Gender and the Law Blog

Care Post-Roe Study Findings

Advancing New Standards in Reproductive Health has published an updated report in September 2024 on Care Post-Roe: Documenting Cases of Poor-Quality Care Since the Dobbs Decision.  The Executive Summary is excerpted here: 

 

This report presents the findings of the Care PostRoe Study to date. Between September 2022 and August 2024, we received 86 submissions from health care providers describing detailed cases of care that deviated from the usual standard due to new laws restricting abortion. The patients described in the narrative submissions lived in one of 19 states that banned abortion following Dobbs. Patients described in the narratives submitted by health care providers represent a range of different ages, income levels, and racial and ethnic backgrounds, with a notable proportion involving patients reported to be Black or Latinx, populations that often face more barriers to care.

 

Cases in the narratives fell into several categories: 1. Obstetric complications in the second trimester prior to fetal viability, including preterm prelabor rupture of membranes, hemorrhage, cervical dilation, and hypertension; 2. Ectopic pregnancy, including cesarean scar ectopic; 3. Underlying medical conditions that made continuing a pregnancy dangerous; 4. Severe fetal anomalies or other fetal compromise; 5. Miscarriage; 6. Extreme delays in obtaining abortion care; 7. Intersection with the carceral system; 8. Difficulty obtaining post-abortion care; and 9. Delays obtaining medical care unrelated to abortion.

 

The post-Dobbs laws and their interpretations altered the standard of care across these scenarios in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care. In several cases, patients experienced preventable complications, such as severe infection or having the placenta grow deep into the uterine wall and surrounding structures, because clinicians reported their “hands were tied,” making it impossible for them to provide treatment sooner. One physician described a case of a patient who had ruptured membranes at 16-18 weeks’ gestation but was denied an abortion because of a new state law. She was sent home and developed a severe infection requiring management in the intensive care unit. The patient subsequently delivered her fetus but required a procedure to remove her placenta. The physician wrote, “The anesthesiologist cries on the phone when discussing the case with me—if the patient needs to be intubated, no one thinks she will make it out of the OR.” Health care providers described feeling moral distress when they were unable to provide evidencebased care, and some reported considering moving their practices to a state where abortion remains legal. 

March of Dimes Report on Maternal Care Deserts

The March of Dimes has published a report titled Nowhere to Go: Maternity Care Deserts Across the US. Excerpts from the Executive Summary are below: 

Our latest national report on maternity care access in the United States (US) reveals a stark reality; where you live matters when it comes to the options available for maternity care. While some progress has been made to increase access to care, such as expanding and extending Medicaid, we continue to witness steady reports of obstetric unit closures and workforce shortages. In fact, 1 in every 25 obstetric units in the US shuttered their doors in the last 2 years, resulting in fewer choices, increased stress, and greater travel times for birthing people. The 2024 Nowhere to Go: Maternity Care Deserts in the US report reveals that over 35% of counties are considered maternity care deserts. This means that in 1,104 US counties, there is not a single birthing facility or obstetric clinician. These counties are home to over 2.3 million women of reproductive age and are the resident county of women who gave birth to over 150,000 babies in 2022.

 

Our most comprehensive analysis to date confirms that women living in maternity care deserts and counties with low access to care have poorer health before pregnancy, receive less prenatal care, and experience higher rates of preterm birth. Our analysis revealed an excess of over 10,000 preterm births among those living in maternity care deserts and limited access counties in 2020-2022. These findings affirm that US systems, policies, and environments are failing moms and babies.

 

Over 1 in 3 US counties lack a single obstetric clinician, and in many parts of the country obstetriciansgynecologists (OB-GYNs) and family physicians who deliver babies are leaving the workforce. Moreover, while midwives could supplement the obstetric workforce, 23 states have policies that inhibit them from administering the level of care they were trained to provide. Furthermore, 70% of birth centers in the US are within just 10 states. Our report examines policies that reduce barriers to integrating midwives into the healthcare system and make opening and sustaining birth centers more attainable. Both could provide more options for birthing people, decrease health expenditures, and improve satisfaction and birth outcomes. In addition, the report offers insights into how low insurance reimbursement rates and payment structures contribute to hospital closures, especially in rural areas. 

