Gender and the Law Blog

"Wonder Women: Muddling Through, and More" by Prof. Susan Apel

This is the final post by our guest blogger, Prof. Susan Apel of Vermont Law School.  We thank her for her stimulating observations. 

Read it and weep. Debora Spar’s Wonder Women: Sex, Power and the Quest for Perfection is another treatise on the “women having it all” debate. The problem is of course most acute for mothers, who are exhausting themselves while juggling the bulk of child care (in addition to citing careful empirical research, Spar dares the reader to take an informal poll among one’s friends to see how many fathers have made dental appointments for their children) with demands of the workplace. Moreover, mothers are vastly underpaid compared to childless women, who, as we all know, are significantly underpaid compared to men. Here is the bad news: the problems are not going away any time soon. Like fairy tale heroines, women continue to wait for their princes to come, both at home and at the office. The home version will arrange his own life to become a full partner in childrearing and all things domestic; the office version will institute “family-friendly” policies that will enable mothers, and fathers, to tend to sick children and attend school plays. Both of these models have stalled in production.

What are women to do? Spar suggests, albeit not too seriously, giving up on men and/or on children, although she quickly acknowledges that most women will not do that. Another possibility is giving up entirely, and returning to traditional men-as-breadwinners, women-as-domestic -engineers, roles. Also not palatable, or in most cases, possible. Finally, she posits “muddling through,” which includes at least two changes. The first is giving up on perfection, and she is talking about behavior, not just attitude adjustment: She writes, “So we need to stop trying to be so damn perfect. Especially in those areas like cupcake making and nursery decoupage where, to be honest, the stakes are pretty low. . .we are keeping our houses too clean, our kids too hypoallergenic, our families too well costumed and organized.” Her second proposal is a return to good old fashioned feminist political organizing, for things that could help families, like government-sponsored child care. (Spar at 168-72)

I would add a tip from Sheryl “Lean In” Sandberg, who says that the choice of whether to have a life partner, and who that partner is, is the most important career decision a woman can make. (Sandberg, Lean In, at 110) Even if the prince model has not been perfected and supplies are limited, women have got to get smarter about if and whom they choose to marry, and once having chosen, they need to get tougher with their spouses. As someone who has supervised many people in an office setting, I am always struck by the number of times women have negotiated vigorously with me about their need for flexibility on one or more occasions, yet they will freely admit that they would never make anything close to similar demands on their husbands.

Finally, I would ask for more than a brief moment of consideration of Spar’s first two suggestions. I am a woman who, like Spar and many others, loves men, and don’t want to give them up. Also, I am one of the increasing numbers of women who have decided not to have children. I don’t think it wise to counsel women to give up on what they want from life, including a husband and kids. I do think it wise to ask women to reflect, and to choose with full knowledge of the consequences of those choices. In the blindness of love, maybe women don’t want to read empirical research that shows that female job applicants with children are 44% less likely to be hired than childless women, and that fathers are 19% more likely to be hired than men without children (Spar at 7), but they should. Not a reader? Look up. Do you see any mothers with jobs outside of the home who aren’t experiencing vertigo in the attempt to achieve work-life balance?

Simply knowing something will not effect change, and change is desperately needed. But maybe the pain that women feel is not so much that they can’t have it all, but that they believed they could, and in the cold light of day, have to juggle everything AND live with their disappointment. (Spar makes this point as well in a somewhat different context.) Muddling through may be a good strategy; it might be a happier strategy if women made their choices with full and complete information. Shouldn’t we be teaching all of this, including the cold hard stats, in junior high?

Another clash between gender and religion

In the U.S., the Hobby Lobby case is big news.  Elsewhere in the world, there is another clash between religion and gender.  In Israel,

An Israeli divorcee who has fought for a year to prevent her son from being circumcised said she will appeal to the Supreme Court to cancel a rabbinical court order that she allow a brit milah to be performed on the baby.

More here. 

An Israeli divorcee who has fought for a year to prevent her son from being circumcised said she will appeal to the Supreme Court to cancel a rabbinical court order that she allow a brit milah to be performed on the baby.

Read more at: http://www.jewishpress.com/news/israeli-mom-to-ask-high-court-to-block-rabbis-circumcision-order/2013/11/26/

An Israeli divorcee who has fought for a year to prevent her son from being circumcised said she will appeal to the Supreme Court to cancel a rabbinical court order that she allow a brit milah to be performed on the baby.

Read more at: http://www.jewishpress.com/news/israeli-mom-to-ask-high-court-to-block-rabbis-circumcision-order/2013/11/26/

An Israeli divorcee who has fought for a year to prevent her son from being circumcised said she will appeal to the Supreme Court to cancel a rabbinical court order that she allow a brit milah to be performed on the baby.

