent were sold. This practice is conceptualized as an expression of both family and partner violence against women, but it is not often labelled and recognized as such. Forced marriage is associated with women’s transgression of traditional gender roles and rape, as well as traditions and practices that consider women’s opinions and consent as unnecessary. Forced marriages are less common now than they were in the past because of the greater awareness of women’s rights. But the practice persists. The link between non-consensual marriages and intimate partner violence is discussed, and public policy implications are presented. Forced marriage is frequently portrayed as an issue which only affects South Asian women and girls, however, this is not correct. Forced marriage affects a wide range of communities, including Irish Traveller, Turkish, Roma, Afghan, South Asian, Kurdish, Iranian, Arab and African communities. There are no religions which support or advocate the practice of forced marriage. Forced marriage can happen to anyone from any background, regardless of social class, financial status and sexuality, which include people who identify as lesbian, bi-sexual, gay and transgender, or are perceived as such. In a UK context, the needs and experiences of some affected groups are often less visible, and only specific groups are highlighted. It is important to be aware that forced marriage disproportionately impacts women and girls and is therefore recognized as a form of violence against women and girls. When a forced marriage occurs, several human rights are breached. Women’s experience of abuse often does not end with the pressure to marry. Many women are also subjected to different forms of abuse within the context of their marriage. This can range from emotional, psychological and financial abuse to sexual and physical violence.
Monday, October 18, 2021
The World Health Organization honored Henrietta Lacks this month.
Henrietta Lacks, a Black American woman and a young mother, died from cervical cancer on October 4, 1951—just eight months after her cancer diagnosis. She was 31 years old. Although her life was cut short, her legacy lives on through an “immortal” line of cells, known as HeLa cells.
During her treatment, researchers took samples of Mrs. Lacks’ tumour without her knowledge or consent. For two decades, Mrs. Lacks’ cells were commercialized and distributed across the globe unknown to her family.
Contributing to nearly 75 000 studies, Henrietta Lacks' cells have paved the way for advancements from HPV and polio vaccines to medications for HIV/AIDS and breakthroughs including in vitro fertilization. In addition, HeLa cells are currently used in vital research for COVID-19 response efforts. * * *
In recognizing Henrietta Lacks’ enduring legacy, WHO acknowledges her story—one of inequity—and looks forward to collectively rectifying unjust disparities in global health.
The story of Henrietta Lacks is featured in many law casebooks and her story is an important lens into the intersections of race and gender in informed consent. Readers might accordingly be interested in this recognition.
The National Advocates for Pregnant Women is drawing attention to an Oklahoma prosecution of a pregnant person last week.
On Tuesday, October 5, Brittney Poolaw, a 20-year-old Oklahoma woman, was convicted of manslaughter in the first degree for experiencing a miscarriage at 17 weeks and sentenced to 4 years in state prison.
Last year, Ms. Poolaw experienced a miscarriage and went to Comanche County Hospital for medical help. On March 17, 2020, she was charged with Manslaughter in the First Degree, arrested and incarcerated. The court set a $20,000 bond, an amount she could not afford. Ms. Poolaw has been incarcerated since her arrest over 18 months ago.
Oklahoma’s murder and manslaughter laws do not apply to miscarriages, which are pregnancy losses that occur before 20 weeks, a point in pregnancy before a fetus is viable (able to survive outside of the womb). And, even when applied to later losses, Oklahoma law prohibits prosecution of the “mother of the unborn child” unless she committed “a crime that caused the death of the unborn child.”
Contrary to all medical science, the prosecutor blamed the miscarriage on Ms. Poolaw’s alleged use of controlled substances. Not even the medical examiner’s report identifies use of controlled substances as the cause of the miscarriage. Even with this lack of evidence, the prosecutor moved forward with the charge. On October 5, after just a one-day trial, Ms. Poolaw was convicted and sentenced to a four year prison term.
