Gender and the Law Blog

Catharine MacKinnon on Exploring Transgender Law, Politics, and the Meaning of Feminism

Catharine MacKinnon, Exploring Transgender Law & Politics, Signs (2023).

For the first time in over thirty years, it makes sense to me to reconsider what feminism means. Trans people have been illuminating sex and gender in new and insightful ways. And for some time, escalating since 2004 with the proposed revisions in the UK Gender Recognition Act, a substantial cohort of self-identified feminists have opposed trans peoples’ existence as trans.  Male power, which seldom takes seriously anything feminists say, has weaponized the feminist critique against trans people in both the US and the UK. In the process, many issues central to the status of the sexes have been newly opened or sharpened; many are unresolved. I hope to learn from our discussion. My thoughts are provisional and could be subtitled “what I’ve learned so far.”

Much of the current debate has centered on (endlessly obsessed over, actually) whether trans women are women. Honestly, seeing “women” as a turf to be defended, as opposed to a set of imperatives and limitations to be criticized, challenged, changed, or transcended, has been pretty startling. One might think that trans women—assigned male at birth, leaving masculinity behind, drawn to and embracing womanhood for themselves—would be welcomed. Yet a group of philosophers purporting feminism slide sloppily from “female sex” through “feminine gender” straight to “women” as if no move has been made, eventually reverting to the dictionary: a woman is an “adult human female.” Defining women by biology—adult is biological age, human is biological species, female is biological sex—used to be criticized as biological essentialism. Those winging to the Right are thrilled by this putatively feminist reduction of women to female body parts, preferably chromosomes and reproductive apparatus, qualities chosen so that whatever is considered definitive of sex is not only physical but cannot be physically changed into.

Feminism, by contrast, is a political movement. If some imagine a movement for female body parts, the rest of us are part of some other movement, one to end the subordination of women in all our diversity. In other words, what women “are” does not necessarily define the woman question: our inequality, our resulting oppression. Those of us who do not take our politics from the dictionary want to know: Why are women unequal to men? What keeps women second-class citizens? How are women distinctively subordinated? The important question for a political movement for the liberation of women is thus not what a woman is, I think, but what accounts for the oppression of women: who is oppressed as a woman, in the way women are distinctively oppressed?

Women are not, in fact, subordinated or oppressed by our bodies. We do not need to be liberated from our chromosomes or our ovaries. It is core male-dominant ideology that attributes the source of women’s inequality to our nature, our biological sex, which for male dominance makes it inevitable, immutable, unchangeable, on us. As if our bodies, rather than male dominant social systems, do it to us.

 

CFP 2024 AALS Obstacles to Gender Equality in the Legal Academy

Call for Proposals for 2024 AALS WILE Main Program:    "Obstacles to Gender Equality in the Legal Academy"   Panel Description:     Despite the progress made in recent years, gender inequality remains a pervasive issue in the legal profession, particularly in academia. Women remain underrepresented in influential positions, and face systemic bias, discrimination, harassment, and other obstacles that limit their advancement and overall success. Law schools place a premium on statuses that have largely been defined by and through patriarchies. Visible and invisible status lines and distinctions are perpetuated by a legal academy that voices an often-empty commitment to equity.  We invite proposals for the 2024 AALS WILE Main Program, dedicated to exploring the obstacles that face a diversity of women in the legal academy. We welcome proposals that address, but are not limited to, the following themes:  The impact of implicit bias and gender stereotypes on hiring, promotion, and tenure decisions in law schools.   The impact on career advancement and earning potential (or "motherhood tax") for professional women due to parenting and/or caretaking responsibilities.   The role of institutional policies and practices in perpetuating inequality, such as implicit curricula, exclusionary practices, and lack of support for work-life balance.  The experiences of women of color, LGBTQ2S+ women, women with disabilities, and other marginalized groups in the legal academy.  The effect of gender disparities on teaching, research, and service activities.  The potential of diversity, equity, and inclusion initiatives to foster a more equitable academic environment.  The implications of gender inequality for legal education, scholarship, and the legal profession at large.  The ways in which laws attacking tenure and prohibiting DEI trainings/offices will perpetuate gender inequality.    We welcome submissions from law faculty, staff, and administrators at all stages of their careers. Submissions are due on or before Monday July 31, 2023, and should be sent to [email protected]. For more information, please do not hesitate to contact Victoria Haneman.

