“[I]t is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised,” the judge wrote. “However, it was not raised.”
Tuesday, February 7, 2023
A federal judge in Washington, D.C., suggested Monday that there may be a constitutional right to abortion baked into the 13th Amendment — an area she said went unexplored by the Supreme Court in its momentous decision last year overturning Roe v. Wade.
In a pending criminal case against several anti-abortion activists, U.S. District Court Judge Colleen Kollar-Kotelly said the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization concluded only that the 14th Amendment included no right to abortion but stopped short of definitively ruling out other aspects of the Constitution that might apply.
Kollar-Kotelly noted that there is some legal scholarship suggesting that the 13th Amendment — which was ratified at the end of the Civil War and sought to ban slavery and “involuntary servitude” — provides just such a right. She is asking the parties in the criminal case, which involves charges of blocking access to abortion clinics, to present arguments by mid-March.
In particular, the judge is asking them to address ”whether the scope of Dobbs is in fact confined to the Fourteenth Amendment” and “whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter … such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.”
Kollar-Kotelly’s request stems from a year-old case against 10 defendants, who are charged with conspiring to block access to a Washington, D.C., abortion clinic.
Brian Soucek & Ryan Chen, Misunderstanding Meriwether
Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech, or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what nearly everyone believes, given the case’s procedural posture. Meriwether has been misunderstood, and this Article aims to put a halt to the false narrative that has emerged around Meriwether before its consequences continue to spread.
Where previous work has explained why Meriwether’s holding is wrong, this Article delves into the complicated intersection of civil procedure and government employee speech claims to show why Meriwether’s holding is different, and far less important, than its foes and friends alike seem to think. In doing so, the Article also shows how a false legal narrative can develop, spreading from an opinion that encourages the mistake, to advocates and press who eagerly report it, to commentators, legislators, and courts each with reasons of their own for inflating the opinion’s importance, eroding gender identity protections along the way. This Article, finally, situates the widespread misunderstanding of Meriwether alongside other precedential mistakes and offers insight into how they might be counteracted before further distorting the law and threatening important equality rights.
Monday, February 6, 2023
5th Circuit Opinion Strikes Down Federal Law Prohibiting Individuals from Possessing Guns if Subject to a Domestic Violence Restraining Order
The Fifth Circuit issued an opinion in United States v. Rahimi. It ruled that the Second Amendment protects the right to possess a gun even for those subject to a restraining order for domestic violence relying heavily on the Supreme Court's 2022 decision in New York Rifle & Pistol Association v. Bruen.
It held that:
The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” * * * As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.
* * *
Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier that our ancestors would never have accepted.” * * * Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.
Scott D. Gerber has posted a book chapter on SSRN titled The Leak of the Dobbs Draft. This is a chapter from SCOTUS (Ed. M. Marietta, 2022) published by Palgrave Macmillan. The chapter outlines the history of the Dobbs draft leak and its ramifications. It then offers a history of other Supreme Court leaks, including one involving Roe v. Wade. The chapter then outlines possible reforms to address the leak, including proposed federal legislation and ethical standards governing the Supreme Court.
Ben A. McJunkin has posted a draft of an article, Rape as Indignity, forthcoming in the Cornell Law Review. The abstract states:
Rape law has a consent problem. The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially. It is now widely taken as axiomatic that nonconsensual sex is paradigmatic of rape. But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law in sexual nonconsent has also proven both over- and under-inclusive, too often leaving the law inadequate to vindicate some sexual harms and distorted in attempts to reach others. Increasingly, the very concept of consent is being questioned by scholars, who desire a rape law that more accurately reflects the lived experience of both victims and perpetrators. Consent is even potentially dangerous. The structure of consent reinforces problematic gender roles in sexual relations and fuels troubling narratives that have led to widespread violence against women.
This Article proposes a novel grounding for rape law—not as a matter of consent, but as a matter of human dignity. Human dignity has been perhaps the premier value in both political and moral thought over the past two centuries. As the Article documents, dignity’s relatively straightforward moral imperative—respect for persons—has a long tradition of being operationalized legally, making it ripe for use as the basis of a criminal prohibition. Building upon both federal and state efforts to combat the indignities of sex trafficking, the Article outlines a proposed framework for punishing as rape the infliction of indignity through certain means of compelling sex, namely force, fraud, and coercion. Centering human dignity, rather than consent, would more closely align rape law with the fundamental tenets of criminal law theory and has the potential to disrupt gendered social scripts that increasingly animate violence. In a time of mass incarceration, recognizing rape as indignity would also set the stage for a much-needed shift toward restorative justice and incarceration alternatives.
