Wednesday, November 24, 2021

Congress Proposes Giving Plaintiffs the Option to Reject Mandatory Arbitration for Sexual Harassment and Assault Cases

Lily, Wash Post, Forced Arbitration Can Shield Workplace Harassers, Legal Experts Say

On Tuesday, they testified before the House Judiciary Committee. All four women said they reported the behavior to someone at their company. All four women said they were retaliated against for speaking up. And all four women went through mandatory arbitration — an often confidential process that has, for many companies, become the primary way of handling employee disputes.***

 

Mandatory arbitration, a process that requires employees and consumers to mediate their grievances with the company in a closed-door forum rather than go to court, is now the norm for many businesses, especially nonunion workplaces.

 

But more than four years after the #MeToo movement propelled a nationwide reckoning of sexual abuse in the workplace, critics of mandatory arbitration say it has protected toxic, abusive workplaces and the people who run them. Changing this particular process is crucial to making substantive strides on workplace harassment, they say.

 

Supporters of arbitration, meanwhile, claim that the process is a faster, less expensive alternative for workers than filing a lawsuit in court, and could be less intimidating. But workers rights groups and trial lawyers have long argued that the process isolates workers and leaves them at a major disadvantage in winning remedy or compensation from their employers.

 

In Congress, there is a bipartisan push to amend arbitration rules. On Wednesday, the House Judiciary Committee passed the Forced Arbitration Injustice Repeal (FAIR) Act, which would offer workers the option to resolve their complaints through arbitration or the courts. The Senate Judiciary Committee recently passed an identical version of the bill.

 

The bill would give workers with sexual abuse claims against their employers the choice to either go through arbitration or pursue their claims in court.

November 24, 2021 in Courts, Equal Employment, Legislation | Permalink | Comments (0)

The Instrumentalization of Victims in Gender-Based Violence Prosecutions

Rachel Wechsler, Victims as Instruments, Washington L. Rev. (forthcoming)

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.

This Article is the first to analyze the treatment of crime victims through the lens of moral philosophy and liberal legal theory. It demonstrates that the application of these concepts is helpful in evaluating the legitimacy of the state’s approach to GBV victims. Following this analysis, it proposes a normative shift in the approach, from one that conceptualizes GBV victims primarily as instruments to one that constructs them as agents whose dignity and autonomy the state must respect.

November 24, 2021 in Courts, Theory | Permalink | Comments (0)

Social Justice Theory of Tort, including its Inheritance from Feminist Theory

Martha Chamallas, Social Justice Tort Theory, 14 Journal of Tort Law Issue 2 (2021 Forthcoming)

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

November 24, 2021 in Theory | Permalink | Comments (0)

Navigating Transgender Obstacles in a Gender-Binary World: The TSA Example

Karissa Kang & John Kang, Anomalous Anatomies: How the TSA Should Screen for Transgender People, 21 Nevada L.J. (2021),  

A transgender person faces obstacles trying to negotiate a gender-binary world. Going through a TSA checkpoint is no different. A substantial number of transgender persons have reported that they were detained and examined because they were transgender. Why this situation persists, constitutional concerns, and what policy reforms should be implemented to alleviate it are the subjects of this Essay. 

 

 

November 24, 2021 in LGBT | Permalink | Comments (0)

Tuesday, November 23, 2021

Germany debates how to form gender-neutral words out of its gendered language after 2018 federal law

Germany debates how to form gender-neutral words out of its gendered language

In Germany, the debate about gender-neutral and inclusive language is complicated by grammar. Just as in many other languages, gender in German isn’t denoted by personal pronouns alone. German nouns that refer to people have traditionally been masculine or feminine. So, a male citizen is a Bürger and a female citizen is a Bürgerin. But in the plural, the masculine is traditionally used by default — a point that’s been contentious at least as far back as the second wave of feminism in the 1960s.

In 2018, a new federal law stipulated that all forms of ID — from birth certificates to passports — must include three options: male, female and diverse, all of which can even be left blank.

Since then, gender-neutral language has become more commonplace. German airline Lufthansa recently ditched the phrase “ladies and gentlemen,” German scholars are preparing a gender-neutral edition of the Bible and in some cities — like Hanover — there’s an official directive about using gender-neutral words.

