Wednesday, March 29, 2023

Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service

Jennifer Brinkley, Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service,   
Tennessee Journal of Race, Gender, and Social Justice, Forthcoming

This article will look at the history of women and jury service, focusing on the work both Kenyon and Murray did to persuade courts that sex discrimination, like race discrimination, was unconstitutional. Jury service was an issue that advocates of equality could agree upon and Kenyon and Murray would use every resource at their disposal to obtain compulsory service for women. Part II gives a brief history of how women were excluded from juries in the United States. It provides popular culture references of the time, along with public opinion about whether women should serve. This clarifies the history surrounding jury service. Part III provides context on the lives of Dorothy Kenyon and Pauli Murray before they became a team. Their litigation strategy was strongly influenced by division in the women’s equality movement over how best to proceed to seek relief from sex discrimination. Some thought legislative change would be best, while others believed judicial reinterpretation was the proper pathway. The division, and its impact, is discussed. Part IV begins with a history of jury service litigation before various courts. In 1966, Kenyon and Murray co-authored the ACLU’s brief for a federal court case, White v. Crook, where they successfully challenged an Alabama statute restricting jury service only to white males. Prior to White, all sex-based discrimination challenges arguing a Fourteenth Amendment violation had failed. White wanted to successfully link the civil rights and women’s rights movements by showing the inferior status both groups experienced. This section gives details about the White case — the facts, arguments made, and ultimate victory. Following their work on White, Kenyon and Murray encouraged the creation of the ACLU Women’s Rights Project, which would place Professor Ruth Bader Ginsburg at the helm. In her brief for Reed v. Reed, where the United States Supreme Court unanimously struck down an Idaho law preferring males over females in administrating estate matters, Ginsburg gave credit to both Kenyon and Murray by listing them as co-authors. The Reed decision marks the first time the Supreme Court declared a statute unconstitutional based on sex-based differentials using the Equal Protection Clause of the Fourteenth Amendment. A discussion of the ACLU Women’s Rights Project and subsequent cases drawing on the strategies put forth in White provides evidentiary support of the important work Kenyon and Murray did to effect change. They built, step by step, a foundation on which Ginsburg, on behalf of the Women’s Rights Project, could be successful in arguing sex discrimination cases. Part V concludes with a summary of their friendship, outside of Kenyon and Murray’s activism.

March 29, 2023 in Courts, Legal History, Women lawyers | Permalink | Comments (0)

New Book After Misogyny: How the Law Fails Women and What to Do About It

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (University of California Press 2023)

A rigorous analysis of systemic misogyny in the law and a thoughtful exploration of the tools needed to transcend it through constitutional change beyond litigation in the courts.
Just as racism is embedded in the legal system, so is misogyny—even after the law proclaims gender equality and criminally punishes violence against women. In After Misogyny, Julie C. Suk shows that misogyny lies not in animus but in the overempowerment of men and the overentitlement of society to women's unpaid labor and undervalued contributions. This is a book about misogyny without misogynists.
From antidiscrimination law to abortion bans, the law fails women by keeping society's dependence on women's sacrifices invisible. Via a tour of constitutional change around the world, After Misogyny shows how to remake constitutional democracy. Women across the globe are going beyond the antidiscrimination paradigm of American legal feminism and fundamentally resetting baseline norms and entitlements. That process, what Suk calls a "constitutionalism of care," builds the public infrastructure that women's reproductive work has long made possible for free.

After Misogyny by Julie C. Suk

March 29, 2023 in Books | Permalink | Comments (0)

Will a New Lawsuit Stop the Abortion Rights Amendment in Ohio?

Jo Ingels, Will a New Lawsuit Stop the Abortion Rights Amendment in Ohio?

Groups backing an abortion rights amendment are gathering signatures to put it on the ballot this fall, as a lawsuit against the state ballot board for the abortion rights amendment as a single issue waits for a court date.

And with that suit, the state’s high court could hold the power to make a decision that could keep the amendment from going to voters this November.

Curt Hartman, the Cincinnati attorney who filed the lawsuit for two private citizens from southwest Ohio, said he’s asking the state’s highest court to require the Ballot Board to reverse its decision and revisit the issue.

