Friday, May 24, 2024

Is International Criminal Law Feminist?

Margaret M. Deguzman & Rachel Lopez, Is International Criminal Law Feminist?, Oxford Handbook on Women and International Law (forthcoming) 

The future of international criminal law as a feminist project at its essence turns on one central question: Does international criminal law advance feminist goals? To answer this question, this chapter charts the landscape of feminist critiques of international criminal law, identifying two schools of feminist thought. On one hand, there are those who believe in the enterprise of international criminal law as a method of advancing women’s rights and on the other, those who reject the enterprise believing that it undermines them.

To aid this analysis, the chapter applies a framework conceived by Robert Cover, and elaborated by Katherine Young, of redemptive and rejectionist approaches. Feminists who adopt a redemptive frame recognize the limitations of international criminal law, but ultimately see the enterprise as redeemable—that is, they believe that with the right reforms it can be a tool for advancing women’s rights. In contrast, those who adopt a rejectionist frame, believe the premises that undergird international criminal law are so fundamentally anti-woman, that the best course is to reject it wholesale and find another tool for advancing women’s rights. The goal of this chapter is to put these schools of thought in conversation and suggest ways that feminists can work together to support their core shared goal: the advancement of women’s equality.

May 24, 2024 in International, Theory | Permalink | Comments (0)

The Life and Work of the First Woman Elected Justice of the Peace, Catharine Waugh McCullough

Sandra Ryder, Clearing the Bar: Catharine Waugh McCullough and Illinois Legal Reform

Catharine Waugh McCulloch was one of the first women admitted to practice law in Illinois, and the 18th woman admitted to practice in front of the U.S. Supreme Court. After graduating from law school and passing the bar, she experienced difficulty finding a legal position in Chicago, so she opened an office in Rockford, Illinois, where she often took on destitute women clients. She initiated the shared writing among women attorneys, which became the Equity Club. She ran for Attorney General in 1888 and was active in many women's groups. After marrying a classmate from law school, the two formed a partnership in law and marriage; they wrote briefs, tried cases and published legal documents together.
McCulloch drafted a bill which changed guardianship laws, and another which raised the age of consent for girls from 14 to 16, both of which were passed into law. After an Illinois case gave women the right to vote in school elections, McCulloch recognized the significance of this ruling. Together with the Illinois Equal Suffrage Association, she and other suffragists toured the state by auto, speaking and handing out flyers and pamphlets. She drafted a bill by which Illinois women could vote in municipal and presidential elections, and every year, for 20 years, she and others went to Springfield to testify and lobby for her bill; it passed in 1913, and this Illinois suffrage law was instrumental in the passage of the Nineteenth Amendment. Not satisfied, McCulloch worked with the Chicago charter revision committee to have women's suffrage included; she fought to have the Illinois Constitution revised to include women's suffrage; she was successful in both efforts.
Meanwhile, in 1907, McCulloch was the first woman elected to a judicial position, Justice of the Peace, in Evanston, Illinois, and by all men. She was appointed Master in Chancery of the Cook County Superior Court for four, two-year terms. She was selected the first woman elector to the State Democratic Convention in 1916. While practicing with McCulloch & McCulloch, she had one case which used contract law to set public policy regarding wholesomeness of food; this case later was incorporated into one portion of today's Uniform Commercial Code. Since much of their practice dealt with probate and estates, the McCulloch's co-authored A Manual of the Law of Will Contests in Illinois.
With the National League of Women Voters, McCulloch fought for years, again using print media, speeches and women's groups, to have women on juries, and to make the laws concerning women uniform throughout the U.S. *3 Always committed to utilizing law to reform the legal status of women and children, McCulloch wrote plays, essays, legislative bills, speeches, pamphlets, and used the power of print media to convince the public; her plays were still being produced in the 1990s.
After their many years of legal practice and innovation, in 1940 both McCulloch and her husband were named “Senior Counselors” of the Illinois Bar Association. But her legacy is far more reaching; when any woman votes, retains custody of children or property in a divorce, or serves on a jury, it is because of the vision and relentless legal work of Catharine Waugh McCulloch and her peers.
In track and field, clearing the bar indicates that the person has exceeded expectations and is ready to face even more difficult ones. McCulloch did not just pass the bar; because women entering the legal profession was in its infancy, and due to the bulk and import of her legal contributions, McCulloch cleared the bar with room to spare.