Invitation to Online Book Launch of Feminist Legislation Project on Sept. 25

Below is an invitation to a book launch of the Feminist Legislation Project from co-editor Becky Batagol. More information about the book project is here:   

Please come to the launch of the Feminist Legislation Project: Rewriting Laws for Gender-Based Justice edited collection created and edited by me, Professor Kate Seear, Assoc Prof Heli Askola and Dr Jamie Walvisch.

This book is the result of 7 years of Monash-led collaborative feminist work across Australia by leading law academics, lawyers, activists and those with lived experience of the problems we identify. We decided to go past the usual academic criticism of law and to actually show what legislation could look like if its concern was to create justice for women and those who experience gender-harm. 

Each chapter contains a short piece of legislation – proposed in order to address a contemporary legal problem from a feminist perspective. These range across criminal law (sexual offences, Indigenous women’s experiences of criminal law, laws in relation to forced marriage, modern slavery, childcare and sentencing), civil law (aged care and housing rights, regulating the gig economy; surrogacy, gender equity in the construction industry) and constitutional law (human rights legislation, reimagining parliaments where laws are made for the benefit of women). The proposed laws are, moreover, drafted with feedback from a senior parliamentary draftsperson (providing guidance to contributors in a personal capacity), to ensure conformity with legislative rigour, as well as accompanied by an explanation of their reasons and their aims. Although the legislation is Australian-based, the issues raised by each are recognisably global, and are reflected in the legislation of most other nations.

This is the world's first feminist legislation project and we think its methods can be applied worldwide. It also has great potential to lead to law reform as the book contains 16 proposals for law reform, complete with second reading speech and legislative drafting.  It will appeal to scholars of feminist legal studies, gender and the law, gender studies and others studying or working in relevant legal areas.

 

The book launch, which will take place at the Sky Room (Monash Business School), Level 14, at 30 Collins Street in Melbourne's CBD, on Wednesday 25 September, 5-7pm. We will organise Zoom access for those who can't attend in person. The invitation is attached and you can RSVP here by 16 September.

 

The book is open access, meaning it is free, not behind the usual academic paywalls and available to read and download here.

 

Addressing Gender Biases and Barriers to Women's Leadership in Mass Tort Multidistrict Litigation

Stephanie Iken, Addressing Biases and Barriers: Advancing Women in Mass Tort MDL Leadership 

The legal profession grapples with profound gender disparities, particularly evident in leadership roles within mass tort litigation. This article delves into the myriad biases and systemic barriers that hinder women's advancement in legal leadership, shedding light on the challenges they face and proposing strategies for fostering gender equity.

The analysis begins by examining the lack of representation of women in mass tort leadership, despite their significant presence in law school cohorts. Data reveals stark disparities in the appointment rates of women to leadership positions, underscoring systemic biases entrenched within the legal industry. Biases such as the Prove-It-Again Bias, Tightrope Bias, and Maternal Wall contribute to the underrepresentation of women in leadership roles, perpetuating a cycle of discrimination and marginalization.

The Prove-It-Again Bias dictates that women must continually prove their competence and dedication, facing greater scrutiny and exhaustion than their male counterparts. Women experience challenges in asserting their ideas and contributions, often facing dismissal or attribution of their work to others. Moreover, the Tightrope Bias imposes restrictive standards on women's behavior, forcing them to navigate contradictory expectations and behaviors. The Maternal Wall presents additional barriers, as women encounter biases against mothers and birthing persons, leading to challenges in balancing family and career aspirations.

The article further explores biases against women in leadership roles, including interruptions, the "Boys Club" mentality, dismissal of accomplishments, and delegation of stereotypical tasks. These biases perpetuate gender inequalities and hinder women's career advancement, creating environments where women's voices are silenced, and their contributions undervalued.

