Tuesday, December 4, 2018
Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgments of Parentage to Female Same-Sex Couples, 30 Yale J. Law & Feminism 97 (2018)
Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has extremely harmful consequences for these couples and their children, and legal reform to address the unfair treatment of same-sex parents is long overdue. The hesitation to extend to same-sex couples the simple, efficient methods of establishing legal parent status available to different-sex couples likely stems from the longstanding tie between genetic connections and the establishment of legal parentage. While the law’s historical privileging of genetic connections in parentage determinations poses some challenges for same-sex couples in obtaining access to the simple, efficient methods of establishing legal parentage in existence today, these challenges are far from insurmountable. This Article sets forth a comprehensive proposal for the federal government to require states to extend voluntary acknowledgments of parentage, which currently allow a birth mother’s different-sex partner to establish paternity through the execution of a document at the time of the child’s birth, to female same-sex couples who conceive children using sperm provided in compliance with state donor non-paternity laws. The proposal represents a logical, modest step in the right direction for ameliorating the difficulties faced by same-sex parents in obtaining legal parentage without requiring significant upheaval to state laws governing the rights of genetic parents or federal laws governing voluntary acknowledgments of parentage.
The Case of Edith Haynes Denied Admission to the Bar in 1900 Australia Because Women Were not "Persons"
Margaret Thornton, Challenging the Legal Profession A Century On: The Case of Edith Haynes, 44 Univ. West. Australia L. Rev. (2018)
This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.
Joanna Grossman, At Least for Now, Women Have Reproductive Rights, Justia
It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years. * * *
Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. * * *
In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.”
Monday, December 3, 2018
Moving Beyond MeToo to Fix the Workplace with a Formal Model of Worker-Drive Collaboration with Consumers
Gillian Thomas, MeToo Hasn't Fixed the Workplace. Here's a Playbook that Can.
The #MeToo reckoning triggered by the Harvey Weinstein scandal last year can cause whiplash. There have been emotional highs: The movement unleashed a cacophony of voices — women telling their stories, lifting others’ up, all of them mad as hell that men were still getting away with abuse, almost 30 years after “I Believe Anita,” the analog version of #MeToo.***
But the dispiriting reality is that the past year has seen only baby steps in the right direction. Women (and men) might be speaking their truth in record numbers, but the same (mostly) guys who for years have done nothing to stop harassment at companies large and small — and in fact have been retaliating against accusers, forcing them into secret arbitration hearings and absorbing the cost of settling their claims — are still the ones in charge. ***
The article goes on to recommend the following:
A formal model of worker-driven collaboration with consumers could do incalculable good if adopted more widely. The Fair Food Program, launched in 2011 in the tomato fields of Florida by the Coalition of Immokalee Workers, targets degrading work conditions, including brutal sexual abuse. (Some studies have found that 80 percent of female farmworkers have faced harassment, including rape and other assault.) It enlists the consumers of big agriculture — namely, the fast-food restaurants and supermarket chains that spend hundreds of millions of dollars on Florida tomatoes every year, such as Taco Bell, Whole Foods and Walmart — as enforcers against such abuses. The buyers pledge to pull their business from farms that violate a worker-authored code of conduct, and the workers themselves are the monitors. An independent body conducts investigations and unannounced audits of participating farms, with 80 percent of complaints resolved in less than a month. The consequences of violations are swift and strict: Harassers are fired and temporarily banned from reemployment at participating farms, while growers that fall consistently short face probation or suspension from the program.
The results are stunning. Since the program’s inception, no cases of rape or attempted rape have been reported, and only one supervisor has been found to have engaged in physical harassment since 2013. During last year’s growing season, not a single sexual harassment complaint was lodged at more than 70 percent of participating farms. What’s more, only 15 percent of the farms where complaints arose saw evidence of retaliation against accusers. Progress like this would be noteworthy for any industry, but given the exploitative starting point of big agriculture, the transformation is nothing short of miraculous.
No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings.
In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way?
Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women.
Call it the Pence Effect, after U.S. Vice President Mike Pence, who has said he avoids dining alone with any woman other than his wife. In finance, the overarching impact can be, in essence, gender segregation.
Interviews with more than 30 senior executives suggest many are spooked by #MeToo and struggling to cope. “It’s creating a sense of walking on eggshells,” said David Bahnsen, a former managing director at Morgan Stanley who’s now an independent adviser overseeing more than $1.5 billion.
This is hardly a single-industry phenomenon, as men across the country check their behavior at work, to protect themselves in the face of what they consider unreasonable political correctness -- or to simply do the right thing.
A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger.
[Umm... because no man would ever make sexual advances at a woman over age 35?!?]
* One, an investment adviser who manages about 100 employees, said he briefly reconsidered having one-on-one meetings with junior women. He thought about leaving his office door open, or inviting a third person into the room.
Finally, he landed on the solution: “Just try not to be an asshole.”
That’s pretty much the bottom line, said Ron Biscardi, chief executive officer of Context Capital Partners. “It’s really not that hard.”
Several national fraternities and sororities sued Harvard University on Monday over a 2016 rule that discourages students from joining single-gender social clubs, marking the first legal challenge to the school's policy.
Two fraternities and two sororities filed a lawsuit in Boston's federal court, while another sorority separately sued the school in Massachusetts state court. Both cases argue that the school's policy discriminates against students based on their sex and spreads negative stereotypes about students who join all-male or all-female organizations.
