Monday, January 24, 2022
Join the Center for Reproductive Rights this Wednesday at 9:00 a.m. EST for a virtual panel discussion on the impact of litigation in advancing sexual and reproductive health and rights (SRHR) worldwide.
Although SRHR are essential to gender equality, millions of women and girls still lack legal protections for these fundamental rights. Strategic litigation before international and regional bodies has proven to be a powerful tool for creating accountability for SRHR violations and generating progress at the national-level.
In a new report, the Center studied landmark cases and how they’ve transformed the legal landscape on SRHR, reverberating across borders and strengthening legal guarantees for millions of people around the world. The report, titled “Across Borders: How International and Regional Reproductive Rights Cases Influence Jurisprudence Worldwide,” will be launched at the webinar.
Panelists from the Center and leading organizations will discuss how the cases at the heart of the study – some in countries and regions with the most restrictive reproductive rights laws in the world – have advanced access to abortion services, maternal health care, assisted reproduction and other reproductive and human rights. In addition, they will share insights on the future role of litigation to advance SRHR and how advocates and other stakeholders can leverage this critical tool to accelerate progress.
The ACLU summarizes the legal issues raised in Brandt v. Rutledge (Eighth Circuit) and their importance to the plaintiffs:
Four families of transgender youth and two doctors have challenged an Arkansas law that would prohibit healthcare professionals from providing or even referring transgender young people for medically necessary health care. The law would also bar any state funds or insurance coverage for gender-affirming health care for transgender people under 18, and it would allow private insurers to refuse to cover gender-affirming care for people of any age. The lawsuit, filed in federal court, alleges that House Bill 1570 is a violation of the U.S. Constitution.
Some of the families who have sued the state are considering leaving their homes, their jobs, their extended families, and their communities, to ensure their children are able to access gender-affirming care. The care that would be banned by the Arkansas law has been shown in recent studies to dramatically reduce depression and suicidal ideation in transgender young people with gender dysphoria.
The N.Y. Times gave in-depth coverage of the plaintiffs and the uncertainties and anxieties that the underlying statute has created in their day-to-day lives. The Eastern District of Arkansas had enjoined the law concluding that:
The Court finds the Act's ban of services and referrals by healthcare providers is not substantially related to the regulation of the ethics of the medical profession in Arkansas. Gender-affirming treatment is supported by medical evidence that has been subject to rigorous study. Every major expert medical association recognizes that gender-affirming care for transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people. Act 626 prohibits most of these treatments. Further, the State's goal of ensuring the ethics of Arkansas healthcare providers is not attained by interfering with the patient-physician relationship, unnecessarily regulating the evidence-based practice of medicine and subjecting physicians who deliver safe, legal, and medically necessary care to civil liability and loss of licensing. If the Act is not enjoined, healthcare providers in this State will not be able to consider the recognized standard of care for adolescent gender dysphoria.
This week, amicus briefs were filed in the matter, including one filed by bioethicists and health law scholars and one filed by Lambda Law and numerous women's rights organizations.
Emily Snyder has published Indigenous Feminist Legal Pedagogies in volume 58 of the Osgoode Hall L. J. 369 (2021). The abstract explains:
What does “Indigenous feminist legal pedagogy” mean? This article takes up this inquiry through an analysis of interviews that were done with twenty-three professors who teach in the area of Indigenous law (Indigenous peoples’ own laws) in Canada. Overwhelmingly, the professors were on board with the idea that gender matters and that it needs to be included in education about Indigenous laws, but how people were taking up gender, and the responses as they relate to Indigenous feminisms, varied. The interviews signal that there is a need for ongoing work in the area of gender and feminisms in the field of Indigenous law. This article illustrates why gendering Indigenous legal education is vital and argues for increased engagement with the idea and practice of Indigenous feminist legal pedagogies.