The gender pay gap exacerbates disparities, with women overwhelmingly paid less for equal work, stifling their economic empowerment and career progression. Sexual harassment and networking challenges further compound these inequalities, creating hostile environments that deter women from pursuing leadership roles.

However, amidst these challenges, the article highlights initiatives and strategies for advancing women in legal leadership. Mentorship programs, diversity, equity, and inclusion (DEI) initiatives, and policy reforms emerge as critical tools for fostering gender equity and dismantling systemic biases. By creating inclusive environments, challenging traditional norms, and prioritizing the well-being of female professionals, the legal profession can work towards creating a more diverse and equitable future for women in leadership roles.

In conclusion, the article calls for transformative action to address biases and barriers hindering women's advancement in legal leadership. By acknowledging and confronting systemic inequalities, implementing inclusive practices, and advocating for policy reforms, the legal profession can strive towards a future where women are equally represented and empowered in leadership roles within mass tort litigation and beyond.

Re-examining the Three-Year Legal Education Through a Critical Theory Lens

Paula A. Monopoli, Remembering the Origins of Modern Legal Education, 85 University of Pittsburgh Law Review 305 (2023)

American legal education came under tremendous pressure in the wake of the 2008 financial crisis. That crisis precipitated a decline in law school applications and a concomitant decrease in the size of American law school enrollments during the 2011-2012 academic year. Commentators offered a myriad of proposals for reforming legal education during that period. Yet many of those proposals failed to gain traction, and a decade later legal education looks much the same, albeit with smaller enrollments. One of those proposals was to shorten the three-year course of study. In this Article, I revisit the origins of that long-standing feature of American legal education introduced by Christopher Columbus Langdell, Dean of Harvard Law School, in the nineteenth century and later embraced by the legal education's regulatory bodies in the twentieth century. Viewed through a critical theory lens, its intractability can be explained, in part, by the persistence of exclusionary impulses and masculine norms in the legal profession from its origins to the current day. This Article proposes that American law faculty revive previous conversations about the value of this central design feature. And the subordinating effects of that feature should be a factor in weighing the costs and benefits of moving to a shorter course of study.

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

Scholarly Forum on the History of Comstock Acts and Anthony Comstock

Anthony Comstock and the Comstock Laws: A JGAPE Forum Preview, Society for Historians of the Gilded Age and Progressive Era

Over the next several weeks, we are going to be publishing a forum on the history and legacy of Anthony Comstock. This forum is forthcoming in the Journal of the Gilded Age and Progressive Era and is formally titled The History and Legacy of Anthony Comstock and the Comstock Laws. Given our current debates on abortion following the Dobbs decision and the Heritage Foundation’s Project 2025, which proposes to revive the Comstock Act, we hope this forum will provide useful historical context about the Act’s influence on American life. This is the first of seven installments.

Forum Introduction

By Magdalene Zier, Lauren MacIvor Thompson, Cathleen Cahill, and Kimberly A. Hamlin

Anthony Comstock arrived in Washington, D.C., in January 1873 with a collection of pornography and big plans for what to do with it. Bearing a veritable grab bag of explicit images, books, pamphlets, contraceptives, and sex toys that he had ordered expressly for the purposes of shock, he set up displays, first in the private homes of legislators and then in the office of the vice president inside the congressional building. As congressmen trooped by to gawk, Comstock spoke to them about the “nefarious business” of obscenity. In just a few weeks, Congress would pass a sweeping law bearing his name, one that criminalized mailing anything to do with sex. “An Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” included not just pornography and sexual material, but also personal correspondence, educational pamphlets, contraceptives, and items related to abortion. To enforce this sweeping new law, Comstock was appointed Special Agent of the Post Office and endowed with the power to search the mail, seize obscene items, and make arrests. He would soon proudly declare of his accomplishments: “I have endeavored to raise a legal barrier between the youth and this hydra-headed monster of Obscenity.” He was not yet thirty years old.

