Gender and the Law Blog

Yvette Butler on "Survival Labor"

Yvette Butler has published Survival Labor in volume 112 of the California Law Review. The abstract is excerpted below. The piece relies on feminist theory in building its reasoning. 

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor. The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating and policing racialized bodies have created a culture where Blackness, in particular, is equivalent to criminality. While a penal abolitionist framework is helpful in getting rid of the harmful criminal and civil consequences of criminal penalties, a labor framework shifts the narrative in a way required to transform the perception of crime to one of labor. This shift is particularly important given the renewed attention to penal abolitionist logic and conservative and libertarian attempts to resurrect greater protection for economic liberty through the “right to earn a living.” In what will become a series of several pieces, this first Article proposes a narrative shift that allows us to critique and reimagine our conceptions of work. People engaged in survival crimes are often subject to the criticism that they should pursue “real work.” After reading this Article, I hope the legal community will question the continued criminalization of poverty, reconsider our understanding of work, and invest in this transformative project to protect the victims of state-sponsored oppression.

"Inclusive Socratic Teaching" Podcast

Blog co-author Jamie R. Abrams was featured on a podcast titled Tea for Teaching last week, hosted by SUNY Oswego. The podcast focused on the book Inclusive Socratic Teaching, which draws upon a half century of feminist theory critiquing the Socratic Method. This book summary is below. The podcast is featured here. 

For more than fifty years, scholars have documented and critiqued the marginalizing effects of the Socratic teaching techniques that dominate law school classrooms. In spite of this, law school budgets, staffing models, and course requirements still center Socratic classrooms as the curricular core of legal education. In this clear-eyed book, law professor Jamie R. Abrams catalogs both the harms of the Socratic method and the deteriorating well-being of modern law students and lawyers, concluding that there is nothing to lose and so much to gain by reimagining Socratic teaching. Recognizing that these traditional classrooms are still necessary sites to fortify and catalyze other innovations and values in legal education, Inclusive Socratic Teaching provides concrete tips and strategies to dismantle the autocratic power and inequality that so often characterize these classrooms. A galvanizing call to action, this hands-on guide equips educators and administrators with an inclusive teaching model that reframes the Socratic classroom around teaching techniques that are student centered, skills centered, client centered, and community centered.

 

 

An International Analysis of Online Representation of Medical Risks and Incentives in Egg Donation

Lara Jacxsens and Catherine Coveney, et. al.  have published The representation of medical risks and incentives concerning egg donation: an analysis of the websites of fertility clinics of Belgium, Spain and the UK in volume 27 of Human Fertility (2024). The abstract is excerpted below. 

Considering the growing demand for egg donation (ED) and the scarcity of women coming forward as donors to meet this demand, scholars have expressed concerns that clinics may (initially) misrepresent risks to recruit more donors. Additionally, (non-)monetary incentives might be used to try to influence potential donors, which may pressure these women or cause them to dismiss their concerns. Since the internet is often the first source of information and first impressions influence individuals' choices, we examined the websites of fertility clinics to explore how they present medical risks, incentives and emotional appeals. Content Analysis and Frame Analysis were used to analyze a sample of Belgian, Spanish and UK clinic websites. The data show that the websites mainly focus on extreme and dangerous risks and side effects (e.g. severe OHSS) even though it is highly relevant for donors to be informed about less severe but more frequently occurring risks and side effects (e.g. bloating), since those influence donors' daily functioning. The altruistic narrative of ED in Europe was dominant in the data, although some (hidden) financial incentives were found on Spanish and UK websites. Nonetheless, all information about financial incentives still were presented subtly or in combination with altruistic incentives.