May 24, 2024 in Judges, Law schools, Legal History | Permalink | Comments (0)

Monday, May 20, 2024

Chan Tov McNamarah on "Cis-Woman-Protective Arguments"

Chan Tov McNamarah has published "Cis-Woman-Protective Arguments" in Volume 123 of the Columbia Law Review.  Here is a summary excerpt: 

It has become common to oppose the equal citizenship of transgender persons by appealing to the welfare of cisgender women and girls. Such Cis-Woman-Protective (CWP) arguments have driven exclusionary efforts in an array of contexts, including restrooms, sports, college admissions, and antidiscrimination law coverage. Remarkably, however, this unique brand of anti-trans contentions has largely escaped being historicized, linked together, or subjected to extended analytical scrutiny as a group.

Tallied up, these problems make a strong case that, strategically, CWP arguments are ineffective and deeply flawed—even counterproductive—assuming that protecting cis women and girls is truly the goal. Building on that assessment, the Essay concludes with reasons for healthy skepticism that it actually is. Stripping away the veneer of protectionism begins to expose some less-palatable intentions and effects possibly driving the use of CWP arguments.

This Essay provides those missing pieces.

First, it situates CWP arguments within the longer history of woman-protective justifications in American law. Taking their well-known harms to women, alongside their use in lending legitimacy to discrimination against racial and religious minorities, forcefully demonstrates that the rationales’ current use against transgender persons warrants closer inspection.

Second, the Essay canvasses recent CWP arguments to document the line of thought. Reading the heretofore-uncollected allegations reveals a far-reaching cluster of contentions, whose members bear striking family resemblances to, and inherit the disfigurements of, their historical priors.

Third, casting unsparing light on the claims, the Essay demonstrates that CWP arguments overwhelmingly fail to deliver. Structurally, the arguments’ moves are questionable, at best. Substantively, most fall wide of their mark. And, instrumentally, the arguments backfire completely, since their operationalization harms the very persons they supposedly protect.

May 20, 2024 in Constitutional, Gender, Theory | Permalink | Comments (0)

Tobin-Tyler on "Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families"

Elizabeth Tobin-Tyler has published Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families in volume 51 of the Journal of Law, Medicine & Ethics. Here is an excerpt on how to advocate for Black families post-Dobbs:

Abortion rights organizations are now working to support women living in states with bans or restrictions to obtain abortions in states where abortion is still legal and to access self-managed medication abortion. But many women will be unable to obtain an abortion when they want or need one. Given this fact, an advocacy agenda must be built around supporting mothers and children, defending them from unjust CPS intervention, and promoting access to reproductive healthcare. This agenda should be grounded in reproductive justice which accounts for and calls out racism and other forms of oppression that trample human rights and affirms that women not only have the right to decide if and when to have children, but also “to parent the children they have in safe and sustainable communities.” This includes freedom from state removal of their children due to structural racism and poverty.

Now that anti-abortion policymakers have achieved their wish, they must be held accountable for the effects of abortion bans on women, children and communities. Reproductive justice requires an intersectional approach to the myriad ways in which policy choices affect marginalized people. The voices of affected women who can speak to the reality of what abortion bans mean--including the impact of forced birth, parenting an unwanted child in poverty, experiencing CPS involvement and child removal--should be prioritized and promoted by advocates. Building coalitions with those seeking economic justice and child welfare system reform will broaden the constituency base and call attention to the ramifications of failing to enact policies that invest in families. Academic researchers and policy analysts should support community-based advocates by tracking the evidence linking abortion bans to increases in poverty and CPS caseloads.

* * * Ultimately, reform will only be possible through acknowledgement of the structural racism inherent in multiple systems, most profoundly, the child welfare system. * * * Post-Dobbs, the call to action to replace the current child welfare system with one framed by reproductive justice--which encompasses racial justice, gender justice, economic justice, and human rights--is more important than ever.



