Monday, December 6, 2021
Technology-facilitated GBV is a growing phenomenon that includes stalking, bullying, and sexual harassment based on sexual and gender identity, carried out online. NORC at the University of Chicago and the International Center for Research on Women (ICRW) will share the results of their research related to the trends in technology-facilitated GBV, especially during the COVID-19 pandemic, along with a closer look at the state of tech-facilitated GBV in India, Bangladesh, Thailand and Indonesia. We will also present recommendations for future programming and research priorities in the region, and open a dialogue with attendees on how to prevent, mitigate, and respond to technology-facilitated GBV in the region.
This work was funded by USAID under the Democracy, Human Rights and Governance Learning, Evaluation and Research (DRG-LER) II Activity.
Speakers will include:
- Karen Freeman, USAID Assistant Administrator for Asia (opening remarks)
- Dr. Laura Hinson, ICRW's Senior Social & Behavioral Scientist (panel moderator)
- Mithila Iyer, NORC at the University of Chicago Research Assistant
- Poulomi Pal – ICRW consultant
American Indian and Alaska Native Women's Experiences with Sexual Violence, Reproductive Coercion, and Reproductive Health
Authors Elena Giacci, et. al. have published a study in the Journal of Women's Health titled Intimate Partner and Sexual Violence, Reproductive Coercion, and Reproductive Health Among American Indian and Alaska Native Women: A Narrative Interview Study. The study is full of insights and contributions, some of which are excerpted here (internal citations removed).
Recurring theme of silences and secrecy were described in the context of racism, historical, current, and intergenerational trauma. Women's reproductive experiences were shaped by silencing and shame regarding violent experiences, which they linked to histories of marginalization of their communities. Specifically, women described inadequate and limited access to sexual health education and services. This, combined with negative family and community responses to abuse, led to lack of care seeking for reproductive health needs. Inequitable access to confidential health services and ineffective service agency responses (including law enforcement) reflect ongoing neglect of AI/AN communities. Legal and judicial responses, in turn, are complicated by pervasive challenges of placing blame on female victims while tribal, state, and federal lack of collaboration perpetuate the epidemic of “Missing and Murdered Indigenous Women and Girls.”
To the best of our knowledge, this is the first study to explore RC among AI/AN women. Few studies have directly examined reasons for the disproportionately high rates of unintended pregnancy among AI/AN women. Most research related to unintended pregnancy in AI/AN communities has focused on adolescent pregnancy and sexual risk among youth. Similar to non-AI/AN women, RC occurred in the context of emotional, physical, and sexual abuse by partners who also interfered with contraceptive use and care seeking. Some women perceived that their partners were actively trying to impregnate them against their wishes, and described partner and community influences on keeping pregnancies they did not want.
Nadia Sawicki has published Unilateral Burdens and Third-Party Harms: Abortion Conscience Laws as Policy Outliers. This article is published in volume 96 of the Indiana Law Journal. The abstract explains:
Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers' rights to refuse-- and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences--are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article argues that state abortion conscience laws should incorporate limitations similar to those established in the Civil Rights Act and the Americans with Disabilities Act in order to minimize risks to third parties who might be harmed by provider refusals.
Friday, December 3, 2021
Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality & the Movement, 62 B.C. L. Rev. 1797 (2021).
This article addresses the intersectionality of identities in the context of sexual harassment, and how the failure to recognize the impact of this intersection results in responses to sexual harassment in the workplace that do not adequately protect women of color. “Given the high rate at which women of color experience harassment and assault, the unique types of racialized sex harassment they experience, and the compounded forms of structural disadvantage they face in a range of domains, it is particularly important for anti-discrimination law to address their concerns.” This is because, “the intersectional experience is greater than the sum of racism and sexism” and thus legal and social frameworks to address sexual harassment must “acknowledge the complex and overlapping web of racism and sexism.” For example, current Title VII forces plaintiffs to choose whether to bring their discrimination case “because of race” or “because of sex” but not both, and “[e]mpirical research has found that plaintiffs bringing intersectional claims are less than half as likely as plaintiffs bringing single claims to win their cases.” Social reform movements have similarly fallen short.