“We believe that it clearly should be separated into abortion or decisions relating to deciding whether to terminate a pregnancy on one hand versus all of these other reproductive decisions,” Hartman said.

Freda Levenson is the legal director of the ACLU of Ohio, which is working with the reproductive rights amendment’s backers. She said the lawsuit lacks merit.

See also NBC News, The Next Battleground Over Abortion

March 29, 2023 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, March 27, 2023

Beety and Oliva on "Policing Pregnancy 'Crimes'"

Valena E. Beety and Jennifer D. Oliva have published "Policing Pregnancy 'Crimes'" in Volume 98 of the N.Y.U Law Review as an Online Feature. The abstract provides: 

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds defense attorneys of their obligation to challenge junk science in the courtroom.

The essay concludes: 

States have pursued criminal charges against pregnant people even when there was no scientific evidence to support any claim that they had caused harm to their fetus and when their children were born healthy. Worse yet, the policing of pregnant people heightens—rather than mitigates—maternal and fetal health risks because it incentivizes individuals to avoid healthcare services. It also instigates a cascade of attendant negative outcomes, including but not limited to the potential loss of custody of children, difficulty in obtaining employment, and exclusion from public benefit programs. There is little doubt that Dobbs will motivate the enhanced surveillance, policing, and prosecution of pregnant people. The post-Dobbs world is shaping up as an extraordinarily dangerous place for pregnant people and their families, and it is critical that defense attorneys are prepared to vigorously challenge the state’s evidence in these cases.

Read the full article here: 

March 27, 2023 in Abortion, Healthcare, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Phil Lord on "Trumping Dobbs"

Phil Lord has published Trumping Dobbs in the University of Illinois Law Review Online (2023). The abstract previews: 

This Essay draws upon Canadian constitutional law to analyze the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In his Foreword to the 2018 Harvard Law Review Supreme Court issue, Jamal Greene analogously draws upon Canadian constitutional law to illuminate aspects of U.S. constitutional law we often oversee and take for granted. He argues that rights are construed as “trumps”: they are absolute. Greene contrasts this framework to Canada’s, under which rights are subject to reasonable limitations pursuant to a “proportionality analysis.” This Essay builds upon that work. It argues that proportionality analysis is indeed central to constitutional adjudication in Canada and most other developed countries. The Essay shows how the framework for the protection of reproductive rights set out in Roe v. Wade and modified in Planned Parenthood v. Casey incorporates key aspects of proportionality analysis. It allows for varying limitations to a constitutional right. Because these precedents significantly moved away from the existing framework of constitutional review, and did not acknowledge that they sought to fundamentally change that framework, they were uniquely vulnerable. Unsurprisingly, the Dobbs majority sharply criticizes the balancing of values and goals that defines proportionality analysis as impracticable and inconsistent with U.S. constitutional review. More broadly, these precedents, and the Dobbs opinion, illustrate how U.S. constitutional law lacks the necessary tools to mediate and reconcile conflicting rights – unlike countries which adopt proportionality analysis. Its rigid framework, which many Americans tightly hold on to as a hallmark of democracy and judicial minimalism, amplifies the role of courts in fundamental, charged sociopolitical debates. It is inherently bound to politicize the intervention of courts and undermine their legitimacy.

March 27, 2023 in Abortion, Constitutional, International | Permalink | Comments (0)

I. Glenn Cohen on "Reproductive Technologies and Embryo Destruction After Dobbs"

I. Glenn Cohen has posted an updated draft of the work Reproductive Technologies and Embryo Destruction After Dobbs on SSRN.  This is a chapter contribution to a forthcoming book, edited by Geoffrey R. Stone and Lee Bolinger, titled Roe v. Dobbs: The Past, Present and Future of a Constitutional Right of Abortion (forthcoming 2023). 