May 20, 2024 in Abortion, Family, Healthcare, Poverty, Pregnancy, Race | Permalink | Comments (0)

Hannah Wilson on "The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice"

Hannah Wilson published The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice in Volume 38 of the American University International Law Review. Here is the abstract: 

Climate change affects men and women differently. While some individual women may be less vulnerable to climate change than some men, the global perpetuation of discrimination, inequality, patriarchal structures, and systematic barriers contribute to an overall higher risk of women experiencing harmful effects of climate change. International human rights law prohibits discrimination on the basis of gender. However, in practice, systematic discrimination, harmful stereotypes, and social, economic and political barriers related to gender can lead to varied climate change impacts with respect to health, food security, livelihoods and human mobility, and more, which may significantly limit women’s and girls’ adaptive ability in the face of climate change. Such barriers include limited or inequitable access to financial assets and services, education, land, resources and decision-making processes, among many others. This reality is even starker for women and girls who face multiple and intersecting forms of discrimination; particularly those of lower socio-economic status, rural women and girls, and older women. As such, climate change perpetuates gender inequality. In turn, harmful gender stereotypes and entrenched forms of structural discrimination often significantly hinder women’s ability to meaningfully participate in climate action. Addressing climate change, including its gendered impacts, is therefore essential to the promotion and protection of the rights of women and girls.

May 20, 2024 in Healthcare, International, Science | Permalink | Comments (0)

Friday, May 17, 2024

Judicial Biography of Esther Morris, First Justice of the Peace

I came across this article in my research. It is not new, but is illuminating and is careful, impeccable research on the first woman to sit in a judicial capacity.

Marcy Karin, Esther Morris and Her Equality State: From Council Bill 70 to Life on the Bench, 46 J. Amer. L. History 300 (2004)

This article focuses on the life of Esther Hobart Morris – the first female judge in the United States and a key figure in Wyoming’s pioneer women’s suffrage legislation. It attempts to sift through the myth, clarify her achievements as a judge, advocate, and family woman, and provide a picture into the life of the “Mother of Woman Suffrage.” Morris’ life and story as Justice of the Peace is necessarily told side-by-side with the realization of woman’s enfranchisement in the Equality State.


May 17, 2024 | Permalink | Comments (0)

Tuesday, May 14, 2024

New Book, Fair Shake: Women and the Fight to Build a Fair Economy

Naomi Cahn, June Carbone & Nancy Levit, Fair Shake: Women and the Fight to Build a Fair Economy (Simon & Schuster 2024)

In an era of supposed great equality, women are still falling behind in the workplace. Even with more women in the workforce than in decades past, wage gaps continue to increase. It is the most educated women who have fallen the furthest behind. Blue-collar women hold the most insecure and badly paid jobs in our economy. And even as we celebrate high-profile representation—women on the board of Fortune 500 companies and our first female vice president—women have limited recourse when they experience harassment and discrimination.

Fair Shake: Women and the Fight to Build a Just Economy explains that the system that governs our economy—a winner-take-all economy—is the root cause of these myriad problems. The WTA economy self-selects for aggressive, cutthroat business tactics, which creates a feedback loop that sidelines women. The authors, three legal scholars, call this feedback loop “the triple bind”: if women don’t compete on the same terms as men, they lose; if women do compete on the same terms as men, they’re punished more harshly for their sharp elbows or actual misdeeds; and when women see that they can’t win on the same terms as men, they take themselves out of the game (if they haven’t been pushed out already). With odds like these stacked against them, it’s no wonder women feel like, no matter how hard they work, they can’t get ahead.

Fair Shake is not a “fix the woman” book; it’s a “fix the system” book. It not only diagnoses the problem of what's wrong with the modern economy, but shows how, with awareness and collective action, we can build a truly just economy for all.

May 14, 2024 in Books, Equal Employment, Workplace | Permalink | Comments (0)

Symposium Advancing Pregnant Persons' Right to Life

Boston University School of Law, Advancing Pregnant Persons' Right to Life

On February 8, 2024, scholars of law, medicine, and religion from across the world came together at Boston University School of Law to discuss the potential of promoting and protecting reproductive justice through advancing pregnant persons’ right to life. Stemming from that event are six articles and an annotated bibliography from leading legal scholars. This historic and important symposium is captured in its entirety in the video below.