Friday, February 3, 2023
Gregory Klass & Tess Wilkinson-Ryan, Gender and Deception: Moral Perceptions and Legal Responses, Northwestern University Law Review, Forthcoming
Decades of social science research has shown that the identity of criminal defendants and alleged victims often affects case outcomes. Parties’ race, gender, class, and age affect decisions of prosecutors, judges, juries, and other actors in the criminal system. Less studied has been how identity might affect other forms of legal regulation. This essay begins to explore how parties’ gender might figure into legal decisionmakers’ responses to deceptive behavior. More specifically, we explore the hypothesis that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes and decisions to regulate.
The hypothesis is consistent with research into gender stereotypes, which has shown for example that women are perceived as less capable of protecting themselves against deception and that men have special duties to protect women. The hypothesis is also of a piece with recent work on moral typecasting, which explores how attributions of agency and patiency affect perceptions of moral wrongfulness, as there is evidence that men tend to be associated with agency and women with patiency.
We report the results of three studies designed to test the hypothesis. We use simple vignette experiments to elicit subjects’ off-the-cuff intuitions about men and women deceiving and being deceived. We examine the effects of gender by randomly varying party names (Ashley or Josh), by randomly varying the gender associated with a product (e.g., beard trimmer vs. hair dryer), and by randomly varying the gendered noun identifying the victims of a fraud (brothers vs. sisters). We ask subjects to report on their reactions to different deceptive situations by reporting on the ethicality of a behavior, on their support for a regulatory approach, and on their preference for level of punishment. We also explore differential responses of male- and female-identified subjects.
We find preliminary support for the proposition that men deceiving women and firms deceiving women are regarded as somewhat more problematic than men or firms deceiving men. We find suggestive but limited evidence that paternalistic regulation of women’s transactions is more welcome than that of regulation of men’s consumer choices. We find robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong, and that corporations are viewed as male. The studies reported here also suggest the challenges of studying how the gender of deceiver and deceived might affect moral and legal judgments. Subjects’ politics, for example, appear to correlate both with the effect of parties’ gender on their judgments and with subjects’ views on the appropriateness of regulation. We suggest how future research might disaggregate these effects and explore the mechanisms behind gender-driven moral and legal judgments regarding deception.
A Look at the Comprehensive Legislation in the EU for Gender Pay Inequity and its Likely Impact in Ireland
Sara Benedi Lahuerta, EU Transparency Legislation to Address Gender Pay Inequity: What is on the Horizon and its Likely Impact in Ireland, Irish Journal of European Law (2022) Vol. 24, pp. 161-188.
After years of scarce legislative developments, EU equality law seems to be gaining momentum, at least in the field of gender equality. Following the adoption of the Work-Life Balance Directive in 2019, in March 2021 the European Commission adopted a proposal for a Directive to strengthen the application of the principle of equal pay through pay transparency. Additionally, after a decade of discussion, a political agreement was finally reached in June 2022 to adopt the “Women on Boards” Directive. Given the complex causes of gender inequality – including gender pay inequity – such a combination of measures may bring about a powerful toolbox to make progress in the right direction. This article only focuses on one of them: the Proposed Directive on pay transparency, which contains a reasonably comprehensive set of substantive and enforcement measures. In particular, it discusses the potential and limitations of the Proposed Directive’s key substantive measures, while also giving consideration to the impact that this instrument might have in Ireland.
