Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, November 6, 2019

New Laws Aim at Closing the Gender Gap by Prohibiting Questions About Salary History

NYT, Don't Ask Me About My Salary History

Massachusetts became the first state to ban employers from posing this question to job candidates back in 2016. Since then, 17 other states and as many local jurisdictions have passed versions of the ban, including New Jersey, whose law will go into effect in January; Illinois, which took effect last month; and Kansas City, Mo., where a ban will go into effect next week.

Why does this matter?

The new laws are designed to protect job seekers — like former me — from receiving starting salaries that are tied to low past salaries. This is mostly aimed at women, and many of the bills directly address equal pay and the gender wage gap. The idea is that if a woman is paid less from the get-go, and then limited by her past salary at each subsequent job, it may be impossible for her to catch up.

“This bill provides a means of narrowing the wage gap by making it less likely for employers to unintentionally perpetuate the gap by basing salary offers for new hires on their previous salary,” New Jersey Assemblywoman Joann Downey said of her state’s bill, which she sponsored. She added that the practice had a disproportionate effect on women.

Is the ban active in my state?

HR Dive, a human resources news and analysis site, keeps a list of state and local governments that have salary history bans on the docket. (You can check the status of your state or locality here.) Salary.com also has a list of state and local bans.

Some states have passed bans that won’t go into effect until 2020 or later. For example, Colorado signed the Equal Pay for Equal Work Act into law earlier this year, but it won’t take effect until Jan. 1, 2021.

Each bill is also a little different. While Alabama’s law doesn’t ban the question outright, it does prohibit employers from refusing to “interview, hire, promote, or employ” any job applicant who declines to answer. In California, not only is the question banned, but employers are also required to answer if an applicant asks about a pay range. Other versions may ban not only employers’ questions about compensation history but also those about benefits like a 401(k).

November 6, 2019 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, November 5, 2019

At the Intersection of Disability and Reproductive Rights

Samuel Bagenstos, Disability and Reproductive Justice, Harvard Law & Policy Review, Vol. 14, 2020, Forthcoming

Since at least the 1960s, public debate over abortion rights has frequently turned to issues of disability. Those who argue for liberalization of abortion laws have often been successful by raising the specter of fetal disability — whether caused by Thalidomide, or rubella, or otherwise. Those who agitate for restricting or banning abortion, by contrast, have often argued that pro-choice advocates devalue the lives of people with disabilities.

In the spring of 2019, disability and abortion rights collided at the Supreme Court. Indiana had adopted a law “barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers.” The Seventh Circuit invalidated that law. In Box v. Planned Parenthood of Indiana & Kentucky, the Supreme Court denied certiorari (though it summarily reversed the Seventh Circuit’s invalidation of a separate Indiana law regulating the disposal of fetal remains). Justice Thomas concurred in the denial of certiorari, but he filed a lengthy separate opinion arguing that the ban on selective abortions was constitutional. He argued that “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written in a case in which individuals with developmental disabilities challenged a District of Columbia policy that denied them the right to make decisions about their medical care. The case was Doe ex rel. Tarlow v. District of Columbia. The D.C. Circuit reversed a district court decision enjoining that policy. Judge Kavanaugh’s opinion did not say anything specifically about reproductive rights. He treated the case entirely as one about the (lack of a) right of incompetent persons to consent to medical treatment. But the case itself was very much a reproductive rights case. Two of the three plaintiffs had been forced to have abortions without their consent; they sued precisely to challenge the policy that had taken away their power to choose. Although Kavanaugh had a reputation as a strong “pro-life” judge, here he voted to uphold government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion in Box — whether fetal disability is an acceptable reason for terminating a pregnancy, and what the law should do about it. Those are important questions. But any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion in Doe. Disabled people are frequently denied their own rights to conceive, bear, and parent children, whether through forced sterilization or abortion, the denial of assisted reproduction, or the denial of parental rights once their children are born. Some of these practices — notably forced sterilization — are emblematic of the Eugenics Era. But they are not at all confined to the past. Indeed, the practices that prevent people with disabilities from having and raising children — practices like the law Kavanaugh upheld in Doe — are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried in his Box opinion.