The Free Exercise Right to Life
David A. CarrilloAllison G. Macbeth, & Daniel Bogard
104 B.U. Law Review Online 19 (2024)

Religion Clause Challenges to Early Abortion Bans 
Caroline Mala Corbin
104 B.U. Law Review Online 37 (2024)

Medical Authority and the Right to Life
Jessie Hill
104 B.U. Law Review Online 67 (2024)

The Right to Life as a Source of Abortion Rights: Lessons from Kansas
Richard E. Levy
104 B.U. Law Review Online 87 (2024)

Turning Away from Criminal Abortion Laws and Towards Support for Pregnant People and Families
Cynthia Soohoo
104 B.U. Law Review Online 109 (2024)

Reproductive Justice and the Thirteenth Amendment
Rebecca E. Zietlow
104 B.U. Law Review Online 143 (2024)

Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life
Martha F. Davis
104 B.U. Law Review Online 161 (2024)

May 14, 2024 in Abortion, Conferences, Constitutional, Pregnancy, Religion, Reproductive Rights | Permalink | Comments (0)

CFP 150th Anniversary of Minor v Happersett and Women's Second Class Citizenship

The 150th Anniversary of Minor v. Happersett: The Past and Future of Women's Rights

Washington University School of Law

September 27, 2024

Call for Papers

Abstract Submission Deadline: June 14

The Washington University School of Law and the Washington University Law Review will host a Symposium centered on the 150th anniversary of the historic St. Louis case, Minor v. Happersett, on September 27, 2024. (The 150th anniversary will align with the subsequent publishing of the Law Review's Symposium edition as Volume 6 of Issue 102 the following spring.)

In 1872, Virginia Minor challenged a St. Louis registrar's decision to block her from registering to vote. Minor argued the Fourteenth Amendment conferred upon her the right to vote as a "privilege" of American citizenship. In 1875, the Supreme Court unanimously rejected Minor's assertion, ruling that voting was not a right of national citizenship. Despite the rejection of Minor's claim, this case remains an important historical moment in both American women's suffrage and the feminist movement at large.

This Symposium will bring together scholars across many fields of law, including feminist studies, voting rights and election law, and related fields. Submissions having no direct relation to the Minor case are welcome. Papers might address topics including, but not limited to, the following:

  • The history and evolution of women's rights
  • Past or present voting rights and election law
  • Ballot initiatives post-Dobbs

The Symposium will consist of approximately 3-4 panels over the course of one day, with the panels being created by the Law Review based on relatedness of subject matters across selected pieces. Participants will attend and serve on the panels, and will be asked to read up to a dozen papers (with special attention paid to the papers of others on their panel). The papers circulated for the Symposium are drafts, and the discussion on September 27 will include feedback.

The Symposium will include a dinner the night before. There is no conference fee, and Washington University will host all of the meals on the conference date. Funding will be available to assist with travel expenses-each participant is eligible for up to $1,000 to reimburse hotel and economy-class airfare expenses.

To apply, please submit an abstract of no more than 500 words to [email protected] by June 14, 2024. Submissions will be vetted by a committee of students from the Law Review, supervised by faculty advisors (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with other papers in a collaborative dialogue.

Participants will also be invited to submit a paper for publication in the Washington University Law Review's Symposium edition (Issue 6 of Volume 102). The publication cycle for this edition will begin in February 2025, with publication estimated to be in the late summer of 2025. If you are interested in publishing a paper (10,000-15,000 words), please indicate your interest when you submit your abstract.

Participants will be notified of their selection by early July. Drafts for distribution at the Symposium will be due on September 6. We look forward to your submissions and participation. Questions can be directed to the organizing Law Review members and their faculty advisors via the [email protected] address.

Thank you!

Hannah Keidan

Chief Diversity Editor (Law Review lead on the Symposium)

Washington University Law Review

[email protected]

Kaitlyn Salyer


Washington University Law Review

[email protected]

Susan Frelich Appleton

Lemma Barkeloo & Phoebe Couzins Professor of Law

Washington University School of Law

[email protected]

Travis Crum

Associate Professor of Law

Washington University School of Law

[email protected]

May 14, 2024 in Call for Papers, Constitutional, Scholarship | Permalink | Comments (0)

Monday, May 6, 2024

Cinnamon P. Carlarne and Keith Hirokawa on "Disrupting Dominance"

Cinnamon P. Carlarne and Keith Hirokawa published "Disrupting Dominance" in the Connecticut Law Review. The abstract is here: 

Climate change poses one of the greatest threats to human health and well-being. It also poses enormous challenges to the rule of law. As climate change progresses and climate impacts intensify, it becomes increasingly urgent to consider whether and how we are drawing upon the law as a tool to advance human adaptation to climate change. Equally, we must consider whether and how the evolving rule of law around climate change responds to existing patterns of social, political, and economic inequality. These are the questions this article engages.