Ms. Poolaw’s case is a tragedy. She has suffered the trauma of pregnancy loss, has been jailed for a year and half during a pandemic, and was charged and convicted of a crime without basis in law or science. We are supporting Ms. Poolaw as she explores her legal options, and we are working to ensure that this type of injustice does not happen again. * * *
Ms. Poolaw’s case is just one example of the troubling trend we are documenting in Oklahoma that replaces compassion and respect with criminal prosecution. In recent years, Oklahoma prosecutors, especially in Comanche and Kay Counties but also in Craig, Garfield, Jackson, Pontotoc, Payne, Rogers, and Tulsa counties have been using the State’s felony child neglect law to police pregnant women and to seek severe penalties for those who experience pregnancy losses. This use of prosecutorial discretion directly conflicts with the recommendations of every major medical organization, including the American Academy of Pediatrics, all of which know that such prosecutions actually increase risks of harm to maternal and child health.
Melissa Hemphill wrote a powerful Washington Post Op-Ed on Friday detailing issues with parental rights in military academies. She explains the impossible choices that she and her partner had to make as cadets:
Because we were students at a military academy, Anthony and I were subject to a harsh, antiquated policy that does not allow cadets to have dependents. This meant, and still means, that cadets in our position either must terminate the pregnancy or permanently sever their parental rights to graduate and commission as officers. If Anthony and I wanted to keep our child and our parental rights, we had to resign or face expulsion.
We were determined to honor our commitments to both our future family and the Air Force Academy. But to do so, we had to negotiate a costly and circuitous legal maze.I left the academy for a year and gave birth to Oliver while Anthony remained a cadet and severed his parental rights so that he could graduate. Once he commissioned, he adopted Oliver and I severed my parental rights. Anthony and Oliver moved to Florida for Anthony’s first assignment, and I returned to the academy.
After I commissioned and graduated, I finally adopted the baby to whom I had given birth the previous year. In all, we spent nearly $20,000 on legal fees — while being repeatedly warned that there was no guarantee we would be able to get back our parental rights.
The “no dependents” policy understandably reflects the difficulty of reconciling parenthood with the intense demands of a military academy. But requiring cadets to fully relinquish their children is cruel and unnecessary. While this terminated our legal relationship, it did not terminate our emotional connection and love for Oliver. I sobbed through my relinquishment hearing, having to verbally affirm that I willingly was giving up my rights as a mother with no intention of getting them back.
The Op. Ed describes relevant pending legislation to fix this issue with bipartisan support.
The broader military community already has a solution to the dilemma of service members confronted with conflicting military and family responsibilities. It is the Family Care Plan, which establishes temporary guardianship for dependents in the rare cases that a single parent — or, in a dual-military family, both parents — have duties that would not permit them to care for the day-to-day needs of their children. The Defense Department could simply alter its policy to permit such family care plans at service academies.
Recently, Sens. Ted Cruz (R-Tex.) and Kirsten Gillibrand (D-N.Y.) introduced bipartisan legislation, the Candidates Afforded Dignity, Equality and Training (CADET) Act, which would prohibit the forced termination of parental rights by military academies and instead offer more practical alternatives, including the family care plans. Nothing about academy life would change; it would simply make a really hard situation more humane.
Friday, October 15, 2021
Ann C. McGinley, #MeToo Backlash or Simply Common Sense?: It’s Complicated, 50 Seton Hall L. Rev. 1397 (2020).
The #MeToo movement brought much needed awareness and momentum to societal and workplace culture change. Indeed, some perceive that the “movement has led to increased employer response, including updating of sexual harassment policies, providing guidance about appropriate work behavior, providing information about reporting harassment, and stopping or removing problematic employees.” Unfortunately, the movement has also led to unintended effects of decreasing sponsor and mentor opportunities for women by men in leadership who fear sexual harassment allegations. Such fears, as discussed in this article, arise from stereotypes prohibited by law and include an unsupported presumption of frequent false allegations, not to mention are predicated on a heterosexual worldview. These fears can lead to men in positions of leadership refusing to engage in common work activities such as “mentoring, socializing, one-on-one meetings,” and travel with a female colleague or subordinate, although they will engage in these activities with similarly situated male colleagues. While this article acknowledges that something needs to be done to address these fears, Professor McGinley is adamant that “refusing to mentor and sponsor female lawyers is not the way to go.”