Known for speaking Hochdeutsch — considered the most standard variant of German — Hanoverians have been encouraged by city hall to use gender-sensitive language for almost two decades, avoiding the generic masculine whenever possible.

In 2019, Hanover became the first state capital to mandate the use of gender-neutral language in all official communication, from emails to brochures and posters. It deployed what’s known as the “gender star,” an asterisk placed within a noun to indicate it refers to men, women and nonbinary people alike. For instance, the word for all citizens became Bürger*innen.

Annika Schach, who was the city’s communications director at the time, says the new language guidelines have had a mixed reception, but she believes that the generic masculine is passé.

“Using gender-neutral language or the gender star has less to do with wanting to change the world, and more to do with reality,” Shach says. “Society is not only made up of men, but women, intersex and nonbinary people too and the language we use must reflect this.”

November 23, 2021 in Gender, Legislation | Permalink | Comments (0)

Study: How NYC Legislation Addresses Gender Equity

Study: How NYC Legislation Addresses Gender Equity

Titled “Advancing Gender Equity through Legislation: A Compilation of Laws passed from 2014 - 2020," the study broke down New York City legislation into three areas that traditionally disadvantage non-male genders: economic mobility and opportunity, health and reproductive justice, and safety.

“One of the things that CGE had noticed before we did this report was that all of this legislation wasn’t in one place and easily accessible to people,” said Dr. Maria D’Agostino, a professor of public administration at John Jay College and the study's co-author. “And then during COVID, lots of gender issues were made worse, such as gender-based violence, so it became even more important for New Yorkers to know their rights.”

. . .

Elias and D’Agostino are founding co-directors of the Initiative for Gender Equity in the Public Sector (IGEPS), which conducted the study.

For New Yorkers, this study’s timing may be especially noteworthy as Kathy Hochul recently became the first female governor of New York state after former governor Andrew Cuomo resigned following allegations of sexual misconduct. The scandal highlighted the sexual assault and harassment that many women, transgender, and non-binary people continue to face in the workplace.

“Our partnership with IGEPS helped CGE achieve one of its key goals—to ensure that New Yorkers can readily access information on the gender equity gains made since 2014,” said Jacqueline M. Ebanks, executive director of CGE.

One key gender equity gain from the IGEPS study was a 2017 New York City law requiring agencies designated by the mayor to survey everyone whom the agency serves on their sexual orientation and gender identity. Each agency for the first time must gather this demographic information, create a report summarizing the data, and regularly review their data collection process. 

November 23, 2021 in Gender, Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Sex Ambiguity in Early Modern Common Law (1629 - 1787)

Sex Ambiguity in Early Modern Common Law (1629-1787)

By: Maayan Sudai

Forthcoming in: Law and Social Inquiry

Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.

November 23, 2021 in Gender, Legal History, Science | Permalink | Comments (0)

Monday, November 22, 2021

Op. Ed. on "Shameful" Trends in Maternal Health

The New York Times ran an Op. Ed. on trends in maternal health containing very useful infographics to our communities and our classrooms depicting the "shameful" status of maternal health risks, particularly by geography and race. A few key statistics from the Op. Ed.: 

  • "One of every five women of reproductive age in Southern states live in counties with a high risk of death and other poor maternal health outcomes, such as post-partum hemorrhage, pre-eclampsia and preterm birth."
  • "American Indian and Alaska Native are 2.6 times as likely as white women to live under conditions that create problems during and after pregnancy."
  • "Black women are 1.6 times as likely as white women to live under these unfavorable conditions."

The Op. Ed visually and powerfully depicts in digestible and accessible ways how "a woman’s chance of a healthy pregnancy varies greatly depending on where she lives, based on factors such as whether she has a high school diploma, her exposure to poverty, her access to OB-GYNs and midwives, and her access to abortion clinics."