As a starting point, this Article centers human vulnerability as a necessary focal point for analyzing adaptation law. Humans are vulnerable to climate change. However, levels of vulnerability vary widely depending on who we are and where we live. The spaces we live and the places we call home are characterized by inequalities and precarities that shape how resilient communities are in the face of climate change. Climate change will exacerbate these inequalities absent intentional efforts to surface and disrupt dominance in climate adaptation strategies.

Disrupting Dominance advances the project of disrupting patterns of dominance and enabling more effective and equitable climate adaptation law. To achieve these goals, the Article contextualizes the extensive but disparate threats climate change poses to humans before examining the evolving but underdeveloped legal architecture for adaptation planning. Disrupting Dominance then engages the questions of what vulnerability is and why vulnerability matters in the context of climate change adaptation. Here we make our case for moving towards a model of adaptation planning that is responsive to the needs, priorities, and capacities of all members of society. Finally, this Article explores climate adaptation in context to show how different local governments vary in their commitment to disrupting dominance and centering equity in climate adaptation planning.

Disrupting Dominance offers a critical intervention in climate adaptation law. It demonstrates how dominance limits the ability of communities to flourish in the face of climate adversity and offers a more equitable and sustainable model for climate adaptation law.

May 6, 2024 in Science | Permalink | Comments (0)

Sweeny and Canon on "The Language of Love v. Beshear"

JoAnne Sweeny and Dan Canon have published The Language of Love v. Beshear: Telling a Client's Story While Creating a Civil Rights Case Narrative in volume 17 of the Journal of the Association of Legal Writing Directors. The article was shared on SSRN here. The Introduction is excerpted here: 

We tend to think of a good lawyer as being a vigorous, focused advocate, one who thinks first and foremost of the interests, needs, and desires of their clients. But what if the client’s case will affect an entire group of people; a group who may also seek to have its collective rights vindicated? This is the dilemma of the civil rights attorney—how does an effective advocate balance the specific needs of the client with the broader, long-term needs of the group the client represents? And who should have a say in what story is told on behalf of the client? In civil rights cases, it is not just the client, but activists, organizations, academics, and the media who have a stake in the outcome. How much of a say should they have in the creation of a litigation story that will most directly impact a single client? How are those stories crafted? With careless, blunt-force litigation, or with purposefulness? And does it matter who gets to tell the story?


* * *

Focusing on the Kentucky case, Love v. Beshear, this article shows how civil rights attorneys may be constrained by their dual roles—advisors to their clients and advocates for civil rights—and how they decide what story to tell to remain true to their clients’ needs while keeping engaged with the larger civil rights issues inherent in these impact litigation cases. Moreover, once the litigation has begun, the other players—organizations, media, even the judges themselves—can change the story, highlighting what they see fit. The ultimate story of who a lawyer’s clients are ultimately may not be up to the lawyer or the client.  


It concludes: 


Obergefell built a bridge to same-sex marriage, creating solid ground for the next group of civil rights lawyers
to again expand our understanding of what relationships and “equal dignity” really mean. As the country’s understanding of same-sex couples has evolved, so has the array of stories that lawyers can tell about groups that may be insular or unfamiliar to the broader public. For example, now that transgender, bisexual, nonbinary, and polyamorous people’s stories are becoming more mainstream, their stories can be used to champion a broader understanding (and legal recognition) of fundamental rights. This continuous opening of new chapters to familiar stories is the essence of civil rights advocacy.

May 6, 2024 in Courts, Gender, Judges, Legal History, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Wednesday, May 1, 2024

The Gendered Violence of Asylum Reporting Requirements

Amelia Steadman McGowan, The Gendered Violence of Asylum Reporting Requirements, Columbia Human Rgts L Review (forthcoming)  

In the past two decades, some U.S. courts have created and imposed hardline, or “per se,” reporting requirements that bar protection to asylum applicants who did not first report persecution from non-state actors to the authorities before fleeing. These requirements provide no exceptions, even in the face of undisputed evidence that reporting would have been futile, dangerous, or even impossible. While prior legal scholarship has addressed the dangers of reporting requirements generally, this Article explores the unique burdens that these requirements place on applicants with gender-based claims.