In fact, it is detrimental to the advancement of women in the workplace. “Research demonstrates the importance of sponsorship, particularly for women and people of color” and “[i]n order for women to succeed [equivalent to their male counterparts], men must actively mentor and sponsor them.” This is because, as Professor McGinley points out, that with the “vast majority of manager and senior leaders” being men, they have a central role in whether women’s advancement is promoted or hindered at work, simply by their choice of whether to be a sponsor. The importance of sponsorship is summed up in this anecdote:
One tax attorney described how he supported his protégé all the way to partnership, having hired her in the first place. He was confident of her ability to deliver and when long-term clients demurred at liaising primarily with a junior person, this attorney vouched for her expertise. When she became the target of unfair criticism by another partner, he intervened, extorting from that partner an apology and a promise to look at the evidence and be less judgmental. In subtle and overt ways, he ensured that she was able to thrive which indeed she did, making partner in four years.
Professor McGinley takes the reader through the current status of sexual harassment law and its drawbacks in addressing this problem and others. The article also sets forth solutions for how the law and employers can move forward in advancing women in the workplace by addressing more effectively sexual harassment and its direct and indirect effects.
Wednesday, October 13, 2021
Ann Tweedy, Book Review, Uncovering the Little-Known History of Suffragists of Color, JOTWELL, reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020).
The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.)
It is tempting to the think of the history of voting rights, like other histories, in linear terms, with African-American males getting the vote in 1870 upon the ratification of the Fifteenth Amendment; white, African-American, and Latina women receiving the right to vote in 1919 with the ratification of the Nineteenth Amendment; and Native American men and women securing the right to vote via statute in 1924 (although many Native persons had obtained the right to vote prior to that).
Recasting the Vote shows that this progression was nowhere near so simple. Cahill, for example, reminds us that, post-1920, widespread lynching of African-Americans continued to be utilized to dissuade African-Americans from voting and that, as a consequence, activists like Carrie Williams Clifford organized campaigns for anti-lynching legislation. (P. 226.) Racist whites also prevented Native Americans from voting even after the Indian Citizenship Act was passed, with “States with large Native populations borrow[ing] heavily from . . . southern examples while also using Native people’s unique relationship to the federal government to keep them from voting.” (P. 261.) And although activists like Mabel Ping-Hua Lee fought for women’s suffrage in the United States, under the Chinese Exclusion Act, “the Chinese were the only people in the world whom the United States restricted due to their nationality and made ineligible for naturalized citizenship.” (P. 149.) Thus, until the repeal of the Chinese Exclusion Act in 1943, Chinese-born women could not become naturalized citizens and could not vote irrespective of the Nineteenth Amendment.
Cahill thus renders her history of suffragists of color in all of its undeniable complexity. As such, Recasting the Vote is bound to be an indispensable resource on the subject for decades to come.
As anger grew in Britain last week over the justice system’s approach to violence against women, the public discourse has turned to a new question: Should misogyny be considered a hate crime?
The debate comes amid a broader national outcry over gender-based crimes after the murder of Sarah Everard, whose abduction and killing by a London police officer shocked Britons and forced renewed scrutiny of how the police and the courts handle such cases.
Activists, criminal justice experts and opposition lawmakers have called for legislation to expand the definition of a hate crime to ensure greater punishments for such crimes as harassment, domestic abuse and stalking and signal the seriousness of these types of offenses. But the government has so far ruled that out.
Prime Minister Boris Johnson says that there is already “abundant” legislation to combat violence against women but that it is not being properly enforced. In an interview during the annual Conservative Party conference last week, he acknowledged that the way the justice system handles these crimes is “just not working,” but said he felt “widening the scope” would increase the burden on the police.***
The activists point to some bracing data. One in four women in Britain have experienced sexual assault, according to government statistics. Almost one in three women will face domestic abuse in their lifetime. And on average, a woman is killed by a man every three days in the country, with many cases involving domestic violence, according to data from Femicide Census.