Given broad access to social media, lower barriers to participation, and increased demands for an intersectional approach to feminism, #MeToo had the potential to have very inclusive participation across demographics, strong alliances, and coalitions, but the movement has fallen short of this opportunity. The experiences of white affluent, and educated women have dominated the narrative with a focus on bringing down high-profile assailants [ ].
In response, Professor Williams proposes legal reform, organizational reform, and cultural reform to address the failure to account for intersectionality in the current response to sexual harassment. “This strategy will benefit all victims of harassment and is particularly critical for women of color.” Professor Williams warns that absent these “significant organizational and cultural changes, proposed legal remedies will continue to fail.”
Thursday, December 2, 2021
On Wednesday, the first comprehensive federal legislation on workplace harassment and discrimination was reintroduced in Congress. The Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination—or BE HEARD in the Workplace—Act aims to create a safe and harassment-free workplace, expand protections, and help facilitate justice for workers nationwide. The bill is sponsored in the Senate by Sens. Patty Murray (D-Wash.) and Marie Hirono (D-Hawaii), and in the House by Reps. Katherine Clark (D-Mass.), Ayanna Pressley (D-Mass.), Sylvia Garcia (D-Texas), Elissa Slotkin (D-Mich.) and Marilyn Strickland (D-Wash.).
“It doesn’t matter who you are, or where you work—everyone deserves to be treated fairly, respectfully and with dignity,” said Murray.
The BE HEARD in the Workplace Act would:
- extend the scope of current laws, including civil rights protections and anti-harassment laws, to include all workers, no matter the workplace’s
- size, as well as extend these laws to apply to interns, fellows, volunteers, trainees and independent contractors;
- widen the definition of “sex discrimination” at work to include harassment and any form of discrimination based upon sexual orientation or gender identity;
- require nondiscrimination training;
- extend the statute of limitations for complaints from 180 days to four years; and
- mandate that the Census Bureau do further research on harassment in the workplace.
“Even with the laws we have on the books and the #MeToo movement shedding light on this problem, it’s still way too easy for employers to get away with committing these offenses,” said Hirono.To promote transparency and accountability, the BE HEARD in the Workplace Act would also stop pre-employment non-disclosure agreements and mandatory arbitration, which requires employees and customers to file complaints and resolve conflicts within the company, instead of in a court. Mandatory arbitration is used in 54 percent of the cases involving non-union employers in the private sector, and the system is disadvantageous to workers, who win only 1.6 percent of these cases on average. Rates of mandatory arbitration have increased since the onset of the pandemic.
For interpretation of yesterday's oral argument in the Dobbs abortion case, see:
Strict Scrutiny Podcast, Fourth Dimension Feminism
Mary Ziegler, The Atlantic, The End of Roe v. Wade
National Constitution Center, We the People Podcast, Dobbs Part 1 & 2
Wednesday, December 1, 2021
It continues to be frustrating to see inaccurate statements and polemics on the history of abortion in America. Even more frustrating when those voices are elevated to legitimacy as alleged balanced discussions of the issue.
The leading book on 19th century history of the laws and legal regulation of abortion is James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979).
For more modern legal history, the leading book on post-Roe legal history is Mary Ziegler, Abortion Law in America: Roe v. Wade to the Present. For the time just before Roe, one of the best sources is the edited collection by Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before Roe (2010).
I have written on the topic of the long history of abortion in the 19th century, particularly on the improper attribution of anti-abortion views to the feminist foremothers like Elizabeth Cady Stanton and Susan B. Anthony:
Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012)
Over the past twenty years, prolife advocates have sought to control the political narrative of abortion by misappropriating women’s history. Conservatives, led by the group Feminists for Life (FFL), have used historical feminist icons to support their antiabortion advocacy. Federal antiabortion legislation has been named after feminist heroines. Amicus briefs to the U.S. Supreme Court quote women’s rights leaders in support of abortion regulation. And political forums for college students popularize the notion that feminists historically opposed abortion. Prolife groups claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. Such misuse of history diminishes, rather than enhances, the credibility of this antiabortion advocacy.
The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion. If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.