Starting with last year's freshman class, Harvard students who are members of single-gender clubs are barred from leading campus groups or becoming captains of sports teams. The school also refuses to endorse the students for prestigious fellowships, including the Rhodes and Marshall scholarships.
Harvard officials crafted the rule to curb secretive all-male groups known as "final clubs," whose members include some former U.S. presidents but have faced mounting criticism from the university. A 2016 report by the school accused the clubs of having "deeply misogynistic attitudes" and tied them to problems with sexual assaults.
But the rule also applies to a variety of other groups, including fraternities, sororities and even single-gender musical groups. Since the rule took effect last year, at least three sororities have cut ties with their national organizations and reopened as co-ed groups.
The Cambridge, Massachusetts, university was discriminating against students on the basis of their sex by punishing men and women who join all-male or all female-organizations, the lawsuits alleged.
The policy was motivated by sexism, with Harvard incorrectly seeking to link all-male organizations and fraternities to sexual assaults and contending that single-sex organizations subordinate women, according to the lawsuits.
“Harvard’s sanctions policy seeks to dictate the sex of people with whom men and women may associate and the gender norms to which men and women must conform,” the federal complaint said.
The policy has resulted in the elimination of nearly every women’s social organization, with Harvard administrators privately calling them “collateral damage” in their effort to punish men who join all-male groups, according to the complaint.
Title IX has an express exemption for fraternities and sororities:
Title IX does not apply to the membership practices of a social fraternity or social sorority if the active membership consists primarily of students in attendance at an institution of higher education and the fraternity or sorority is exempt from taxation under the Internal Revenue Code. 20 U.S.C. § 1681(a)(6)(A); 34 C.F.R. § 106.14(a). All other programs and activities of social fraternities and sororities are governed by Title IX if they receive any Federal financial assistance. US Dept of Education, Exemptions from Title IX
Wednesday, November 28, 2018
Last year, 137 women across the globe were killed every day by intimate partners or relatives.
According to the 2018 report on the killing of women and girls released Sunday by the U.N. Office on Drugs and Crime, about 87,000 were killed worldwide in 2017, 58 percent of them victims of domestic or family violence.
Many of these deaths could have been prevented.
Jean-Luc Lemahieu, director of policy analysis and public information at the U.N. Office on Drugs and Crime, told The Washington Post that more than 30,000 of those deaths were the result of domestic abuse.
Domestic homicides are “the tragic end of a cycle of abuse and violence,” Lemahieu said. “When a female loses her life, it is not without predictions — you see incidences of verbal and other forms of violence. The pattern is established long before the homicide.”***
The report found that the likelihood of women being slain by relatives or intimate partners has increased by more than 10 percent since 2012; women in the Americas and Africa are now the most at risk.
The report also called for a coordinated response from law enforcement that empowers and protects victims and holds their abusers accountable. Several countries have launched initiatives and training to combat gender-based violence.
“Underreporting of domestic abuse highlights the justice system as one area in need of much work,” Lemahieu said. He cited figures from Italy, which reported that 31,500 women out of every 100,000 ages 16 to 70 will experience physical and sexual violence, according to a lifetime survey. Domestic homicides occur in 0.4 percent of those cases, while 35 will report domestic abuse to authorities.
Relevant to today's legal debate re: #MeToo. Adopting a tort construct for sexual harassment claims might also mean changing the "reasonable person" standard to define the aggressor rather than the victim.
Marcia McCormick, Let’s Pretend that Federal Courts Aren’t Hostile to Discrimination Claims, 76 Ohio State Law Journal Furthermore (2015)
Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort, makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases, even having gone so far as to have called employment discrimination statutes federal torts. This development has created significant concern among scholars, including Professor Sperino herself.
Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a novel approach: she takes the Court at its word, spinning out how embracing tort concepts and tort methodology would transform discrimination law. In sum, she explores how using tort concepts could “clarify the roles of intent and causation in discrimination analysis, [should] alter the way courts conceive intent, [should] lower the harm threshold for some sexual harassment cases,” and would transform current approaches to statutory interpretation, allowing the law greater “flexibility to respond to changing circumstances.” This response essay applauds Professor Sperino’s work in this area, her suggestion of a silver lining in a problematic trend, and the roadmap she lays out for a more positive trajectory. At the same time, I worry that she is unlikely to succeed because the actors she relies upon to effect the changes she projects are unwilling to do so.
Stanford Law School Launches the American Bar Association’s Women Trailblazers in the Law Website
Stanford Law School’s Robert Crown Law Library has launched a new site for the American Bar Association’s (ABA) oral history project entitled “Women Trailblazers in the Law” (WTP). The website offers open access to the oral histories of close to 100 senior women who have made important contributions to the law and have opened opportunities for other women in the profession.
In the last half-century or more, women in law have made huge strides, many of them making history by attending law school, sometimes as the only female in their class, and succeeding in the profession against the odds. Brooksley Born, JD ’64 (BA ’61), and Linda Ferren, WTP Director and Executive Director of the Historical Society of the District of Columbia Circuit, set out to capture the stories of these remarkable women when they initiated the Women Trailblazers in the Law Project, a collaborative research project of the ABA and the American Bar Foundation, an independent, non-partisan, non-profit research institute for the study of law."