The press is under a growing and dangerous form of attack through identity-based online harassment of journalists. Armies of online abusers are strategically targeting non-white and non-male journalists to intimidate and silence their voices using a variety of rhetorical tools (including references to lynching, the Holocaust, rape and dismemberment). Such expressive violence is matched by the mounting physical dangers faced by reporters, both in the United States, as evidenced during Black Lives Matter protests in summer 2020, and around the world. Unsurprisingly, identity-based online harassment of reporters has increased at the very moment that news organizations attempt to enhance the diversity of the professional press.
The ‘double whammy’ of online harassment and physical danger goes far beyond harming individual journalists, although those damages ought not be understated. The scale and intensity of these online identity-based attacks collectively undermine all journalists and the press as a whole. While prior accounts, especially by media studies scholars, have recognized the threat to the press writ large, this Article is the first to identify these attacks as one of three reinforcing tactics designed to hobble journalism at critical inflection points in its lifecycle. The refrain of ‘fake news’ is designed to undermine public faith in press output, critiques of libel law seek to roll back press-protective judicial outcomes, and identity-based verbal violence works to undercut and paralyze the journalistic process. Thus, racial and misogynistic vitriol, while generated ‘bottom up’ by members of the audience, is also an element of elite press-delegitimating strategies that presidential change has not derailed.
The Article analyzes the factors that most contribute to growing peril for our democracy, including the professional self-monitoring and self-censorship inevitable in conditions of harassment; the likely effects of reporter intimidation on news organization diversity; and the particularly ‘sticky’ character of identity-based vitriol for the audiences exposed to it.
Finding realistic ways to stem and counteract online identity-based abuse is an imperative next step if the press is to perform its constitutionally-recognized role under current conditions of existential threat. Traditional legal responses are insufficient for such non-traditional devices. The Article develops and advocates a variety of ameliorative moves directed to a spectrum of actors: news organizations, journalism schools, press-protective organizations, social media platforms, and social science researchers. Collective, rather than individual, solutions across a range of constituencies offer the only realistic hope of stemming this tide.
Tuesday, October 12, 2021
By: Meera Deo
Published in: Rutgers Law Review, Vol. 73, No. 3, 2021
This Essay initiates the Rutgers Law Review symposium, "Taking Our Space: Women of Color and Antiracism in Legal Academia," a collection of essays inspired by my book, Unequal Profession: Race and Gender in Legal Academia (Stanford University Press, 2019). After briefly tracing the origins of the book project, I focus on five themes that outline responses as well as updates to Unequal Profession: (1) claiming my worth; (2) jumping on the bandwagon; (3) centering structural solutions; (4) being part of the solution—not the solution; and (5) understanding pandemic effects on legal academia. Together, these themes reveal the depth and difficulty of the work that the legal academy must take on in order to move our profession closer to equity.
The five themes presented here are insights I have gleaned along the way since Unequal Profession was published. Just as a qualitative researcher draws out patterns and observations from the data, I have performed some preliminary analyses on two-plus years’ worth of responses to Unequal Profession, as well as crafted a brief update on how various events of this past unfathomable year exacerbate raceXgender biases in legal academia. I share these observations so that aspiring authors, current academics, allies in practice, and administrative leaders can work together with me to craft a more equal profession. As the five themes outlined here demonstrate, achieving a more equal profession involves working not only to address naysayers, whose implicit and explicit biases may reinforce inequities, but also for each one of us to critically reflect on our own individual prejudices and opportunities for improvement.
Transgender lawyer sues for declaration that bias based on gender identity violates attorney ethics rules
Transgender lawyer Sheryl Ring has filed a lawsuit seeking a declaration that attorney ethics rules in Illinois do not allow discrimination based on gender identity.
Ring contends the ban on sex discrimination in Illinois ethics rules should encompass a ban on discrimination due to gender identity, gender expression, nonbinary status and transgender status, Law360 reports. She sued the administrator of the Illinois Attorney Registration and Disciplinary Commission in an Oct. 4 complaint filed in Cook County, Illinois. CBS 2 Chicago also has coverage.
