Gender and the Law Blog

Menstruation and the Law in a Post-Dobbs World

Emily Gold Waldman & Bridget J. Crawford, Menstruation in a Post- Dobbs World, 98 NYU Law Review Online 191 (2023)

In this Essay, we re-examine our 2022 book, Menstruation Matters: Challenging the Law’s Silence on Periods, through multiple related lenses, including the human rights, sustainability, and workplace issues emphasized by our three reviewers; the COVID-19 pandemic; and the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. All of these perspectives converge on the inherent dignity and autonomy interests in being able to manage one’s own body. Menstruation and related conditions like breastfeeding, pregnancy, and menopause should not be sources of shame or stigma. Nor should they be vectors of formal control by the government or de facto exclusion from school, work, or any aspect of public life. Yet the Supreme Court’s overturning of Roe v. Wade means that reproduction-associated bodily processes likely will be the focus of legal battles for years to come. As we continue to emphasize the many ways that menstruation matters in life and law, we strive for a legal future that recognizes the full humanity of all people and safeguards our equal rights

MI Supreme Court Proposes Rule That Courts Must Use Parties' Preferred Gender Pronouns

The Michigan Supreme Court has received some pushback on its proposal to require state courts to use preferred pronouns when identifying parties or lawyers.

The proposed rule states that parties and attorneys may include personal pronouns in the name section of case captions.

“Courts are required to use those personal pronouns when referring to or identifying the party or attorney, either verbally or in writing,” the proposal says. “Nothing in this subrule prohibits the court from using the individual’s name or other respectful means of addressing the individual if doing so will help ensure a clear record.”

Bloomberg Law, WILX 10 and the Washington Examiner are among the publications reporting on the proposal.

“Response from the judiciary has been lukewarm,” Bloomberg Law reports, “with some staff concerned about the potential pitfalls of making a mistake or creating confusion in court records or proceedings.”

Most appeals judges support the proposal, according to the chief judge of the Michigan Court of Appeals. But 12 appellate judges and 23 trial-level judges oppose the change. And two Michigan Supreme Court judges did not support consideration of the proposal.

A five-second Google search revealed a list of 762 possible pronouns, according to a letter by the trial judges in opposition.

“Perhaps we are wrong, but we seriously doubt that those who refer to themselves as Puppy, honk, Mew, Ci, n3 and splash harbor a deeply seated belief that is their authentic gender,” the letter says. “One need not contemplate long to think what mischievous parties—especially criminal defendants serving life sentences—will do with their newfound power.”

Those who oppose the rule cite three principal arguments, according to Bloomberg Law. They argue that the rule change would interfere with judges’ religious liberty, cause confusion and lead to possible lawsuits.

Bloomberg Law spoke with Charles Geyh, a professor at the Indiana University Maurer School of Law, who argued that the arguments fail to carry weight because judges are already bound by duties of courtesy and civility.

“Put simply: You don’t have to believe that someone is a male when you call them mister, but courtesy dictates that you do so, even if you don’t believe in your heart of hearts that’s true,” Geyh said.

Virtual Summer Feminist Legal Theory Series

2023 VIRTUAL SUMMER FEMINIST LEGAL THEORY SERIES

Looking Back/Looking Forward: The Significance of Feminist Legal Theory

 

June 28, 2023 and August 2, 2023

 

Pre-registration (here) required

Zoom link to be provided 1 day prior to event

Overview

This summer, the U.S. Feminist Judgments Project is pleased to host the Summer Feminist Legal Theory Series on June 28, 2023 and August 2, 2023 from 2:00pm-3:45 Eastern/11am-12:45pm Pacific.

Attendees from all parts of the academy with a verified academic email address are welcome to attend with pre-registration. There is no charge to attend. All sessions are held via Zoom.

Session 1 – June 28, 2023, 2:00pm-3:45 Eastern/11am-12:45pm Pacific

Reflecting Back on 40 Years of the Feminism and Legal Theory (FLT) Project: Innovation and Assimilation

This workshop will consider the historic and contemporary significance of the Feminism and Legal Theory Project, launched at the University of Wisconsin in 1984.