 

 

The Differences in Formal and Informal Faculty Mentoring by Gender and Race

Gina Scutelnicu Todoran, "The Contribution of Formal and Informal Mentorship to Faculty Productivity: Views of Faculty in Public Affairs Programs," Journal of Public Affairs Education 29(4), 404-420

This study examines how mentorship opportunities contribute to the productivity and career growth of public affairs faculty, stratified by gender and race. The study uses primary data coming from an original survey administered at two different points in time (2017 and 2021) to faculty who are part of NASPAA member schools. Results indicate that women and faculty from racially under-represented groups are more likely to receive formal mentoring whereas men and white faculty are more likely to benefit from informal mentoring. Additionally, results show that the relationship between mentoring approaches and research effort differed by the faculty’s member gender and race with formal mentoring contributing to the research effort of men and white faculty across all academic ranks and university types, and informal mentoring contributing to the research effort of mid-career faculty of all genders and races. This study aims to inform individuals and universities about mentoring trends and contributions.

Title IX in the Age of Textualism

Katie Eyer, Title IX in the Age of Textualism, 86 Ohio State L.J. (forthcoming 2025)

Title IX has long been thought of as a quintessentially administrative statute, i.e., a statute whose contours are defined primarily by its agency interpreters. Known as much for its administrative interpretations as for its statutory text, both the public image, and legal enforcement of Title IX have been profoundly shaped by the administrative state. This Article asks: what becomes of such an “administrative law” in the wake of the rise of textualism?

This question has gained new urgency, as the most recent Title IX regulations issued by the Department of Education are facing numerous legal challenges—and as the Supreme Court’s opinion in Loper Bright Industries v. Raimondo has led to a rapidly shifting administrative law landscape. This Article thus takes up the question of how Title IX may be understood in the changed interpretive environment. Does Title IX’s statutory text provide meaningful guidance in relation to contemporary Title IX disputes? And how might an examination of Title IX’s regulations help us to understand the space for administrative agencies to act in a post-Loper Bright world?

This Article contends that Title IX’s statutory text can and does provide clear guidance on many of the contemporary issues that have been raised in challenges to the Department of Education’s most recent regulations. Thus, simply taking Title IX’s statutory text seriously can answer the question of whether (as the DOE’s new regulations provide) anti-LGBT discrimination is proscribed (it is), whether regulatory exceptions that exceed the statutory text must be harmonized with the statute (they must), and whether the DOE’s recently adopted hostile environment standard is too broad (it is not).

But this Article also suggests that other, future, challenges to Title IX’s administrative infrastructure may prove more complex. Taking up the example of Title IX’s athletics regulations and guidance, the Article suggests a series of important questions that the courts will have to resolve as they consider the role for statutory text—and the role for administrative law—today. While the answers to such questions will necessarily be case-specific—and as the case of Title IX”s athletics regulations shows, may well be susceptible of conflicting answers—they will be central to understanding the role for administrative law in our modern textualist era.

New Book Justice Jackson's Autobiography

Kimberly Robinson, Book Review, Justice Jackson had "Wrenching Time" as Big Law Working Mom, reviewing Lovely One by Ketanji Brown Jackson.

Supreme Court Justice Ketanji Brown Jackson described her return to law firm life after the birth of her first daughter as “wrenching,” saying she “drastically underestimated the challenges of new motherhood.”

“I can honestly say that going back into the office as a new mother, and returning to the cadence and pressures of Big Law, was the stuff of nightmares,” Jackson said in her memoir, “Lovely One,” which was released Tuesday.

She describes the challenges of commuting, breastfeeding, and having to slip out of the office apologetically “at the unspeakably early hour of five P.M. each workday.” And in particular, she details the isolation and lack of motivation she felt of returning to Goodwin Procter after four months of maternity leave.

For “me, there was a hollowness to the corporate law enterprise,” Jackson wrote.

Wilkins v. Austin Eliminates Discriminatory HIV Barrier to Military Service

Lambda Legal challenged the United States Military's prohibition on the enlistment of people living with HIV in Wilkins v. Austin. Here are excerpts from Lambda's press release describing the case: 

The lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status. Minority Veterans of America (“MVA”) is also an organizational plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military.  