Ring, a lawyer in McHenry, Illinois, cites the U.S. Supreme Court’s June 2020 decision, Bostock v. Clayton County, which held the ban on sex discrimination in Title VII of the Civil Rights Act protects gay and transgender workers.
Ring has also created a Change.org petition asking the IARDC “to join states like California, Pennsylvania, Washington, Maryland, Oregon, New York, Massachusetts, Florida [and] Oklahoma and the District of Columbia, and ban discrimination on the basis of gender identity and expression in the Illinois legal system.”
California is the first state to require large department stores to display products like toys and toothbrushes in gender-neutral ways.
The new law, signed by Democratic Gov. Gavin Newsom, does not outlaw traditional boys and girls sections at department stores. Instead, it says large stores must also have a gender neutral section to display “a reasonable selection" of items "regardless of whether they have been traditionally marketed for either girls or for boys.”
Monday, October 11, 2021
Bloomberg Law's article Women Make Gains But Still Trail Men at Supreme Court provided updated data on gender disparities in Supreme Court advocacy.
Seven women attorneys will argue at the Supreme Court during the October sitting, as the justices headed back to the courtroom for the first time since February 2020.
That’s an increase in the percent of female advocates—35%—which typically ranges between 12% to 21% each term. That number was near the bottom of the range last term, when 20 women argued all term, compared to 136 men.
The Sentencing Project, National Women's Justice Institute, and the Cornell University Center on the Death Penalty Worldwide published a report concluding that more women are serving life sentence. This collaborative report "seeks to highlight the experiences of incarcerated women and girls, to eliminate extreme sentences, and to reduce the influence of racial and gender bias in the criminal legal system."
The report reveals that:
Extreme punishments, including the death penalty and life imprisonment, are a hallmark of the United States’ harsh criminal legal system. Nationwide one of every 15 women in prison — over 6,600 women — are serving a sentence of life with parole, life without parole, or a virtual life sentence of 50 years or more. The nearly 2,000 women serving life-without-parole (LWOP) sentences1 can expect to die in prison. Death sentences are permitted by 27 states and the federal government, and currently 52 women sit on death row. This report presents new data on the prevalence of both of these extreme sentences imposed on women.
It concludes that:
Women represent a small but growing portion of the prison population facing extreme sentences. Reforms advanced to end the use of extreme sentences will need to pay attention to the nuanced life experiences of women serving life in prison, as these have shaped their behaviors as well as their prison experiences. A wealth of evidence suggests that women encounter gender-based stigma and bias that negatively affects their court outcomes. Their experience of violence--both as victims and as perpetrators--are distinct from the experiences of men, but women are subjected to a criminal legal system that does not acknowledge these important differences.
Rewire reports on the upcoming case of Cameron v. EMW Women's Surgical Center being argued in the Supreme Court tomorrow. The issue before the court is "whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law." While it will not address the merits of abortion law, the stakes are still high:
If Cameron is able to intervene and the law gets upheld, it could effectively ban abortion after 15 weeks in a state that has just two clinics and multiple restrictions, including a 24-hour waiting period and bans on insurance coverage of the procedure. Both clinics are in downtown Louisville, which means access is limited for people in other areas of the state.
Notably, the article also revisits the issue of struggles to enforce Louisville's new ordinance imposing a clinic buffer zone. The article notes the disparities in how racial justice protesters were handled after Breonna Taylor's death, compared to anti-abortion protesters. Interviewing the owner of EMW Women's Medical Center, Ona Marshall, and clinic escort and support fund director, Meg Sasse Stern, Rewire reports that:
[A]dvocates pushed for the safety zone because of the lack of enforcement of various city ordinances regulating things like harassment, noise, and sidewalk access. She also noted that these same ordinances were enforced against social justice protests after Breonna Taylor’s death, and the Louisville Metro Police Department is now under a pattern and practice investigation by the U.S. Department of Justice. LMPD arrested the state’s only Black woman lawmaker, state Rep. Attica Scott, during a September 2020 protest.