Upon the release of the Dobbs decision, indeed upon the leak of Justice Alito’s draft opinion, the public and legal academic conversation about the decision very quickly shifted to its implications for other rights closely connected to substantive due process. The dissenters and Justice Thomas saw a broad attack on all substantive due process rights, while Justice Alito's opinion attempts to argue that: “[w]hat sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’"

Only time will tell who correctly foresaw the shape of what is to come as to these constitutional rights. But as to reproductive technologies, specifically those that involve the destruction of embryos, I argue in this Chapter that the situation is more clear cut. If a state were to prohibit entirely the destruction of embryos, the exact language Justice Alito uses to distinguish abortion from other constitutional rights directly applies – embryo destruction just as much as abortion “destroys . . . ‘potential life’ and what” such a potential state law “regards as the life of an ‘unborn human being’.” For reproductive technologies, the caller is already in the house.

This chapter tries to answer three questions. First is a constitutional law question: It explains why post-Dobbs, it is hard to argue for a federal constitutional right to engage in IVF or other reproductive technologies involving embryo destruction.

Second, is a political question: are the states that prohibit abortion, in particular those that prohibit abortion from the very start of pregnancy, likely to adopt such measures that restrict embryo destruction as part of IVF? Here the chapter argues that the available polling and other data on public attitudes to IVF suggest that at least currently such measures are unlikely to be a priority or perhaps even supported in most states.

Third, and the bulk of the chapter, is a normative question: should those who seek to prohibit abortion also prohibit embryo destruction as part of IVF or other reproductive technology use? My answer will be “maybe,” that it will depend among other things on their theory of embryonic/fetal personhood and when it obtains. I conclude that some but not all of those who believe abortion should be restricted, as a normative matter, should also oppose embryo destruction and push for laws restricting it. Perhaps more surprisingly, some who oppose abortion restrictions should not oppose restrictions on embryo destruction, because restrictions on embryo destruction do not involve trumping women’s rights as to bodily autonomy in the same way.

March 27, 2023 in Abortion, Books, Healthcare, Reproductive Rights, Technology | Permalink | Comments (0)

Friday, March 24, 2023

Abortion Rights and Federalism--Some Lessons from the Nineteenth Century United States

Kate Masur, Abortion Rights and Federalism: Some Lessons from the Nineteenth Century United States

The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has prompted frequent allusions to slavery and the antebellum United States. The history of those struggles reminds us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights. The history of the United States in the nineteenth century also reminds us that when we bring the power of the federal government to bear on an issue, it must be done with respect for people’s dignity and capacity for moral decision-making.

*Professor Masur delivered the Spring 2022 Regula Lecture at the Center for Constitutional Law at Akron based on her book, Until Justice Be Done: America’s First Civil Rights Movement, From the Revolution to Reconstruction (2021), a finalist for the 2022 Pulitzer Prize in History.

March 24, 2023 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring

Elena Pisanelli, A New Turning Point for Women: Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring 

This paper studies whether firms’ adoption of artificial intelligence (AI) has a causal effect on their probability of hiring female managers. Using panel data on the 500 largest firms, measured by revenues, in Europe and the US, and a two-stage difference- in-differences I find that firms’ use of AI causes, on average, an increase by 3.5% in the hiring of female managers. Exploiting heterogeneity across different types of AI I find that my result is driven by the use of assessment software, rather than that of predictive algorithms. The use of assessment software increases the share of female managers hired by companies and correlates with a reduction in firms being sued for gender discrimination in hiring. Conversely, my findings show that predictive algorithms do not affect gender inequality in managerial hires.

March 24, 2023 in Business, Equal Employment, Technology | Permalink | Comments (0)

France Moves to Put Abortion Rights in Constitution

Wash Post, France Moves to Put Abortion Rights in Constitution and US Curbs Access

Months after the U.S. Supreme Court overturned Roe v. Wade, France is moving toward enshrining abortion rights in its constitution.

French President Emmanuel Macron said this would send “a universal message of solidarity to all women who today see this right violated.”***

In France, Macron said he hoped a bill on the constitutional revision would be submitted to Parliament “in the coming months.”

The president made the announcement on International Women’s Day at an event honoring Tunisian-born French lawyer Gisèle Halimi, a defender of abortion rights who was central to its legalization in France and died in 2020 at 93.

The constitutional amendment’s final adoption is probably still months away. Both houses of the French Parliament have in recent months voted in favor of enshrining protections in the constitution, despite differing on the terminology between calling it a “freedom” or a “right” to abortion. And if Macron’s proposal fails, French voters may have to decide in a nationwide referendum.