 

 

November 22, 2021 in Abortion, Healthcare, Poverty, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Internal Report on Culture and Processes at TIME'S UP

TIME'S UP just published Phase 1 of its report prepared by an independent consultant making "recommendations, tools, and plans that examine its structure, processes and culture.” The publication provides critical insights into the trajectory of the organization, a few of which are excerpted here:

  • "In its urgency to pursue a very noble vision, TIME’S UP’s mission and operational model was  largely undefined for some time. It grew rapidly, often chasing the short-term, important  issues of the day versus tracking activities back to the larger or longer-term strategic vision.  In so doing, the organization would be experienced by some of its employees and many  stakeholders as distracted or unfocused."
  • "While the fallout of the pandemic can in no way be blamed for TIME’S UP’s current state of crisis, it is still important  to acknowledge that it did have some effect on the overall functioning of the organization during the past two years and may have exacerbated existing structural/internal issues." 
  • "[I]nterviewees identified “conflicts of interest,” to use their words, that now seem readily apparent in certain professional and personal relationships (previous and/or  existing) maintained by the board chair, the CEO, and other board members."
  • "TIME’S UP has been negatively impacted by a perception of Democratic partisanship. Some questioned the  organization’s capacity to hold all accused of wrongdoing to the same standards of  accountability as well its ability to provide a consistent space for all accusers to come forward."  

The full report is available here. TIME'S UP's mission is to "create a society free of gender-based discrimination in the workplace and beyond. We want every person — across race, ethnicity, religion, sexuality, gender identity, and income level — to be safe on the job and have equal opportunity for economic success and security."

November 22, 2021 in Equal Employment, Violence Against Women, Work/life, Workplace | Permalink | Comments (0)

Rutgers Law School Symposium on Justice Ginsburg's Legacy

The Rutgers Women's Rights Law Reporter is hosting its Winter 2021 Symposium on December 2, 2021 from 3:00 - 5:00. The program is titled Feminism in the Law: An Exploration of Justice Ginsburg's Legacy.  The program is both in-person and virtual. Here is the link to register:  https://law.rutgers.edu/WRLR-Symposium-RBG-Hall-Dedication. Here is a list of speakers: 

Opening Remarks:

  • Professor Jane Ginsburg - Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School. Daughter of Ruth Bader Ginsburg.
  • Director Rachel Wainer Apter - Director of the New Jersey Division on Civil Rights. Associate Justice nominee for the Supreme Court of New Jersey.

Featured Speakers:

  • Reva Siegel - Nicholas deB. Katzenbach Professor of Law at Yale Law School
  • Jhuma Sen - Associate Professor at Jindal Global Law School and Assistant Director, Centre for Human Rights Studies at O.P. Jindal Global University
  • Chase Strangio - Deputy Director for Transgender Justice with the ACLU’s LGBT & HIV Project
  • Chalana Scales-Ferguson - Director of Academic Success at the University of Missouri - Columbia School of Law
  • Earl Maltz - Distinguished Professor at Rutgers Law School, Camden, New Jersey

Moderator: Dean Suzanne Kim - Associate Dean of Academic Research Centers, Professor of Law, and Judge Denny Chin Scholar at Rutgers Law School.

November 22, 2021 in Conferences, Courts, Judges | Permalink | Comments (0)

Friday, November 19, 2021

Feedback Bias in the Legal Profession

Latonia Haney Keith, Visible Invisibility: Feedback Bias in the Legal Profession, 23 J. Gender Race & Just. 315 (2020).

In this article, Vice President Latonia Haney Keith, highlights “feedback bias” as a contributing factor to “the legal profession [ ] ‘losing the war on retention [with] women and minorities leav[ing] the profession because they feel unprotected and undervalued.’”  Feedback bias refers to the phenomenon of “employers and educators reinforc[ing] and perpetuat[ing] bias, albeit unintentionally” when providing assessment and evaluations to employees and students.  The article highlights three cognitive biases that affect feedback and evaluating performance.  The three are “confirmation bias, in-group bias and availability heuristic.”  For example, in the confirmation bias context:

“[G]etting noticed as a leader in the workplace is more difficult for women than for men.”  This is the confirmation bias cycle at work.  When people are consistently exposed to leaders that fit a particular mold, they will continue to seek out or notice only those leaders who fit that same mold.  So, when evaluating the performance of a lawyer or law student, a supervisor’s or faculty’s preconceived notions will impact their evaluation.  If, for example, a preconception exists that males are assertive, it will be easier for a supervisor or faculty to recall instances in which a male employee or student asserted themselves in a meeting. Conversely, a supervisor or faculty may easily forget instances in which a female employer or student similarly asserted herself by, for example, suggesting an effective strategy or navigating a tough client interaction.