The Weaponization of Attorney's Fees in an Age of Constitutional Warfare, and the Example of the Texas Abortion Law
Rebecca Aviel & Wiley Kersh, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare"
Yale Law Journal, Forthcoming
If you simply want to win battles in the culture war, you enact legislation that regulates firearms, prohibits abortions, restricts discussion of critical race theory, or advances whatever other substantive policy preferences represent a victory for your side. But to win the war decisively with an incapacitating strike, you make it as difficult as possible for your adversaries to challenge those laws in court. Clever deployment of justiciability doctrines will help insulate constitutionally questionable laws from judicial review, but some of the challenges you’ve sought to evade will manage to squeak through. To fully disarm your opponents in an age of cultural and constitutional warfare, you must cut off their access to counsel. Here’s how to do it in three easy steps: (1) delineate an entire area of law, such as abortion, in which proponents of the state-favored view may obtain attorney’s fees upon prevailing in litigation while proponents of the opposing view may not; (2) impose joint and several liability on the attorneys for the disfavored side, so that attorneys cannot bring challenges to state law without being personally on the hook for what could amount to millions of dollars in the opposing party’s legal fees; and (3) define “prevailing party” so broadly that this shared liability is triggered by the dismissal of even a single claim. This, in brief, is what the Texas legislature did in SB 8, the Fetal Heartbeat Law, pioneering a model that several other states have now followed. The extraordinary nature of this scheme has been overshadowed by both the private enforcement mechanism at the core of SB 8, intentionally designed to evade judicial review, and by the Supreme Court’s decision to overrule Roe v. Wade, ending constitutional protection for the right to terminate a pregnancy. As this article shows, it would be a grave mistake to view SB 8’s weaponization of attorney fees as something that’s no longer relevant. First, the end of Roe hardly means an end to abortion litigation. Quite the contrary – it immediately ushered in a new era of legal challenges, for which Texas and its imitators have already stacked the deck as described above. But perhaps even more significantly, there’s no logical reason that the weaponization of attorney’s fees is limited to the abortion context, or to red states for that matter. California has already refashioned the Texas Three Step to deter Second Amendment challenges to its new firearm law, implementing an identical attorney fee regime for very different ideological purposes. And why should it stop there? Why can’t all state legislatures insulate their most troubling laws from judicial scrutiny simply by making it prohibitively risky for attorneys to challenge them? This Article reveals that the largely unnoticed attorney fee scheme woven through SB 8, imposing one-sided fee shifting with liability for the attorneys of disfavored litigants, is unprecedented and deeply threatening to whatever is left in our legal culture of notions of fair play, access to courts, and legitimate contestation of bitterly disputed issues. Accepting its proliferation will result in a profound aggrandizement of state power that is inconsistent with federalism and separation of powers principles as well as due process and First Amendment rights.
Wednesday, February 1, 2023
NY Shield Law Could Become Second State to Protect Clinicians Providing Telemedicine Abortion Services
Update Jan. 24, 8:56 p.m. PT: The New York Senate passed the telemedicine abortion provider shield bill on Jan. 24, sending the legislation to the Assembly, the lower house of the state legislature. After it passes through this chamber, it heads to Gov. Kathy Hochul (D) for her signature.
On Jan. 9, New York state Senator Shelly B. Mayer (D) introduced legislation that would allow licensed clinicians in New York to provide telemedicine abortion services to patients located in states banning or severely restricting medication abortion. The bill passed out of committee on Jan. 17 and will soon be introduced in the Assembly by Member Karina Reyes (D). If passed, New York would become the second state after Massachusetts to pass a shield law extending to telemedicine abortion providers serving out-of-state patients.
“S1066 makes it clear that New York State will not be complicit in other states’ reckless attempts to punish providing, receiving, and helping others get the abortion care they need,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “As forced pregnancy states attempt to criminalize pregnant people across the country, New York must find every legal pathway possible to protect those who provide and seek care from retribution and expand abortion access for all.”
Kate Zernike, A Volatile Tool Emerges in the Abortion Battle: State Constitutions? NYT
When the Supreme Court overturned Roe v. Wade and the constitutional right to abortion in June, it declared that it was sending the issue back to the “people and their elected representatives.” But the fight has largely moved to a different set of supreme courts and constitutions: those in the states.
On a single day this month, South Carolina’s highest court handed down its ruling that the right to privacy in the State Constitution includes a right to abortion, a decision that overturned the state’s six-week abortion ban. Within hours, Idaho’s highest court ruled in the opposite direction, saying that state’s Constitution did not protect abortion rights; the ban there would stand.
Those divergent decisions displayed how volatile and patchwork the fight over abortion rights will be over the next months, as abortion rights advocates and opponents push and pull over state constitutions.
For abortion rights groups, state constitutions are a critical part of a strategy to overturn bans that have cut off access to abortion in a wide swath of the country. Those documents provide much longer and more generous enumerations of rights than the United States Constitution, and history is full of examples of state courts using them to lead the way to establish broad rights — as well as to strike down restrictions on abortion. They offer a way around gerrymandered state legislatures that are pushing stricter laws.
Evan Bernick & Jill Wieber Lens, Abortion, Original Public Meaning, and the Ambiguities of Pregnancy
Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.
This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.
Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.
I've also done a little bit of work on the public meaning of abortion in the 1860s. See Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYUP 2016), chp. 4, "The Incidental Relation of Motherhood."
Monday, January 30, 2023
Kate Redburn on "Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement"
Kate Redburn has published Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1962-86, Law & History Rev. 1 (2023). The abstract provides:
Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.
The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.