March 24, 2023 in Abortion, Constitutional, International | Permalink | Comments (0)

Wednesday, March 22, 2023

Bibliography of Research on Mothering and Care Work

Care Work--Gender & Society


Organized by: Adrienne L. Riegle, PhD Candidate, Iowa State University
Updated by: Erielle Jones, University of Illinois – Chicago

This list offers a diverse yet inclusive selection of articles relating to care work published in Gender & Society, between 2000 and 2013. While each uniquely contributes to the growing scholarship on care work, taken together, these articles represent a broad conceptualization of care work in a global context. This literature also illustrates lingering nature of caregiving constructed as women’s work. In order to reduce the number of articles resulting from searching with the terms “care work” on the Gender & Society web page, I have included neither book reviews nor less-relevant articles in this list. The more recent research included draws on previous literature in the study of care work. Instructors are encouraged to peruse the references of these articles for interesting scholarship published in Gender & Society that precedes the most recent decade. Additionally, classes are encouraged to give particular attention to the special issue (vol. 17, issue 2) dedicated to care work in April 2003.

March 22, 2023 in Family, Scholarship | Permalink | Comments (0)

The Rise of Religious Liberties and the Religious Right to Abortion

Caroline Mala Corbin, Religious Liberty for All? A Religious Right to Abortion,  Wisconsin L. Review (forthcoming)

One of the most notable recent trends in Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one’s faith is a critical element of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, it has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with conservative Christianity.

But what if the religious liberty claim were not brought by a conservative Christian but by a progressive Christian, or not a Christian at all, and the religious belief collided with traditional Christian ideology? More precisely, what might be the result of a religious liberty challenge to an abortion ban? This question is not farfetched, as Jewish and other faith groups in multiple states are challenging restrictive abortion laws based upon religious freedom. Plaintiffs argue that their state’s abortion ban impedes their ability to live out the commandments of their faith. Would the Supreme Court retrench its religious liberty doctrine in the face of these lawsuits? Or would expansive religious liberty exemptions be available for progressive views as well as conservative ones? Or neither? This Essay examines that question, and well as the implications of a denial of the progressive religious liberty claim.

Part I outlines the ballooning of religious liberty rights, and how they have usually helped conservative white Christians at the expense of less powerful groups. Part II takes the current expansive doctrine and applies it to a claim for a religious right to abortion, arguing it should succeed given recent decisions. Part III suggests that despite the current doctrine, the Court will likely reject the claim, and discusses what this failure indicates about the future of the Supreme Court.

March 22, 2023 in Abortion, Religion, Reproductive Rights | Permalink | Comments (0)

Monday, March 20, 2023

Transcript of Abortion Pill Hearing Released

NPR has posted the full transcript of the Texas hearing Judge Matthew Kacsmaryk held last Wednesday in the Alliance for Hippocratic Medicine v. FDA case challenging the agency's 2000 approval of mifepristone. 

Jessica Valenti, the author of "Abortion Every Day" has an excellent explainer of the lawsuit and its implications (authored by researcher Grace Haley). The explainer outlines the anti-abortion strategy, the bio of Judge Kacsmaryk, the groups behind the litigation, and the possible outcomes of the case.  

March 20, 2023 in Abortion, Courts, Healthcare, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Urgent Appeal and Call to Action Sent to U.N. Explaining how U.S. Anti-Abortion Legislation Violates International Law

A coalition of groups, including Human Rights Watch, Pregnancy Justice, the National Birth Equity Collaborative, Physicians for Human Rights, Amnesty International, and the Global Justice Center, have authored a letter to United Nations mandate holders. The letter issues an urgent appeal and call to action: 

By overturning the established constitutional protection for access to abortion and through the passage of state laws, the US is in violation of its obligations under international human rights law, codified in a number of human rights treaties to which it is a party or a signatory. These human rights obligations include, but are not limited to, the rights to: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom of thought, conscience, and religion or belief; equality and non-discrimination; and to seek, receive, and impart information.


The signatories call on the UN mandate holders to take up their calls to action, which include communicating with the US regarding the human rights violations, requesting a visit to the US, convening a virtual stakeholder meeting with US civil society, calls for the US to comply with its obligations under international law, and calls for private companies to take a number of actions to protect reproductive rights.