This blog series aims to provide vital historical context for those seeking to understand the modern revival of Anthony Comstock and his namesake law. The Comstock Act has never been repealed and remains part of Sections 1461 and 1462 in the United States Code, although many Americans have little to no idea about the details of this law, if they have even heard of it. Anthony Comstock himself seems like an odd joke today: a repressed, puritanical, anti-sex reformer and a relic of a bygone past (Figure 1). And yet, because the act has been revived as a strategy for limiting access to reproductive healthcare, Comstock is no joke.

Abortion on the Ballot

Carrie Baker, Feminists Need to Know Ballot Measures

In nearly a dozen states, voters this fall will have a chance to protect abortion rights and advance equality for women.

In overturning Roe v. Wade, the Supreme Court declared, “The authority to regulate abortion is returned to the people and their elected representatives.” But with rampant gerrymandering—greenlit by the Supreme Court—these “elected representatives” often do not fairly represent the people. This makes ballot initiatives a critically important avenue for ensuring women’s rights in states with conservative legislatures.

Since June 2022, when the Supreme Court made its decision in Dobbs v. Jackson Women’s Health Organization, seven states have voted on abortion-related ballot measures. Voters chose to protect abortion rights in all seven states.

• • In August 2022, voters in Kansas rejected an antiabortion measure by 59 to 41.
  • Then, in November 2022, voters overwhelmingly supported constitutional amendments to guarantee abortion rights in California (67 to 33), Michigan (57 to 43) and Vermont (77 to 23), while voters rejected antiabortion ballot referenda in Kentucky (52 to 48) and Montana (53 to 47).
  • In November 2023, Ohioans voted 57 to 43 in favor of a constitutional amendment protecting abortion rights.

With a 100-percent success rate so far, reproductive rights activists are pushing for ballot measures in another 11 states this fall, with the added hope of turning out voters in battleground states like Arizona and Nevada. Abortion and women’s rights combined remains a top issue for women voters—especially young women—ranking above inflation and/or rising prices.

Missouri Rules Abortion Ballot Measure Invalid

A Missouri court late Friday moved toward striking a ballot measure in November that would ask voters whether to establish a right to abortion in the state Constitution.

Judge Christopher Limbaugh of Cole County Circuit Court sided with anti-abortion lawmakers and activists who said that the abortion rights groups that gathered signatures to sponsor the ballot measure had not sufficiently explained its potential ramifications on the petitions they asked voters to sign.

With the state scheduled to print ballots on Tuesday, the judge said he would wait until then to issue an injunction instructing the secretary of state to remove the measure that was certified last month. That will give the abortion rights groups a chance to appeal to a higher court.

Yvette Butler on "Survival Labor"

Yvette Butler has published Survival Labor in volume 112 of the California Law Review. The abstract is excerpted below. The piece relies on feminist theory in building its reasoning. 

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor. The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating and policing racialized bodies have created a culture where Blackness, in particular, is equivalent to criminality. While a penal abolitionist framework is helpful in getting rid of the harmful criminal and civil consequences of criminal penalties, a labor framework shifts the narrative in a way required to transform the perception of crime to one of labor. This shift is particularly important given the renewed attention to penal abolitionist logic and conservative and libertarian attempts to resurrect greater protection for economic liberty through the “right to earn a living.” In what will become a series of several pieces, this first Article proposes a narrative shift that allows us to critique and reimagine our conceptions of work. People engaged in survival crimes are often subject to the criticism that they should pursue “real work.” After reading this Article, I hope the legal community will question the continued criminalization of poverty, reconsider our understanding of work, and invest in this transformative project to protect the victims of state-sponsored oppression.

"Inclusive Socratic Teaching" Podcast

Blog co-author Jamie R. Abrams was featured on a podcast titled Tea for Teaching last week, hosted by SUNY Oswego. The podcast focused on the book Inclusive Socratic Teaching, which draws upon a half century of feminist theory critiquing the Socratic Method. This book summary is below. The podcast is featured here. 