“Anti-abortion protesters are ignored and just treated differently than other protesters,” Marshall said. Stern agreed that the difference is obvious: “I cannot ignore the vast difference in treatment received by these anti-abortion protesters and the way that our police department treats protesters that are demanding police stop killing Black and brown people.”
Both Marshall and Stern are skeptical that the safety zone around EMW will be enforced due to anti-abortion sentiments in the police department. During an August 2020 Metro Council meeting about the proposed safety zone, former council member David Yates, now a Democratic state senator, said he received text messages from police officers asking, “who’s going to enforce this – lol.”
In an article appropriately titled Enough is Enough, WDRB Louisville captured an emotional moment this week when players around the National's Women's Soccer League stopped play at the sixth minute of the game. The six minute mark denoted how it took six years for allegations of sexual coercion and harassment to be acted upon. The players locked arms at midfield in solidarity.
The Player's Association also published this list of demands and statement:
Tonight, we reclaim our place on the field, because we will not let our joy be taken from us. But this is not business as usual.
Teams will stop play in each of tonight’s games at the 6th minute. Players will join together in solidarity at the center circle for one minute in honor of the 6 years it took for Mana, Sinead, and all those who fought for too long to be heard. We call on fans to stand in silence with us. During that time, we ask you to stand in that pain and discomfort with us, as we consider what we have been asked to sit with for too long. We call on you to consider, in that minute, what is demanded of each of us to reclaim our league and our sport.
Following the game, the media are advised that players will refuse to answer any questions that do not relate to abuse and systemic change in NWSL.
Systemic transformation is not something you say. It is something you do. We, as players, demand the following:
1. Every coach, General Manager, representative on the Board of Governors, and owner voluntarily submit to the Players Association’s independent investigation into abusive conduct. They may notify Executive Director Meghann Burke of their agreement with this demand by the close of business on Wednesday, October 13, 2021.
2. The scope of NWSL’s investigation announced on Sunday evening, October 4, 2021, be expanded to include an investigation of each of the twelve NWSL Clubs represented on the Board of Governors to determine whether any abuse, whether presently known or unknown, has occurred at any point in time.
3. The scope of NWSL’s investigation further be expanded to determine whether any League Office staff, NWSL Club, or person in a position of power within NWSL neglected to investigate concerns of abuse raised by any player or employee at any point in time.
4. NWSL adopt an immediate “Step Back Protocol” whereby any person in a position of power (e.g. owner, representative on the Board of Governors, General Manager, or Management Supervisor) at the time that a Club either hired or separated from employment a coach who was, is, or will be under investigation for abuse be suspended from any governance or oversight role within NWSL pending the conclusion of an independent investigation, effective immediately. For any Club that took swift action to protect players upon the discovery of facts that were not previously known to the Club, the immediate disclosure to the Players Association of the circumstances and the policies or practices implemented to prevent the same from happening again may be grounds to restore that person to their position quickly, with the Players Association’s agreement.
5. NWSL immediately agree to disclose all investigative reports referenced in its statement of October 3, 2021.
6. NWSL immediately agree to disclose to the Players Association any and all findings, conclusions, and reports are obtained pursuant to their statement of October 3, 2021, including but not limited to the reopening of the 2015 Paul Riley investigation.
7. NWSL agrees to cooperate with the Players Association’s own independent investigation by a written email to Executive Director Meghann Burke by the close of business on Wednesday, October 13, 2021.
8. NWSL agrees that representatives of the Players Association have an opportunity to meet with potential Commissioner candidates and have a meaningful opportunity to be heard in the selection of the next Commissioner.
The reckoning has already begun. We will not be silent. We will be relentless in our pursuit of a league that deserves the players in it.
Friday, October 8, 2021
Laura Padilla, Women Law Deans, Gender Sidelining, and Presumptions of Incompetence, Berkeley Journal of Gender, Law, & Justice (forthcoming).