Backdating the Law of MeToo and Sexual Harassment

Jessica Fink, Backdating #MeToo, SSRN.com 

The #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.

While society has undergone great shifts in its understanding of and response to workplace harassment, the courts have been slow to respond to these changing views. Various academics and other commentators have argued that sexual harassment law must evolve to catch up to these social changes, but few courts have embraced (or even acknowledged) this new reality. More importantly, virtually no one has addressed how courts should treat cases that span the progression of these norm shifts – cases that may have arisen prior to the upheaval caused by the #MeToo movement, but which are being litigated in the aftermath of these new social standards. This seems particularly striking given the extent to which the legal framework for resolving harassment claims explicitly involves an understanding of broader norms: In an area of the law that turns so significantly on “reasonableness” – whether a “reasonable” plaintiff would have perceived a sexually hostile environment; how a “reasonable” employer or employee should respond in such circumstances – what happens when reasonableness becomes a moving target, even within the duration of a single case?

This article examines the extent to which current, more stringent social standards regarding workplace sexual harassment should be applied retroactively to cases that may have arisen before those standards came into being. Specifically, it examines what should happen when a court is faced with workplace behavior that would not have constituted actionable harassment at the time that such conduct occurred, but which likely would create liability for the employer under today’s expectations. Should courts “backdate” the new norms created by the #MeToo movement? This article discusses the ramifications for women – and for society at large – of engaging in such a retroactive application of these evolving standards.

Analyzing the Privatization of Family Leave Through Insurance

Deborah A. Widiss, Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model, Seton Hall L. Review (forthcoming)

Federal law fails to guarantee new parents or family caregivers paid time off from work. A growing number of blue-leaning states have addressed this gap by enacting comprehensive, paid family and medical leave laws, typically funded by a small payroll tax. A new—and quite different—approach is expanding rapidly in red-leaning states: authorization of commercial “Family Leave Insurance” to be marketed to employers. In other words, this is an opt-in privatized approach to family leave policy.

This Article, written for a symposium held by the Seton Hall Law Review, offers the first analysis in the legal literature of opt-in Family Leave Insurance laws. These laws anticipate that insurance companies will likely add “family leave” to group short-term disability policies (an existing insurance product that provides partial salary reimbursement to employees who take time off work for medical needs). However, only about 40% of American workers, and just 22% of low-wage workers, receive short-term disability benefits from their employers—and most policies replace only 50-60% of regular wages. Providing paid leave at the low reimbursement rate typical of short-term disability policies can actually exacerbate inequality by making it easier for relatively affluent workers to take extended time off but still failing to provide sufficient support for low-wage workers to do so. By contrast, states that have enacted comprehensive paid leave laws, funded by a payroll tax, typically cover virtually all workers, and most replace 80-95% of regular wages, up to a cap set around the median wage.

This Article analyzes the new privatized Family Leave Insurance model, then suggests provisions that would help opt-in policies actually meet the needs of new parents and family caregivers. These include specifying a reasonably ample period of benefits and level of wage replacement, and ensuring that definitions of “family” reflect the diversity of contemporary families. The Article also explores potential adverse selection challenges—both within workplaces and across workplaces—that may arise under an opt-in approach. Because the risk pool will almost certainly be less varied than under a public program, private Family Leave Insurance may well provide less generous benefits at a higher per-person cost than fully-public policies. Authorization of opt-in insurance is better than nothing, but, as this Article demonstrates, it is likely that both workers and businesses are better served by comprehensive paid leave laws.

SCOTUS Unwed Parents Cases Retain Anachronistic Gendered Hierarchies as a Matter of Constitutional Law

Albertina Antognini, Unwed Parents: The Limits of Constitution, 35 J. Am. Acad. Matrim. Law. 425 (2023)

As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. In constitutional terms, while equality and due process considerations have forged an increasingly open and equal marital relation, these gains have largely been limited to marriage. The Constitution has failed to reform nonmarriage in similar ways and, as a consequence, it continues to contain “stunningly anachronistic” laws and principles.