Chair: Bridget J. Crawford (Pace)

Moderator: Martha Albertson Fineman (Emory)

Panelists: Samuel Burry (Oxford), Deborah Dinner (Cornell), Martha Albertson Fineman (Emory), Risa Lieberwitz (Cornell), Linda McClain (Boston University), Martha McCluskey (Buffalo), Laura Spitz (New Mexico)

Session 2 – August 2, 2023, 2:00pm-3:45 Eastern/11am-12:45pm Pacific

How Feminist Legal Theory Can Make a Difference 

In this second session we will look at the Feminist Judgments Project, considering its approach to integrating feminist theory into law by rewriting (and thus critiquing) judicial opinions to reflect feminist principles and methods in major areas of law. 

Chair: Kathryn M. Stanchi (UNLV)

Speakers TBD

Registration

 

Preregistration for all participants (speakers and attendees) is required via this link: https://pace.zoom.us/meeting/register/tJYpce2trzojH9yR8jjH3Jjie9yJJxlb9Kow

Zoom log-in information will be sent one day prior to the event. An academic email address is required to pre-register. Anyone without an academic email address who wishes to be added should contact Bridget J. Crawford (Pace) to be added to the registration list: bcrawford at law dot pace dot edu. 

All attendees including speakers must register. Attendees need to register only once and then can attend either or both of the sessions in the summer series.

Sponsors

 

The Summer Feminist Legal Theory Series is co-sponsored by the Elisabeth Haub School of Law at Pace University and the William S. Boyd School of Law at the University of Nevada, Las Vegas, together with The Feminism and Legal Theory Project, The Vulnerability and the Human Condition Initiative, the Institute for Feminist Legal Studies at Osgoode, the Family Law Center at the University of Virginia School of Law, and the AALS Section on Women in Legal Education. The series is coordinated by Bridget J. Crawford (Pace), bcrawford at law dot pace dot edu, and Kathy Stanchi (UNLV), kathryn dot stanchi at unlv dot edu.

Book Feminist Judgments Rewriting Decisions of Corporate Law

Anne M. Choike, Usha R. Rodrigues, Kelli Alces Williams, eds., Feminist Judgments: Corporate Law Rewritten (Cambridge U. Press 2023)

Corporate law has traditionally assumed that men organize business, men profit from it, and men bring cases in front of male judges when disputes arise. It overlooks or forgets that women are dealmakers, shareholders, stakeholders, and businesspeople too. This lack of inclusivity in corporate law has profound effects on all of society, not only on women's lives and livelihoods. This volume takes up the challenge to imagine how corporate law might look if we valued not only women and other marginalized groups, but also a feminist perspective emphasizing the importance of power dynamics, equity, community, and diversity in corporate law. Prominent lawyers and legal scholars rewrite foundational corporate law cases, and also provide accompanying commentary that situates each opinion in context, explains the feminist theories applied, and explores the impact the rewritten opinion might have had on the development of corporate law, business, and society.

University Fired Two Employees for Using Gender Pronouns in Emails

NYT, A University Fired Two Employees for Including Pronouns in Their Emails

When Raegan Zelaya and Shua Wilmot decided to include their pronouns at the end of their work emails, they thought they were doing a good thing: following what they viewed as an emerging professional standard, and also sending a message of inclusivity at the Christian university where they worked.

But their bosses at Houghton University, in upstate New York, saw the matter very differently.

Administrators at Houghton, which was founded and is now owned by a conservative denomination that branched off from the Methodist Church, asked Ms. Zelaya and Mr. Wilmot, two residence hall directors, to remove the words “she/her” and “he/him” from their email signatures, saying they violated a new policy. When they refused to do so, both employees were fired, just weeks before the end of the semester.

Houghton’s firing of the two staff members has dismayed some of its alumni, nearly 600 of whom signed a petition in protest. And it comes as gender and sexuality have become major fault lines in an increasingly divided nation, and after other faith-based organizations, including Yeshiva University in Manhattan, have argued that First Amendment protections of religious freedom allow them to treat gay and transgender people differently than others.

Analyzing the Key Features of Feminist Legal Thought

Joanna Grossman, The Winding Path Toward Gender Equality and the Advocates and Scholars Who Forged It,, 34 Yale Journal of Law and Feminism 14 (2023)

At its broadest, “feminist legal thought” describes the effort across generations to secure equality for women through law. The ideas that have emerged from this work can be loosely typed as “equality theories,” and the statutes, constitutional interpretations, and doctrines they inform can be tied together under the heading of “gender law.”