For more than fifty years, scholars have documented and critiqued the marginalizing effects of the Socratic teaching techniques that dominate law school classrooms. In spite of this, law school budgets, staffing models, and course requirements still center Socratic classrooms as the curricular core of legal education. In this clear-eyed book, law professor Jamie R. Abrams catalogs both the harms of the Socratic method and the deteriorating well-being of modern law students and lawyers, concluding that there is nothing to lose and so much to gain by reimagining Socratic teaching. Recognizing that these traditional classrooms are still necessary sites to fortify and catalyze other innovations and values in legal education, Inclusive Socratic Teaching provides concrete tips and strategies to dismantle the autocratic power and inequality that so often characterize these classrooms. A galvanizing call to action, this hands-on guide equips educators and administrators with an inclusive teaching model that reframes the Socratic classroom around teaching techniques that are student centered, skills centered, client centered, and community centered.

 

 

An International Analysis of Online Representation of Medical Risks and Incentives in Egg Donation

Lara Jacxsens and Catherine Coveney, et. al.  have published The representation of medical risks and incentives concerning egg donation: an analysis of the websites of fertility clinics of Belgium, Spain and the UK in volume 27 of Human Fertility (2024). The abstract is excerpted below. 

Considering the growing demand for egg donation (ED) and the scarcity of women coming forward as donors to meet this demand, scholars have expressed concerns that clinics may (initially) misrepresent risks to recruit more donors. Additionally, (non-)monetary incentives might be used to try to influence potential donors, which may pressure these women or cause them to dismiss their concerns. Since the internet is often the first source of information and first impressions influence individuals' choices, we examined the websites of fertility clinics to explore how they present medical risks, incentives and emotional appeals. Content Analysis and Frame Analysis were used to analyze a sample of Belgian, Spanish and UK clinic websites. The data show that the websites mainly focus on extreme and dangerous risks and side effects (e.g. severe OHSS) even though it is highly relevant for donors to be informed about less severe but more frequently occurring risks and side effects (e.g. bloating), since those influence donors' daily functioning. The altruistic narrative of ED in Europe was dominant in the data, although some (hidden) financial incentives were found on Spanish and UK websites. Nonetheless, all information about financial incentives still were presented subtly or in combination with altruistic incentives.

 

 

The Differences in Formal and Informal Faculty Mentoring by Gender and Race

Gina Scutelnicu Todoran, "The Contribution of Formal and Informal Mentorship to Faculty Productivity: Views of Faculty in Public Affairs Programs," Journal of Public Affairs Education 29(4), 404-420

This study examines how mentorship opportunities contribute to the productivity and career growth of public affairs faculty, stratified by gender and race. The study uses primary data coming from an original survey administered at two different points in time (2017 and 2021) to faculty who are part of NASPAA member schools. Results indicate that women and faculty from racially under-represented groups are more likely to receive formal mentoring whereas men and white faculty are more likely to benefit from informal mentoring. Additionally, results show that the relationship between mentoring approaches and research effort differed by the faculty’s member gender and race with formal mentoring contributing to the research effort of men and white faculty across all academic ranks and university types, and informal mentoring contributing to the research effort of mid-career faculty of all genders and races. This study aims to inform individuals and universities about mentoring trends and contributions.

Title IX in the Age of Textualism

Katie Eyer, Title IX in the Age of Textualism, 86 Ohio State L.J. (forthcoming 2025)

Title IX has long been thought of as a quintessentially administrative statute, i.e., a statute whose contours are defined primarily by its agency interpreters. Known as much for its administrative interpretations as for its statutory text, both the public image, and legal enforcement of Title IX have been profoundly shaped by the administrative state. This Article asks: what becomes of such an “administrative law” in the wake of the rise of textualism?

This question has gained new urgency, as the most recent Title IX regulations issued by the Department of Education are facing numerous legal challenges—and as the Supreme Court’s opinion in Loper Bright Industries v. Raimondo has led to a rapidly shifting administrative law landscape. This Article thus takes up the question of how Title IX may be understood in the changed interpretive environment. Does Title IX’s statutory text provide meaningful guidance in relation to contemporary Title IX disputes? And how might an examination of Title IX’s regulations help us to understand the space for administrative agencies to act in a post-Loper Bright world?