 

Nonmarriage is by definition broad, encompassing the many activities and statuses that take place outside of marriage. The nonmarital cases this essay addresses involve unwed parents, which constitute a small but important slice of the legal issues that arise in the nonmarital domain. The Supreme Court has had occasion to interpret the Constitution's applicability to nonmarriage in a series of cases addressing unwed fathers; these decisions range from considering whether notice ought to be provided to an unwed father as a constitutional matter before placing his biological child for adoption, to whether disparate requirements for unwed fathers and unwed mothers in transmitting citizenship violate equal protection. Throughout, the Court has repeatedly upheld dissimilar treatment where it finds the existence of “real” differences between men and women. Reasoning from the “fact of conception” and “proof” of paternity, the Court has consistently concluded that men and women are not “similarly situated” when it comes to their roles as mothers and fathers. These facts that purportedly distinguish mothers from fathers as a general matter, gain legal significance only outside of the status of marriage.

 

The most recent of the unwed fathers cases, decided in 2017, is Sessions v. Morales-Santana. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children. The decision has been lauded for eliminating one of the few remaining facial sex-based distinctions, and criticized for the remedy it issued in response. This essay does neither. Instead, it argues that Morales-Santana signals a clear break from the unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. This essay engages in a close reading of Morales-Santana to show exactly how the Court exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day.

 

To be sure, analyzing the Court's reasoning is not necessarily important as a matter of predicting what the Court will do in future cases addressing the constitutional rights of nonmarital families - that has been largely pre-determined by the Court's most recent appointees. The opinion is also, in many ways, dated, part of a different legal landscape, one in which women and pregnant persons had more rights - to equality, to dignity, to bodily autonomy. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions. The nonmarital cases exist in the register of indisputable observation, yet they are based on archaic beliefs about the abilities of men and women that reflect, and continue to reproduce, gender inequality

Book The Cambridge Companion to Gender and the Law Asks To What Extent is the Legal Subject Gendered

Stéphanie Hennette Vauchez & Ruth Rubio-Marín, eds.,  The Cambridge Companion to Gender and the Law  (Cambridge U. Press 2023)

To what extent is the legal subject gendered? Using illustrative examples from a range of jurisdictions and thematically organised chapters, this volume offers a comprehensive consideration of this question. With a systematic, accessible approach, it argues that law and gender work to co-produce the legal subject. Cumulatively, the volume's chapters provide a systematic evaluation of the key facets of the legal subject: the corporeal, the functional and the communal. Exploring aspects of the legal subject from the ways in which it is sexed and sexualised to its national and familial dimensions, this volume develops a complete account of the various processes through which legal orders produce gendered subjects. Across its chapters, each theoretically ambitious in its own right, this volume outlines how the law not only acts on the social world, but genders it.

Reclaiming Tort Law to Protect Reproductive Rights

Yvonne Lindgren & Nancy Levit, Reclaiming Tort Law to Protect Reproductive Rights, 75 Alabama L.Rev. (2023)  

In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of abortion to the states to regulate, restrict, criminalize, or protect at the state-level. In the post-Roe era, states are increasingly turning to private law to restrict travel, access to medical care, and undermine privacy of individuals seeking abortion. Three states have passed antiabortion civil enforcement “bounty” provisions patterned on Texas’s SB8 that allows private citizens to sue providers or third parties who aid and abet an abortion that violates the state’s six-week ban. At least half a dozen states have signaled that they will pass their own civil bounty antiabortion provisions. Other states, such as Missouri, have introduced legislation that would permit any private citizen to sue anyone who helps a pregnant person travel out of state to obtain an abortion. Aggressive protesting at abortion clinics and surveillance of out-of-state license plates and people entering abortion clinics have also been on the rise as private citizens take up the charge of enforcing state antiabortion laws. Under this private law scheme, pregnant bodies become politicized legal subjects to be disciplined and surveilled by the public to enforce a state’s policy agenda without constitutional and civil law protections.

This Article argues that the use of private law to enforce abortion bans — a function that had been previously exclusively patrolled through public law — is antithetical to the purpose and function of private law to protect individuals from tortious harms by third parties. Private law is designed to compensate individuals for harms and to protect the community more broadly by discouraging individuals from engaging in harmful behavior through the deterrent force of damage awards. However, civil enforcement regimes are eroding the boundary between public and private law and exposing people to private harms through state capture of private law. These civil provisions are often coupled with criminal enforcement regimes that deprive pregnant persons of necessary medical care. Rather than protect individuals from privacy invasions by third parties, these laws incentivize the surveillance and privacy intrusions that will necessarily result from the regime of private enforcement and aggressive protesting at abortion clinics. Thus, in the post-Roe landscape, abortion patients and providers have lost both constitutional protection and private law’s protection against harms inflicted by private actors. This Article sets forth a framework to both reassert tort law’s function to offer protection against privacy invasions by third parties and restore private law’s role in expressing normative values of the community — rather than of the state — that rests at the heart of a private law regime.