The filing followed the Biden administration’s announcement in July 2022 that it would no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unlawful and unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no medical restrictions applied to their deployability or to their ability to commission while a servicemember based on their HIV-positive status.    

Before the July 2022 announcement, a federal district court handed down one of the most substantial judicial rulings in over two decades for people living with HIV in two cases—Harrison v. Austin and Roe & Voe v. Austin.  The rulings ordered the Department of Defense (DOD)—the world’s largest employer—to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV. It reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate.   

Here are Lambda's selected excerpts from the successful opinion in Wilkins v. Austin striking down the policy: 

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals." 

“Modern science has transformed the treatment of HIV, and this Court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment. Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”  

CFP for Volume 33 of the American University Journal of Gender, Social Policy & the Law

Below is a call for papers from the American University Journal of Gender, Social Policy & the Law.

Dear Colleagues,

You are invited to submit articles for inclusion in Volume 33 of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of gender, race, sexuality, and other personal and political identities and the Law. As one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject areas of women, gender, sexuality, and the Law, the Journal is deeply committed to publishing high-quality pieces that explore legal issues relating to gender, race, sexuality, and social policy.

Requirements:

The Journal will consider articles that propose a novel argument or perspective on a timely legal issue relating to gender, race, sexuality, and other identities. To fulfill its interdisciplinary mission, the Journal will accept articles authored by legal, policy, and gender scholars, but at least one author on all submissions must hold a J.D. Articles selected for publication in the Journal must include an analysis of U.S. law.

Contact:

Please direct questions and final submissions to the Journal’s Senior Articles Editors: [email protected].

Thank you! We look forward to reviewing your pieces.

Best,

Hannah Seligman & Siena Roberts

Senior Articles Editors

American University, Washington College of Law

Journal of Gender, Social Policy & the Law, Vol. 33

History of Women in the Legal Profession in Ireland

Niamh Howlin has posted Women as Both Insiders and Outsiders in the History of the Legal Profession on SSRN. The abstract is excerpted below: 

The Sex Disqualification (Removal) Act 1919 removed the legal barrier to women entering the legal professions. In November 1921, Frances Kyle and Averil Deverell were the first women to be called to the Irish bar. The experiences of these early women barristers have in recent years been documented and commemorated in exhibitions and portraiture, as well as through various conferences, other events, books, periodicals and poetry, particularly in the context of the centenary of the 1919 Act. These add to the growing body of literature examining the experiences of early women lawyers and judges in England and other jurisdictions.

Much recent focus has been on historic ‘firsts’ or ‘trailblazers’, but it is important not to let this obscure the broader story of how women experienced working in the legal professions. Indeed, this point was made twenty years ago by Bacik, Costello and Drew who observe, ‘[t]his phenomenon of the highly visible trailblazer woman should be understood not necessarily as an example of ‘advances’ made by women, but as a reminder of continuing male domination.’ Glazer and Slater identify strategies employed by early women professionals: superperformance, separatism, subordination and innovation. They add that while early women professionals did not consciously choose such strategies, ‘it quickly became clear to them that entrance into the elite world of professionalism would require special strategies for women.’ ‘Superperforming’ women were pioneers, and often achieved historic ‘firsts.’ Bacik, Costello and Drew refer to this as the ‘first woman to’ phenomenon, and caution that this ‘does not necessarily provide evidence of absence of discrimination, but rather often signals the continued and persistent exclusion of women – the exception that proves the rule.’

While recognizing the significance of the trailblazers and ‘famous firsts’, this paper seeks to go beyond commemoration, to consider the lived experiences of women at the Irish Bar in the twentieth century. It looks at the challenges they faced, the type of work they did and the strategies they adopted to succeed in a gendered environment. This paper draws on archival research as well as interviews conducted with men and women who were in practice at the Irish Bar from the 1950s until the late 1990s.