This Article applies feminist theory and an interdisciplinary approach to explore the reasons why reporting is often futile, dangerous, or impossible for women and girls fleeing gender-based violence in Guatemala, Honduras, and El Salvador—three of the top countries of origin for applicants seeking protection in the United States. This Article contends that the same misogyny that fuels gender-based violence also infuses the very government structures charged with providing protection from that violence. It argues that when U.S. courts minimize or ignore an applicant’s reasons for not reporting gender-based violence, they condone and perpetuate the same violence that the applicant fled. By using both English- and Spanish-language sources and centering the voices and experiences of Latin American scholars and advocates from and in the focus countries, this Article also challenges the hegemony of U.S. government reports in establishing country conditions in U.S. asylum proceedings. For both reasons, this Article will provide an important contribution to refugees, academics, practitioners, and policymakers working to challenge the application of reporting requirements and to fortify gender-based refugee protections.


May 1, 2024 in International, Violence Against Women | Permalink | Comments (0)

Fourth Circuit Rules that State Health Care Insurance Plans Must Cover Gender-Affirming Care

Washington Post, Court Says State Health-Care Plans Can't Exclude Gender-Affirming Surgery

A federal appellate court in Richmond became the first in the country to rule that state health-care plans must pay for gender-affirming surgeries, a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation.

The decision came from a set of cases out of North Carolina and West Virginia, where state officials argued that their policies were based on cost concerns rather than bias. The U.S. Court of Appeals for the 4th Circuit rejected that argument, saying the plans were discriminating against trans people in need of treatment.

Judge Roger L. Gregory, an appointee of President Bill Clinton, wrote for the majority that the restrictions were “obviously discriminatory” based on both sex and gender.

“In this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex,” Gregory wrote, because “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it.”

The majority ruled that West Virginia’s policy also violated the Affordable Care Act’s anti-discrimination provision, a finding that has broad implications for other states’ Medicaid programs.

It’s the second ruling in favor of trans rights this month from the 4th Circuit, a once-conservative court that has become a trailblazer in the realm of transgender rights. The court was the first to say trans students had a right to use the bathrooms that align with their gender identity and the first to recognize gender dysphoria as a protected disability. Earlier this month, the court said a federally funded middle school could not ban a trans 13-year-old from playing on the girls’ track and field team.

May 1, 2024 in Constitutional, Healthcare, LGBT | Permalink | Comments (0)

New Book, Father Time, How and Why Men are Biologically Transformed When They Care for Babies

Sarah Blaffer Hrdy, Father Time: A Natural History of Men and Babies

A sweeping account of male nurturing, explaining how and why men are biologically transformed when they care for babies

It has long seemed self-evident that women care for babies and men do other things. Hasn’t it always been so? When evolutionary science came along, it rubber-stamped this venerable division of labor: mammalian males evolved to compete for status and mates, while females were purpose-built to gestate, suckle, and otherwise nurture the victors’ offspring. But come the twenty-first century, increasing numbers of men are tending babies, sometimes right from birth. How can this be happening? Puzzled and dazzled by the tender expertise of new fathers around the world—several in her own family—celebrated evolutionary anthropologist and primatologist Sarah Blaffer Hrdy set out to trace the deep history of male nurturing and explain a surprising departure from everything she had assumed to be “normal.”

In Father Time, Hrdy draws on a wealth of research to argue that this ongoing transformation in men is not only cultural, but profoundly biological. Men in prolonged intimate contact with babies exhibit responses nearly identical to those in the bodies and brains of mothers. They develop caring potential few realized men possessed. In her quest to explain how men came to nurture babies, Hrdy travels back through millions of years of human, primate, and mammalian evolution, then back further still to the earliest vertebrates—all while taking into account recent economic and social trends and technological innovations and incorporating new findings from neuroscience, genetics, endocrinology, and more. The result is a masterful synthesis of evolutionary and historical perspectives that expands our understanding of what it means to be a man—and what the implications might be for society and our species.

May 1, 2024 in Books, Family, Gender, Masculinities | Permalink | Comments (0)

Monday, April 29, 2024

New York Court of Appeals Overturns Weinstein Conviction

The New York Court of Appeals has overturned Harvey Weinstein's rape conviction. The full decision is available here. Here is an excerpt of the court's holding: 

Defendant was convicted by a jury for various sexual crimes against three named complainants and, on appeal, claims that he was judged, not on the conduct for which he was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts. We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial. 