It is a critical moment to challenge the emerging trend of state capture of private law and reestablish private law’s traditional role to guard against privacy intrusions by third parties. Torts such as intrusion upon seclusion, public disclosure of private facts, infliction of emotional distress, and federal civil rights violations, as well as tort claims for providers such as interference with prospective business relations and civil RICO to name only a few may serve to reclaim private law’s primary purpose to protect individuals from infringement by third parties. Shielding abortion patients and providers from surveillance, detection, and violations of medical privacy may limit overreach by bounty hunters and protestors. More importantly, it will reclaim private law’s role to protect individuals and providers in the constitutional vacuum left in the wake of Dobbs.

The Feminist-Neutrality Paradox of Women Judges

Alissa Rubin Gomez, The Feminist-Neutrality Paradox, 127 Dick. L. Rev. 101 (2023)

Female judges are vital to a well-functioning third branch of government given the long-documented link between diversity and judicial legitimacy. Beyond appearances, however, the article explores the reasons why so many empirical studies have shown that judges do not decide cases differently on account of their gender. This article describes how women must act like men to gain acceptance into the male-dominated judicial sphere and then are expected to apply precedent that has been overwhelmingly decided by men. In other words, the decisions of female (and feminist) judges are largely the same as those of their male counterparts because of systemic pressures on female judges to conform to the unstated male norm under the guise of neutrality and the rule of law. These observations are not new. But in the wake of Dobbs v. Jackson Women’s Health Organization – the case that erased the constitutional right to abortion with little concern for the appearance of judicial neutrality or stare decisis – this article asks whether feminists should stop playing by the rules as well.

School Book Removals May Create Hostile Environment Violating Student Civil Rights

Wash Post, Book Removals May Have Violated Student Civil Rights, Education Dept. Says

In a move that could affect how schools handle book challenges, the federal government has concluded that a Georgia school district’s removal of titles with Black and LGBTQ characters may have created a “hostile environment” for students, potentially violating their civil rights.

The Education Department’s Office for Civil Rights released its findings in a letter Friday wrapping up its investigation into Forsyth County Schools’ 2022 decision to pull nearly a dozen books from shelves after parents complained of titles’ sexual and LGBTQ content. To resolve the investigation, the district north of Atlanta agreed to offer “supportive measures” to students affected by the book removals and to administer a school climate survey, per the letter. ***

The Education Department’s investigation into the Forsyth district — which involved the examination of school documents, interviews with top school personnel and a review of public board meeting records — was based on a complaint alleging that the January 2022 removal of books created a “racially and sexually hostile environment for students,” according to the department.

The district ultimately removed eight books indefinitely and two temporarily, according to the letter, and it limited four titles to high schools. Superintendent Jeff Bearden told the school board that the books being yanked “were obviously sexually explicit or pornographic,” according to the letter.

Of the books listed for removal, three center on characters of color and one on an LGBTQ protagonist, according to a Washington Post analysis. The nixed titles include “The Bluest Eye” by Nobel Prize-winning author Toni Morrison, the Forsyth County News reported and Caracciolo confirmed.

A study by the Washington Post found that the majority of all school book bans are being filed by a small number of people. See Objection to sexual, LGBTQ content propels spike in book challenges

A small number of people were responsible for most of the book challenges, The Post found. Individuals who filed 10 or more complaints were responsible for two-thirds of all challenges. In some cases, these serial filers relied on a network of volunteers gathered together under the aegis of conservative parents’ groups such as Moms for Liberty.

And the types of claims:

The Post analyzed the complaints to determine who was challenging the books, what kinds of books drew objections and why. Nearly half of filings — 43 percent — targeted titles with LGBTQ characters or themes, while 36 percent targeted titles featuring characters of color or dealing with issues of race and racism. The top reason people challenged books was “sexual” content; 61 percent of challenges referenced this concern.

In nearly 20 percent of the challenges, petitioners wrote that they wanted texts pulled from shelves because the titles depict lesbian, gay, queer, bisexual, homosexual, transgender or nonbinary lives. Many challengers wrote that reading books about LGBTQ people could cause children to alter their sexuality or gender.