Christopher J. Ryan, Jr. & Meghan Dawe have published Mind the Gap: Gender Pay Disparities in the Legal Academy in Volume 34 of the Georgetown Journal of Legal Ethics. The authors conclude:
The distribution of salaries of law professors in our analysis indicates that, of the 1,051 respondents who reported their earnings, 64.6 percent earn below $150,000 annually and 35.4 percent earned at above that threshold. Looking at the intersection of gender and race, we observe white women and women of color earned salaries of $150,000 or greater at far lower rates than white men, by nearly 15 percentage points and by 25 percentage points, respectively. In fact, on average, women of color and white women earn more than $24,000 and nearly $14,000 less than white men, respectively. Men of color earned salaries at or exceeding $150,000 at roughly comparable rates to white men, but on average, men of color earn more than $7,000 less than white men.
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A wealth of research has demonstrated that the gender wage gap in the legal profession is both pervasive and persistent. Our investigation of a rich and unique dataset of tenured law professors reveals gender stratification in the legal academy, clearly demonstrated by our finding that tenured women law professors—and especially women of color—receive lower compensation than their male colleagues. We find evidence that women law professors are very likely to earn lower salaries and additional income than men, even when they both enjoy the same protection of tenure. Moreover, we find that gendered earnings disparities are experienced more acutely by women of color. In addition to documenting that gendered earnings disparities exist, it is important to examine the mechanisms that underly these persistent forms of gender—and racialized—inequality. Our findings demonstrate the salience of human capital and social capital in mediating the relationship between gender and earnings in the legal academy.
Wednesday, January 19, 2022
New Jersey Enacts the Freedom of Reproductive Choice Act Guaranteeing the Fundamental Right of Reproductive Autonomy
Gov. Phil Murphy on Thursday signed into law a bill protecting abortion rights, at a Teaneck ceremony where he was joined by former Senate Majority Leader Loretta Weinberg and other lawmakers who championed the bill.
Approved by the Legislature on Monday, the Freedom of Reproductive Choice Act guarantees "the fundamental right of reproductive autonomy." The scaled-back version of the bill doesn’t add a requirement that health insurers cover abortions and birth control at no cost out of pocket, as the original bill did.
“The United States Supreme Court is preparing to take a wrecking ball to its own precedent Roe v. Wade, and that would also demolish our case-law-based foundation here in New Jersey,” Murphy said Thursday outside the Teaneck Public Library. “Neither I nor those with me today can let that happen
The Anti-Immigrant Rhetoric of the Women's Suffrage Movement and its Effectiveness in Passing the Nineteenth Amendment
Kit Johnson, Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric, 94 St. John's L. Rev. 937 (2021)
American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman to be longer quietly submitted to.”
This Article begins with an exploration of the anti-immigrant rhetoric of the suffragettes, noting how their nativist approach helped to secure the ultimate passage of the Nineteenth Amendment. Next, this Article explores modern parallels to the suffragettes’ story, where nativist approaches propelled success for movements around issues, people, and political parties. Finally, this Article calls upon the modern women’s movement to take a different path: rising up without pushing down.
How Judges Should Apply the Exceptions to the Hague Abduction Convention to Protect Victims of Domestic Violence
Merle Hope Weiner, You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence, 28 UCLA Women's L. J. 223 (forthcoming)
This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return. The trial judge decides whether a child is returned to the place from which the domestic violence victim fled or whether a child is allowed to remain in the United States pursuant to an exception to the Hague Convention’s remedy of return. This Article canvases the arguments that attorneys make to defeat the application of article 13(b), and refutes them by drawing upon social science, the Guide to Good Practice, its sanctioned Australian Bench Book, case law, and common sense. The Article also argues that if a trial judge cannot grant the article 13(b) exception solely because of unwarranted legal obstacles, the judge should disregard the law. This part of the Article builds upon Jeffrey Brand-Ballard’s book, Limits of Legality: The Ethics of Lawless Judging
Eleonore Fournier-Tombs & Celine Castets-Renard, Algorithms and the Propagation of Gendered Cultural Norms, forthcoming for publication in French in “IA, Culture et Médias” (2022) (edited by: Véronique Guèvremont and Colette Brin. Presses de l’université de Laval).