The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.
The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it. Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true. Sound bites that have been excised from history are taken out of context to convey a meaning not originally intended.
Tracy Thomas, Chapter 4 "The 'Incidental Relation' of Mother" and Chapter 6, "Conclusion," in Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).
Tracy Thomas, interview in The Atlantic, The Epic Political Battle Over the Legacy of the Suffragettes (June 2019)
Tracy Thomas, National Constitutional Center Podcast, The Constitutional Legacy of Seneca Falls (July 25, 2019)
Tracy Thomas, in Lily, Was Susan B. Anthony Antiabortion? (Aug. 3, 2020)
See also Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)
For all of the past coverage of the abortion issue on Gender & the Law Prof Blog, go to Blog / Categories / Abortion.
Some of the recent posts specifically on Dobbs include:
Gender & the Law Prof Blog (8/21), featuring Marc Spindelman's Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).
Gender & the Law Prof Blog (9/15/21), featuring Aaron Tang, The Originalist Case for an Abortion Middle Ground.
Gender & the Law Prof Blog (11/17/21) featuring David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic
Tuesday, November 30, 2021
California lawsuit: Law allowing transgender inmates to choose housing based on gender identity is unconstitutional
A California law that gives transgender, nonbinary and intersex inmates at state prisons the right to be housed at either men’s or women’s facilities is under fire in a lawsuit filed last week.
The Women’s Liberation Front, which also opposes transgender female athletes’ participation in girls’ and women’s sports, filed the lawsuit in federal court alleging that Senate Bill 132, signed by Gov. Gavin Newsom in 2020, is unconstitutional and creates an unsafe environment for women in female facilities.
. . .
“The foundational basis of our lawsuit is that these are male offenders being housed in women’s prisons,” said Lauren Adams, legal director for the Women’s Liberation Front. “To pretend that they are female, in language or what we say about them or how we talk about them, goes against the whole basis of the lawsuit.”
Transgender and LGBTQ+ advocates slammed the suit as baseless and damaging.
. . .
A 2007 UC Irvine study found that the rate of sexual assault was 13% higher for transgender inmates.
Samuel Garrett-Pate, a spokesperson for LGBTQ+ advocacy group Equality California, said he expects Atty. Gen. Rob Bonta to defend SB 132.
Dobbs v. Jackson Women’s Health Organization, regarding Mississippi abortion law, to be heard by SCOTUS on December 1
On Wednesday, the U.S. Supreme Court will hear a case out of Mississippi that could eliminate a pregnant person’s constitutional right to an abortion. The law in question bans abortion at 15 weeks gestation, significantly before viability. With this case as a vehicle, the Mississippi attorney general has explicitly called on the high court to strike down Roe v. Wade.
The case, Dobbs v. Jackson Women’s Health Organization, turns on the issue of viability. Supreme Court precedent protects the right to abortion before a fetus can survive outside of the womb, usually around 24 weeks; states can’t pass laws that present an “undue burden” for someone seeking an abortion before that point. While a total ban before viability would undermine Roe, many experts think the Supreme Court might allow it anyway. Because the one clinic in Mississippi only performs abortions up to 16 weeks, lawyers may argue, a 15-week ban does not constitute an undue burden.
. . .
Between the Texas and Mississippi cases, this is an unprecedented term for abortion on the Supreme Court.