 

A Comprehensive Proposal for Transitional Justice for Healing Sexual Violence Against Women of Color

Miyoko Pettit-Toledo, Collective Memory and Intersectional Identities: Healing Unique Sexual Violence Harms Against Women of Color Past, Present and Future, 45 Univ. Hawaii L. Rev. (2023)

For at least the last decade, at the urging of gender scholars and advocates, reconciliation initiatives started to recognize specialized harms of sexual violence against women and began to tailor redress to address these harms. Yet, although a step in the right direction, even those forward-looking redress initiatives did not specifically and forthrightly recognize unique sexual violence harms to women of color. This Article builds on this developing intersectional race-gender redress analysis with its focus on sexual violence by illuminating an important next step: recognition, through storytelling and collective memory, of sexual violence injustices against women of color. The collective memory of injustice is an important prelude to reconciliation initiatives. In the context of sexual violence against women of color, the shaping of an individual’s and group’s narrative and public image of the harms are vital to moving forward, especially as related to truth commission investigations and hearings. Where women of color who suffered sexual violence (and other forms of gender-based harms) are often silenced or largely rendered invisible in the redress process, voicing both individual and collective experiences of such harms may be an important step forward in healing such unique harms.

Yet in many transitional justice initiatives, those willing to come forward are frequently narrowly cast or categorized as “victims,” often in the context as witnesses in criminal prosecutions or for the purpose of determining legal eligibility for monetary reparations. However, recent studies reveal that women of color who have suffered sexual violence harms experience multiple, intersectional identities—as victims, survivors, political activists, fighters and much more. And many of them have expressed that they wish to be remembered that way—as more than just “victims”—in reparative justice initiatives and beyond. Through a mini case study of the experiences of Toufah Jallow, the Gambian woman who is credited with inspiring the #MeToo movement in Africa, this Article begins to illuminate what more is needed for comprehensive and enduring social healing through justice for both individual women of color and the polity itself. The time is now to listen to these women of color with empathy and understanding. The time is now to strive for more genuine and comprehensive social healing through justice.

The Limited Effect of SCOTUS' Decision in Sessions v. Morales-Santana Five Years Later

John Vlahoplus, Sessions v. Morales-Santana, Five Years On, Charleston Law Review (Forthcoming)

The Supreme Court’s 2017 decision in Sessions v. Morales-Santana was a landmark victory for equality over congressional power. For the first time the Court invoked equal protection principles to invalidate a citizenship statute despite Congress’s near-plenary power over immigration and naturalization. The Court’s remedy disappointed Morales-Santana, however. Rather than level up by recognizing that he acquired derivative citizenship as of birth from his unwed citizen father, the Court leveled down by striking a more favorable rule granting derivative citizenship at birth to children of unwed citizen mothers. Commentators recognized that the Court’s brief opinion left many questions open and that only subsequent developments would reveal whether or how it might affect equal protection and plenary power doctrines.

This essay examines the first five years of developments. It shows that Morales-Santana has had a significant but limited impact. Courts have relied on it to level up in citizenship litigation, to adjudicate claims of post-natal citizenship, and to secure some rights of non-traditional families and family members. Nevertheless, the majority’s insistence that contemporary evaluation governs equal protection analysis has not informed the development of gender-based equal protection more broadly. Courts continue to accept older precedents and rationalizations of gender discrimination at face value. An equal protection principle strong enough to defeat congressional power in an area as important as citizenship has failed to eliminate gender discrimination in other important areas like parental rights.

The essay also analyzes constitutional issues relating to citizenship and plenary power that the majority opinion glosses over, outlines defenses against potential circumvention, and identifies areas for further development that remain despite—or perhaps because of—the majority opinion’s theoretical uncertainties. How courts will continue to apply the decision in citizenship, immigration, and other cases remains to be seen.

Center for Reproductive Rights publishes report on "Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine"

The Center for Reproductive Rights published a report on "Care in Crisis: Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine in Hungary, Poland, Romania, and Slovakia."  The report chronicles how millions of people, mostly women and children, have migrated from Ukraine to the EU, including Hungary, Poland, Romania and Slovakia. 