Although the percentage of female law deans has increased to approximately 32.5% from 18.7% in the 2005-06 academic year, there is still much work to be done. As Professor Padilla points out, these numbers are still not reflective of representation of women in the general population or entering law schools. Furthermore, women of color are represented at an even greater disparity at just 9% (up from 1.8% in the 2005-06 academic year).
In this article, Professor Padilla discusses a number of reasons for the disparity and the challenges unique to female deans and female deans of color once in this pivotal leadership role. Among these is presumptions of incompetence. “It is remarkable that women with top qualifications which equal or outdo men’s qualifications still endure prove-it-again bias, are questioned about their competency, and are rarely recognized as capable until they prove otherwise.” Another example is gender sidelining. Gender sidelining can take many forms including women being “interrupted more, and hav[ing] their ideas more harshly scrutinized,” excluded from “interacting with powerful donors or alumni, or otherwise conducting business where women are rare,” and being put under pressure to “overcome the resentment of their colleagues by making extraordinary efforts to ‘fit in’ and put others at ease.” Additionally, “[w]omen’s mistakes tend to be noticed with greater frequency and are remembered for longer; they tend to be judged more rigorously than men by their superiors; and they tend to receive more polarized evaluations.” Having to navigate these additional challenges on top of an already demanding position is an untenable situation facing female law deans. “The battles are real and the impacts can be devastating, but they can also lead to greater strength, resilience, and satisfaction.”
Creating the environment where women deans are able to get to “greater strength, resilience, and satisfaction” requires intentionality. “Women bring something new and different to leadership: a greater willingness to change, be flexible, and approach old problems in new ways.” As pointed out in this article, it is “intriguing to consider how much more productive women leaders would be if they could just focus on their work without dodging so many unnecessary challenges.” To help current women deans be successful, and encourage the recruitment and retention of new deans, the article suggests a number of concrete steps an institution can take. These include continuing to increase women in leadership, because opening those doors in any institution makes it easier for the doors to open for others and reduces tokenism; promoting a broader range of leadership styles and recognizing when a preferred leadership style may have gendered connotations; providing ongoing support and training, including mentorship; and promoting an institutional culture of calling out biases and encouraging allyship. Institutions committed to inclusion at all levels of leadership should utilize these tools to, as Professor Padilla writes, “flip the script on these destructive forces and celebrate the strength, change, and opportunities women bring to law school communities through their leadership.”
Wednesday, October 6, 2021
In a June hearing, Spears said that her conservatorship was “abusive,” and that her father forced her to work and to keep a birth-control device in her body so that she could not become pregnant. The claims shocked the public, including many celebrities, who have increasingly voiced their support for her.
But to historians of eugenics, Spears’s ordeal sounds very familiar. It’s a story of control — control of a woman’s labor, civil rights, parental custody, legal representation and even her reproductive system.***
In the early 20th century, a lot of states were “chasing the white whale” of a eugenics law that would pass constitutional scrutiny, said Elizabeth Catte, a public historian and author of the scorching book “Pure America: Eugenics and the Making of Modern Virginia.” Indiana passed a eugenics-based law allowing forced sterilization in 1907, but it was overturned in court, as was California’s in 1909.
Then Virginia gave it a try with its own law in 1924, and went looking for a test case to legitimize it.
Carrie Buck was born into poverty in Charlottesville in 1906. Her father abandoned the family, and her mother was soon accused of “immorality” and committed to the Virginia State Colony for Epileptics and Feebleminded — essentially a work camp for White people the state didn’t like. Buck was separated from her siblings and sent to live with a wealthy foster family, who forced her to leave school during sixth grade and serve as a housekeeper in their home.
When Buck was 17, she was raped by the nephew of her foster mother and became pregnant. Probably to save face, the family accused her of promiscuity and feeblemindedness, and in 1924, she was committed to the same colony as her mother. Her infant daughter was given to her foster mother.
In an 8-to-1 decision, the Supreme Court agreed, with Justice Oliver Wendell Holmes famously declaring, “Three generations of imbeciles are enough.” (Many words now used as mild insults, such as “moron,” “imbecile,” and “idiot,” have a long history of being used as clinical diagnoses.)