The full 53-page appeal is available here. It outlines all of the ways that women's health and lives are threatened by the Dobbs decision. The letter is signed by dozens of organizations and individuals. It is a great, comprehensive resource for advocates. 

March 20, 2023 in Abortion, Healthcare, International, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

CDC Report Reveals Stark Rises in Maternal Mortality Rates

The CDC has published a report on maternal mortality rates in 2021. Authored by Donna Hoyert of the Division of Vital Statistics and based on data from the National Vital Statistics System, the report concludes: 

In 2021, 1,205 women died of maternal causes in the United States compared with 861 in 2020 and 754 in 2019. The maternal mortality rate for 2021 was 32.9 deaths per 100,000 live births, compared with a rate of 23.8 in 2020 and 20.1 in 2019. In 2021, the maternal mortality rate for non-Hispanic Black (subsequently, Black) women was 69.9 deaths per 100,000 live births, 2.6 times the rate for non-Hispanic White (subsequently, White) women (26.6). Rates for Black women were significantly higher than rates for White and Hispanic women. The increases from 2020 to 2021 for all race and Hispanic-origin groups were significant. Rates increased with maternal age. Rates in 2021 were 20.4 deaths per 100,000 live births for women under age 25, 31.3 for those aged 25–39, and 138.5 for those aged 40 and over. The rate for women aged 40 and over was 6.8 times higher than the rate for women under age 25. Differences in the rates between age groups were statistically significant. The increases in the rates between 2020 and 2021 for each of these age groups were statistically significant.

The full report with tables and figures is here

To learn more about proposed and adopted federal legislation benefitting women, children, and families, check out the Maternal & Child Health Bill Tracker managed by the Association of Maternal & Child Health Programs.  

March 20, 2023 in Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Friday, March 17, 2023

The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963-86

Kate Redburn, Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86, Law & History Review, 1-45 (2023).

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.

Full text:

March 17, 2023 in Constitutional, Legal History, LGBT | Permalink | Comments (0)

Gendered Interruptions at Supreme Court Oral Argument and the Role of the Chief Judge

Tonja Jacobi & Matthew Sag, Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice, 103 Boston U. Law Review (2023)

 Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices has improved in recent years, and whether the structural change in argument has helped. It shows that interruptions went down during the pandemic but have resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for the first time in years it no longer shows any gender disparity. Thus, the structural change to oral argument has had mixed results.

The problem of gendered interruptions at Supreme Court oral argument has led to calls for the Chief Justice to take a more active role at oral argument. This Article also addresses whether and how Chief Justice Roberts has responded to this call. It shows that the Chief has been intervening more, not in response to the increasing number of interruptions, but in response to the gender disparity growing more severe. Further, he has directed his interventions at supporting those most interrupted, disrupting those making the most interruptions, and, significantly, using his interventions to recognize and combat interruptions of the female Justices. When it comes to interruptions at the Court, the Chief Justice is no longer simply the first among equals but has a new role, as a referee, attempting to address a social and institutional problem.

March 17, 2023 in Courts, Gender, Judges, SCOTUS, Women lawyers | Permalink | Comments (0)

ND Supreme Court Blocks Abortion Ban

N Dakota Supreme Court Blocks Abortion Ban: Says Constitution Protects Procedure 

North Dakota’s Supreme Court upheld a lower court’s decision to block a ban on abortions in the state, and said the state Constitution protects abortion rights in some situations.

The ruling means abortion in the state remains legal until nearly 22 weeks after a women’s last period, while the case proceeds in a lower court.

Though the state Supreme Court’s decision is not the final word on the matter, it is notable for its analysis of the state Constitution. The court went beyond the narrow question it was asked: whether the lower court judge had overstepped his power in blocking the ban.

In a majority opinion, the ruling said that judge was within his rights but added that the state Constitution protects “the right to enjoy and defend life and a right to pursue and obtain safety,” which includes the right of a pregnant woman to “obtain an abortion to preserve her life or her health.” ***

So far, two state Supreme Courts have made final decisions, and they were split: South Carolina ruled abortion was included in its constitutional protectionsIdaho ruled its Constitution did not protect the procedure.