April 29, 2024 | Permalink | Comments (0)

HHS Publishes Reproductive Health Care Privacy Rules

The Biden Administration issued final rules governing reproductive health care privacy. The key points were summarized in a Press Release from the Department of Health and Human Services. The Final Rule: 

  • Prohibits the use or disclosure of [protected health information] PHI when it is sought to investigate or impose liability on individuals, health care providers, or others who seek, obtain, provide, or facilitate reproductive health care that is lawful under the circumstances in which such health care is provided, or to identify persons for such activities.
  • Requires a regulated health care provider, health plan, clearinghouse, or their business associates, to obtain a signed attestation that certain requests for PHI potentially related to reproductive health care are not for these prohibited purposes.
  • Requires regulated health care providers, health plans, and clearinghouses to modify their Notice of Privacy Practices to support reproductive health care privacy.

The Final Rule is published here

April 29, 2024 in Abortion, Healthcare, Pregnancy | Permalink | Comments (0)

Final Rule Published Implementing the Pregnant Workers Fairness Act

The EEOC published its Final Rule implementing the Pregnant Workers Fairness Act. The Final Rule and its interpretive guidance are available here. The EEOC's announcement highlighted the following key points of the Final Rule: 

  • Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.
  • Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.
  • Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.
  • Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.
  • Explanation of when an accommodation would impose an undue hardship on an employer and its business.
  • Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

The EEOC also provides the following guidance: What You Should Know about the Pregnant Workers Fairness Act.


April 29, 2024 in Abortion, Equal Employment, Family, Healthcare, Pregnancy, Workplace | Permalink | Comments (0)

Thursday, April 25, 2024

Ohio (Finally) Eliminates Archaic Common Law Marital Rape Exception

Ohio Senate Unanimously Passes Bill to Eliminate Loophole on Spousal Rape in State Law

After decades of efforts to change a provision of state law shielding people who rape their spouses from prosecution, the Ohio Senate has voted unanimously to remove that loophole.

House Bill 161 would eliminate exceptions in the law on rape, sexual battery and other sexual offenses that apply when the victim and the attacker are married.

Efforts to close the spousal rape loophole go back to 1985, with a minority of lawmakers over the years expressing concerns about rape allegations being used as wedges in divorce cases.

Sen. Stephanie Kunze (R-Hilliard) said the gap in the law has suggested that either spousal rape isn’t taken as seriously as other sexual violence or that it doesn’t ever happen.

“This is especially concerning, as a spouse should be the most trusted person in a marriage," Kunze said on the Senate floor. "And it is even more egregious to think that in our state in 2024, it is lawful to to rape your spouse.”

Senate Minority Leader Nickie Antonio (D-Lakewood), the bill's joint sponsor who’s introduced measures to close the spousal rape loophole twice before, said the state has taken "a step forward in eliminating this archaic loophole."

“I recall it first coming to my attention that Ohio needed a spousal rape bill and to address that actually in the early nineties. And while Ohio addressed parts of the law, then this loophole remained," Antonio said.

After passing the House in November with only one “no” vote – from Rep. Bill Dean (R-Xenia) – the bill now goes to Gov. Mike DeWine for his signature.

April 25, 2024 in Family, Violence Against Women | Permalink | Comments (0)

Misogyny at the Supreme Court in Debating Emergency Abortion

Dahlia Lithwick & Mark Joseph Stern, The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side, Slate

Justice Amy Coney Barrett famously provided the crucial fifth vote to overturn Roe v. Wade in 2022. So if you are arguing in favor of an abortion ban, you probably don’t want to alienate Barrett—by, say, condescendingly dismissing her concerns when she points out that your legal theory doesn’t make any sense. Yet that is what Joshua Turner did on Wednesday while defending Idaho’s draconian abortion restrictions, and much to Barrett’s evident irritation. Turner—who represented the Idaho solicitor general’s office in the second major abortion case to come before the high court after it promised us in its Dobbs opinion that the court was out of the abortion business in 2022—might just have lost his case by repeatedly mansplaining his self-contradictory position to Barrett and the other three women justices. In his toneless, dispassionate telling, his entirely incomprehensible position was just too complex for them to understand. And so he just kept repeating it, over and over. These justices, including Barrett, sounded increasingly fed up with his chin-stroking dissembling on an issue that’s literally life-or-death for pregnant women in red states. If the court’s male members noticed Turner’s dismissive attitude toward their colleagues, they didn’t care. The gender divide on the court has never been so revealing.