This essay offers a fuller consideration of the intersection of disability and reproductive rights. It does so by considering the legal and societal treatment of fetuses and children with disabilities alongside the legal and societal treatment of parents with disabilities. And it does so by bringing to bear insights drawn from two distinct social movements: the disability rights movement, and the reproductive justice movement. The piece argues that, taken together, the disability rights and reproductive justice perspectives offer substantial purchase on the questions raised by Justice Thomas in his Box concurrence. Those perspectives suggest that the questions are serious indeed but that Thomas gave the wrong answer to them. They also suggest that any effort to address the intersection of disability and reproductive rights needs to address the questions raised by then-Judge Kavanaugh’s Doe opinion — and that Kavanaugh, too, gave the wrong answer.

November 5, 2019 in Abortion, Reproductive Rights | Permalink | Comments (0)

New Book: Gender, Power, Law & Leadership

      Hannah Brenner & Renee Knake, Gender, Power, Law & Leadership (West. 2019) (1st edition)

Women enter the professions in numbers equal to men but comprise only a fraction of leadership roles in politics, the judiciary, law firms, the corporate world, higher education and beyond. Women of color fare even worse. Written in direct response to this glaring inequality, Gender, Power, Law & Leadership offers a new, innovative approach to address and remedy enduring gender disparities.

Essential reading for anyone aspiring to a leadership role, the book exposes readers to intersections of gender, race, class, power and law through both historical and contemporary works. It also explores post-feminism discrimination ignored by the modern legal system, including the glass cliff, shortlisting, emotional taxation, admin burdens, work wife syndrome, gender sidelining, imposter syndrome and other gender-based barriers.

The book is designed for a semester-long course in law school and higher education classrooms. Each of the nine chapters weaves together excerpts of cases and articles designed to facilitate discussion based upon carefully crafted thought questions. Narratives about transformative women leaders appear throughout to educate, inspire, and mentor students. The conclusion offers concrete guidance for readers to apply in their educational and professional lives as they pursue leadership paths, and proposes reforms to create a world of leaders who reflect the public they serve.

Imprint: West Academic Publishing
Series: American Casebook Series
Publication Date: 10/28/2019

November 5, 2019 in Books | Permalink | Comments (0)

Retaliation in the #MeToo Era

Nicole Porter, Relationships and Retaliation in the #MeToo Era, Florida Law Review  (forthcoming)

In this #MeToo era, so much important work is being done (and so many stories are being told and listened to) but very little of the work focuses on retaliation. And none of it focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, is the fear of harming workplace relationships. This article will use a real-life story of harassment to demonstrate how much workplace relationships matter (especially to women) and how the fear of harming those relationships often affects an employee’s willingness to report harassment. Thus, this article argues for reforms surrounding harassment and retaliation law that recognize this reality. Right now, courts penalize victims of harassment for not reporting harassment soon enough because they feared harming their workplace relationships; or, when they do report, courts penalize them by holding that the relationship-based harm they experienced after reporting wasn’t a real harm worthy of a remedy. The reasoning of these courts is that reasonable employees would not and should not be deterred from reporting harassment because they fear relationship-based harms. And yet, most of the empirical evidence tells us that the opposite is true—that reasonable employees (sometimes men, but especially women) often do avoid reporting because of fear of harming their relationships in the workplace. The law should reflect this reality.

November 5, 2019 in Equal Employment, Workplace | Permalink | Comments (0)

Friday, November 1, 2019

The Elusive Goal of Gender Equity in Law School Enrollment

Deborah Jones Merritt & Kyle P. McEntee, Gender Equity in Law School Enrollment: An Elusive Goal, Journal of Legal Education (forthcoming)

Women finally make up more than half of law students nationwide, but that milestone masks significant gender inequities in law school enrollment. Women constitute an even larger percentage of the potential applicant pool: for almost two decades, they have earned more than 57% of all college degrees. As we show in this article, women are less likely than men to apply to law school — or to be admitted if they do apply. Equally troubling, women attend less prestigious law schools than men. The law schools that open the most employment doors for their graduates enroll significantly fewer women than schools with worse job outcomes and weaker access to the legal profession.