The article then goes into how these types of bias can manifest in feedback provided to employees and students.  “Women are for more likely to receive critical, subjective or vague feedback, and their performance is less likely to be attributed to their abilities and skills. . . . When women [do] receive[] more specific feedback, it [is] either tied to their caregiving abilities, attribute[] their accomplishments to teamwork rather than leadership or ‘overly focus[] on their communication style.’”  How do we move forward then?  Vice President Keith suggests a number of solutions, particularly in the context of law school feedback, including leveraging anonymous evaluation processes, incorporating objective measures and articulable rubrics, avoiding ambiguity, incorporating a broader group of reviewers, and increasing the frequency of evaluation among other best practices. 

November 19, 2021 in Equal Employment, Gender, Law schools, Women lawyers, Workplace | Permalink | Comments (0)

Wednesday, November 17, 2021

Supporting the Right to an Abortion by the Text and History of the Constitution

David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic

An originalist reading of the text and history of the Fourteenth Amendment, in fact, provides a strong basis for protecting unenumerated fundamental rights, including rights to bodily integrity, establishing a family, and reproductive liberty. The right to abortion flows logically from there. The Supreme Court should recognize this when it decides this term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization.

 

It is of course true that the debates over the Fourteenth Amendment do not explicitly mention abortion. But there is no daylight between the rights specifically affirmed in the debates and the right to abortion.

 

The rights to control one’s body, establish a family, and have children necessarily safeguard the right to abortion as a fundamental right. The right of “having a family, a wife, children, home,” as Senator Jacob Howard, who played a central role in drafting the Fourteenth Amendment, put it, guarantees to the individual free choice in matters of family and childbirth, in the same way that the freedom of speech also includes the right to not speak. The right to bear and raise children and the right to abortion are two sides of the same coin—both integral parts of reproductive freedom.  In our constitutional heritage, laws that prohibit abortion and those that compel abortion are equally offensive to bodily integrity, autonomy, and equal dignity.***

 

To understand why the Fourteenth Amendment’s protections are so sweeping and phrased in general terms, remember that the amendment was a response to slavery. Its framers sought to safeguard fundamental rights that have no explicit textual basis in the Bill of Rights but that are crucial to equality and liberty. To ensure true freedom and redress the subjugation of Black bodies during slavery required, at a minimum, asserting control over one’s body as a basic right. During the debates, members of Congress insisted that a person’s  “uninterrupted enjoyment of his life, his limbs, his body, his health” was a bedrock right guaranteed to all. Without bodily integrity, the Fourteenth Amendment’s promise of equal citizenship would be illusory.

 

Protecting people’s reproductive liberty was very much a part of that effort to define what it means to not be enslaved—to be free. One of slavery’s cruelest aspects was the brutal denial of reproductive autonomy in matters of family life. Plantation owners forced enslaved women to bear children who would be born into bondage. Rape and other forms of coerced procreation enabled the growth of the institution of slavery, even after the international slave trade was outlawed in 1808. “Slavery is terrible for men,” wrote Harriet Jacobs in the 1861 narrative of her enslavement, “but it is far more terrible for women.” Jacobs’s autobiography, as the intellectual Henry Louis Gates has observed, demonstrated how enslaved women were treated as “object[s] to be raped, bred, or abused.” Not only were enslaved people coerced into bearing children; enslaved people in loving relationships had no right to marry or raise children of their own. ***

 

The framers of the Fourteenth Amendment recoiled at the treatment of enslaved families and wrote the amendment to provide broad protection for what might be called rights of heart and home: the right to marry a loved one, to establish a family, to decide whether to bear and raise children. As the debates in the 39th Congress reflect, true freedom would be impossible without securing those freed from enslavement the right “to be protected in their homes and families,” as Senator John Sherman said. Because reproductive freedom and family life were impossible “where the wife is the property of the husband’s master and may be used at will” and where “children are bred, like stock, for sale,” Representative Thomas Eliot argued, “no act of ours can fitly enforce their freedom that does not contemplate for them the security of home.” The denial of these basic rights under slavery provided an invaluable lesson about the meaning of freedom: Decisions about marriage, family, and reproduction had to be left to the individual, not coerced by the government or subject to the brutal domination of another.