Artificial intelligence is increasingly being used to create technological interfaces - whether chatbots, personal assistants or robots whose function is to interact with humans. They offer services, answer questions, and even undertake domestic tasks, such as buying groceries or controlling the temperature in the home.
In a study of personal assistants with female voices, such as Amazon's Alexa and Apple's Siri, the United Nations Educational, Scientific and Cultural Organization (UNESCO) argued that these technologies could have significant negative effects on gender equality . In addition to the fact that these artificial intelligence (AI) systems are trained on gender-specific models, these female-voiced assistants all feature stereotypical female attributes. This problem is compounded by the fact that these systems were probably created primarily by male developers . These gender-specific assistants can pose a threat through the biased representation of women they generate, especially as they become increasingly ubiquitous in our daily lives. It is predicted that by the end 2021, there will be more voice assistants on the planet than human beings .
Given the increasing use of voice assistants trained with biased language models, the potential impact on gender norms is of concern. While isolation has increased significantly during COVID-19, there is a risk that some people's main 'female' interaction is with these voice assistants. If we are not careful, sexist representations of women, totally out of step with real women, will intrude into the privacy of the home or our smartphones, anywhere, anytime. Moreover, the models are essentially the same, leading to the reproduction of a single 'standard' and a cultural smoothing in human-machine interaction, denying the diversity of users of these products around the world.
While some have argued that learning algorithms may be less biased than humans, who are often influenced by discriminatory cultural norms of which they may not be aware , this is without regard to the fact that artificial intelligence (AI) is necessarily created by human beings whose way of thinking it incorporates. Indeed, it is easy to underestimate the importance of cultural norms in human decision-making. Artificial intelligence mimics the social biases of the data it has been given unless it is explicitly designed with different principles. It is therefore not surprising that artificial intelligence developed without built-in values only reflects already biased social norms.
Bethany Corbin, Digital Micro-Aggressions and Discrimination: FemTech and the "Othering" of Women, 44 Nova L. Rev. 337 (2020)
The boundary between the digital world and the human body has disintegrated. With the rise of artificial intelligence and the internet of medical things, patients’ bodies can resemble a sci-fi cyborg that operates both independently and electronically through sensors. As the physical and cyber worlds blur, scholars and practitioners have debated medical device regulation, liability for device malfunctions, device privacy, and cybersecurity. One area of the discussion that has been left relatively untouched, however, is femtech. Described broadly as female technology, femtech encompasses wearables, artificial intelligence, apps, and other hardware and software that not only seek to heighten awareness of female health, but also aim to enhance women’s agency over their bodies. Reporters have called femtech a win for women’s health, as startups and venture capitalists finally invest in female products that can benefit half of the population. Today, the most common femtech products on the market focus on menstruation, maternity, and fertility, and are advertised as giving women control over their bodies and wellbeing.
But what if they don’t? By using femtech devices without understanding how these products are regulated and how their data is collected, manipulated, or sold, women may unintentionally be losing control and autonomy over their bodies. These devices collect intimate health data that may be used to maintain stereotypes and societal norms about the female body. For instance, some femtech menstruation products do not permit a user to input abortions or irregular cycles. This failure to account for all female body types and decisions perpetuates the flawed assumption that abortions and irregular cycles are deviations from the standard female body and can marginalize women who do not conform to these “norms.” Similarly, femtech can reinforce outdated perceptions about women and their bodies by consistently trying to quantify, analyze, and create a version of “normal” that all women should strive to achieve.
The fundamental assumptions of femtech, therefore, do not necessarily align with female consumers and patients, and may inadvertently diminish women’s agency and control over their own bodies. This misalignment stems, in part, from the lack of female and provider input into device creation, the rush to market new devices without adequate testing and vetting, and the male-dominated startup industry creating these products. This article analyzes the societal implications associated with femtech in its current form and offers recommendations for modifying the femtech model to avoid undesirable consequences as the industry – and devices – grow in size and complexity.