“By opening opportunities for women in the legal profession and in many cases using their skills to further women’s legal rights, these women made significant contributions to the equality of all women that must not be forgotten,” said Born, chair of the ABA Senior Lawyers Division WTP Committee, whose own story is included in the collection. Born was the first woman president of the Stanford Law Review and went on to have a successful legal career including serving as chairperson of the Commodity Futures Trading Commission from 1996 to 1999.
According to Linda Ferren, “Our goal from the start was to turn a spotlight on women who, because of their gender, had to struggle to secure a foothold in the legal community just a few decades ago.” * * *
WTP captures the full-life oral histories of women pioneers in the legal profession nationwide, memorializing their stories in their own voices and preserving their experiences and observations for future generations. . . . A book based on the collection, Lives in the Law: Stories from Trailblazing Women Lawyers, by Jill Norgren, was published last May by New York University Press.
The WTP collection is now housed at the Robert Crown Law Library at Stanford; two other WTP repositories are the Library of Congress and the Schlesinger Library at Harvard. The new WTP website allows easy online access to the collection and resources and will focus on long-term preservation of print and digitized WTP content. In addition, the oral histories have been added to the Stanford Digital Repository.
“The goal of the Stanford Law Library with this project has been to enhance public access to and discoverability of these important oral histories, not just for the benefit of law students and legal scholars, but also for anyone interested in the rich history of these trailblazing women,” said Beth Williams, senior director of the Robert Crown Law Library.
Click here for access to the WTP website: https://abawtp.law.stanford.edu.
Tuesday, November 20, 2018
With Virginia seeking to be the third state to ratify the ERA in recent times, the discussion has reignited over passing the ERA. An excerpt from my recent book chapter places this development in legal historical context:
See Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018) (tracing the complete legal and political history of the ERA from 1921).
The National Organization for Women (NOW), newly formed in 1966 by Betty Friedan and Murray, pressed for full enforcement of the new Title VII and actualizing its mandate of equality in employment (Fry 1986). By 1970, federal courts, the Department of Labor, and the EEOC all interpreted Title VII as invalidating women-specific rules, including protective labor legislation and, more importantly, requiring extension of any protections like minimum wages to men rather than eliminating them for women (Mansbridge 1986). Union and social feminist opposition to the ERA finally began to wane, with the long-standing concern over worker protection laws now addressed (Mayeri 2004).
NOW quickly prioritized the ERA. The 1960s had seen few litigation successes with the judicial approach, and legal activists believed they needed the political leverage, if not the substantive right, of an equality amendment campaign (Mayeri 2004). NOW adopted the ERA as a top priority at its conference in 1967. It rejected Pauli Murray’s alternative proposal for a human rights amendment that would have more broadly granted a “right to equal treatment without differentiation based on sex,” potentially encompassing sexual orientation and explicitly addressing private action and reproductive rights (Mayeri 2004: 787). Long-standing ERA proponents, now much older, adamantly opposed any change in the wording of the ERA that might broaden it to more radical agendas, fearing it would jeopardize existing support . This had the effect of reducing feminist demands to “their lowest common denominator” rather than pursuing a wider social justice agenda (Mayeri 2004: 785). Pursuing a constitutional amendment, however, did not mean abandoning the Fourteenth Amendment litigation. By 1970 “most legal feminists had reached a consensus that the constitutional change they sought could and should be pursued simultaneously through the dual strategy” of amendment and litigation (Mayeri 2004: 800).
In early 1970 the Pittsburgh chapter of NOW used direct action to support its demand for the ERA, disrupting a hearing of the US Senate Subcommittee on Constitutional Amendment on another proposed amendment, with protesters demanding hearings on the long-proposed ERA (Mansbridge 1986; Mathews and De Hart 1990). A Citizens’ Advisory Council on the Status of Women petitioned President Richard Nixon to endorse the amendment, and for the first time the US Department of Labor supported the ERA. In May, the Senate Amendment Subcommittee held hearings and referred the equality amendment positively to the Senate Judiciary Committee. There Senator Samuel Ervin Jr. (D-NC), a states’ rights opponent of the civil rights’ laws, and later of Watergate hearings fame, “became the amendment’s chief antagonist” (Mathews and De Hart 1990: 36). He opposed the ERA because of its threat to social norms, concerned about losing the traditional physiological and functional differences of gender to what he characterized as a passing fad. He attacked “militant women who back this amendment,” saying “they want to take rights away from their sisters” and pass laws “to make men and women exactly alike” (Mathews and De Hart 1990: 37–39). Ervin moved the debate beyond the abstract principles of equality to concerns with specific effects of gender equality, including the draft, divorce, family, privacy, and homosexuality. Harvard Law professor Paul Freund also testified about the “parade of horribles the ERA might produce, including the legalization of same-sex marriage, the abolition of husbands’ duty of familial support, unisex bathrooms, and women in military combat” (Mayeri 2004: 808). The opposition succeeded, and the bill failed in the Senate (Mansbridge 1986).