 

During the debates in the 39th Congress, Senator Howard eloquently spoke to how enslaved people had been robbed of their dignity and stripped of their rights to marry a loved one, start a family according to their desires, and enjoy reproductive freedom.

 

November 17, 2021 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

Kellogg's (UK) to Give Staff Menopause, Fertility, and Miscarriage Leave

BBC, Kellogg's (UK) To Give Staff Fertility, Menopause and Miscarriage Leave

Cereals manufacturer Kellogg's has announced it will provide more support to staff experiencing the menopause, pregnancy loss or fertility treatment.

 

The firm said about 1,500 workers at its factories in Trafford and Wrexham and its Salford headquarters would benefit from a number of new measures.

 

They include extra paid leave for those undergoing fertility treatment or staff who suffer the loss of a pregnancy.

 

It said it was aiming to help staff feel "psychologically safe" at work.

 

The announcement was made as MPs are due to vote on a private members' bill later that, if passed, would make hormone replacement therapy free for those going through the menopause in England.***

 

Under the plans, managers will be trained on how to talk about the menopause and pregnancy loss and paid leave for pregnancy loss will be given without the need for a doctor's note.

 

It also intends to give staff going through fertility treatment three blocks of leave each year as well as access to a private space to administer treatment if necessary.

 

The firm's Europe vice-president in human resources Sam Thomas-Berry said it was "launching several new workplace policies for even better equity and inclusion".

November 17, 2021 in Business, Equal Employment, Family, Healthcare, Reproductive Rights, Work/life, Workplace | Permalink | Comments (0)

New Book Gendered Citizenship on the Gap Years of the Equal Rights Amendment, 1920-1963

From Legal Theory Blog (Larry Solum): Highly Recommended

Legal Theory Bookworm: "Gendered Citizenship" by DeWolf

The Legal Theory Bookworm recommends Gendered Citizenship: The Original Conflict over the Equal Rights Amendment, 1920–1963 by Rebecca DeWolf.  Here is a description:

By engaging deeply with American legal and political history as well as the increasingly rich material on gender history, Gendered Citizenship illuminates the ideological contours of the original struggle over the Equal Rights Amendment (ERA) from 1920 to 1963. As the first comprehensive, full-length history of that struggle, this study grapples not only with the battle over women’s constitutional status but also with the more than forty-year mission to articulate the boundaries of what it means to be an American citizen.

Through an examination of an array of primary source materials, Gendered Citizenship contends that the original ERA conflict is best understood as the terrain that allowed Americans to reconceptualize citizenship to correspond with women’s changing status after the passage of the Nineteenth Amendment.

Finally, Rebecca DeWolf considers the struggle over the ERA in a new light: focusing not on the familiar theme of why the ERA failed to gain enactment, but on how the debates transcended traditional liberal versus conservative disputes in early to mid-twentieth-century America. The conflict, DeWolf reveals, ultimately became the defining narrative for the changing nature of American citizenship in the era.

November 17, 2021 in Books, Constitutional | Permalink | Comments (0)

Tuesday, November 16, 2021

First person to receive gender surgery in prison seeks $2.8M in legal fees

Inmate who sued for gender surgery seeks $2.8M in legal fees

BOISE, Idaho (AP) — A former Idaho inmate who became the first person to receive court-ordered gender confirmation surgery after suing the state Department of Correction is asking a judge to order the state to pay more than $2.8 million in attorney fees and other costs associated with the case.

The state has until Nov. 22 to respond to the motion from Adree Edmo, who is no longer in state custody. Gov. Brad Little's office declined to comment on the case because it is still moving forward in court.