We explore here the factors that may contribute to this ongoing gender gap in law school attendance. We also propose several strategies for closing the gap. Enrollment equity alone will not put women on an equal footing with men; a sizable literature probes gender biases that pervade the law school environment. Recognizing and addressing the enrollment gap in legal education, however, is an essential first step toward improving the representation of women throughout the legal profession.

November 1, 2019 in Education, Gender, Law schools | Permalink | Comments (0)

The Pink Tax: The Cost of Being a Female Consumer

The Pink Tax: The Cost of Being a Female Consumer

The pink tax refers to the extra amount women are charged for certain products or services. Things like dry cleaning, personal care products, and vehicle maintenance. So not only do women make less but they pay more. Women also live longer so they actually need more money for retirement. It’s a load of crap. 

There has been a lot of research on the pink tax that found that overall, women were paying more than men 42% of the time. How much more?  About $1,351 more a year in extra costs. Yup – that’s $1,351 that can’t go into her retirement fund. ***

 

Did you know, tampons and pads are charged sales tax because they are considered “luxury” items. Periods are certainly not a luxury and I’m sure every woman on the planet would agree.***

 

The New York City Department of Consumer Affairs released a study comparing the prices of over 800 products. The goal of the study was to estimate the price differences male and female shoppers face when buying the same types of items.

The results: Products for women or girls cost 7% more than comparable products for men and boys.

  • 7% more for toys and accessories
  • 4% more for children’s clothing
  • 8% more for adult clothing
  • 13% more for personal care products
  • 8% more for senior/home health care products

WBUR, Here and Now, Is Sales Tax on Tampons and Pad Unconstitutional?

Menstrual products like tampons and pads are subject to sales tax in 34 states.

On average, women and people who menstruate spend an estimated $150 million a year just on the sales tax for these items. One in four women struggle to afford period products, according to the nonprofit PERIOD.

Now, there’s a push to outlaw the so-called “tampon tax” across the country.

Jennifer Weiss-Wolf, an activist and co-founder of Period Equity, says she got together with a group of lawyers to make the case that taxing menstrual products is “sex-based discrimination and therefore unconstitutional and therefore illegal.”

“It's not really just a matter now of asking legislators to do the right thing,” she says, “but it's bringing the force of the law to let them know that they must cease this practice.”

In June, California put a pause on the taxation of menstrual products — but only for a two-year period. But Weiss-Wolf is arguing for a permanent solution by mobilizing to get all 50 states to permanently end sales tax on menstrual products.

 

November 1, 2019 in Gender, Pop Culture | Permalink | Comments (0)

Study Finds Corporate Boards with All-Male Directors Suffer More Negative Stock Price Reactions from MeToo Claims than Those with Three or More Women Directors

Mary Brooke Billings, April Klein & Crystal Shi, Investors’ Response to the #MeToo Movement: Does Corporate Culture Matter? 

This paper provides evidence that the #MeToo movement revised investors’ beliefs about the cost of fostering a culture that excludes women, as reflected by the absence of women directors in the board room. In particular, we document an overall negative market reaction tracking the timeline of events associated with the #MeToo movement, beginning with the Harvey Weinstein exposé in October of 2017 in the New York Times. This negative response concentrates in firms that have traditionally excluded women from their boards. In contrast, for companies that embrace the inclusion of women on their boards, this negative effect is moderated. Overall, investors appear to have revised their beliefs about the risks associated with future revelations of misconduct, and also about the value of having women in the board room shaping the culture of the firm.

Excerpt:

Consistent with the view that the potential revelation of sexual misconduct in the workplace injects risk into publicly listed firms, we report an overall average cumulative abnormal return of -4.57%. We also note that 24 of the 37 days recorded significantly negative abnormal returns across all firms and, in fact, we detect significantly negative abnormal returns for each of the final 11 events on the #MeToo event timeline. This supports the notion that as the movement gained momentum, investors revised their beliefs about the potential impact of the movement.


This overall negative reaction to the #MeToo movement is borne out by subsequent responses by firms and Wall Street in general. Over 200 male executives were dismissed or demoted following allegations of sexual misconduct, with many of these men being replaced by women executives (Bach 2018, Carlsen et al. 2018). Attorneys have added “Weinstein Clauses”
and “#MeToo representations” into merger documents, which require target firms to be held financially responsible via “clawback” provisions for revelations of sexual misconduct after the deal is closed (Ahmed 2018, Reints 2018).