Peter Blair and Benjamin Posmanick have published a working paper titled Why Did Gender Wage Convergence in the United States Stall with the Human Capital and Economic Opportunity Global Working Group. The abstract provides:
During the 1980s, the wage gap between white women and white men in the US declined by approximately 1 percentage point per year. In the decades since, the rate of gender wage convergence has stalled to less than one-third of its previous value. An outstanding puzzle in economics is “why did gender wage convergence in the US stall?” Using an event study design that exploits the timing of state and federal family-leave policies, we show that the introduction of the policies can explain 94% of the reduction in the rate of gender wage convergence that is unaccounted for after controlling for changes in observable characteristics of workers. If gender wage convergence had continued at the pre-family leave rate, wage parity between white women and white men would have been achieved as early as 2017.
The article concludes:
[U]sing the introduction of family-leave policies, we explain 94% of the stagnation in gender wage convergence that is unaccounted for after controlling for changes in observable characteristics between men and women. A key lesson from our work is that legally-mandated labor market flexibility can have the unintended effect of stymieing gender wage convergence, notwithstanding the increasing evidence that flexibility which arises endogenously in the labor market through technological innovation, or from firms changing their own policies, can lead to reduced gender wage gaps * * * .
The evidence that we provide on the impact of leave policies on gender wage convergence in the US contributes to a growing literature documenting negative impacts of leave policies on gender wage equality in Europe and other OECD countries * * *. Because the leave offered in the US is less generous that what is offered in peer countries, our results suggests an important role for economists to consider what features of family-leave policy design can soften the equity-efficiency trade-off arising from the introduction of family-leave policies. We leave this work to future studies by other scholars having answered the question: “why did gender wage convergence in the United States stall?”
FDA Draft Guidance Seeks to Lift Historic Gender-Based Exclusions on Blood Donations After Years of Advocacy
The FDA published a draft guidance proposing revisions to its blood donation requirements, materials, questionnaires, and procedures to eliminate categorical exclusions against men who have had sex with men in the past three months, instead moving to gender-neutral individual assessments.
NPR reported on the history of this prohibition.
The restrictions on donating blood date back to the early days of the AIDS epidemic and were designed to protect the blood supply from HIV. Originally, gay and bisexual men were completely prohibited from donating blood. Over time, the FDA relaxed the lifetime ban, but still kept in place some limits.
* * *
The new proposed policy would eliminate the time-based restrictions on men who have sex with men (and their female partners) and instead screen potential donors' eligibility based on a series of questions that assess their HIV risk, regardless of gender. Anyone taking medications to treat or prevent HIV, including PrEP, would not be eligible.
The FDA stated the following:
We, FDA, are issuing this draft guidance to receive comments on revised recommendations for evaluating donor eligibility using individual risk-based questions. This draft guidance, when finalized will provide you, blood establishments that collect blood or blood components, including Source Plasma, with FDA’s revised donor deferral recommendations for individuals with increased risk for transmitting human immunodeficiency virus (HIV) infection. We are also recommending that you make corresponding revisions to your donor educational materials, donor history questionnaires and accompanying materials, along with revisions to your donor requalification and product management procedures. This guidance, when finalized, will supersede the guidance entitled, “Revised Recommendations for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products” dated April 2020, updated August 2020 (April 2020 guidance). The recommendations contained in this draft guidance, when finalized, will apply to the collection of blood and blood components, including Source Plasma.
Comments may be submitted online regarding the draft guidance.
Friday, January 27, 2023
Study Shows Intergenerational Gap in Decisionmaking by Women Judges, with Women Coming of Age Before 1963 Voting with Significantly Higher Progressive Inclinations
Isaach Unah, Ryan Williams & Stephanie Zaino, Echoes of the Feminine Mystique: Female Judges and Intergenerational Change in the United States Courts of Appeal, Journal of Law & Politics (forthcoming)
Is there an intergenerational gap in decision-making among female judges? Do female judges from United States Supreme Court Justice Ruth Bader Ginsburg’s generation hold a different orientation to law and policy as compared to judges from younger generations? Reviewing different theoretical perspectives regarding gender and judging, we examine the significance of intergenerational change among female judges whose political coming-of-age occurred at different historical intervals. We explore how this change informs decisional outcomes in the U.S. courts of appeals. To designate a temporal marker of intergenerational change, we use Betty Friedan’s publication of The Feminine Mystique in 1963. Our analysis indicates that despite the traditionalistic culture in which they grew up, female judges who came of age prior to publication of The Feminine Mystique voted with significantly higher progressive inclinations compared to female judges who came of age after the book’s emergence. We explore the implications of this finding for judicial decision-making.