Edmo sued the state of Idaho and the Idaho Department of Correction’s health care provider, Corizon Health Inc., in 2017 saying that they violated her Eighth Amendment right against cruel and unusual punishment by not providing the surgery. Prison doctors had diagnosed Edmo in 2012 with gender dysphoria, a condition in which the dissonance between a person’s gender identity and the gender they were assigned at birth is significant and hurtful. But medical professionals disagreed about whether Edmo needed gender confirmation surgery, leading to the lawsuit.

. . . 

Edmo’s legal fight didn’t end after her surgery, however, Whelan noted, it continued until October 2020, when the Supreme Court said it would allow the appellate court ruling to stand without review.

. . .

Courts generally award attorney fees to the winning party based on the “customary amount” an attorney would charge for the work. But in certain cases — such as when the case is considered “undesirable,” or especially complex, or when the attorneys have extensive experience or performed exceptionally well — the court will allow the customary amount of fees to be doubled. Edmo is asking for double the customary amounts in her case.

“Here, nothing about this case was run-of-the mill,” Whelan said. Edmo had no attorney when she started the case, and no Idaho attorneys were willing to take on the case on their own.

November 16, 2021 in Constitutional, Courts, Gender, Healthcare | Permalink | Comments (0)

An Excerpt from Anita Hill's “Believing: Our Thirty-Year Journey to End Gender Violence”

“This Is Not That Bad” An Excerpt from Anita Hill's “Believing: Our Thirty-Year Journey to End Gender Violence”

Excerpted from Believing: Our Thirty-Year Journey to End Gender Violence by Anita Hill, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2021 by Anita Hill.

“Not that bad” reflects the attitude that survivors often internalize; that our abusers’ behaviors “were not the worst thing that ever happened to us” serves as a coping mechanism that is problematic. In her anthology Not That Bad: Dispatches from Rape Culture, the writer, public intellectual, and cultural critic Roxane Gay writes with painful eloquence about how for a long time she minimized the gang rape she survived as a teenager. And the heartrending stories in her book from other women who experienced gender‑based violence include scores who remained friendly or intimate with harassers and abusers. Not That Bad poignantly reminds us of the way we deny our pain to keep living. Convincing herself that her experience was not as bad as others’ was Gay’s way of managing her trauma “instead of allowing the magnitude of it to destroy” her. But as Gay points out, this defense mechanism comes at a cost. In her case, as with countless other victims, it numbed her to the pain of her other bad experiences, as well as the trauma others suffered. “The surface of my empathy became callous,” she writes.

Looking back at how the Senate exchange went, I wonder, was Specter gaslighting me and the public, or was he mansplaining? I’ve concluded that he was doing both. If gaslighting was his intent, he was manipulating me (and the public) into questioning the reality and my perception of my own experiences. Given his condescending tone, Specter was also mansplaining—trying to convince us all that he knows better than me how a woman experiences sexual harassment. Mansplaining was the technique, and gaslighting was the goal. Both are forms of denial employed to discount claims of abuse, and they deserve to be called out because they prevent women from being heard and believed when they testify about abuse. Both tactics foster self‑doubt, coaxing victims into thinking that coming forward is pointless, that no one will care.

. . .

How do three simple words, “not that bad,” become so powerful? They gain steam when they are absorbed in all of our social systems, permeating survivors’ minds. The hold that those three little words have comes from hearing them repeated multiple times over the course of a lifetime. The exact language may change, as do the circumstances, but the message that your hurt is of no consequence, so back off, remains the same. Schools deny and neglect gender violence, undermining survivors’ confidence and secure identity even as small children. The same attitude exists in the workplace, which can lead survivors to feel self‑doubt. Individual denial breeds institutional denial, and survivors pay the price. Specter’s words were aimed at persuading me to doubt my significance. His strategy was to convince other potential witnesses and the American public that the stories survivors seek to share and the people who want to hear them are of no importance. Specter’s belittlement of my pain had one clear beneficiary, Clarence Thomas. To abusers, harassers, and rapists, “not so bad” is an absolution and, in Thomas’s case, an assurance that the Senate confirmation process would protect him. To survivors, these words are like a dagger.