The Yurok Nation is the largest tribe in California, nestled along the Klamath River on the northern Pacific coast. As a sovereign nation, the Yurok Tribe manages its own court system and is able to apply its specific cultural lens to its functioning. Chief Justice Abby Abinanti’s court looks very different from a traditional state, county, or federal court. Judge Abby—as the community calls her—sees herself as a community member, not as a punisher. In her court, the person facing charges helps to decide how they should be held accountable. “We’re a culture that’s responsibility based,” she says. “You have a responsibility to and a responsibility for. Yes, there is a consequence for misbehavior, but they get to help decide how to address it because it was their mistake. That’s the whole thing about humans—we’re pretty mistake prone.”First, Judge Abby gives people the choice of going to trial or working with her to come to a mutually agreeable solution. The majority of people choose the latter option. Second, the individual helps decide how they should be held accountable. In a fishing violation, for example, someone may choose to pay a fine, or they may donate fish to a ceremony or the elders program. In child support cases, Judge Abby works with parents to come to a mutual agreement, which may include requiring the noncustodial parent to provide babysitting, rides to town, or wood or fish to the custodial parent. These noncash payment solutions are particularly valuable in a community with concentrated poverty: 41 percent of families with children and 53 percent of families headed by single mothers in the tribal area live below the federal poverty level. Judge Abby notes that off-reservation courts often garnish wages to resolve child support cases. According to the most recently available Census Bureau data, the average child support payment in the United States is $430 per month.. . .Unlike the U.S. legal system, which Judge Abby calls “stranger justice,” the Yurok system prioritizes the agency of the individuals involved. “What I’m trying to do is say to someone, ‘You have exhibited behavior that is not okay. How are we going to help you get past that? Because we want you in [our] community.’” The tribal court sees a variety of cases—from environmental violations and domestic violence to child support and legal guardianship—but their jurisdiction is limited. The state has criminal jurisdiction over people residing on reservations, including tribal members. In most states, either the federal government or tribes have jurisdiction over their members. But California—along with Alaska, Minnesota, Nebraska, Oregon, and Wisconsin—is a Public Law 280 (PL 280) state. PL 280 was passed in 1953 without consulting tribes, and it gives state governments jurisdiction over all criminal matters on reservations. Tribal advocates argue that PL 280 violates sovereignty. The statute is often cited as a reason that tribes are denied funding for their own systems of justice.. . .The Yurok aren’t alone in revitalizing traditional forms of justice. In Southern California, Quechan tribal judge Claudette White pioneered the use of tribal values and customs in legal proceedings to reduce incarceration rates. She was highlighted in the 2017 documentary Tribal Justice, alongside Judge Abby. The Navajo Nation Peacemaking Program, which prioritizes nonpunitive dispute resolution and restorative justice, has been a parallel entity to the Western-style court for four decades. It is the largest tribal justice system in the world. These tribal communities demonstrate that we can implement alternatives to America’s violent and racist carceral system. And these alternatives are urgently needed. “Your way of doing things is not working,” Judge Abby says. “So you might want to look at how we managed to survive for a few thousand years.”
Monday, November 29, 2021
A landmark study by Uplift Lab of Oregon State University, a Research and Reproductive Equity Laboratory, offers important data supporting the safety of waterbirth. The press release first explains the significance of the study and its data set:
[The authors] compared 35,060 pregnancies from all 50 states: 17,530 water births and 17,530 non-water births. A unique aspect of the OSU study was that they were able to match pregnancies within the two groups on more than 80 covariables, such as age, education level and pregnancy characteristics. This propensity score method ensured a direct comparison between the two groups.
The authors offer a summary of the key findings here. They also offer a link to request the full study from the researchers. The press release summaries these findings:
In the propensity-matched analysis, the only maternal outcome where water births resulted in a slightly elevated risk was postpartum uterine infection. Water births were associated with an additional six postpartum uterine infections per 10,000 water births compared with non-water births. However, there was no increase in risk of being hospitalized for infection.
Furthermore, water births were associated with lower risks for several other maternal outcomes, including 64 fewer hemorrhages per 10,000 births, and 28 fewer hospitalizations in the first six weeks.
Water births were associated with 20 additional umbilical cord avulsions per 10,000 births. Avulsions occur when the umbilical cord snaps before it can be tied off and can cause hemorrhages. However, there were no infant deaths from cord avulsions and no difference in overall death rates between the two groups. There were 26 fewer infant hospitalizations per 10,000 water births, suggesting that the midwives attending these births successfully managed cases of avulsion.