Meanwhile, the ERA passed in the House. Martha Griffiths used a rare procedural move of the discharge petition to “pry the ERA out of the House Judiciary Committee,” where it had languished for years while the liberal chair, Emanuel Celler (D-NY), “kept it in his bottom drawer” because of the persistent opposition by labor (Mansbridge 1986: 13). After only an hour’s debate, the House passed the ERA by a vote of 350-15 on August 10, 1970. When the Senate failed to pass the bill, it was reintroduced the next year, when the House passed the ERA for a second time on October 12, 1971, by a vote of 354-23. This time the Senate passed the ERA on March 22, 1972, by a vote of 84-8 with a seven-year timeline for the required three-fourths of the states to ratify the amendment (Mansbridge 1986). States initially rushed to ratify the ERA. Hawaii was the first state to ratify the amendment, twenty-five minutes after the Senate vote. The next day, three states ratified, and two more the following day. By early 1973, less than one year after Congress’s passage, twenty-four states had ratified, most unanimously or with quick hearings and debate.
This trajectory halted in 1973 with the Supreme Court’s decision in Roe v. Wade finding a woman’s constitutional right to choose abortion. Roe stopped the advancing ratifications, shifted the public discourse, and overturned previous support by Republicans (Ziegler 2015). “The battle against the ERA was one of the first in which the New Right used ‘women’s issues’ to forge a coalition of the traditional Radical Right” , of those concerned with “national defense and the Communist menace” (Mansbridge 1986: 5), and religious evangelicals to activate a previously apolitical segment of the working and middle classes that “was deeply disturbed by cultural changes” (Mansbridge 1986: 16). Through these groups, he ERA became linked with abortion as both were sponsored by radical “women’s libbers” who were a threat to traditional women and family values. The debate became framed as women versus women.
The face of women’s opposition to the ERA was conservative activist Phyllis Schlafly and her STOP ERA (Stop Taking Our Privileges) organization (Berry 1988; Neuwirth 2015). Schlafly, a mother to six children, offered herself to the anti-ERA movement as a voice for stay-at-home mothers in need of special privileges and protections under the law. The irony that she, much like all the most prominent reformers historically lining up on either side of the ERA amendment (such as Alice Paul, Florence Kelley, and Pauli Murray), held a law degree and enjoyed a flourishing decades-long career in the public eye, was utterly elided in her rhetoric. Doggedly focused on women’s roles as mothers and homemakers, Schlafly trumpeted the cause of women’s difference from men—championing the special rights of women as citizens who, ideally, did not work outside the home. She asserted that equality was a step back for women: “Why should we lower ourselves to ‘Equal Rights’ when we already have the status of ‘special privilege’?” (Wohl 1974: 56). She and other ERA opponents reframed the issue as forcing women into dangerous combat, coeducational dormitories, and unisex bathrooms. Feminist advocates responded by clarifying that privacy rights protected concerns about personal living spaces in residences and bathrooms, but their counsel was unheard in the din of threat to traditional family and gender roles. Opponents equated the ERA with homosexuality and gay marriage, as the amendment’s words “on account of sex,” “were joined with ‘sexual preference’ or homosexuality to evoke loathing, fear, and anger at the grotesque perversion of masculine responsibility represented by the women’s movement” (DeHart-Mathews and Mathews 1986: 49). Schlafly hurled insults at the ERA supporters, urging her readers to view photographs of an ERA rally and “see for yourself the unkempt, the lesbians, the radicals, the socialists,” and other activists she labeled militant, arrogant, aggressive, hysterical, and bitter (Carroll 1986: 65). When ERA supporters “gathered at the federally financed 1977 International Women’s Year Conference in Houston and endorsed homosexual rights and other controversial resolutions on national television, they helped to make the case for ERA opponents” (Berry 1988: 86).
The shift in debate slowed and then stopped ratification of the ERA. In 1974, three states ratified the amendment, one state ratified in 1975 and one in 1977, and then ended the campaign with only thirty-five of the thirty-eight required (Mansbridge 1986). At the same time, states began to rescind their prior ratifications, with five states voting to withdraw their prior approval (Neuwirth 2015). The legality of the rescissions was unclear, but these efforts had political reverberations in the unratified states (Mansbridge 1986). When the deadline arrived without the required three-fourths approval, Congress voted in 1978 to extend the ratification deadline three years to June 30, 1982. Not a single additional state voted to ratify during this extension (Berry 1988). In 1980, the same year President Jimmy Carter proposed registering women for the draft, the Republican Party dropped ERA from its platform and newly elected president Ronald Reagan came out in opposition to the ERA. Businesses, manufacturers, and insurance companies all increasingly opposed the amendment (Burroughs 2015). ERA supporters escalated with more militant demonstrations of hunger strikes and marches. They chained themselves to the gates of the White House fence and Republican National Committee headquarters and trespassed on the White House and governors’ lawns. But such protests had little effect, proving counterproductive as they alienated Republican sponsors and reinforced portrayals of the radicalness of the proposed amendment (Carroll 1986). Despite an extension, the ERA was defeated on June 30, 1982, three states short of the required super-majority of states. Congress immediately reintroduced the amendment, holding hearings in late 1983. The floor vote of 278-147 in the House came six votes short of the two-thirds needed for passage. Despite how close this generation of campaigners had come to achieving their goal, for most, the ERA was now dead (Farrell 1983; Mayeri 2009).