Monday, January 17, 2022
Join the ERA Coalition on Wednesday, January 19th at 4:00 for a town hall focused on "prioritizing Black mothers in the fight for health equity, and the ways forward."
- Rep. Lauren Underwood (D-Il), Co-Chair, Black Maternal Health Caucus
- Rep. Alma Adams (D-NC), Co-Chair Black Maternal Health Caucus
- Breanna Lipscomb, Senior Advisor of Maternal Health & Rights, Center for Reproductive Rights
- Charles Johnson, Founder, 4 Kira 4 Moms
- Linda Villarosa, Writer on Black maternal health, NYT Magazine
Teneille R. Brown has posted Stereotypes, Sexism, and Superhuman Faculty on SSRN. This article is a preprint of a work forthcoming in volume 16 of the Florida International Law Review. This is a powerful and personal read capturing many important takeaways of pandemic teaching as its hardships have mapped on to gender, race, and parental status.
Despite our relative privilege, lawyers are not immune to the pandemic’s breathtaking ability to expose gender inequality. While working moms in other industries are afforded far fewer supports, and often cannot work from home, the lack of support offered by law schools and law firms has still been appalling. We risk losing much of the fragile equality we have won, as women scale back their pursuit of leadership positions, and have less focused time to spend researching cases, preparing for class, giving talks, or writing. The data are in: women lawyers’ productivity plummeted during the pandemic. This carried over to academic writing generally, where women’s submissions nosedived in the spring and summer. Women with children have lost 500 hours of research time, which makes them “disproportionately less likely to be promoted in rank and perhaps even more likely to drop out of academia altogether.”
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As it might be clear by now, treating people as superhuman is an insidious and hollow form of adulation. Even though it seems positively valenced, it nonetheless reflects a form of dehumanization.
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Law faculty are not superhumans, and there is no virtue in regarding ourselves as such. We are individuals—empowered with the full range of complex thoughts and emotional vulnerabilities. This is not to say that all humans experience emotions to the same degree, or that we all draw from the same emotional depth or complexity. But for some, denying our emotional experience is a rejection of the self. Further, treating faculty as superhumans leads to workplace environments that are cold, uncaring, and discriminatory.
Unfortunately, the depth and complexity of the problem is disheartening, and there are no easy solutions. It is not enough to have women in leadership roles if those women espouse ambivalent sexism in their speech or policies. And it is not enough to respond to requests by working moms for accommodations, as those requests will often render those asking for them less competent. Research does suggest that women take less of a hit to their competence if they frame requests as advocating for others, and when they explicitly draw attention to sexist stereotypes. Thus, by making colleagues and administrators aware of the [Stereotype Content Model] and the deep social psychological roots of ambivalent sexism, we can begin to open their eyes. But because of the blow we take to competence when we mention our caregiving roles, professional women cannot make systemic change alone.
Mikah K. Thompson has published Sexual Exploitation and the Adultified Black Girl in volume 94 of the St. John's Law Review (2022). The abstract is here:
Blue Ivy Carter, daughter of entertainers Sean “Jay Z” Carter and Beyoncé Knowles Carter, celebrated her eighth birthday in January of 2020. To commemorate the occasion, Blue’s grandfather, Matthew Knowles, posted a picture of Blue on Instagram. Fans and journalists alike marveled that Blue looked so much like her famous mother, and many noted that she looked much older in the photograph. E! News tweeted Blue’s picture along with a question: “Can someone please explain to us when Blue Ivy became an adult?” The post went viral, and many people criticized E! News for referring to eight-year-old Blue as an adult, with some arguing that blurring the line between childhood and adulthood “ ‘perpetuates pedophilia.’ ” Others asserted that referring to a Black girl as an adult is especially dangerous because it reinforces the perception that Black girls are adult-like. E! News eventually deleted the tweet.