Buck, along with her mother and her sister, was subsequently sterilized by having her fallopian tubes cut and cauterized. Buck’s daughter died when she was 8.
All told, Virginia robbed 8,000 people of their ability to have children.
Spears’s situation has made Catte “think a lot about women that I write about, even though they are incredibly poor women,” and Spears is not.“The choice to deprive them of their reproductive freedom through sterilization was only one half of the state’s control over their lives,” she said. “The second half is control over their labor.”
Michael Higdon, LGBTQ Youth and the Promise of the Kennedy Quartet, Cardozo Law Review (forthcoming)
The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to those sexual minorities who are still children. In so doing, they have passed laws that, among other things, punish adolescent sexual activity more harshly when it involves two people of the same sex, prohibit discussions in public schools that portray homosexuality in anything other than a negative light, and deny transgender youth the ability to compete in school athletics or use restrooms that correspond to their gender identity. These laws are harmful enough in their own right but are particularly pernicious in light of the harms those children already face simply by virtue of being a sexual minority in a homophobic society. Looking at the Kennedy Quartet in conjunction with the Supreme Court’s jurisprudence regarding the constitutional rights of children, this Article argues that such laws are unconstitutional. It does so by, first, challenging the argument that the Kennedy Quartet pertains only to adults. Second, and more importantly, this Article then distills from those cases three key protections applicable to the entire LGBTQ community—children included—that these current laws violate. The hope is that this analysis will assist judges, legislators, and policy makers alike as they look for ways to put an end to this wave of discriminatory laws and, in their place, lobby for more inclusive legislation.
Sally Kenney, Backlash Against Feminism: Rethinking a Loaded Concept, The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds., Forthcoming).
Backlash is a reaction to real or perceived change leaving progressives worse off by catalyzing conservatives to oppose change by, changing their opinions to be more negative, holding opposing views more deeply, or propelling them to act violently. The claim that progressive social change has been counterproductive is an empirical one but too often those diagnosing backlash fail to distinguish what is truly a measurable setback from the fierce countermobilization of pre-existing opponents who are losing ground. Progressives themselves have famously warned against using courts in particular to advance the causes of civil rights, gender equality, or gay rights, yet careful examination reveals no regression. Once we complicate a simple linear understanding of progress, think about gender inequality intersectionally, and add an analysis of discursive countermobilizations to simple empirical measures of progress, the implicit baggage the concept carries outweighs its usefulness.
The University of Detroit Mercy Law Review is accepting submissions for the annual symposium, Governing Bodies: Bodily Autonomy and the Law, on Friday, March 4, 2022, in Detroit, Michigan.
Bodily autonomy has been regulated or banned on many levels throughout our history, ranging from slavery to the right to an abortion, assisted suicide, transgender rights, and even issues surrounding the present COVID-19 pandemic. While these laws and regulations have led to controversy and protest, it remains unclear where exactly the line should be drawn limiting government power over our bodies, or if there should be a line at all.
Detroit Mercy Law Review invites academics, scholars, practitioners, and other stakeholders to submit proposals for panel presentation and potential publication on topics involving governments and entities attempting to regulate bodily autonomy. These may include, but are not limited to, the following: slavery, vaccine passports and mandates, abortion laws, assisted suicide, data privacy issues, and transgender rights.
Proposals should be approximately 250–500 words, double-spaced, and should detail the proposed topic and presentation. Proposals must be submitted no later than 5 PM EST Friday, October 15, 2021, by email to Mackenzie Clark, Symposium Director, at firstname.lastname@example.org. In your e-mail, please indicate whether your proposal is for a presentation only or if you plan to submit an article based on your presentation for potential publication in the Detroit Mercy Law Review. Also, please include a current CV or resume.
Decisions will be emailed on or before Monday, November 7, 2021. The final completed manuscripts must be submitted by Friday, March 11, 2022, for editing to commence by the Law Review staff.