Moving Towards a Feminist Constitutional History of the Nineteenth Amendment After Dobbs

Paula Monopoli, The Nineteenth Amendment and Dobbs, 15 ConLawNOW 227 (2024) from Prof. Monopoli's keynote Spring Lecture for The Center for Constitutional Law at Akron. 

There was a surge in legal scholarship around the Nineteenth Amendment to the United States Constitution—the Woman Suffrage Amendment—leading up to its centennial in August 2020. But this scholarly interest around the Nineteenth peaked two years before the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization in June 2022. This paper revisits the Nineteenth Amendment in light of the Court’s decision in Dobbs. It argues that the Nineteenth should be understood as a ban on sex discrimination that extends beyond the right to vote. The Amendment expands the scope of women’s citizenship as a matter of federal constitutional law by prohibiting legislation which denies or abridges a woman’s right to self-govern. And it situates the power to enforce this prohibition in Congress—not state legislatures—as a matter of federalism.

The paper traces the historical understanding of voting as self-government, and self-government as the means by which a citizen operationalizes self-determination. Suffragists understood self-government to include self-ownership and voluntary motherhood. A feminist constitutionalism would incorporate the Nineteenth’s capacious, seventy-two-year history into a robust reading of the Amendment. Such a reading provides support to courts that choose to invalidate legislation denying or abridging not only political but also reproductive self-determination. Although such a reading is unlikely to be embraced by the current Supreme Court’s conservative majority, it should be introduced into judicial discourse for use by future courts in reasoning around women’s reproductive liberty.

New Book, The Bluestockings: A History of the First Women's Movement

NYT, Book Review, Book Review, The Bluestockings, When Women's Wits Ruled London's Salons

*** Both Woolf and Wollstonecraft argued far more stridently for women’s rights than did Macaulay or her peers, a loosely connected group of 18th-century British women writers and thinkers known — sometimes derogatorily, sometimes affectionately — as the Bluestockings. But as Susannah Gibson argues in her fast-paced and intimate study of the group, the Bluestockings’ feminist revolution lay in their determination to think and write and educate themselves, despite the “pitiless machinations” of British society, which kept single women dependent on their fathers, and married women subordinate to their husbands.

Ohio's 24-Hour Waiting Period Abortion Law Enjoined by Judge

Susan Tebben, Ohio's 24-hour Waiting Period Abortion Law Paused by Judge

An Ohio law requiring a 24-hour waiting period before abortion services will not be enforced as a lawsuit seeking to eliminate the law entirely sees its way through court, a judge ruled on Friday.

Franklin County Court of Common Pleas Judge David C. Young not only put a temporary pause on the 24-hour waiting period, but also a minimum of two in-person visits and certain information about abortion that the state required doctors to provide before an abortion.

That information includes the “probable gestational age of the zygote, blastocyte, embryo or fetus” and “nature and purpose of the particular abortion procedure to be used,” according to state law.

Young cited the newest amendment to the state constitution as reason to rule in favor of the clinics and physicians.

“The plain language of the amendment clearly sets forth the applicable legal standard,” Young wrote. “This language is easily understood and clear.”

The decision comes following an oral argument hearing last week, in which Young heard from the Ohio Attorney General’s Office representing the state, and an attorney for abortion clinics and a physician party in the case.

The state said by legal definition, the “status quo” should be maintained in a preliminary injunction, and according to the AG’s office’s arguments, that would leave state law as it is and the regulations in place. The office of Ohio Attorney General Dave Yost issues a release Friday saying they plan to appeal the ruling and that they disagree with the judge that the waiting period and extra appointments constitute a burden.

According to Jessie Hill, attorney for the parties attempting to eliminate the laws, the status quo is now the constitutional amendment that placed reproductive rights including abortion into the Ohio Constitution after being passed by 57% of Ohio voters last November.

The amendment bars any state laws that “burden, penalize, prohibit, interfere with or discriminate” against abortion care and abortion providers.