Read more at: http://www.jewishpress.com/news/israeli-mom-to-ask-high-court-to-block-rabbis-circumcision-order/2013/11/26/

Russia Bans Abortion Ads

An excerpt from the story:

Russia’s Federal Law on Advertising now includes the ban on advertising abortions and several restrictions concerning the advertising of traditional medical practices. In addition, the changes outlaw advertising campaigns which include free drug samples if these samples contain narcotic or psychotropic substances.

And more:

Abortions are legal in Russia and have been since Soviet times, but currently centrist-conservative lawmakers want to limit or completely ban such practices saying it is partly responsible for the country's dwindling population.

Custody In Utero and the Reproductive Rights of Women

More of the backstory reported by the NY Times in Custody Battle Raises Questions About the Rights of Women.  The father, Olympian skier Bode Miller, filed for custody of the child before the child was born.  Which led to claims that the pregnant mother improperly relocated out of state against that custody jurisdiction when she moved to go to college.   

The NY appellate court reversed. 

We therefore, disagree with the Referee's finding that the mother's "appropriation of the child while in utero was irresponsible" and "reprehensible" and warranted a declination of jurisdiction in favor of the California court. Rather, the mother's conduct at issue here amounts to nothing more than her decision to relocate to New York during her pregnancy. Further, we reject the Referee's apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship. Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.

Interestingly, there is a text early in the pregnancy from the father disavowing any interest in the child -- very similar to a text the father sent in the Baby Veronica case that the US Supreme Court honed in on as evidence of the unsuitability of an unmarried, biological father. 

 

Men at Work, Fathers at Home

Keith Cunningham-Parmeter has posted Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination.  Here's the abstract.       

Despite their many workplace advances, women remain constrained by an enduring social expectation that they will manage their families’ domestic lives. Women will not achieve full workplace equality until men do more at home, and men will not enter the domestic sphere if they face employment retaliation for doing so. Men at Work, Fathers at Home addresses this problem by critically evaluating the legal challenges that fathers and other male caregivers face in proving claims of workplace discrimination. Drawing from Supreme Court precedent and gender theory, the Article explains how masculine norms deter men from asserting their caregiving needs at work, while undermining their ability to prosecute discrimination claims in court. By examining how these men can combat biases against male caregiving, the Article seeks to advance the goal of gender equality for both sexes.

5th Annual Applied Feminism Conference Papers Published

Applied Feminism and Democracy: The Fifth Annual Feminist Legal Theory
Conference. 42 U. Balt. L. Rev. 207-363 (2013).

Mikulski, Sen. Barbara. Symposium dialogue: keynote speaker. [Moderated by Margaret E. Johnson.] 42 U. Balt. L. Rev. 211-228 (2013).


Newman, Alizabeth. Reflections on VAWA?s strange bedfellows: the partnership between the battered immigrant women?s movement and law enforcement. 42 U. Balt. L. Rev. 229-276 (2013).

George, Janel A. Beyond a beautiful fraud: using a human rights framework to realize the promise of democracy. 42 U. Balt. L. Rev. 277-328 (2013).

Van Cleave, Rachel A. Luogo e spazio, place and space: gender quotas and democracy in Italy. 42 U. Balt. L. Rev. 329-363 (2013)

What Germany is doing to create more jobs for women in the boardroom

From the Atlantic:

Gender quotas might not have a sterling reputation, but Germany thinks they're the answer to its male-dominated corporations. According to a new agreement between the parties negotiating to form Germany's next governing coalition, supervisory boards for companies registered on the German stock exchange will need to be at least 30 percent female starting in 2016.

 

Williams Center at UCLA...

....has great data about LGBT issues, including marriage, parenting and workplace issues.  It's organized by state in a visually arresting format. 

The Face of Women in the Military

See Best selfie ever! and WaPo 1st 3 Women Marines Graduate from Infantry Training Course.

 

 

 

"Equal Pay: Start Talking" by Susan Apel

The following is a post by our guest blogger, Prof. Susan Apel at Vermont Law School: 

During the past few decades, feminism has raised so many questions and brought about countless changes in the lives of women and men.  It may be difficult to remember that the women’s movement  started with a demand for “equal pay for equal work,” not only because money equals power, and empowerment of women was  much needed.  It also seemed to be the least controversial of all of women’s claims.  Even men with traditional values (and there were many in my own family) who couldn’t cotton to “radical’ feminism knew the value of a dollar, whether it was in their own paychecks, or those of their working wives and daughters.   Why, then, are we still arguing about this?

Earlier this week, the Bureau of Labor Statistics issued another of its reports on disparities between men’s and women’s wages.  None of the news is good, unless you consider it cause for celebration that women now earn 81%, rather than 62% (1979) of men’s wages, and that younger women are doing better but still have not reached parity.