Three features of gender law are noteworthy. First, while other areas of study might not be premised on any underlying commitments—for example, a labor law scholar might be passionately for or against unions— the term “feminist legal theory” implies a commitment to women’s equality. Second, the founders of the field had to persuade legal and other actors of the underlying premise—that women are entitled to equality—before helping construct the law’s response to existing inequality. Most areas of law are built on a series of unstated and largely uncontroversial premises: that the law should impose liability for conduct that injures others. But gender law only exists if legal actors believe that gender inequality is wrong—and for most of history that was not a popular view. Third, by its very nature, gender law combines theory and practice. The theory provides the justification necessary to persuade courts, lawmakers, or institutions to adopt rules and practices that will lead to greater equality for women; the practice is what (potentially) delivers on the theory of equality. The praxis is the field.

This essay will explore the development of feminist legal theory, showcasing the multi-faceted ability of feminist legal theorists to identify forms of disadvantage, theorize about their harm, construct the proper responses, and persuade decisionmakers to act.

Center for Reproductive Rights Report Documents Poor-Quality Care After Dobbs

The Center for Reproductive Rights published a report documenting poor quality care after Dobbs. 

The Care Post-Roe Study seeks to learn about how clinical care has changed by documenting cases of care that was different from the usual standard due to abortion laws that went into effect since the Dobbs ruling. This study allows health care providers to share these narratives anonymously and confidentially, at a time when they are being forbidden by their employers or hospital leadership from speaking with the press about these cases.

* * *     
Cases in the narratives fell into several categories: 1. Obstetric complications in the second trimester prior to fetal viability, including preterm prelabor rupture of membranes, hemorrhage, cervical dilation, and hypertension; 2. Ectopic pregnancy, including cesarean scar ectopic; 3. Underlying medical conditions that made continuing a pregnancy dangerous; 4. Severe fetal anomalies; 5. Early miscarriage; 6. Extreme delays in obtaining abortion care; and 7. Delays obtaining medical care unrelated to abortion.

The post-Dobbs laws and their interpretations altered the standard of care across these scenarios in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care. In several cases, patients experienced preventable complications, such as severe infection or having the placenta grow deep into the uterine wall and surrounding structures, because clinicians reported their “hands were tied,” making it impossible for them to provide treatment sooner.   

Access the full report here. 

 

 

Transdisciplinary Coalition Publishes "Menstrual Justice: A Human Rights Vision for Australia"

A transdisciplinary coalition of scholars, activists, and policymakers have published Menstrual Justice: A Human Rights Vision for Australia. They offer policy recommendations "regarding the discrimination and mistreatment often experienced by people who menstruate in the areas of children’s rights, disability rights, gender rights, health, human rights, Indigenous women’s health, industrial relations, law, political economy, psychology, public health, sociology, and tax law and policy." 

We need laws that clearly outlaw workplace discrimination and harassment against menstruators, so no one is fired for bleeding on the job or being late to work due to period pain. We need public awareness campaigns and curricular expansion focused on health information and the eradication of menstrual stigma to curb poor menstrual health. We need access to resources and healthcare for residents in institutional settings that supports their autonomy over menstruation and menopause. We need provision of Indigenous intergenerational teaching about menstruation and menopause.

* * * 

Our recommendations include the areas of public awareness, curriculum, schools, workplaces, public buildings and housing, institutional settings and discrimination and coercion. Many of these recommendations are no cost or low cost but could have a large impact on gender equality and would improve human rights for women and other people who menstruate.

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

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

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

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

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

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

 

CFP 2024 AALS Obstacles to Gender Equality in the Legal Academy

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

Backdating the Law of MeToo and Sexual Harassment

Jessica Fink, Backdating #MeToo, SSRN.com 

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

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

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

Analyzing the Privatization of Family Leave Through Insurance

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

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

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

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

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

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

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

 

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

 

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

 

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

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

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

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

Reclaiming Tort Law to Protect Reproductive Rights

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

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

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

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

The Feminist-Neutrality Paradox of Women Judges

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

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

School Book Removals May Create Hostile Environment Violating Student Civil Rights

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

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

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

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

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

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

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

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

And the types of claims:

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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