This Article contends that Title IX’s statutory text can and does provide clear guidance on many of the contemporary issues that have been raised in challenges to the Department of Education’s most recent regulations. Thus, simply taking Title IX’s statutory text seriously can answer the question of whether (as the DOE’s new regulations provide) anti-LGBT discrimination is proscribed (it is), whether regulatory exceptions that exceed the statutory text must be harmonized with the statute (they must), and whether the DOE’s recently adopted hostile environment standard is too broad (it is not).

But this Article also suggests that other, future, challenges to Title IX’s administrative infrastructure may prove more complex. Taking up the example of Title IX’s athletics regulations and guidance, the Article suggests a series of important questions that the courts will have to resolve as they consider the role for statutory text—and the role for administrative law—today. While the answers to such questions will necessarily be case-specific—and as the case of Title IX”s athletics regulations shows, may well be susceptible of conflicting answers—they will be central to understanding the role for administrative law in our modern textualist era.

New Book Justice Jackson's Autobiography

Kimberly Robinson, Book Review, Justice Jackson had "Wrenching Time" as Big Law Working Mom, reviewing Lovely One by Ketanji Brown Jackson.

Supreme Court Justice Ketanji Brown Jackson described her return to law firm life after the birth of her first daughter as “wrenching,” saying she “drastically underestimated the challenges of new motherhood.”

“I can honestly say that going back into the office as a new mother, and returning to the cadence and pressures of Big Law, was the stuff of nightmares,” Jackson said in her memoir, “Lovely One,” which was released Tuesday.

She describes the challenges of commuting, breastfeeding, and having to slip out of the office apologetically “at the unspeakably early hour of five P.M. each workday.” And in particular, she details the isolation and lack of motivation she felt of returning to Goodwin Procter after four months of maternity leave.

For “me, there was a hollowness to the corporate law enterprise,” Jackson wrote.

Wilkins v. Austin Eliminates Discriminatory HIV Barrier to Military Service

Lambda Legal challenged the United States Military's prohibition on the enlistment of people living with HIV in Wilkins v. Austin. Here are excerpts from Lambda's press release describing the case: 

The lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status. Minority Veterans of America (“MVA”) is also an organizational plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military.  

The filing followed the Biden administration’s announcement in July 2022 that it would no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unlawful and unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no medical restrictions applied to their deployability or to their ability to commission while a servicemember based on their HIV-positive status.    

Before the July 2022 announcement, a federal district court handed down one of the most substantial judicial rulings in over two decades for people living with HIV in two cases—Harrison v. Austin and Roe & Voe v. Austin.  The rulings ordered the Department of Defense (DOD)—the world’s largest employer—to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV. It reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate.   

Here are Lambda's selected excerpts from the successful opinion in Wilkins v. Austin striking down the policy: 

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals." 

“Modern science has transformed the treatment of HIV, and this Court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment. Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”  

CFP for Volume 33 of the American University Journal of Gender, Social Policy & the Law

Below is a call for papers from the American University Journal of Gender, Social Policy & the Law.

Dear Colleagues,

You are invited to submit articles for inclusion in Volume 33 of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of gender, race, sexuality, and other personal and political identities and the Law. As one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject areas of women, gender, sexuality, and the Law, the Journal is deeply committed to publishing high-quality pieces that explore legal issues relating to gender, race, sexuality, and social policy.

Requirements:

The Journal will consider articles that propose a novel argument or perspective on a timely legal issue relating to gender, race, sexuality, and other identities. To fulfill its interdisciplinary mission, the Journal will accept articles authored by legal, policy, and gender scholars, but at least one author on all submissions must hold a J.D. Articles selected for publication in the Journal must include an analysis of U.S. law.

Contact:

Please direct questions and final submissions to the Journal’s Senior Articles Editors: [email protected].

Thank you! We look forward to reviewing your pieces.