I am going to eschew a discussion of all of the reasons for this continued disparity, because they are complicated:  outright sexism, benign sexism, choices of men and women, sex-role socialization, economics.  Instead, I will introduce what may be a very small yet significant contribution brought to us by the State of Vermont. 

Vermont passed a new Equal Pay Act in 2013.  It makes it harder for employers to discriminate against women by tightening the definition of a “bona fide factor other than sex”.   What caught my eye, however, is one of the findings in the statute’s preamble:  “Research has shown that pay inequity may arise even if an employer does not specifically intend to discriminate against workers based on sex.  For example, some employees may not have a fair opportunity to negotiate pay because they lack the opportunity to know what similarly situated employees earn.”  (emphasis added) . I appreciate the State’s recognition that we are often working in ignorance.   I pondered that in my own life experience and that of many of my women colleagues, we continue to accept our paychecks, all the while in the dark about what our colleagues are earning.  In such ignorance, how do we even begin to know whether we are the victims of discrimination?

 The Act does not go so far as to force employers to make employees’ salaries public.  It does, however, prohibit retaliation against employees who reveal their own salaries to their cohorts, or who inquire about or discuss the wages of other employees. It may be time to start talking and inquiring.  Employers may still guard this information, and some higher paid employees may not want to divulge.  Discussion of salaries may be viewed as impolite; forcing wage transparency upon employers would be better. But the sound of even some employees acting to share information would be heartening indeed, and a great first step in the do-it-yourself combating of wage discrimination.  Oh wait, better move to Vermont  (or a mere handful of other states) first.  The federal Paycheck Fairness Act, which would have protected everyone from this kind of retaliation, was defeated in Congress earlier this year. 

 

 

 

40 and nothing to prove....

In the Good Men Project, Kendall Ruth writes:

Men are taught directly or subtly that we have to prove ourselves. We breathe it in like a fish breathes water. There is a time when proving your mettle has context. Why else would the military be filled with men in their 20′s? Where else would adrenaline sports find their junkies? But the lesson that comes with time is that indeed…there is nothing to prove. There is living each day with the choices we make.

There's more, all of which, like the passage above, is entirely banal and brimming with numb platitudes. 

Whether for good or ill, men (or lots of men, at any rate) crave and are also vexed by the challenge; society and the law often exploit this circumstance.  Manliness is perhaps less a coming to terms with one's self than living with an enduring paradox of desire and torment about the burdens of proving one's self. 

Tim O'Brien's The Things They Carried, like many thoughtful memoirs by combat soldiers, dwells on one part of this state of being--the burden of manliness.  Even though he survived a tour of Vietnam, he still feels unredeemed as a man for having been too afraid in elementary school to have told off a menacing bully who was viciously tormenting a girl who had cancer and whose hair was falling out. 

O'Brien's point was that men don't accumulate a reserve of manliness over time such that any future withdrawals are covered.  They just live with the regret, which never disappears. 

Justice Sotomayor on the Lack of Diversity and Glass Ceilings in the Legal Profession

 At a speech at American University Law school, Sotomayor Says Lack of Diversity is "Huge Danger" for Judiciary

We're missing a huge amount of diversity on the bench," she said, and not just racial or gender diversity. It bothers her that judges rarely come to the bench from the defense bar, from civil rights experience, or from solo or small practices. She stressed that she did not think a more diverse bench would necessarily decide cases differently. "None of us speak in one voice." Instead, enabling the public to see their own backgrounds reflected in the judiciary would "give the public more confidence" that they are getting a fair hearing.

Anti-Abortion Action at the Municipal Level

Albuquerque voters rejected a proposed 20-week ban on abortion 55% to45%.   The initiative effort may be new, but the municipal venue is not.  In the early years after Roe v. Wade, the newly organized National Right to Life focused its strategy on passing laws at the city level. The most famous municipal law was the 18 provision "informed consent" law passed in 1978 here in Akron, Ohio.  It was ultimately overturned by the US Supreme Court in City of Akron v. Akron Center for Reproductive Health (1983) as an unconstitutional restriction on women's right to automony.  I detail the backstory of the law using original interviews with many of the key players in the case in a forthcoming article Back to the Future of Abortion Regulation in the First Term.

WaPo Interview with Gloria Steinem

The interview: Gloria Steinem: No Such Thing as a Feminist Icon

If pressed for an adjective, I would call myself a radical feminist because it’s been my experience that the discrimination of females is the root of other violence. It normalizes other violence and it’s necessary to perpetuate racism. But I don’t feel like that divides. On campuses, people would ask me if I was a difference feminist or an equalist feminist and I used to say “yes” because it depends on the situation of what needs to be done

Cowards

Prof. Nancy Leong at DU Law School has been receiving some horrid comments that try to degrade her gender and race and her general right to speak.  She blogs about how the comments, written under the safe cover of anonymity have protected the identities of their authors.  While the obnoxious posts seem to revel in a kind of junior-high-school boyishness, their speakers, by anxiously hiding their identities, also reveal themselves as cowards, as the most unmanly of beings.  Shameful. 