Cross-sectionally, we expect variations in market reactions to unfolding #MeToo events to be directly related to the market’s assessment of (1) how likely a firm is to have a past or future allegation of sexual misconduct revealed and (2) how well a firm is equipped to deal with these revelations. We predict and find evidence that variations in abnormal market returns are related to the gender composition of a corporation’s board of directors. Specifically, firms with boards made up exclusively of male directors suffer more negative stock price reactions, while firms with boards that include three or more women experience moderated stock price reactions.

November 1, 2019 in Business, Equal Employment | Permalink | Comments (0)

Thursday, October 31, 2019

Women and the Law, Halloween Edition. (Hint: It's About Witches)

Image result for salem witch trials

 

It's Halloween... which for law and gender means time to remember the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

See also Gender Law Prof Blog, Witchcraft Related Violence: Human Rights Violations Against Women Labeled "Witches"

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October 31, 2019 in Legal History, Pop Culture | Permalink | Comments (0)

Revenge Porn Lawyer Weighs in on Rep. Katie Hill's Resignation

Revenge Porn Lawyer Carrie Goldberg Weighs in on Katie Hill's Resignation

Rep. Katie Hill (D-Calif.), 32, is one of the youngest female members of Congress and the first-ever openly bisexual member of the House. She arrived in Washington in January, part of a historic wave of women, winning a longtime Republican seat.

 

Hill resigned on Sunday after a series of nude photos, published online without her consent, led her to disclose a romantic relationship with a former campaign staffer. In the days since, people have asked: If Hill was a middle-aged man — and not the woman behind “the most millennial campaign ever” — would she still be in Congress?

 

I posed that question to Carrie Goldberg, a lawyer who specializes in sexual privacy violations and is the author of “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls.” Goldberg has decades of experience working with women — and it is overwhelmingly women — who are victims of revenge porn, which is defined as sexually explicit photos of someone shared online without their consent. The images often come from a former partner “hell-bent on their destruction,” Goldberg says, as looks likely in Hill’s case. ***

 

Caroline Kitchener: Whoever sent these photos to Red State — were they breaking the law?

Carrie Goldberg: Absolutely. In the last five years, we’ve gone from having three states with criminal non-consensual porn laws to having 46 states, plus D.C. These laws apply to situations where naked images or videos are disseminated online or offline without the subject’s permission. A lot of the laws do have an exception for newsworthiness. But the sexual humiliation of a person, even a public figure or celebrity, should never be newsworthy.

 

CK: What counts as an exception for newsworthiness?

CG: The newsworthy exception derives from the idea that there are certain images that are so powerful — images from the Holocaust, from the Vietnam War. We’re talking about images where the image itself is newsworthy, the nudity is not.***

 

CK: Was Red State breaking the law when they published these photos?

CG: You hear a lot about section 230 of the Communications Decency Act, which usually shelters platforms from liability for content that individual users post. However, if the platform itself is making the decision to publish naked pictures, as Red State did here, they don’t benefit from that immunity. And therefore, the platform should be held liable.

 

CK: So is there a case for Hill going after Red State?

CG: Without giving legal advice, I would say, hell yes.

October 31, 2019 in Media, Workplace | Permalink | Comments (0)

CFP International Conference on Gender and the Status of Women

CFP & Conf.: Int’l Interdisc. Conf. on Gender & Status of Women – Edinburgh, Scotland

Women Being issues a call for papers for the upcoming 2nd International Interdisciplinary Conference on Gender and the Status of Women, on Mar. 8-11, 2020 in Edinburgh. The deadline for submissions is Dec. 15, 2019. 