November 16, 2021 in Courts, Gender, Judges, Legal History, SCOTUS, Violence Against Women, Workplace | Permalink | Comments (0)

Race AND Gender AND Policing

Race AND Gender AND Policing

By: Stewart Chang, Frank Rudy Cooper, Addie Rolnick

Published in: Nevada Law Journal, Vol. 21, No. 3, 2021

This title of this Introduction to the Nevada Law Journal’s symposium on Race AND Gender AND Policing, is not a typographical or grammatical error. It conceives of race and gender and policing as intersectional in the strong sense of being co-constituted concepts wherein each element mutually constructs the meaning of each of the others in a never-ending circuit. The purported threat of crime by blacks has long been racialized so that black men are the threat, white women are the protected, white men are the protectors, and black women are left unprotected. Only when race AND gender AND policing are considered together—tied to one another not so much as points on a triangle converging towards the center, but instead coexisting on the same planar continuum—does the picture become significantly clearer.

To demonstrate the utility of this approach, this article looks at a series of contemporary threats of white-on-black violence. We begin with “white-caller-crime,” in which white women like Amy Cooper use calls to 9-1-1 to threaten blacks with police violence, as in the case of Christian Cooper. We then examine how police officers use their authority to sexually assault civilians, particularly cisgender and transgender women of color, such as in the stories of Jannie Ligons and an anonymous transgender woman. We continue on to other situations that turn deadly because the now predominant proactive form of policing leads to unnecessary encounters with blacks that sometimes turn violent, such as in the stories of Sandra Bland and Elijah McClain. Our analysis of the cycle of policing violence then turns to encounters where the police use overwhelming force to enter black homes, and black women are killed as collateral damage, as was the case with Breonna Taylor and Charleena Lyles. Only then do we finally assess stories like George Floyd’s, where black men’s assumed dangerousness is used to justify subduing them with deadly force. We note, however, how this type of police violence has private parallels, such as in the case of the stalking and killing of Ahmaud Arbery, again based on assumed dangerousness of black men. In this way, white private actors feel empowered to defend their property with deadly force and are shielded from prosecution in much the same way police officers are, as in the initial lack of justice in the case of Black Lives Matter protester James Scurlock. Our understanding of these incidents does not end there, though, as the aforementioned white-caller crime is another means of private violence against blacks, and it also reinitiates this cycle of policing violence.

We say all of this to demonstrate that policing’s involvement in the maintenance of race-gender hierarchy is larger in scope than has traditionally been portrayed. Our case studies show that policing should be understood as anti-black, but anti-blackness should itself be understood as co-constituted with the meanings of whiteness in general and white womanhood in particular. Harkening back to the Kerner Commission, we call for a new perspective on race and gender and policing. We conclude by proudly describing the nine essays in this symposium, which both critique the present and provide an outline for a better future.

November 16, 2021 in Gender, Race | Permalink | Comments (0)

Monday, November 15, 2021

Immigration Prof Blog on Menstruation and Immigration Detention

Our friends over at ImmigrationProf Blog have featured an essay of interest to Gender and the Law Blog readers as well. Kit Johnson has blogged about her essay Tales of a Flow Stayed By Nothing: Menstruation in Immigration Detention forthcoming in the Columbia Journal of Gender and the Law.  Kit Johnson excerpts her forthcoming essay along with some additional textual content, a portion of which I share here: 

My essay then covers some familiar ground--how immigration detention is based in civil law yet it adopts the features of criminal incarceration. I discuss how many female noncitizens are detained: In 2019, an average of 7,700 noncitizen women were held in immigration detention facilities daily and another 4,500 migrant women were held in local jails awaiting transfer to immigration detention. Most of these women, I note, menstruate.

 

And yet,

 

"Conditions for menstruating women in immigration custody today are not substantially different from those experienced by Fauziya Kassingja in 1994. A 2019 investigation by the state of Washington found that menstruating teens in immigration custody were given a single pad a day, with no opportunity to shower or to get a change of clothing after visibly bleeding through their clothes. A 2009 Human Rights Watch report found that menstruating adult women in immigration custody face similar challenges: officials distributed only a set number of sanitary pads, women experienced difficulties obtaining more pads as needed, and women were forced to wear soiled clothing when their sanitary supplies proved inadequate for their flow."