Best,

Hannah Seligman & Siena Roberts

Senior Articles Editors

American University, Washington College of Law

Journal of Gender, Social Policy & the Law, Vol. 33

History of Women in the Legal Profession in Ireland

Niamh Howlin has posted Women as Both Insiders and Outsiders in the History of the Legal Profession on SSRN. The abstract is excerpted below: 

The Sex Disqualification (Removal) Act 1919 removed the legal barrier to women entering the legal professions. In November 1921, Frances Kyle and Averil Deverell were the first women to be called to the Irish bar. The experiences of these early women barristers have in recent years been documented and commemorated in exhibitions and portraiture, as well as through various conferences, other events, books, periodicals and poetry, particularly in the context of the centenary of the 1919 Act. These add to the growing body of literature examining the experiences of early women lawyers and judges in England and other jurisdictions.

Much recent focus has been on historic ‘firsts’ or ‘trailblazers’, but it is important not to let this obscure the broader story of how women experienced working in the legal professions. Indeed, this point was made twenty years ago by Bacik, Costello and Drew who observe, ‘[t]his phenomenon of the highly visible trailblazer woman should be understood not necessarily as an example of ‘advances’ made by women, but as a reminder of continuing male domination.’ Glazer and Slater identify strategies employed by early women professionals: superperformance, separatism, subordination and innovation. They add that while early women professionals did not consciously choose such strategies, ‘it quickly became clear to them that entrance into the elite world of professionalism would require special strategies for women.’ ‘Superperforming’ women were pioneers, and often achieved historic ‘firsts.’ Bacik, Costello and Drew refer to this as the ‘first woman to’ phenomenon, and caution that this ‘does not necessarily provide evidence of absence of discrimination, but rather often signals the continued and persistent exclusion of women – the exception that proves the rule.’

While recognizing the significance of the trailblazers and ‘famous firsts’, this paper seeks to go beyond commemoration, to consider the lived experiences of women at the Irish Bar in the twentieth century. It looks at the challenges they faced, the type of work they did and the strategies they adopted to succeed in a gendered environment. This paper draws on archival research as well as interviews conducted with men and women who were in practice at the Irish Bar from the 1950s until the late 1990s.

Moving Towards a Feminist Constitutional History of the Nineteenth Amendment After Dobbs

Paula Monopoli, The Nineteenth Amendment and Dobbs, 15 ConLawNOW 227 (2024) from Prof. Monopoli's keynote Spring Lecture for The Center for Constitutional Law at Akron. 

There was a surge in legal scholarship around the Nineteenth Amendment to the United States Constitution—the Woman Suffrage Amendment—leading up to its centennial in August 2020. But this scholarly interest around the Nineteenth peaked two years before the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization in June 2022. This paper revisits the Nineteenth Amendment in light of the Court’s decision in Dobbs. It argues that the Nineteenth should be understood as a ban on sex discrimination that extends beyond the right to vote. The Amendment expands the scope of women’s citizenship as a matter of federal constitutional law by prohibiting legislation which denies or abridges a woman’s right to self-govern. And it situates the power to enforce this prohibition in Congress—not state legislatures—as a matter of federalism.

The paper traces the historical understanding of voting as self-government, and self-government as the means by which a citizen operationalizes self-determination. Suffragists understood self-government to include self-ownership and voluntary motherhood. A feminist constitutionalism would incorporate the Nineteenth’s capacious, seventy-two-year history into a robust reading of the Amendment. Such a reading provides support to courts that choose to invalidate legislation denying or abridging not only political but also reproductive self-determination. Although such a reading is unlikely to be embraced by the current Supreme Court’s conservative majority, it should be introduced into judicial discourse for use by future courts in reasoning around women’s reproductive liberty.

New Book, The Bluestockings: A History of the First Women's Movement

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*** Both Woolf and Wollstonecraft argued far more stridently for women’s rights than did Macaulay or her peers, a loosely connected group of 18th-century British women writers and thinkers known — sometimes derogatorily, sometimes affectionately — as the Bluestockings. But as Susannah Gibson argues in her fast-paced and intimate study of the group, the Bluestockings’ feminist revolution lay in their determination to think and write and educate themselves, despite the “pitiless machinations” of British society, which kept single women dependent on their fathers, and married women subordinate to their husbands.