The broader goals of the ERA, however, were not dead or abandoned. All through the previous decade, legal feminists led by the ACLU and Ruth Bader Ginsburg had been pursuing the second front of litigation and doing so with some success. In 1971, the Supreme Court struck down a law for the first time as arbitrary sex discrimination under the Fourteenth Amendment. In Reed v. Reed (1971), the high court overturned a state law that presumptively made a father, and not a mother, the administrator for a deceased child’s estate. Two years later in Frontiero v. Richardson (1973), a plurality of the Court applied heightened scrutiny to strike down a law automatically granting military benefits to wives, but requiring military husbands to show dependency. The pros and cons of the dual constitutional strategy played out in Frontiero. The Court’s plurality endorsed strict scrutiny for sex-based classifications because of congressional passage of the ERA, thus harmonizing the two. But the concurrence held that the pendency of legislation weighed against judicial decision, and required waiting for the final outcome of the constitutional process. In 1976 a majority of the Court definitively applied equal protection to sex discrimination in Craig v. Boren (1976), adopting, however, only an intermediate judicial scrutiny, one more permissive than that for race. As Mayeri (2004: 826) notes, “This Goldilocks solution” in Craig captured the “Court’s ambivalence about both the procedural and the substantive aspects of a revolution in gender roles.” The ambivalence is apparent in that while striking down the law in Craig denying young men equal access to 3.2% beer, the Court upheld other discriminatory laws, like veterans’ preferences for men, statutory rape for minor women, and military pensions for men (Schlesinger v. Ballard 1975; Kahn v. Shevin 1974; Geduldig v. Aiello 1974). Equal protection proved an imperfect solution, and easily manipulable in the hands of the Court. For many activists, this indicated that perhaps an equal rights amendment was needed after all.
In the 1980s, at the time of ERA’s defeat, polling found that a majority of the electorate remained in support of the amendment (Businessweek 1983; Gallup Report 1981; Mansbridge 1986). According to Pleck (1986: 107–108), “In the midst of a national conservative tide, popular support for the ERA was very strong.” Most national leaders, political conservatives, and “major national organizations from the American Bar Association to the Girl Scouts had gone on record in favor of it” (Pleck 1986: 108). Then why did the ERA fail? Scholars and activists have searched for possible explanations. Some suggest that a rushed political process failed to build the necessary state consensus on women’s rights to match the federal consensus, along with inadequate state organizational structure to secure ratification, outdated campaign tactics and failure to use mass media, and lack of legislative prioritization (Berry 1988; Carroll 1986; Mansbridge 1986; Mayo and Frye 1986; Pleck 1986; Steinem 1984). Other scholars point to deep substantive disagreements about women in military combat and revolutionary changes in traditional motherhood, which threaten women personally as they perceive a danger to themselves and their daughters (DeHart-Mathews and Mathews 1986). Berry (1988: 85) notes that “equality may have seemed simple to proratificationists, but to others it meant sexual permissiveness, the pill, abortion, living in communes, draft dodger, unisex men who refused to be men, and women who refused to be women. . . . And a fear that men would feel freer to abandon family responsibilities and nothing would be fined in exchange.” Legal scholar Catharine MacKinnon (1987: 770) thought ERA failed because it did not go far enough, and more radically “mobilize women’s pain and suppressed discontent” derived from systemic, social realities of male supremacy. And still others questioned the need for an equal rights amendment, given intervening Supreme Court decisions extending equal protection to women and federal legislation like Title VII and Title IX of the Education Amendments (Mansbridge 1986; Mayeri 2004).
Congress continued to reintroduce the Equal Rights Amendment every year after its defeat, but it went nowhere. Glimmers of action appeared in 2007 when a bipartisan group of lawmakers rechristened the amendment the “Women’s Equality Amendment” (Mayeri 2009: 1224) and in 2013 when Representative Carolyn Maloney (D-NY) proposed new language for an equality amendment to make the equality abstraction more concrete: “Women shall have equal rights in the United States and every place subject to its jurisdiction.” But the time and urgency for an equal rights amendment seemed to have passed. If ERA was not politically dead, it was at least comatose (MacKinnon 1987).
Conclusion: Equal Rights One Hundred Years after Suffrage
In 2014 a new ERA Coalition of major women’s rights organizations formed, fueled by a new generation of young people outraged at continuing inequality and energized to action (Neuwirth 2015). The year brought renewed grassroots interest in the ERA, sparking popular reconsideration of an equality amendment endorsed by celebrities like Meryl Streep and feminist icon Gloria Steinem (Babbington 2015). Justice Ruth Bader Ginsburg publicly called for the ERA to ensure future generations that women’s equality is “a basic principle of our society,” just as she had thirty-five years earlier (Schwab 2014). Even legal feminist scholar Catharine MacKinnon (2014: 569), previously opposed to the ERA as a weak, formalistic attempt at equality, now believed that an ERA is “urgently needed, now as much as or more than ever.” Surveys have shown over the last decade that most voters, as high as 96%, support equality for women, and 91% believe equality should be guaranteed by the Constitution (Neuwirth 2015), indicating perhaps a gendered cultural opportunity for change (McCammon et al. 2001). However, these surveys also show that 72% of people believe, incorrectly, that such rights are already included in the Constitution.