See also Columbus Dispatch, Ohio's 24-Hour Waiting Law for Abortions is Put on Hold

CFP Research Handbook on Gender, History and Law

Call for Contributions for Research Handbook on Gender, History, and Law (Edward Elgar)

As part of Edward Elgar's Research Handbooks in Gender and Law Series edited by Robin West and Alexander Maine, this volume on Gender, History, and Law aims to bring together critical and thought-provoking contributions on the most pressing topics, issues and approaches within legal and gender history. The collection aims to set the agenda in the field and serve as the most important and up-to-date point of reference for researchers as well as students, policy-makers, and lawmakers. 

We are aiming for about 30 essays of 8,000-10,000 words by scholars of legal and gender history on any topic that fits within the book's broad themes, including but not limited to gendered history within legal categories such as family, criminal law and international law, on particular historical periods, on specialist topics such as capitalism and labor, sexuality, race, identity, citizenship, the legal profession and courts, and on sources and methodology. 

The Research Handbook will be published in English, but we seek to provide a broad global perspective. To fulfill its aim of providing cross-cutting scholarship in law and history, each contribution should explore perspectives on what it means to do legal history in the chosen area in the context of the author's own approach.

Manuscripts must be original and not published elsewhere, and are due to the editors by July 1, 2025. Publication is anticipated to be in the summer of 2026.

Please submit abstracts by September 30, 2024. For questions and to submit abstracts, please feel free to reach out to any of us.

Rosemary Auchmuty ([email protected])

Caroline Derry ([email protected])

Danaya Wright ([email protected]) 

Women and Corporate Governance: Time Horizons and Stakeholder Analysis

June Carbone, Women and Corporate Governance: Time Horizons and Stakeholder Analysis, Chicago-Kent Law Review, Forthcoming

The study of gender intrinsically involves consideration of time. The assumption of childcare responsibilities, whether done by men or women, requires a different orientation toward the life course that marshals parental time and resources for investment in the early childhood years with the expectation of a payoff later in time. For primary breadwinners, this may involve a willingness to seize immediate gains in income or status during the critical childrearing years in exchange for greater risk or less security in the future. For primary caretakers, the same considerations may involve a greater preference for secure, flexible, or collaborative employment during the peak childrearing years even if it involves lower immediate income and fewer opportunities for personal advancement. These different temporal dimensions overlap with traditional gender stereotypes: supposedly masculine preferences for competition, particularly zero-sum competition tied to short-term metrics, versus feminine collaboration tied to longer-term institutional interests; masculine-coded risk-taking tied to individual status gains versus the security that comes from group membership and mutual support; and investment in individual advancement versus communal well-being. 

Consideration of the temporal dimension underlying gendered orientations toward the life cycle—and evaluation of the fate of women as a product of these different time horizons—also sheds a different light on the relationship between shareholder interests and those of other stakeholders such as workers and customers. Much of what is done in the name of shareholder primacy advances the interests of short-term shareholders at the expense, not only of other stakeholders, but of medium- to longer-term shareholders. Moreover, many of the divisions among employees—both within management and within line positions—involve distinctions between those with long-term interests in firm stability and those with a more contingent or transactional relationship to a given firm. What unites the short-term interest of activist shareholders and the fate of employees, however, is not simply corporate theory—finance scholars debate whether markets will ultimately correct for potentially counterproductive short-term actions—but rather the executive compensation systems and firm cultures that implement such perspectives. These systems have consequences that extend well beyond individual management decisions, changing the nature of the executives and the executive mindsets that thrive in such environments. Focusing on the ways that distinctions between short-term and long-term perspectives overlap with gendered employment values has a series of consequences for the debate about the relationship between corporate theory and labor and employment law.