A recent research study confirms that society tends to view Black girls as older and more adult-like than they actually are. Thus, E! News’ description of Blue Ivy may reflect a larger problem that can have devastating effects for Black girls. This piece asserts that a two-tiered justice system exists for victims of sexual exploitation depending on their race. As we commemorate the one hundredth anniversary of the passage of the Nineteenth Amendment, which granted white women the right to vote but kept Black women disenfranchised, we must address the racial disparities that persist among girls and women today.
Part I of this piece describes adultification bias, a societal phenomenon that can result in the unfair treatment of Black girls who experience sexual exploitation, including statutory rape. Part II discusses the traditional and contemporary policy reasons that underpin the nation’s statutory rape laws. Part II also defines reasonable mistake of age, an affirmative defense to a charge of statutory rape, and addresses the effectiveness of the defense where the alleged victim is an adultified Black girl. Part III of this piece examines the policy reasons that support the continued use of the mistake of age defense when the alleged victim is a teenager and the alleged offender a minor or a young adult. Part III concludes with my proposal for the enactment of a limited mistake of age defense that would be available to young defendants who may be more likely to overestimate the age of any sexual partner but unavailable to defendants who are significantly older than their alleged victims. This proposal increases protections for the adultified Black girl while recognizing the sexual autonomy of teen girls and avoiding the potential weaponization of statutory rape laws against young Black defendants.
Wednesday, January 12, 2022
Amicus Brief in Virginia v. Ferriero (D.C. Cir.)
SUMMARY OF ARGUMENT
The fight for constitutional equality is a long-term project, andprogress has been painfully slow. For the first 144 years of our Nation’s history, women were denied the most basic right of citizens in a democracy: the right to vote. Women who otherwise met all criteria for voting found themselves barred from the polls, simply because of their sex. Their absence from the polls contributed to the development of laws and institutions that persistently discriminate against women.
Today, women serve with distinction in the C-suite, on the floor of Congress, on the soccer field, in the White House, and in combat. Yet women still face persistent inequality in nearly every sphere. Women are consistently underrepresented in positions of power and overrepresented among those in poverty. Women are still paid only 82 cents for every dollar paid to men—and, for women of color, even less than that. Women also face an epidemic of domestic and sexual violence. These problems are particularly acute for Black women, Latinas, indigenous and Native American women, immigrants, lesbians, trans women, and single mothers.
In the face of this persistent inequality, the Equal Rights Amendment is as relevant today as it ever was. The ERA declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Drafted by Alice Paul and other suffragists in the 1920s, the ERA passed through Congress in 1972 with broad, bipartisan support. After the number of state ratifications stalled at thirty-five in the late 1970s, the fight for equality pressed forward, achieving steady progress on many fronts, including in public opinion. Today, Americans overwhelmingly support including an ERA in our Constitution. Three quarters of the States have now voted to ratify the ERA—satisfying the constitutional threshold—and there are active ratification efforts in every one of the unratified States. Yet the Archivist asks this Court to send the fight for constitutional equality back to square one.
This Court should reject that argument. The painfully slow progress toward equality makes it particularly important in this context to respect the plain text of Article V, which establishes a process for amendment that leaves no room for time limits. The ERA satisfied Article V’s amendment process in January 2020, when Virginia became the thirty-eighth State to ratify. Now that the ERA has been adopted, federal law requires the Archivist to publish it. See 1 U.S.C. § 106b. The seven-year time frame that Congress imposed in 1972 does not and cannot alter the process in Article V. The ERA’s time frame does not appear in the amendment itself; Congress placed it only in the resolving clause of its joint resolution. At a minimum, that choice means that Congress reserved for itself the power to change the time frame in a subsequent joint resolution—as it did in 1978.
More fundamentally, however, a time frame imposed unilaterally by Congress cannot stand in the way of an amendment that has met all the requirements for ratification under Article V. The validity of an amendment depends on the plain text of Article V, which provides that an amendment becomes “valid to all intents and purposes . . . when ratified by the legislatures of three fourths of the several States.” Although the Framers did not recognize women as equal, they created a process for amending the Constitution that could reflect changes in our Nation’s understanding of equality, even when those changes evolve over many years. The ERA reflects such a change.
Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process. One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference.
Bridget Crawford, Emily Gold Waldman, Naomi Cahn, Working Through Menopause, Washington U. L. Rev. (forthcoming)
There are over thirty million people ages 44 to 55 in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers inevitably will experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic, because of cultural stigmas and attitudes about aging and gender. Yet menopause raises critical issues at the intersections of gender equity, disability, aging, transgender rights, and reproductive justice. This Article imagines how the law would change if it accounted for menopause and the associated unequal burdens imposed.
This Article makes four contributions to legal scholarship. First, it identifies the intersections of menopause and the law in a way that counters the larger culture of silence, stigma, and shame. Second, it analyzes the uneasy fit between menopause and existing U.S. anti-discrimination doctrines. Third, the Article uses a comparative lens to explore how and why menopause is becoming a priority issue for the government, private employers, and workers in the United Kingdom. Finally, the Article situates menopause in U.S. equality jurisprudence broadly and suggests a place for menopause in employment law in particular. It sets out a normative vision for menopause equity in the workplace and suggests possible pathways for achieving it.
Diane Hoffman & Katherine Goodman, Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?,
University of Maryland Legal Studies Research Paper No. 2021-13
Nearly two years into the pandemic, COVID-19 has touched all U.S. states and populations. However, severe outcomes and deaths have not been borne equally. As is now well recognized, there have been significant demographic disparities by age and race: nearly 80% of all U.S. COVID-19 deaths have been among persons aged 65 or older, and hospitalization and death rates for Black and Hispanic patients with COVID-19 are two to three times higher than the rate for White patients. What has received much less attention, however, is an additional demographic disparity evident in the COVID-19 pandemic — sex. Nationally there are 20% more COVID-19 deaths among men, and men have higher COVID-19 mortality rates in every U.S. state with publicly available data. Numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death, even when accounting for other risk factors, such as hypertension and obesity, that are more common among men.
While there has been a significant amount of discussion in the press and the academic literature regarding the role that race can or should play in decisions to allocate scarce medical resources such as vaccines, there has been much less attention paid to the role of sex in the allocation of early-intervention treatments, such as monoclonal antibodies (mAbs) and the soon-to-be-authorized oral antivirals. In this article, we seek to remedy this gap in the literature. We use a hypothetical but realistic scenario in which states have available to them a treatment that is very similar to currently available mAbs and in which therapeutic demand greatly exceeds the available supply. Even if limited to individuals over the age of 65 with one or more comorbidities, there is not enough of the therapy to treat these high-risk individuals and some sort of further triaging would be necessary. Given the strong data that male sex is an independent risk factor for poor COVID-19 outcomes, we speculate that states and/or hospital systems might wish to use sex as one risk factor, among many, in an algorithm to calculate a patient’s probability of experiencing hospitalization or death from COVID-19. These estimates, in turn, would be used to allocate this scarce medical resource to highest-risk individuals. We then ask two questions: (1) whether, as a legal matter, sex would be a permissible factor to incorporate into allocation criteria; and (2) whether, as a normative matter, sex should be considered in allocation of early-intervention therapies for COVID-19.
In answering the legal question, we first look at the possibility of successful challenges under the Equal Protection Clause of the 14th Amendment and then at possible challenges under Section 1557 (the antidiscrimination provision) of the Affordable Care Act. As to the former, we conclude that constitutionality could depend upon whether the federal courts view the basis for differential treatment as one based primarily upon biology, or upon a combination of biology and socio-cultural factors. Although we believe there is room for the courts to find that either basis is constitutionally valid, courts would be more likely to find it so if they analyzed it as a biological difference.