Homosexuality and Methodism

The story, first:

A United Methodist pastor was convicted Monday of breaking church law by officiating his son's same-sex wedding and could be defrocked after a high-profile trial that has rekindled debate over the denomination's policy on gay marriage.

Then this about Rev. Schaefer, the one who officiated the wedding:

Schaefer's son came out to his parents at age 17, revealing he had contemplated suicide over his struggle with sexual identity and the church's stance on homosexuality.

"He had heard messages that were hateful from the church, from the culture around him, that told him you're not normal, you're not valid, you're a freak," Schaefer testified.

While very much respecting the right of the Methodist Church to define its own beliefs, I am curious to know how the anthems of Christian love will figure in the Church's trial of the accused pastor. 

 

New Jersey Joins California in Bannnig Anti-Gay Therapy

The L.A. Times reports:

A family who wants to send their 15-year-old son to counseling to curb his attraction to other males is suing New Jersey over the state's ban on so-called gay conversion therapies for minors.

More follows:

The court complaint details the teenager's history of expressing stereotypically feminine and homosexual behavior, which the family says led him to have suicidal thoughts starting around age 10. His "unwanted same-sex attraction" was confusing and conflicted with his Roman Catholic religious beliefs, the complaint said.

 

He tried to kill himself multiple times, the court documents say, and eventually asked to go to counseling for help.

After he began therapy to change his sexual orientation in 2011 in New York, the strength of his same-sex attractions dropped. On a scale of 1 to 10, the level of attraction dropped from an 8 to 3 and "every day would get a little better," according to court documents.

The part about the boy's conflict with Catholic beliefs was somewhat bewildering to me in light of Pope Francis's beautifully embracing comments about gays and in light of his welcoming correspondence with gay Catholic bishops. 

Judge's Practice of Requiring Gender and Race Diversity for Class Counsel Questioned

The US Supreme Court denied cert in Martin v. Blessing challenging a settlement in the antitrust class action regarding the merger of satellite radio providers Sirrius and XM.  Justice Alito took the opportunity to chastise the trial judge in the case, Judge Harold Baer of the S.D. of New York for his "highly unusual practice" of requiring that lawyers for the class fairly represent the class in terms of race and gender. 

Alito wrote:

I am hardpressed to see any ground on which Judge Baer’s practice can be defended. This Court has often stressed that "[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal." . . . . Court approved discrimination based on gender is similarly objectionable, and therefore it is doubtful that the practice in question could survive a constitutional challenge.

Alito thought the judge's standard order meant that "if the class consisted of persons who had undergone treatment for breast cancer," the court would "favor firms with a high percentage of female lawyers.  Fair or proportional representativethough would require more like 95% women lawyers if the class of breast cancer patients was 95% women.   

And how would that work in this particular case?  Satellite radio listeners have mostly been older, white, rich men.

Judge Baer seems less concerned about matching characteristics of the lawyers and class, than with ensuring generalized racial and gender diversity of the counsel.  See Michael Hurwitz, Judge Harold Baer's Quixotic Crusadefor Class Counsel Diversity, 17 Cardozo J. L. & Gender 321 (2011)

Highlights of New Report on Women's Wages

Some of the findings from the new Bureau of Labor Statistics Report.   

• Full-time women earn 81 percent of men's earnings. In 1979, it was 62 percent.
• Age Matters: Women under 24 make 90 percent. Women over 55 only  76 percent.
• Best occupations for women: pharmacists ($1,871/week) and lawyers ($1,636).  For men, physicians and surgeons ($2,099), lawyers ($2,055), and pharmacists ($1,879) earned the most.
• Full-time workers who are parents of minor children: women with kids earn $680/week, men with kids earn $946.
• Women are more likely than men to work part time (<35 hrs/week).  Women who worked part time made up 26 percent of all female wage and salary workers in 2012

Transforming Domestic Violence Representation

From Jane Stoever's Abstract:

The dominant theories used in the law to explain domestic violence, namely, the Power and Control Wheel and the Cycle of Violence, provide only limited insight into intimate partner abuse. Both theories focus exclusively on the abusive partner’s wrongful actions, consistent with recent decades’ concentration on criminalization, but fail to educate about the survivor’s needs and efforts to end violence. The Stages of Change Model, conversely, reveals that domestic abuse survivors seek an end to relationship violence through a five-stage cyclical sequence and identities the survivor’s needs and actions at each stage. This critical information should inform the representation of abuse survivors; however, this model remains unknown in the legal profession, and this article is the first scholarship to apply this model to lawyering. This article evaluates the contributions and shortcomings of the dominant models. It examines how the Stages of Change Model fills a significant void and how insights from the Stages of Change Model can transform the representation of abuse survivors.