However, Hungary, Poland, Romania and Slovakia are some of the most challenging contexts in Europe when it comes to sexual and reproductive healthcare and gender-based violence support services. Decades long failures by national governments to invest in and prioritize these forms of care and support, combined with restrictive and unclear legal and policy frameworks and ongoing stigma and rollbacks on sexual and reproductive rights, heavily constrain access to good quality care.

 

As millions of women and girls from Ukraine arrived in Hungary, Poland, Romania and Slovakia, serious concerns arose regarding their ability to obtain essential forms of healthcare, services and support. It became clear that violations of fundamental rights within Ukraine were being compounded by rights violations outside of the country. There was particular concern for refugees who had suffered conflict related sexual and gender-based violence in Ukraine, including rape and other gender-based crimes.

 

Between July 2022 and April 2023, our organizations undertook in-depth, multi-country fact-finding to examine the gaps and barriers in access to sexual and reproductive healthcare and gender-based violence support services that are faced by refugees from Ukraine in Hungary, Poland, Romania and Slovakia. Over nine months, we collected information from semi-structured interviews with over 80 experts, professional stakeholders and refugees from Ukraine based across these four countries.

The article describes the legal barriers, cost barriers, and information barriers, as well as the poor quality care, stigma, and discrimination that these refugees faced in each country. The report offers concrete recommendations to each of the countries.

Gender Inequality in Pharmaceutical Patent Law

Sean Tu and and Tess Hardesty have published "Gender Inequality in Pharmaceutical Patent Law" on April 3 in Volume 15 of Landslide by the American Bar Association. The article concludes: 

A recent study by professors found that women represent only one-third of the top pharmaceutical patent litigators and one-quarter of lawyers who help inventors obtain these valuable pharmaceutical patents. This lack of representation in the pharmaceutical patent field is surprising because women represent the majority of law school students who have natural sciences degrees. Despite conventional wisdom, which alleges that this lack of representation is due to the absence of women within technical fields (the “pipeline” theory), this study rebuts the pipeline theory. Specifically, the study shows that women law students with natural sciences degrees outnumber their male counterparts and yet women are underrepresented when it comes to pharmaceutical patent prosecution and litigation.

Dismantling the Cage of Binary Sports

Tracy L. Turner, Dismantling the Cage of Binary Sports, 67 St. Louis U. L. J. 41 (Fall 2022)

This article responds to recent media coverage and legislative action regarding transgender athletes. For every step forward that organizations like the National Collegiate Athletic Association take to improve the wellbeing of transgender athletes, they are met with increasingly vehement objections. Often, these objections take the form of hurtful comments about the bodies, sexuality, and personality of individual athletes. Recently, several state legislatures have enacted “fairness” laws that categorically exclude transgender athletes from female programs. This article considers the relationship between two significant harms perpetuated by sex segregation in athletics: the relegation of female athletes to a second-tier status that caps their potential, and the trauma gender minority athletes experience while trying to fit into a heteronormative structure. Using Equal Protection doctrine, Title VII, and Title IX, the article argues against rigid sex and gender classifications in favor of individualized assessment of merit. The overall goal of the article is to advocate for a system of school athletics defined by inclusion rather than exclusion in which every athlete can find their ideal competitive fit and maximize their athletic excellence, a result that will strengthen the quality of American sport.

The Prevalence of Gender-Based Violence in the Lives of Women Sentenced to Death Row

Sandra Babcock & Nathalie Greenfield, Gender, Violence, and the Death Penalty, 53 California Western Int'l L.J. (2023)

 This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row. We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution. Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials. When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result. Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence. Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

Understanding Gender Through an Economic Frame and the Lens of Decertification of Legal Sex

Davina Cooper, De-producing Gender: The Politics of Sex, Decertification and the Figure of Economy,  
Forthcoming, Feminist Theory, https://journals.sagepub.com/doi/10.1177/14647001221148639

This article explores the contribution that the figure of economy can make to understanding gender in contemporary Britain, focusing on gender as a social quality and legal category that is produced, allocated and used. The article proceeds in two parts. The first part considers the politics of sex-based feminism and gender-as-diversity through an economic frame. The second part focuses, in detail, on one specific juncture where these diverging politics meet: decertification – a law reform proposal to dismantle the system for assigning, registering and regulating legal sex. Decertification is a controversial strategy. Advocates argue that self-expression and interpersonal communication, whether through gender or against it, is hindered by a state-based disciplinary certification system. Critics disagree. They argue that dismantling legal communication about a person's sex makes it harder to put categories of female and woman to remedial use. Drawing on other uses of certification, including commercial ones, this article suggests that certification not only communicates information about a process, quality or thing; it also contributes to their production. The impact of decertification on how gender is produced, what gets produced as gender and the uses to which gender is put are central to determining whether decertification is beneficial to a progressive transformative gender politics.