The ERA Coalition believes the time is ripe again for an equal rights amendment, given the next generation’s interest and recent political activity (Neuwirth 2015). In 2014 Oregon passed a state ERA referendum with 64% of the vote. Illinois and Virginia also passed state ERA laws, two states that had not previously ratified the federal ERA. Federal ERA proponents advocate a “three-states-more” strategy, which assumes the continued validity of the prior ratifications and seeks ratification of ther required three additional states. One state, Nevada, ratified the ERA in March 2017. This extended ratification strategy is supported by the delayed the ratification of the Twenty-Seventh Amendment (salary change for Congress must take effect the following term), as it was sent to the states for ratification in 1789, but not ratified until 1992, when the last states joined (Burroughs 2015).
A key question is whether women legally need the ERA, or whether its goals of general equality and specific rights have effectively been accomplished through other means. The virtually unanimous consensus of legal scholars is that the ERA’s goals have been effectively achieved through the Supreme Court’s equal protection jurisprudence (Mayeri 2009; Siegel 2006). Courts now review gendered state action under intermediate scrutiny, requiring that any laws treating women differently be justified by important governmental interests and that the laws be closely tailored to those interests (United States v. Virginia 1996; Mississippi University for Women v. Hogan 1982). Other scholars, however, have emphasized the limitations of equal protection analysis for sex equality (Brown et al. 1971; MacKinnon 2014; Mansbridge 1986). For gender discrimination cases under equal protection, the Court utilizes a lower standard of intermediate scrutiny, rather than the strict scrutiny used in race and religious discrimination. This lower standard tolerates many of the continuing instances of less overt sex discrimination and laws that have discriminatory effect rather than textual prohibitions on gender (Siegel 2002). The equal protection approach is also limited because it requires proof of intent—defendants thinking bad thoughts about women—which, MacKinnon (2014: 572) notes, “doesn’t address how discrimination mostly operates in the real world,” where “the vast majority of sex inequality is produced by structural and systemic and unconscious practices” inherited from centuries of gender hierarchy. Equal protection law’s formal classification structure, she explains, which rigidly treats only exactly similar things the same, is incapable of assessing the ways in which people “can be different from one another yet still be equals, entitled to be treated equally” or where affirmative diversity is needed to treat alike those whom are different (MacKinnon 2014: 571).
Some scholars ( Schwab 2014; Hoff-Wilson 1986) also conclude that equality for women has essentially been achieved for women without the ERA because the specific substantive goals of the amendment were accomplished through a variety of federal legislation on specific issues as well as the parallel state constitutional amendments. Twenty-three states adopted mini-ERAs, and such amendments have helped strengthen women’s ability to challenge discriminatory laws in those states. Courts often interpret the state ERAs to require strict scrutiny, and two states mandate an even higher absolute standard that presumes any discriminatory law to be unconstitutional (Burroughs 2015; Wharton 2005). In addition, federal legislation has mandated equal employment and education in the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Pregnancy Discrimination Act of 1978, and the Violence Against Women Act of 1994. Such piecemeal legislation, however, is subject to the political ebb and flow and can be rolled back, as the Violence Against Women Act was when the Supreme Court held in United States v. Morrison (2000) that Congress had no power to address civil remedies for domestic violence (MacKinnon 2014).
The renewed campaign for an equal rights amendment emphasizes the continued systemic harms to women of economic inequality, violence against women, and pregnancy discrimination and the limits of existing laws to address these concerns (MacKinnon 2014; Neuwirth 2015). Proponents of an equal rights amendment emphasize the need for a permanent constitutional guarantee to control an overarching legal and social principle of women’s equality. The United States, unlike the majority of other countries, has refused to incorporate such an express guarantee in its written constitution or adopt the international women’s bill of rights by ratifying the United Nations’ treaty (MacKinnon 2014; Neuwirth 2015). The absence of an express guarantee permits traditional literalists like Justice Antonin Scalia to opine, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t” (California Lawyer 2011). The ERA offers a corrective to this thinking and the equivocal state of women’s rights under the law. It offers a textual guarantee of sex equality, an inspiration for public policy, and a powerful symbolic support of women’s equality in all social and legal venues (Ginsburg 2014; MacKinnon 2014).
The equality amendment fulfills the hope first envisioned by proponents of a suffrage amendment to fully integrate women into every aspect of the citizenry with full recognition of their humanity (Siegel 2002). Now, almost one hundred years later, perhaps the time is right. Or perhaps the time is right to embrace the larger social justice legacy of the women’s equality movement and expand the amendment to all human rights to include aspects of sexual orientation discrimination and reproductive rights. These broaden the concept of sex discrimination to encompass the ways in which gender is practiced and experienced in our society. Perhaps dovetailing with recent advances and political consensus in civil rights of same-sex marriage will give women’s equality the final push it needs to be enacted.
 One federal court upheld the rescissions, but expiration of the ERA ratification deadline mooted the question before the Supreme Court could review the case. Idaho v. Freeman, 529 F. Supp. 1107 (1981), stayed, Jan. 25, 1982. The evidence against the legality of rescission is that states attempting to rescind their ratification of the Fourteenth Amendment were still included as enacting states (Berry 1988).
 The strict scrutiny test requires that state laws based on race be justified with compelling interests that are narrowly tailored to necessary regulation, thus invalidating most laws based on race. Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964).
 For Ginsburg’s early pro-ERA writings, see Ruth Bader Ginsburg, “The Fear of the ERA,” Washington Post, April 8, 1975: A21; Ruth B. Ginsburg and Kathleen W. Peratis, “Equal Rights for Women,” New York Times, December 31, 1975: 21; Ruth Bader Ginsburg, “Let’s Have E.R.A. as a Signal,” ABA Journal, January 1977: 70; Ruth Bader Ginsburg, “Sexual Equality under the Fourteenth and Equal Rights Amendment,” Washington University Law Review (1979): 161-178.