Under the Affordable Care Act, we conclude that it is much more difficult to predict how a federal court would rule. Section 1557 prohibits discrimination “on the basis of sex” in healthcare facilities and in the administration of healthcare. The statute permits the importation of Title IX jurisprudence in interpreting this provision. Courts, in interpreting Title IX, have also looked to Title VII case law. Each of these Titles have exceptions that permit distinctions “on the basis of sex” under certain circumstances. Whether courts would apply Title VII jurisprudence to Section 1557 is an unknown, even if it has been imported to Title IX. Additionally, whether courts would apply the exceptions provided in Title IX and Title VII to Sec. 1557, and how they would apply those exceptions, is difficult to predict. We argue that because of the flexibility the Court possesses in applying the relatively new Section 1557, as a normative matter, the Court should permit the use of sex as a factor in allocating early treatments that can prevent severe COVID-19 outcomes. We believe such a conclusion is justified by both a utilitarian framework of maximizing lives saved and stewarding scarce medical resources and by an egalitarian framework of providing individuals with the resources they need to achieve the same or similar outcomes.
Tuesday, January 11, 2022
A Biden administration proposal to stop qualified health insurance plans from discriminating against gay and transgender people is the latest regulatory step in an ongoing fight over enacting broader health-care protections for LGBTQ people.
A batch of legal challenges is already in play, including two court orders that could block the Department of Health and Human Services from enforcing a more sweeping rule against certain medical providers before it’s even been formally proposed.
In the more expansive proposed rule, due in April, the HHS is expected to ban health-care providers and health programs that receive federal funding from discriminating against people based on their sexual orientation or gender identity under Section 1557 of the Affordable Care Act.
It’s the latest version of a rule that has ping-ponged back and forth in scope from one administration to another and been subject to several legal challenges since the Obama administration first expanded the definition of “sex” under the ACA in 2016 to include gender identity, sex stereotypes, and termination of a pregnancy.
The Trump administration issued a rule of its own in 2020 erasing those protections, but several of those changes were blocked by federal courts, and the protections for transgender people were reinstated.
The Biden administration’s interpretation has prompted legal action even though the formal rule proposal is months away.
Officials in at least seven states have already proposed laws that would limit the rights of transgender and nonbinary youth in the first week of the year.
Lawmakers in Arizona, Alabama, Indiana, Kentucky, Oklahoma, New Hampshire and South Dakota this week introduced at least nine bills that would curb trans and nonbinary youths’ access to things like school sports and restrooms, and gender-affirming care.
“It is January which means states will be starting legislative sessions soon and we will again see gratuitous attacks on trans people, particularly trans youth,” Chase Strangio, the Deputy Director for Transgender Justice at the ACLU, wrote this week on Twitter.
Other trans advocates say they are preparing for another year full of proposed anti-LGBTQ+ legislation. States in 2021 enacted a “record-shattering” number of anti-LGBTQ+ policies, making it the worst year in recent history for LGBTQ+ state legislative attacks, according to the Human Rights Campaign.
Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment in Spain
The aim of this paper is to provide an explanation of the variation in lower pretrial court judicial decisions over gender-violence cases, under a civil-law system. Despite the typical anonymity of lower-court judges in such legal systems, we are able to exploit a natural experiment in Spain that allows us to estimate the effect of judges’ gender, career incentives, and policy preferences on decisions on restraining orders for victims of gender violence. Although the literature has found ample evidence of gender and ideology effects on judicial behavior when women’s rights are at stake, we argue that due to career and promotion dynamics, career incentives moderate the effect of gender and policy preferences on such decisions. We find that the probability to grant a restraining order to a victim is higher among female judges than male judges, and that left-leaning judges also tend to grant restraining orders at higher rates. However, we also observe that these mechanisms are moderated by career incentives, to the point of blurring their effects when career pressures are high. These findings are a relevant contribution to the understanding of the mechanisms behind judicial inequality under civil-law systems, where judges’ attributes tend to be unobservable by institutional design.