This conference aims to be a platform for,

  • Discussion relating to the current status of women, with a special focus on the following categories that constitute potential challenges to gender equality and women’s rights: the UK’s decision to leave the EU, the refugee crisis, rising levels of (and political legitimisation of) sexual violence and misogyny, cuts in child-care and services for disabled people, lack of access to paid parental leave, tax and welfare reforms, the gender pay gap, sexual harassment and the rise of zero-contract hours.
  • International researchers and scientists from academia, industry and government to present their studies to a multi-disciplinary audience, exchange experiences, discuss proposals, and disseminate results on women’s and gender studies.
  • Raising awareness and encouraging dialogue on the proposed topics, with the aim of creating lasting productive partnerships between the participants.

All submitted papers will be published in the conference proceedings, edited under the Creative Commons Licence (Attribution-NoDerivatives 4.0 International/CC BY-ND 4.0), which will also contain a report and catalogue of activities. This book will be available on the WomenBeing webpage to download for free, and it will also be freely distributed to schools, institutions, research centres and individuals who request it.

WomenBeing builds upon this momentum by providing a ‘loudspeaker’ for academics, civil servants, researchers, social activists, journalists and private individuals to make their voices heard on the main challenges that women are currently facing.

Important dates :

Submission of abstracts: 15th December 2019

Acceptance notification: 20th December 2019

Submission of full papers: 10th February 2020

Early bird registration: 10th January 2020

October 31, 2019 in Call for Papers, Conferences, International | Permalink | Comments (0)

Call for Panelists AALS "Teaching in a #MeToo World"

 

I am writing to solicit volunteers to participate in a moderated panel discussion at the AALS Annual Meeting. The Session, Teaching in a #Metoo World will take place on Friday, January 3, 2020 from 3:30-5:15pm.

 

This Session will focus on how we teach law in the age of #Metoo, Time’s Up, Justice Kavanaugh, Intersectionality, President Trump, Proper Pronoun Use, the Women’s March, and other recent developments. This session will consider how we, in our capacity as law teachers, are adapting our teaching as the world around us changes. Panelists are invited to discuss their teaching innovations: courses they have created or adapted or other ways in which they have engaged with students in this #Metoo World.

 

If you have created a new course, adapted an existing course, or otherwise shifted your engagement with students, in response to recent changes in our world, please consider applying to participate on this panel. Panelists will participate in an informal moderated discussion of how they have adapted their teaching. The audience will be encouraged to participate in the discussion by sharing comments and asking questions.

 

If you would like to be part of this panel, please email a description of your Teaching/Student Engagement Innovation (limited to 650 words) to Rona Kaufman at kitchenr@duq.edu by Monday, November 4th (yes, that is just 5 days from now).

 

Panelists will be selected and confirmed by Wednesday, November 6th.

October 31, 2019 in Conferences, Law schools | Permalink | Comments (0)

Wednesday, October 23, 2019

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical ContextVerdict

Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***

 

Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***

 

In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***

 

At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.

 

October 23, 2019 in Constitutional, Education, Equal Employment, Family, Legal History, Pregnancy, SCOTUS | Permalink | Comments (0)

An Equal Protection Analysis of Gender-Differentiated Indecent Exposure Laws

Nicholas Mignanelli, Equal Protection and the Male Gaze: Another Approach to State of New Hampshire v. Lilley, 22 Journal of Gender, Race & Justice (2019)

This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey’s concept of the “male gaze” to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so long as they apply equally to women and men.

October 23, 2019 in Constitutional, Gender | Permalink | Comments (0)

SororityToo: Using Systems Change Theory to Reform High-Risk Greek Life

Tanya Cooper, #SororityToo, Michigan State L. Rev. (forthcoming)

Sexual violence is an epidemic affecting millions of students, and those who participate in collegiate Greek life are especially vulnerable. As social societies bent on secrecy, Greek life hides violence in its midst. Laws and campus policies when accessed offer little help to victims, and often secondarily traumatize them. Publicized scandals on campus and social media campaigns, however, have raised awareness and sparked public outrage against the widespread problem of sexual violence and high-risk Greek life. Systems change theory offers a useful framework to reform high-risk Greek life from many angles: education, reporting, litigation, and collective action of its system actors. Effective strategies exist to create safer Greek organizations for students but without reform, we will continue to jeopardize the education and health of millions of students.