 The United States is one of only seven countries that has not ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), including Iran, Somalia, Sudan, South Sudan, Palau, and Tonga. The treaty was signed by President Carter in 1980, but failed to get the two-thirds congressional vote necessary for ratification (Neuwirth 2015).
Landmark court rulings, laws and constitutional amendments have given women the right to vote, to make decisions about their reproductive health and, to some degree, to receive equal pay for equal work. But women are not guaranteed equal rights under the U.S. Constitution. That's why, for decades, women's rights advocates across the country have supported an Equal Rights Amendment.
Nearly 50 years ago, Congress passed the Equal Rights Amendment, barring sex discrimination. But 38 states had to ratify it before it could take effect. Earlier this year, Illinois became state No. 37, and a bipartisan group of lawmakers is campaigning to make Virginia the final, historic vote.
For the past 10 days, those lawmakers have traveled the state on a bus tour, trying to grow enthusiasm for the amendment. And they will need a lot of it. Last session, a group of primarily Democratic lawmakers tried to ratify the amendment, but it didn't even make it to the floor for a vote. Today, there seems to be Republican support and more energy around the ratification than before.
For more on the modern ERA movement and the "Three State Strategy," see
Monday, November 19, 2018
Deborah Hellman, The Epistemic Commitments of Nondiscrimination
A commitment to nondiscrimination at times appears to require both that one not act in particular ways and that one not believe certain things. This is potentially troubling if one ought to believe what one has warrant to believe, and to the extent that one can take actions that affect what one comes to believe, one ought to do so with the aim of acquiring true beliefs. This article argues that current social controversies – like the debate over the memo by the Google employee which claimed that women are less suited for careers in technology fields – demonstrate that some defenders of norms of nondiscrimination understand these norms as including epistemic commitments. The article articulates what these epistemic commitments are, explores whether they can themselves be epistemically justified and, if not, situates the popular controversy in a philosophical debate about whether moral considerations properly encroach on epistemic norms.
From the Introduction:
"My aim in what follows is to connect up these political controversies to the philosophical debate about whether moral and pragmatic considerations can and should affect beliefs and credences. Doing so illuminates what is at stake in these disputes by enabling us to locate the precise points of philosophical disagreement. At the same time, reflecting on how the political controversies play out may tell us something about how to make progress in the philosophical domain."
Justice Sonia Sotomayor in an interview with CNN's David Axelrod said that Justice Brett Kavanaugh was welcomed into the Supreme Court "family" in the wake of his polarizing confirmation process.
When you're charged with working together for most of the remainder of your life, you have to create a relationship," Sotomayor said in an "Axe Files" interview airing Saturday."The nine of us are now a family and we're a family with each of us our own burdens and our own obligations to others, but this is our work family, and it's just as important as our personal family. * * *Sotomayor said despite the contentious confirmation, she told Kavanaugh that the focus on him will settle on his actions as part of the court."It was Justice (Clarence) Thomas who tells me that when he first came to the Court, another justice approached him and said, 'I judge you by what you do here. Welcome.' And I repeated that story to Justice Kavanaugh when I first greeted him here," she said. * * *Sotomayor, who was first confirmed to the court in 2009, also pushed back on the notion that Kavanaugh's presence cements a conservative tilt on the Court -- an institution she said is above "political terms.""Conservative, liberal, those are political terms," she said. "Do I suspect that I might be dissenting a bit more? Possibly, but I still have two relatively new colleagues, one very new colleague, Brett Kavanaugh and Neil Gorsuch. And we've agreed in quite a few cases, we've disagreed in a bunch, But you know, let's see."When asked modern political discourse, Sotomayor said too large of an emphasis has been put on differences rather than common "human values.""We all have families we love, we all care about others, we care about our country, and we care when people are injured," she told Axelrod. "And unfortunately, the current conversation often forgets that. It forgets our commonalities and focuses on superficial differences whether those are language or how people look or the same God they pray to but in different ways."Those differences truly are not important," she added. "What is important is those human values we share and those human feelings that we share. But I worry that we forget about that too often."
Judges' Subject Matter Expertise and Personal Ideologies May be Linked to More Gender Bias in Rulings
Judges' subject-matter expertise—and personal ideologies—may be linked to more gender bias in their rulings, according to a recent study of jurists and laypeople. The study asked respondents to read and decide how to resolve hypothetical custody cases and workplace discrimination claims with similar fact patterns but different races and genders assigned to parties.
The study, conducted by Andrea Miller when she worked as a postdoctoral researcher at the American Bar Foundation, surveyed 619 state court trial judges and 504 laypeople. A state supreme court—Miller did not disclose which one—provided administrative and financial support for the survey. Miller will share the results of the survey with the judges and help them rely less on their personal biases, according to a news release about the study.
“Judges tend to believe that their vast amount of legal training and logical thinking skills make them immune to these mistakes. This research is showing that judges are not as immune as maybe they think they are,” Miller, a psychology professor at the University of Illinois at Urbana-Champaign, said in the news release about the study, which also examined race. The race-focused piece of her research will be published at a later date.