Kit Johnson has posted her recent article on SSRN, Women of Color in Immigration Enforcement. This article was just published in volume 21 of the Nevada Law Journal 997 (2021). The article makes several important findings about gender diversity in immigration enforcement:
Immigration enforcement agencies do not employ large numbers of female agents. The majority of female agents, however, are women of color. This is consistent with the remarkable diversity of immigration enforcement agencies. Women of color have the potential to benefit immigration enforcement agencies. Such agents have unique skills and abilities that can enhance their work, their engagement with the migrants they police, and the growth of agencies they operate within. Yet women of color also face barriers to their recruitment and retention that tie to their training, work, and workplace culture. DHS has been taking steps to diversify its law enforcement ranks. But it can do more. Just looking at the issues outlined in this Essay, the agency could: establish a daycare at the Artesia training center; eliminate training requirements that rest on upper-body strength if not a necessary component of immigration enforcement work; actively oversee training to expose and eliminate any sexist behavior by trainers; and aggressively work to end misogynist culture within the agency. All would make immigration enforcement agencies more welcoming to women of color, and that, in turn, could benefit the agencies. Finally, this Essay has led me to conclude that there is a real need for empirical focused on women of color in immigration enforcement, particularly within the OFO and ICE. It is my hope that this Essay may spark further investigation.
The 19th reports in its article The word missing from the vast majority of anti-trans legislation? Transgender on both the spike in anti-trans legislation and also the trends in language usage:
Over three special legislative sessions this year, Texas legislators introduced 47 proposed bills that aimed to restrict transgender kids’ access to sports or gender-affirming care, plus three bills that would block birth certificate updates for minors. The word “transgender” didn’t appear in any of them. * * *
More anti-trans bills were introduced in state legislatures in 2021 than in any previous year on record. The 19th reviewed the text of 102 bills in seven states that were primarily designed to restrict access to sports or gender-affirming care for trans youth, like hormones and puberty blockers, and only seven bills mentioned the word “transgender.” Only eight passed, primarily those focused on sports, although legal battles in several states have barred most from going into effect.
The article describes how this strategy is not new, but it is evolving. It is also "intentional and strategic." The harms are searing.
I think it’s a lot more simple than we want to admit,” said Emmett Schelling, executive director for the Transgender Education Network of Texas. “If we refuse to name, or even recognize the existence of something, then … understanding is negated.”
By not acknowledging transgender people’s existence in legislation or rhetoric that affects them, Schelling said, proponents of these bills make it impossible for them to also acknowledge potential harms.
“Like, ‘I’m not saying that they’re not happening, I’m actually going a step further and I’m saying, ‘You don’t exist, so it can’t happen.’ There is something deeply disturbing about that,” he said.
Wednesday, November 24, 2021
Congress Proposes Giving Plaintiffs the Option to Reject Mandatory Arbitration for Sexual Harassment and Assault Cases
Lily, Wash Post, Forced Arbitration Can Shield Workplace Harassers, Legal Experts Say
On Tuesday, they testified before the House Judiciary Committee. All four women said they reported the behavior to someone at their company. All four women said they were retaliated against for speaking up. And all four women went through mandatory arbitration — an often confidential process that has, for many companies, become the primary way of handling employee disputes.***
Mandatory arbitration, a process that requires employees and consumers to mediate their grievances with the company in a closed-door forum rather than go to court, is now the norm for many businesses, especially nonunion workplaces.
But more than four years after the #MeToo movement propelled a nationwide reckoning of sexual abuse in the workplace, critics of mandatory arbitration say it has protected toxic, abusive workplaces and the people who run them. Changing this particular process is crucial to making substantive strides on workplace harassment, they say.
Supporters of arbitration, meanwhile, claim that the process is a faster, less expensive alternative for workers than filing a lawsuit in court, and could be less intimidating. But workers rights groups and trial lawyers have long argued that the process isolates workers and leaves them at a major disadvantage in winning remedy or compensation from their employers.
In Congress, there is a bipartisan push to amend arbitration rules. On Wednesday, the House Judiciary Committee passed the Forced Arbitration Injustice Repeal (FAIR) Act, which would offer workers the option to resolve their complaints through arbitration or the courts. The Senate Judiciary Committee recently passed an identical version of the bill.
The bill would give workers with sexual abuse claims against their employers the choice to either go through arbitration or pursue their claims in court.
Rachel Wechsler, Victims as Instruments, Washington L. Rev. (forthcoming)
Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.