October 23, 2019 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, October 8, 2019

Melinda Gates Commits $1 Billion to Gender Equality

Melinda Gates, Here's Why I'm Committing $1 Billion to Gender Equality

Here’s what keeps me up at night: I imagine waking up one morning to find that the country has moved on. That the media has stopped reporting on systemic inequalities. That diversity remains something companies talk about instead of prioritizing. That all of this energy and attention has amounted to a temporary swell instead of a sea change.

 

There is too much at stake to allow that to happen. Too many people—women and men—have worked too hard to get us this far. And there are too many possible solutions we haven’t tried yet.

 

That’s why, over the next ten years, I am committing $1 billion to expanding women’s power and influence in the United States.

 

I want to see more women in the position to make decisions, control resources, and shape policies and perspectives. I believe that women’s potential is worth investing in—and the people and organizations working to improve women’s lives are, too.

 

Gender equality in the U.S. has been chronically underfunded. Data from Candid’s Foundation Directory Online suggests that private donors give $9.27 to higher education and $4.85 to the arts for every $1 they give to women’s issues. What’s more, 90 cents of each dollar donors spend on women is going to reproductive health. As absolutely essential as reproductive health is, we also need to fund other unmet needs.

October 8, 2019 in Media, Pop Culture | Permalink | Comments (0)

Only 17% of US Supreme Court Advocates Were Women

At the Supreme Court, Where are the Women Advocates?

Even as the legal profession pledges to bolster diversity in its workforce, the number of female lawyers who argue before the U.S. Supreme Court is still bafflingly low.

At a recent Women’s Bar Association of the District of Columbia panel discussion titled “Supreme Court Advocacy: Where are the Women?” Williams & Connolly partner Sarah Harris reported that in the last Supreme Court term, 31 of the 184 appearances were women. That amounts to 17%, lower than some other recent terms, as tallied by SCOTUSBlog.

The numbers are even worse for female lawyers in private practice, Harris noted. Only seven of the 90 appearances by private practitioners were by women, “which is not very great,” she said. And among the 31 lawyers who argued on behalf of corporations, only three were women. Harris clerked for Justice Clarence Thomas in 2015 and 2016.

The number of female advocates of color is also dismal, though that data point is more difficult to tally, said Kelsi Corkran, a partner at Orrick, Herrington & Sutcliffe and a former clerk to Justice Ruth Bader Ginsburg. “When I talk to my friends who are women of color about their clerkships, they can’t point to a single person who looks like them who has done this before. I think we’re losing talent before the court.”

Numerous reasons but few solutions for the low numbers were advanced during the discussion. At the end of the event, moderator Amy Howe, a reporter for SCOTUSblog, said, “I wish we could stop having to have these discussions.”

One reason discussed for the dearth of women is the client’s preference for experienced Supreme Court advocates, which often, in self-fulfilling fashion, can rule out women. “Clients aren’t, especially in the big corporations, that keen to take a chance on a more junior advocate,” said Loren AliKhan, solicitor general for the District of Columbia and formerly a lawyer at O’Melveny & Myers. 

October 8, 2019 in SCOTUS, Women lawyers | Permalink | Comments (0)

A Feminist Critique of Legal Interventions Against Sexual Violence

Sharon Cowan, Sense and Sensibilities: A Feminist Critique of Legal Interventions Against Sexual Violence" 
Edinburgh Law Review. 23. 22-51, January 2019

Feminists have spent decades trying to reform laws and evidential procedures relating to sexual assault. Using the current Scottish context as a case study, I will argue in this article that while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. Drawing on contemporary examples from Scotland, and setting these within the broader context of similar problems and arguments in other jurisdictions such as England and Wales, and Canada, I will examine the ways in which the ‘laws on the books’ have not always translated smoothly through to ‘law in action’. Ultimately, I argue that our all too frequent failures to punish sexual violence in a meaningful way suggests that we need to think again about how we deal with issues of sexual violence in contemporary society.

October 8, 2019 in International, Violence Against Women | Permalink | Comments (0)

Friday, October 4, 2019

New CA Law Allows Campaign Funds to be Used for Childcare to Promote Gender Parity Among Elected Officials

Bill Promoting Gender Parity Among Elected Officials Signed into Law by Governor Newsom

A bill introduced by Assemblymember Rob Bonta (D-Oakland) that would allow campaign funds to be used for child care by those who choose to run for elected office in California was signed into law Monday by Governor Gavin Newsom.