In the shared-custody hypothetical, judges were more likely than laypeople surveyed to give the mother more time with a child, the release said. The survey also asked the judges about their personal ideologies regarding gender roles after they made their rulings in the hypothetical cases. Those identified as supporting traditional gender roles, with women mostly confined to domestic caregiving roles and men in public, career-based ones, were more likely to give mothers more time in the custody hypotheticals, according to the study.
Thursday, November 15, 2018
Women have taken to social media to share photos of their underwear after a 27-year-old man was acquitted in a rape trial during which the woman's 'thong' was brought up in court.
The criminal court case ended with the man being found not guilty of raping a 17-year-old in the city of Cork in Ireland.
But the defence barrister's argument garnered widespread attention after she told the jury to take into account what the teenager was wearing.
"You have to look at the way she was dressed. She was wearing a thong with a lace front," she said, according to the Irish Examiner newspaper on 6 November.
This prompted Irish MP Ruth Coppinger to show blue lacy underwear in the Dáil (Irish parliament) and share a powerful message to her colleagues.
"It might seem embarrassing to show a pair of thongs here... how do you think a rape victim or a woman feels at the incongruous setting of her underwear being shown in a court?"
Since the media attention, many women have turned to social media and post photos of their underwear accompanied by the hashtag 'This Is Not Consent'.
For the original report of the trial and the alleged incident, see Irish Examiner, Counsel for Man Acquitted of Rape Suggested Jurors Should Reflect on Underwear Worn by Teen Complainant
The text of the ERA is simple: “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” The language was developed by lawyer and suffrage fighter Alice Paul in 1943, although the equality amendment was first introduced in 1923.
When, under the amendment process, it was approved in 1972 by two-thirds of the members of the U.S. House of Representatives and Senate, a deadline for ratification by the states was inserted—at first seven years, then extended to 10 years. The ratification fell three states short of the 38 needed, and in 1982, the ERA was declared dead.
Now, new impetus is reviving it. Two key strategies have emerged to make the ERA a reality: One approach is to gain the final three ratifications and amend the original congressional time limit; the other is to “start over” with a vote in Congress and gather 38 new state ratifications.
“All along, since 1982, there was a little hum of energy,” says lawyer Jessica Neuwirth, author of the 2015 book Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now. “It went from a hum to a whisper,” Neuwirth notes, “and now it’s an ascendant line. It’s steady and it’s strengthening. Not like a roar, but a much greater awareness than there used to be.” Neuwirth is cofounder of the ERA Coalition, a D.C.-based entity that serves as a resource for more than 70 organizational members working on the issue. [http://www.eracoalition.org] ***
A “three-state strategy” aims to gather three more ratifications to add to the 35 passed from 1972–1982 and reach the magic number of 38. The concept was developed in 1992 after the Twenty-Seventh Amendment (the “Madison” amendment) on congressional pay was added to the Constitution, 203 years after it was first passed by Congress.
In May 2017, Nevada became the 36th state to ratify the federal ERA, and the first since 1977. In May 2018, Illinois followed suit to become the 37th state.
For more on the history of the ERA, see my recent book chapter: Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018).
Sharon Thompson, Feminist Relational Contract Theory: A New Model for Family Property Agreements, 45 J. Law & Society 617 (2018)
In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law.
Tuesday, November 13, 2018
Priscilla Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191 (2018)
Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States. Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country. Women have been uniquely devastated by this shift toward incapacitation. Indeed, the United States is home to the largest and fastest growing women’s prison population in the world. Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.
This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women. The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood. Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers. Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms. Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.
November 12 is the anniversary of the birthday of women's rights pioneer Elizabeth Cady Stanton (1815-1902). I spent a decade studying her work on law, including the law of marriage, marital property, child custody, domestic violence, reproductive rights, juries, and constitutional reform. That work was encapsulated in my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016).
I blogged about each of the chapters, linked here:
Introduction, overview, biography, and conclusions
Chapter 1, "What Do You Women Want?" on marital property reform
Chapter 2, "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage
Chapter 3, "Divorce is not the Foe of Marriage" on advocacy of no-fault divorce and domestic violence protections
Chapter 4, "The Incidental Relation of Mother" on reproductive rights and birth control
Chapter 5, "Our Girls" on child custody, feminist parenting, and equality in education
Conclusion: “Still Many Obstacles” on Stanton's legacy in 21st century family law.
The book is reviewed by Prof. Paula Monopoli here in the Journal of Legal Education.
My response is here, The Multiple Feminisms of a 19th Century Women's Rights Thinker
I talk about the book on the New Book Network Podcast.
Ronagh McQuigg, Is it Time for a UN Treaty on Violence Against Women?, 22 Int'l J. of Human Rights 305 (2018)
Violence against women is one of the most prevalent human rights abuses at the global level. However, no specific mention of this issue is made in any of the UN treaties. This article begins by discussing why any express reference to violence against women was excluded from the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and then proceeds to examine existing efforts at the UN level in this area. However the key focus of this article is on the new and important question of whether it is now time for a specific treaty on violence against women to be adopted at the UN level. The article analyses the arguments surrounding the adoption of a global treaty on violence against women, and aims to provide a detailed examination of this highly significant area of law, while seeking to offer original insights on this issue. It is ultimately concluded that, despite the undoubted challenges which would be involved, it is nevertheless time for the development and implementation of a UN treaty on violence against women.