New Book, The Sentimental State: How Women-Led Reform Built the American Welfare State

Interview with Elizabeth Garner Masarik on her Book, The Sentimental State: How Women-Led Reform Built the American Welfare State (Univ. Georgia Press 2024)

I got the chance to speak with historian Elizabeth Garner Masarik about her new book The Sentimental State: How Women-Led Reform Built the American Welfare State. An assistant professor of history at SUNY Brockport, Elizabeth is a scholar of American women’s history, the Gilded Age and Progressive Era, and the administrative state. Her new project is on American spiritualism, and she was also eager to discuss her findings on women and the history of welfare networks, charity, and maternalist sentiment. Dr. Masarik defines “sentimentalism,” or feelings surrounding motherhood and child-rearing, as one of the chief drivers behind the push for women-led public health and social initiatives in the nineteenth century.

Your new book is a fascinating examination of the intersection of women’s state-building and the politics of domesticity. Can you talk a little bit about the origins of the book? Was it part of your dissertation? What new directions did you go in as you wrote?

Yes, this book came out of my dissertation. I took a women’s history course with sexuality, gender and sports scholar Susan Cahn during the first semester of my MA program and was hooked. I really latched on to the U.S. maternalist movement of the late 19^th and early 20^th centuries and dove headfirst into learning about the early formation of the U.S. welfare state. Additionally, the primary sources I found where women were speaking about, and grieving over, the death of their infants and young children just hit me; after becoming a mother myself, I couldn’t fathom being able to go on with life if one of my children died. And so, in a way, examining child and infant mortality became a kind of masochistic way for me to study history while also feeling this immense empathy for my subjects. I didn’t set out to focus on infant and child death at the beginning, but the connections between emotions and state-building became so glaringly obvious that I couldn’t look away. It was a subject that spoke to me as a mother and as a recipient of welfare. It felt very personal. When I revised the dissertation into book form I focused more heavily on sentimentalism as a cultural phenomenon of the nineteenth century and how I found that bleeding into the twentieth century.

Michael Green on "Expanding the Ban on Forced Arbitration"

Michael Green has published Expanding the Ban on Forced Arbitration to Race Claims in volume 72 of the Kansas Law Review. The abstract is excerpted below: 

 

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural and societal norms, as well as the text and legislative development of the statute, that warrants joining both race and sex discrimination claims in court. This overall prescription seeks to end the forced arbitration of race discrimination claims for employees and consumers.

This Article asserts that despite focusing on sex-based claims, the application of the EFASASHA statute in the courts will result in many race-based claims also being prohibited from being forced into arbitration. Many people of color pursue discrimination claims based on race that also intersect with claims of sex. As these claims arise from the same transaction or occurrence, employees and consumers must take the same steps to bring these claims together in federal court or face res judicata prohibitions leading to inconsistent results.

This Article also concludes that social movements and creative plaintiff efforts that led some businesses to abandon their mandatory arbitration practices before Congress passed EFASASHA should also influence companies to not force arbitration of race claims. These companies must recognize the double-dealing involved in identifying themselves as progressive businesses committed to non-discrimination if they still force arbitration of race discrimination claims when they may not subject similar sex discrimination claims to arbitration after EFASASHA. Although Congress may have political reasons for not listing racial claims explicitly in the EFASASHA legislation, this Article highlights how businesses should understand that the concerns and rationales justifying EFASASHA’s ban on forced arbitration of claims based on sex applies with equal force with respect to arbitration of claims based on race.

William Carter on "Trans Talk and the First Amendment"

William M. Carter has posted Trans Talk and the First Amendment on SSRN. The abstract is excerpted below: 

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care.

This Article breaks new ground in two respects. First, it focuses on an aspect of student speech regarding transgender issues that has not yet been addressed by courts or in the scholarly literature: namely, whether the Supreme Court's school speech cases would permit states or public school officials to restrict student speech advising a peer to obtain forms of gender-affirming care that are unlawful to minors in the state where the speech occurs. This Article is also the first to apply the history of the battles over free speech regarding slavery and of the Nation's Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.

Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court's post-Tinker school speech cases, however, have been significantly more solicitous toward school officials' efforts to restrict student speech. Opponents of gender-affirming care for minors are therefore likely to seek to rely upon the post-Tinker jurisprudence to justify restricting or punishing student speech advocating that a peer seek gender-affirming care. This Article argues that the Court's post-Tinker school speech cases cannot and should not be read to justify restrictions upon such speech. This Article further argues that extending the post-Tinker cases to allow the government to punish student speech advocating that a peer receive gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation's Second Founding. 

Huberfeld, McClain, and Ahmed on "Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs"

Nicole Huberfeld, Linda McClain, and Aziza Ahmed have published "Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs" in volume 17 of the Saint Louis University Journal of Health Law & Policy. The abstract is excerpted here: 

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs’ overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”—and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes.

 

The Future of Sex Discrimination Law in Cases of Pregnancy and Sport

Katharine K. Baker, Gender (Discrimination) Trouble, South Carolina L. Rev. (forthcoming)  

The LGBTQ civil rights movement has upended traditional understandings of what it means to be male or female. Building on this movement’s achievements, a growing number of scholars have urged that the goal of sex discrimination law be to question when, if ever, the law can make distinctions between men and women. This article pushes back against these claims. Even though what it means to be male or female is now much more contested both socially and legally, sex discrimination law always has and always will have to grapple with the normative dilemmas posed by treating those who have traditionally female anatomy differently than those with traditionally male anatomy.

To illustrate this point, I examine two sex equality stories that have rarely been told together: pregnancy in the workplace and sport in educational institutions. Pregnancy discrimination law has often rejected different treatment for those with female anatomy; in contrast, the major federal law dealing with sex discrimination in sports, Title IX, is premised on recognizing female sports as different from male sports. For those who believe that sex equality efforts should challenge all legal distinctions between men and women, the history of pregnancy and sports offers a cautionary tale. The drive to diminish the significance of anatomical differences has produced a system of legal protections for pregnant workers in the United States that is conspicuously lacking. The substantial rise in female participation in sport under Title IX, on the other hand, has been a resounding success. The history of pregnancy and sport shows that the future of sex equality lies not in abandoning sex distinctions but in creating doctrine and laws that recognize their risks but also accept their benefits.

The New Gender Perspective of Intersectional Autonomy in International Human Rights

Rose Celorio, The New Gender Perspective: The Dawn of Intersectional Autonomy in Women’s Rights,  
25 Chi. J. of Int’l L. 67 (2024)

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations. This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due respect for women’s self-direction, agency, and dignity. This evolving approach is a move towards intersectional autonomy, which advances the notion that women should be the sole architects of their life plans, based on their identities and different experiences, and meaningfully participate in their societies. Creating the conditions for free and informed choices underpins current women’s rights jurisprudence. This is a break from historical notions of human rights protection solely focused on women as victims, as members of a homogenous group, and a limited binary perspective to their rights. This article discusses illustrative decisions of this tendency from the European Court of Human Rights, the Inter-American Commission and Court of Human Rights, the United Nations Committee on the Elimination of Discrimination against Women, and the United Nations Human Rights Committee, among other bodies. This article further proposes that intersectional autonomy is treated and interpreted in the future in international jurisprudence as a right, with independent content, offering guidance to states on needed laws, policies, programs, and services at the local and national levels. This human rights development is presented as essential for international law standards concerning women to be impactful and truly transformative at the national level. This article analyzes the main elements of the right of women to intersectional autonomy, and states’ negative and positive obligations in its fulfillment. The author is currently pursuing a line of research exploring contemporary understandings of the international human rights of women, and how existing legal standards should evolve based on modern scenarios and realities. This article represents a contribution to this line of scholarship. It aims to increase understanding of the connection of the concepts of intersectional discrimination and autonomy, how they can be analyzed by global and regional human rights jurisprudence, and their promise to enhance effectiveness in international law concerning women.