Rethinking the Infrastructure of Childbirth and Perinatal Health Inequity

Elizabeth Kukura, Rethinking the Infrastructure of Childbirth, 91 UMKC L. Rev. 497 (2023)

This Article applies the concept of infrastructure to analyze gaps in the maternity care system that shape where and how people give birth in the United States. It argues that we must understand how structural factors, including law and regulation, shape modern childbirth in order to advance perinatal health equity and improve health outcomes.

Specifically, the Article unpacks the concept of maternity care deserts as an infrastructure problem in three distinct but related ways. First, it describes the OB/GYN workforce shortage, including how the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is likely to compound this shortage in certain areas of the country.

Next, the Article describes the limited access to midwifery care in the United States and the current regulatory barriers to increasing the midwifery workforce and making midwifery care more available. It argues that greater midwife involvement in United States perinatal care will be essential in order to address the deepening gaps in access to care, and that the medical profession should abandon its opposition to liberalized midwifery licensure and regulation in favor of both midwifery promotion and greater interprofessional collaboration to meet the needs of pregnant people. Experimentation during the COVID-19 crisis with relaxed interstate licensure rules and interprofessional collaboration among physicians, midwives, nurses, and doulas to ensure safe childbirth provide examples for reimagining the relationships among birth professionals in ways that promote positive health outcomes.

Finally, the Article addresses existing barriers to community birth—meaning birth at home and in freestanding birth centers—and how lack of access to community birth, which is typically attended by midwives, both contributes to maternity care deserts and forces some people to birth in hospitals where their needs are not adequately met. Drawing on experiences during the pandemic, when record numbers of pregnant people sought community birth options in order to avoid delivering in hospitals overwhelmed by COVID-19, the Article argues that investing in more freestanding birth centers and reducing barriers to home birth are sensible, necessary strategies for closing gaps in access to maternity care and ensuring that pregnant people who do not feel safe or cannot have their needs addressed in hospitals have options for delivering in a community setting.

Dobbs, Plessy, and the New Jane Crow

Evan D. Bernick, Dobbs, Plessy, and the Constitution of the New Jane Crow,  Northern Illinois U. Law Rev. (2023)

Women and girls enter U.S. jails and prisons every year. Nearly a million are on probation, parole, or pretrial release. This carceral control is unevenly distributed, being primarily exercised over poor women of color. And it is growing. These realities are part of what has been conceptualized as “the New Jane Crow.”

This Essay contends that Dobbs v. Jackson Women’s Health Org. gives the New Jane Crow the U.S. Supreme Court’s constitutional blessing. In justifying its decision to overrule Roe v. Wade and hold that the Fourteenth Amendment does not protect the right to terminate a pregnancy, Dobbs invokes Plessy v. Ferguson and its overruling by Brown v. Board of Education. The profound evil of Plessy’s constitutional endorsement of “separate but equal” railcars and its legitimation of Jim Crow segregation is said to illustrate the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes.

Part I provides an overview of the New Jane Crow, tracing the genealogy of the phrase and describing the phenomenon that it names. Though provocative, I argue that the phrase fits the phenomenon, given substantive and functional continuities between state control of female reproduction past and present. Part II describes how Dobbs constitutionally legitimates key components of the New Jane Crow and encourages its expansion.

Part III analogizes Dobbs to Plessy in three respects. First, in its disregard of relevant history. Second, in its lack of attention to present socioeconomic realities. Third, in its capacity to provide constitutional legitimation to an entire political-economic order that perpetuates racialized and gendered subordination.

How the 19th Century Comstock Obscenity Law a the Key to the Abortion Fight

Emily Bazelon, NYT, How a 150-Year Old Law Against Lewdness Became a Key to the Abortion Fight

Anthony Comstock, a 19th-century crusader against sexual liberty, was mocked as a prude in his own time, but wielded real power. He persuaded Congress in 1873 to pass the Comstock Act, written by and named for him, making it a federal crime to send or deliver “obscene, lewd or lascivious” material through the mail or by other carriers, specifically including items used for abortion or birth control.