The full blog entry is an important read as is the article in full. 

 

November 15, 2021 in Reproductive Rights | Permalink | Comments (0)

Critical Lawyering

Laila L. Hlass and Lindsay M. Harris have posted their article Critical Lawyering published in the 2021 volume of the Utah Law Review. The abstract previews the article's powerful contributions to pedagogy and theory.   

Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into account historical and structural biases, privileges, and the role they play in the attorney-client relationship. This Article urges law professors and legal professionals to operationalize critical legal theories into practice, and ultimately to develop experiential pedagogies to teach these critical lawyering skills. This call to developing new pedagogies is particularly urgent in the wake of nationwide uprisings in response to the killing of George Floyd and others, as well as corresponding law schools’ commitments to identify and dismantle institutional racism. In this Article, we first set forth the contours of the canonical client interviewing pedagogy. Second, we outline the tenets of critical lawyering—a lawyering practice animated by critical legal theories. Next, we advance the pedagogy of critical interviewing, building upon client-centered lawyering texts. We describe one methodology of teaching critical interviewing: the Legal Interviewing and Language Access films. Ideally positioned to use with virtual, hybrid, or in person learning, these videos raise a multitude of issues, including addressing bias and collaborating with clinic partners, interpreters, and clients. Finally, the Article considers areas ripe for further exploration within critical interviewing, concluding with a call for engagement with new pedagogical tools to teach critical interviewing, along with other aspects of critical lawyering.

November 15, 2021 in Law schools, Race, Theory | Permalink | Comments (0)

Domestic Violence Organizations Affirm New Approaches in "Moment of Truth" Letter

Domestic violence organizations have affirmed a commitment to changed approaches in a "Moment of Truth" declaration. This is a powerful read in its entirety with some excerpts below. While it was signed in March 2020, recent coverage in The Lily drew new attention to it. 

We, the undersigned sexual assault and domestic violence state coalitions call ourselves to account for the ways in which this movement, and particularly the white leadership within this movement, has repeatedly failed Black, Indigenous, and people of color (BIPOC) survivors, leaders, organizations, and movements:

 

● We have failed to listen to Black feminist liberationists and other colleagues of color in the movement who cautioned us against the consequences of choosing increased policing, prosecution, and imprisonment as the primary solution to gender-based violence.

● We have promoted false solutions of reforming systems that are designed to control people, rather than real community-based solutions that support healing and liberation.

● We have invested significantly in the criminal legal system, despite knowing that the vast majority of survivors choose not to engage with it and that those who do are often re-traumatized by it.

● We have held up calls for “victim safety” to justify imprisonment and ignored the fact that prisons hold some of the densest per-capita populations of trauma survivors in the world.

● We have ignored and dismissed transformative justice approaches to healing, accountability, and repair, approaches created by BIPOC leaders and used successfully in BIPOC communities.

 

We acknowledge BIPOC’s historical trauma and lived experiences of violence and center those traumas and experiences in our commitments to move forward. We affirm that BIPOC communities are not homogeneous and that opinions on what is necessary now vary in both substance and degree. We stand with the Black Women leaders in our movement, for whom isolation, risk, and hardship are now particularly acute. And we are grateful to the Black Women, Indigenous Women, and Women of Color - past and present - who have contributed mightily to our collective body of work, even as it has compromised their own health and well-being. This moment has long been coming. We must be responsible for the ways in which our movement work directly contradicts our values. We espouse nonviolence, self-determination, freedom for all people and the right to bodily autonomy as we simultaneously contribute to a pro-arrest and oppressive system that is designed to isolate, control, and punish. We promote the ideas of equity and freedom as we ignore and minimize the real risks faced by BIPOC survivors who interact with a policing system that threatens the safety of their families and their very existence. We seek to uproot the core drivers of gender-based violence yet treat colonialism, white supremacy, racism, and transphobia as disconnected or separate from our core work.

The letter instead supports reframing the idea of "public safety," removing police from schools, decriminalizing survival,  prioritizing safe housing, and investing in caregiving instead of policing. 

November 15, 2021 in Violence Against Women | Permalink | Comments (0)