Study Shows Individual Level Traits of Vocal Masculinity Influence Corporate Executive Status for Women
John Lynch, CEOs, Masculinity, and Language"
The lack of female CEOs and the persistent gender pay gap, especially at higher income levels, have become popular topics both in academics and society. Most studies focus on the differences between males and females that perpetuate this "glass ceiling," while few look at within-gender traits that can help mitigate its effects. In this paper, I use novel measures of CEO and CFO vocal masculinity and language complexity to gain insight into how these individual-level traits influence executive status and compensation both within and across genders. I find that vocal masculinity, within females, positively impacts their likelihood of becoming a CEO while the opposite is true for males. When it comes to communication, CEOs speak with greater complexity than CFOs while both female CEOs and CFOs use more complex language and speak longer during earnings calls than their male counterparts. Differences in CEO-CFO language complexity are greater at low entrenchment firms while differences in masculinity are greater at high entrenchment firms. Additionally, while boards with greater female representation hire more female CEOs, they surprisingly seem to place a greater emphasis on female masculinity, while male masculinity plays a larger role at firms with male-dominated boards. Finally, for both male and female CEOs, compensation is positively related to masculinity, while increased language complexity only matters for females. These results help provide insight into the determinants of CEO status and compensation and may help explain how boards view and reward perceived competency across genders.
The Colorado baker who won a partial U.S. Supreme Court victory after refusing to make a gay couple’s wedding cake because of his Christian faith lost an appeal Thursday in his latest legal fight, involving his rejection of a request for a birthday cake celebrating a gender transition.
The Colorado Court of Appeals ruled that that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech.
It also found that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners' right to practice or express their religion.
Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips' shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female. ***
“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, which also rejected procedural arguments from Phillips.
Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal.
Nino Monea, An Officer and a Gentlewoman: Why Congress Should Modernize Article 133 of the UCMJ, 61 Washburn L.J. (2022)
Article 133 of the Uniform Code of Military Justice—the penal code for the armed forces—makes it a crime for an officer to do anything that is “unbecoming an officer and a gentleman.” This Article argues that Congress should modernize the statute to acknowledge the contributions of servicewomen to the officers’ corps and the unequal treatment they had to endure in order to serve their country by making the offense gender neutral. Given that Congress is poised to overhaul the military justice system, there is no reason why this relic should not be addressed.
Wednesday, January 25, 2023
Jasmijn C. Bol & Hila Fogel-Yaari, Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression,
in Diversity, Equity, and Inclusion: Theory, practice, and case histories (Chapter 3A) (forthcoming 2023)
Progress has been made in the last century toward reducing gender bias in society at large and in the workplace specifically. The negative impact gender differentiation has on women’s careers, however, is not gone. Differential treatment and biases have moved from explicit to more implicit. These biases are rooted in decades of modeling and stereotyping women as communal and men as agentic, thereby casting women as caregivers and men as leaders. The stereotyping influences women’s professional lives by tainting both supervisors’ and employees’ decisions. The differentiation starts already in hiring decisions, which include decisions on who to hire, at what rank, and how much to pay. Once women are hired, the bias continues in task allocation and performance evaluation, which determine immediate compensation and subsequent promotions. Thus, women’s career progressions are made more complicated throughout their entire participation in the workforce. The multifaceted nature of the problem suggests that only a holistic approach can significantly reduce gender bias.
Laurence R. Helfer & Clare Ryan, Contesting Sexual Orientation Rights Before the ECtHR, International Sexual and Reproductive Rights Lawfare (Siri Gloppen & Malcolm Langford eds., 2023)
This chapter, a contribution to an edited volume on "International Sexual and Reproductive Rights Lawfare," analyzes the evolution of lesbian and gay rights litigation before the European Court of Human Rights (ECtHR). Between 2010 and 2020, the ECtHR issued fifty-seven merits judgments involving a broad array of sexual orientation issues—a sharp expansion from the number of such decisions in earlier periods. The growing number of cases reflects the fact that sexual orientation rights have become increasingly contested across Europe. We explain the reasons for this trend and predict that recent ECtHR judgments concerning same-sex partnerships and asylum are poised to further exacerbate these contestations.
In addition, we offer insights into the research questions identified in the Introduction to the edited volume. We emphasize the strategic decisions of actors who turn to the ECtHR as a sympathetic venue for expanding lesbian and gay rights across Europe and, separately, to provide a bulwark against repression by some states. We identify the political and social factors that push these cases to the Court and the doctrines it applies when adjudicating these disputes. We then discuss the nation-level protections that ECtHR litigation has historically engendered and how recent cases have increased the risk of noncompliance with ECtHR judgments concerning sexual orientation rights. Finally, we investigate whether the Court can maintain its legitimacy and avoid politicizing sexual orientation rights cases in light of the growing contestations over those rights across Europe.