Monday, January 10, 2022
The Frontier published a news story by Kassie McClung titled In Oklahoma, Black families turn to doulas for better births. The article explains that:
Black Oklahomans are turning to doulas as a way to combat the disproportionately high rates of adverse health outcomes among Black Americans.
Oklahoma reported the fourth-highest rate of maternal mortality in the country in 2018, and Black women die of pregnancy-related complications at a rate more than 60 percent higher than that of white Oklahomans. The crisis is closely tied to infant mortality. Black infants in Oklahoma are more than twice as likely as white infants to die before their first birthday. * * * Research shows that patients with continuous labor support were less likely to have C-sections or use pain medications. Those who delivered babies with doulas also experienced fewer labor complications and were less likely to have babies with low birth weights, researchers have found.
Medicaid programs in at least four states — Oregon, Minnesota, New Jersey and Florida — already cover doula services, and many states have passed legislation to offer Medicaid reimbursements for services or launched pilot programs in recent years. At least 20 states introduced legislation related to the issue in 2021, according to the National Health Law Program. But Oklahoma lawmakers haven’t authored similar bills, and the state has just begun to take preliminary steps to expand access to doula services, despite higher death rates among Black mothers in the state. * * *
Almost 70 percent of the women who died between 2009 and 2017 were covered by Medicaid, according to the state’s Maternal Mortality Review committee.
Researchers have published a new study titled Identifying Posttraumatic Stress Disorder and Disparity Among Transgender Veterans Using Nationwide Veterans Health Administration. It was published in LGBT Health by Nicholas A. Livingston, Kristine E. Lynch, Zig Hinds, Elise Gatsby, Scott L. DuVall, and Jillian C. Shipherd. The study is described as follows:
The prevalence of posttraumatic stress disorder (PTSD) and other psychiatric disorders is high among military veterans and even higher among transgender veterans. Prior prevalence estimates have become outdated, and novel methods of estimation have since been developed but not used to estimate PTSD prevalence among transgender veterans. This study provides updated estimates of PTSD prevalence among transgender and cisgender veterans.
The results revealed that:
The prevalence of PTSD was 1.5–1.8 times higher among transgender veterans. Descriptive data suggest that the prevalence of depression, schizophrenia, bipolar disorder, alcohol and non-alcohol substance use disorders, current/former smoking status, and military sexual trauma was also elevated among transgender veterans.
These results inform military culture, benefits, and policy:
These disparities signal a need for ongoing monitoring, outreach, prevention, and treatment to offset risk and address potential unmet treatment need among transgender veterans. Extant literature highlights the role of minority stress in accounting for elevated rates of psychiatric disorder among transgender veterans. Although systems-level change to improve access to comprehensive treatment for gender dysphoria is underway, provider-level gender affirmation and gender-affirming care are essential. It is possible that transgender veterans would also benefit from evidence-based PTSD treatment that is tailored to the compounded effects of trauma and minority stress.
Anna Kirkland, Shauhin Talesh, and Angela K. Perone have published Health insurance rights and access to health care for trans people: The social construction of medical necessity in Volume 55 of the Law & Society Review.
Health care rights for transgender and/or nonbinary people have dramatically expanded in recent years, including in insurance coverage for the treatments and procedures they need. Yet, trans people themselves still identify health insurance problems as a top priority for research and policy change because of significant difficulties gaining and using coverage. Wrangling over coverage determinations happens through multiple types of interactions, bureaucratic, interpersonal, and medical. When these interactions become difficult, it is because key terms such as medical necessity are both powerful and indeterminate. This study examines how trans people and health care intermediaries navigate the health insurance process and contest the meaning of medical necessity in coverage determinations. These disputes constitute the ground-level reality for instantiating health care rights to gender affirming care. Relying on analysis of contract language and 32 interviews with people who sought gender-affirming care and allied professionals, we find that health insurance policy language, interpretation, and implementation often create disadvantages and barriers for trans people who attempt to access care. Our study highlights how the contested life of insurance policy terminology produces a reality for rights but also details the mechanisms through which insurance-mediated care is a socially contested and negotiated process