 

“AB 220 will help create greater gender parity among elected officials in California and more broadly help all parents with young children seek and serve in public office by allowing the use of campaign funds for child care expenses,” said Bonta. “I’m excited and extremely grateful to Governor Newsom for signing AB 220 into law.” 

 

AB 220 amends the Political Reform Act of 1974 to expressly allow campaign funds to be used for child care by those who choose to run for elected offices in California. 

 

Currently, there is no statute in California or official ruling by the California Fair Political Practices Commission (FPPC) allowing candidates to use campaign funds for child care purposes. That meant any person who attempted to use campaign funds for child care expenses had no statutory protection and would have been relying on a 20-year-old, non-binding advice letter by the FPPC which does not carry the weight of law. AB 220 provides certainty for parents of young children seeking office by placing this allowance in statute. 

October 4, 2019 in Family, Gender, Legislation, Work/life | Permalink | Comments (0)

Getting up to Speed on the Issues in June Medical Services, the Abortion Case Just Granted Cert by the Supreme Court

The US Supreme Court granted cert on Oct. 4, 2019, in June Medical Services v. Gee, https://www.supremecourt.gov/orders/courtorders/100419zr_onkq.pdf

The issue is " Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt."

The case page from SCOTUSblog is here, including the docket and prior commentary.

Justice Kavanaugh's opinion dissenting from the grant of a stay in the case in Feb. 2019 is here.

[T]he status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period. I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.

 

Louisiana’s new law requires doctors who perform abortions to have admitting privileges at a nearby hospital. The question presented to us at this time is whether the law imposes an undue burden under our decision in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016). All parties, including the State of Louisiana, agree that Whole Woman’s Health is the governing precedent for purposes of this stay application. I therefore will analyze the stay application under that precedent. Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law. The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman’s Health. By contrast, if the three doctors cannot obtain admitting privileges, then one or
two of the three clinics would not be able to continue providing abortions. If so, then even the State acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.

 

The law has not yet taken effect, so the case comes to us in the context of a pre-enforcement facial challenge. That means that the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges.

My prior blog post on the Kavanaugh dissent in the grant of the stay, and his inversion of the usual standard of the status quo for preliminary injunctions, is here at Understanding More About Justice Kavanaugh's Dissent.

 

An excellent symposium and deep dive on the implications of the case is at the Take Care blog, here.

Leah Litman, June Medical Services v. Gee and the Future of Abortion Rights

June Medical Services v. Gee is the Supreme Court’s next opportunity to weigh in on women’s constitutional right to decide to end their pregnancies

 

Alicia Bannon & Jennifer Weiss-Wolf, June Medical Services’ Double Threat to the Rule of Law

In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.

 

David Strauss, SCOTUS Needs to Rein in Lower Courts Willing to Force Its Hand by Defying Its Precedent

Ideological lower court judges have challenged the Supreme Court by defying its precedent. There is one way for the Court to keep from being put in this position time and again. It should summarily reverse, making clear that only the Court will decide when its own precedent is no longer good law.

 

Mary Ziegler, The Anti-Abortion Movement's Unworkability Strategy

Antiabortion lawyers think that they can turn a fact and evidence-based legal standard into an argument against stare decisis, which would advance their ultimate goal of overturning Roe. In June Medical, it is time for the justices to prove them wrong.

 

Michele Goodwin, A Duplicitous Playbook: June Medical Services v. Gee and the New Jane Crow

What is clear in June Medical Services v. Gee, as with the other antiabortion measures making their way through the courts, is that these targeted regulations of abortion providers have nothing to do with protecting women or their health

 

Mary Bonatuo & Shannon Minter,Pavan and June Medical Services

Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal.

 

Leah Litman, June Medical And The End of Reproductive Justice

While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence

 

October 4, 2019 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, October 2, 2019

Reading the 19th Amendment into Constitutional Jurisprudence

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution

Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.

Abstract:

This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.

Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.

October 2, 2019 in Constitutional, Family, Legal History, SCOTUS | Permalink | Comments (0)