March 17, 2023 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Wednesday, March 15, 2023

Transforming Legal Determinations of Sex from Biology to Gender Identity

Noa Ben-Asher, Transforming Legal Sex, NC L. Rev (forthcoming)

Legal Sex in the U.S. is in the final stages of a dramatic transformation. This Article begins by charting this transformation. By “legal sex” this Article refers to various instances in which legal authorities engage in defining an individual’s sex, either directly or indirectly. Until around mid-twentieth century, legal sex was mostly understood as immutable sexual difference between males and females that is biologically determined prior to birth. Groundbreaking scientific and medical theories in the 1950s introduced gender identity as a new way to describe an internal sense of being male or female. Since then, in slow steps, this concept has been integrated into various areas of law and policy. Today, the overwhelming trend in U.S. law is toward defining legal sex as gender identity, defined as “an individual’s own internal sense of whether they are a man, a woman, or nonbinary.” While there is not one coherent definition of sex across all areas of law, this Article observes that the trend across these legal domains, including sex reclassification laws, antidiscrimination laws, and family laws, is clear: the legal system is shifting towards gender identity as the primary indicator of legal sex.

This Article demonstrates why it is urgent to name and evaluate this phenomenon. As of 2023, lawmakers and politicians, as part of the ongoing “culture wars,” have introduced and passed hundreds of bills and policies that target transgender children and adults by undermining the centrality of gender identity as a core characteristic of legal sex. These laws and policies limit access of transgender individuals to locker rooms, restrooms, sports, gender affirming care, and antidiscrimination protections. They all reject the primacy of gender identity and call instead for narrow notions of immutable “biological sex” that is fixed at birth. This Article situates the current backlash against transgender people as an attempt to roll back laws, policies, and societal norms that view gender identity as the primary indicator of sex. The Article proposes that feminists, advocates on behalf of transgender people, and allies engage current debates about gender identity and transgender rights not only through the lens of medical science and the liberal principles of equality, liberty, and autonomy, but in addition, by insisting on the moral desirability of future generations of transgender people.  

March 15, 2023 in Gender, LGBT | Permalink | Comments (0)

Ohio Supreme Court to Review Procedural Issues Related to Abortion Challenge

Ohio Supreme Court to Review Legal Questions on Abortion, Not Whether Constitution Protects It

The Ohio Supreme Court agreed to review a couple of legal questions about whether abortion clinics can challenge the state's ban on most abortions, but not the underlying question of whether the Ohio Constitution creates a right to abortion.

In a 4-3 decision, justices on Tuesday decided to review two legal questions:

  • Whether the Ohio attorney general can appeal orders preliminarily blocking state laws.
  • Whether abortion clinics can challenge the state’s 2019 ban on most abortions on behalf of clients.

The Ohio Supreme Court will not review whether the Ohio Constitution creates a right to abortion. Three Republican justices, Chief Justice Sharon Kennedy, Justice Pat DeWine and sitting Judge Matthew Byrne, wanted the court to review that issue, too. The three Democratic justices dissented.

March 15, 2023 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Transgender Students and the First Amendment

Dara Purvis, Transgender Students and the First Amendment, Boston U. Law Review (forthcoming)

Suppose that a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally consistent with the sex they were assigned at birth. The student’s parents protest, arguing that their child’s clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene.

This Article is the first analysis to map out and counter both obscenity and material disruption as justifications to limit gender identity speech. Although not all clothing choices by students are symbolic speech, gender presentation is the type of intentional and cognizable message that is protected under the First Amendment. Comprehensive examination of student speech cases demonstrates that current attempts to define gender identity as an inappropriately sexualized topic for children are inconsistent with existing law. Finally, the Article illustrates for the first time how schools can create a heckler’s veto by teaching students that the speech of transgender students is abnormal. The Article proposes an analytical revision that takes the schools’ role into account, reconciles the conflict between the heckler’s veto doctrine and Tinker’s material disruption test, and strengthens protection of all controversial student speech.

March 15, 2023 in Constitutional, Education, LGBT | Permalink | Comments (0)