This Article is the first to analyze the treatment of crime victims through the lens of moral philosophy and liberal legal theory. It demonstrates that the application of these concepts is helpful in evaluating the legitimacy of the state’s approach to GBV victims. Following this analysis, it proposes a normative shift in the approach, from one that conceptualizes GBV victims primarily as instruments to one that constructs them as agents whose dignity and autonomy the state must respect.
Martha Chamallas, Social Justice Tort Theory, 14 Journal of Tort Law Issue 2 (2021 Forthcoming)
Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).
Karissa Kang & John Kang, Anomalous Anatomies: How the TSA Should Screen for Transgender People, 21 Nevada L.J. (2021),
A transgender person faces obstacles trying to negotiate a gender-binary world. Going through a TSA checkpoint is no different. A substantial number of transgender persons have reported that they were detained and examined because they were transgender. Why this situation persists, constitutional concerns, and what policy reforms should be implemented to alleviate it are the subjects of this Essay.
Tuesday, November 23, 2021
Germany debates how to form gender-neutral words out of its gendered language after 2018 federal law
In Germany, the debate about gender-neutral and inclusive language is complicated by grammar. Just as in many other languages, gender in German isn’t denoted by personal pronouns alone. German nouns that refer to people have traditionally been masculine or feminine. So, a male citizen is a Bürger and a female citizen is a Bürgerin. But in the plural, the masculine is traditionally used by default — a point that’s been contentious at least as far back as the second wave of feminism in the 1960s.
In 2018, a new federal law stipulated that all forms of ID — from birth certificates to passports — must include three options: male, female and diverse, all of which can even be left blank.
Since then, gender-neutral language has become more commonplace. German airline Lufthansa recently ditched the phrase “ladies and gentlemen,” German scholars are preparing a gender-neutral edition of the Bible and in some cities — like Hanover — there’s an official directive about using gender-neutral words.
Known for speaking Hochdeutsch — considered the most standard variant of German — Hanoverians have been encouraged by city hall to use gender-sensitive language for almost two decades, avoiding the generic masculine whenever possible.
In 2019, Hanover became the first state capital to mandate the use of gender-neutral language in all official communication, from emails to brochures and posters. It deployed what’s known as the “gender star,” an asterisk placed within a noun to indicate it refers to men, women and nonbinary people alike. For instance, the word for all citizens became Bürger*innen.
Annika Schach, who was the city’s communications director at the time, says the new language guidelines have had a mixed reception, but she believes that the generic masculine is passé.
“Using gender-neutral language or the gender star has less to do with wanting to change the world, and more to do with reality,” Shach says. “Society is not only made up of men, but women, intersex and nonbinary people too and the language we use must reflect this.”
Titled “Advancing Gender Equity through Legislation: A Compilation of Laws passed from 2014 - 2020," the study broke down New York City legislation into three areas that traditionally disadvantage non-male genders: economic mobility and opportunity, health and reproductive justice, and safety.
“One of the things that CGE had noticed before we did this report was that all of this legislation wasn’t in one place and easily accessible to people,” said Dr. Maria D’Agostino, a professor of public administration at John Jay College and the study's co-author. “And then during COVID, lots of gender issues were made worse, such as gender-based violence, so it became even more important for New Yorkers to know their rights.”
. . .
Elias and D’Agostino are founding co-directors of the Initiative for Gender Equity in the Public Sector (IGEPS), which conducted the study.
For New Yorkers, this study’s timing may be especially noteworthy as Kathy Hochul recently became the first female governor of New York state after former governor Andrew Cuomo resigned following allegations of sexual misconduct. The scandal highlighted the sexual assault and harassment that many women, transgender, and non-binary people continue to face in the workplace.
“Our partnership with IGEPS helped CGE achieve one of its key goals—to ensure that New Yorkers can readily access information on the gender equity gains made since 2014,” said Jacqueline M. Ebanks, executive director of CGE.
One key gender equity gain from the IGEPS study was a 2017 New York City law requiring agencies designated by the mayor to survey everyone whom the agency serves on their sexual orientation and gender identity. Each agency for the first time must gather this demographic information, create a report summarizing the data, and regularly review their data collection process.