By the 1960s, the Comstock Act had fallen out of use — narrowed by court rulings, partly gutted by congressional repeals — and it was made an unconstitutional relic by the Supreme Court’s decision in 1973 in Roe v. Wade, recognizing a national right to abortion. But it stayed on the books.

Now, Comstock is back, once more being wielded as a weapon by social conservatives. Their arguments use the language of the act to target the mailing of abortion pills, and they are pushing judges and the Biden administration to reopen seemingly long-settled questions.

NYT, What to Know About the Comstock Act

The Comstock Act’s definition of what was lewd material would be “radically unfamiliar” to people living today, according to Mary Ziegler, professor of law at University of California, Davis. Examples she cited included “somebody writing a letter to somebody asking them for a date if they weren’t married,” and “somebody mentioning the existence of an abortion in a newspaper.”

“The early Comstock Act enforcement is extraordinarily broad, and gets broader and broader,” Professor Ziegler said.

I have written some about the origins of the Comstock law: See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 91, 174-75 (NYU Press 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).

See also Gender & the Law Blog, Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

For a fictionalized story of the crusader Anthony Comstock and feminist activist Elizabeth Cady Stanton, see Marge Piercy, Sex Wars: A Novel of Gilded Age New York

Conference at the Center for Constitutional Law: Gender, Health and the Constitution

Gender, Health & the Constitution: Constitutional Law Conference

The Center for Constitutional Law at Akron

Friday, October 13, 2023

The Center for Constitutional Law at Akron seeks proposals for its annual Constitutional Law Conference.  The Center is one of four national centers established by Congress in 1986 on the bicentennial of the Constitution for legal research and public education on constitutional law.  Past presenters at the Center have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Judge Jeffrey Sutton, Professor Reva Siegel, Professor Lawrence Solum, Professor Maggie Blackhawk, Professor Katie Eyer, Professor Ernest Young, Professor Julie Suk, and Professor Paula Monopoli, among many others.

The 2023 Conference brings together scholars to explore the constitutional questions at the intersection of gender and health.  The daily news features issues of gender and health, whether related to Covid, abortion, transgender treatment, or maternal health.  Bodily autonomy and health rights raise questions about balancing against the interests of the state and third parties.  And individuals struggle to seek justice for their own lived reality.  

Committed speakers include: Aziza Ahmed (Boston U), Noa Ben-Asher (Pace), Jennifer Bard (Cincinnati), Rachel Bracken (NEOMed), Debbie Brake (Pitt), Ainslee Johnson-Brown (Akron), Naomi Cahn (Virginia), Marie Curry (Legal Aid), Bernadette Bollas Genetin (Akron), Susan Keller (Western), George Horvath (Akron), Dr. Allison Kreiner, M.D. (Plakas Manos), Maya Manian (American), Abby Moncrieff (Cleveland State), Jane Moriarty (Duquesne), Megan Frantz Oldham (Plakas Manos), Jennifer Oliva (Indiana), Christopher Peters (Akron), Dara Purvis (Penn State), Tracy Thomas (Akron)

This conference invites papers and presentations on any and all aspects related broadly to the theme.  Topics may include, but are not limited to:

• Covid: mandates, illness, and gendered differences
• Abortion and reproductive justice
• Transgender school and medical treatment bans
• Maternal health, pregnancy, and surrogacy
• Medical malpractice, including gaslighting of women patients
• Exclusion of women and gendered treatment in medical research
• Barriers in access to healthcare
• Gendered aspects of aging
• Biology as a basis for sex discrimination
• Rights related to gender-affirming care
• Gendered implications of medical conscientious objections

The Conference will be held live, in person on Friday, October 13, 2023, at the University of Akron School of Law.  Presenters may also participate virtually to facilitate participation by all who are interested in joining.  Unfortunately, we are not able to pay for travel expenses, and hope that speakers can be reimbursed from their home institutions.

Papers will then be published in a Winter 2024 Symposium Edition of the Center for Constitutional Law’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein).  Papers are typically shorter essays of 10,000 words.  Publication is expedited within four to six weeks of final paper submission.  The journal is designed to put issues of constitutional import into debate in a timely manner for an opportunity to impact discussion and decision.

Those interested in participating in the 2023 Constitutional Law Conference should send an abstract and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law, at [email protected] by August 15, 2023.