Perhaps because Dobbs was a threat to unknown future women, whereas real women are now being left to hemorrhage, lose the functioning of their reproductive organs, or be popped onto helicopters to receive out-of-state stabilizing care, none of the life-and-death harms being experienced in red states around the country feel very theoretical to anyone who has thought about pregnancy in a serious way. Yet, for male justices more worried about harms to the spending clause, nothing about potentially lethal pregnancies warranted even a moment’s pause.

Wednesday’s case, Moyle v. United States, revolves around a clash between Idaho law and a 1986 federal statute called the Emergency Medical Treatment and Labor Act (or EMTALA). Idaho’s abortion ban has no exception for the health of the patient; rather, it criminalizes abortion unless it’s “necessary to prevent the death of the pregnant woman.” ***

When Solicitor General Elizabeth Prelogar had her turn at the lectern, she faced a barrage of questions from Justices Clarence Thomas and Neil Gorsuch about whether Congress had run afoul of the spending clause when it passed EMTALA, an issue that was not briefed and should not be in the case. Samuel Alito, who brought all of his dictionary-wielding and woman-erasing skills from his star turn in Dobbs to bear, devoted his time to defending the “unborn child” who—in his view—was the real goal of EMTALA’s drafters, laying the groundwork for fetal personhood arguments that were too radioactive even for Turner to take on. Alito hectored Prelogar about her grasp of preemption, her reading of text, and her understanding of the term “unborn child,” casting her as some drunk lunatic who had staggered into court without any comprehension of the law.

Throughout the day doctors were referenced as “he” whereas every nurse was a “she.” Women were, as Alito conceded, “individuals,” but man, oh man, are they ever whiny and demanding. Alito also breathlessly cited Ronald Reagan as the deity who signed EMTALA and would never have wanted it to undermine the precious rights of “unborn children.” And a little “temporary” organ damage, he mused, might not be so bad if suffered for the benefit of a fetus. The task fell to Kagan to remind everyone that in the few months that Idaho has enforced its near-total ban, six women have already been airlifted to other states to receive emergency abortions that are criminal under Idaho law. Real women, flown out in great pain and at great expense, to get treatment that is objectively recognized as the standard of care



April 25, 2024 in Abortion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, April 24, 2024

Book Review, Kerri Stone's, Panes of the Glass Ceiling

Rona Kaufman Kitchen, Feminist Legal Theory and Stone's Panes of the Glass Ceiling, 17 FIU L. Rev. 771 (2023).

In her book, Panes of the Glass Ceiling: The Unspoken Beliefs Behind the Law’s Failure to Help Women Achieve Professional Parity, Professor Kerri Lynn Stone explores and deconstructs the many practical reasons why women have been unable to achieve equality in employment. Professor Stone painstakingly deconstructs the belief systems that underlie the American workplace and the path to professional success to reveal many of the nuanced reasons why women, despite their education, skill, and commitment to the workforce, continue to struggle to achieve professional success comparative to men. Stone insightfully explains why women continue to experience irremediable discrimination in employment almost sixty years after Congress outlawed sex discrimination in employment. Stone’s book is a long overdue deconstruction and indictment of the toxic masculinity and seemingly benign social norms that pervade workplace culture and its negative impact on women and equality. Her book is geared toward an audience that wants to understand the problems women face in employment today and solve those problems. While she provides historical context for many of the beliefs that ground the panes of the glass ceiling, her focus is not on theory or history. It is a book about the reality of 2022 and a map for how to shift that reality in 2023 and beyond.

This book review seeks to provide deeper grounding for Stone’s panes of the glass ceiling by placing her work in the broader historical and theoretical context of feminism, the women’s movement, and the history of women in the American labor force. This discussion proceeds in three parts. Part I provides the historical context for discrimination against women in the American workplace and anti-discrimination law by tracing the evolution of the modern women’s movement and the history of women’s participation in the labor force. Part II discusses Professor Kerri Stone’s panes of the glass ceiling and places each pane in theoretical context. Part III concludes with a brief discussion of how Stone’s articulation of the panes or the glass ceiling and her suggestions for reform contribute to the ongoing feminist legal theory discourse.

April 24, 2024 in Books, Equal Employment, Theory | Permalink | Comments (0)