Gender and the Law Blog

Elizabeth Cady Stanton was not Against Reproductive Rights

Today’s anniversary of Roe v. Wade renewed the debate over abortion and feminism. One group, Feminists for Life says that feminists should oppose abortion because it devalues motherhood.  FFL rests much of its strategy both in the press and in the courts on a claimed historical record of "feminist foremothers" against abortion.  It has, quite literally, adopted Elizabeth Cady Stanton and Susan B. Anthony as their poster children, claiming these famous women were “strongly opposed to abortion.”  (See also the Susan B. Anthony List, a PAC to elect pro-life women to Congress).

 

 I wrote an article challenging this conclusion as to Stanton, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).  Scholars of Anthony have similarly refuted the claim on her legacy.  Ann Gordon & Lynn Sherr, Sarah Palin is No Susan B. Anthony.  For Stanton, the historical evidence is flimsy at best.  FFL reluctantly admitted this and at least temporarily stopped selling the Stanton anti-abortion coffee mugs.  More importantly, Stanton advocated a woman's “right to her own self.”  What she called “the right of self-sovereignty” was woman’s singular right to control her own body, sexual relations and reproductive decisions.   

 

Rethinking Domestic Violence

Aya Gruber (Colorado) in Rethinking Domestic Violence, Rethinking Violence comments on Leigh Goodmark's (Baltimore)  book, A Troubled Marriage: Domestic Violence and the Legal System.

Teen Takes Stand Against Sexist Dress Code

A high school junior gets the sexist implications of her school's dress code, even if the principal doesn't.  She writes:

 

The new principal at my school used two phrases while addressing new dress code rules to a class: "Modest is hottest" and "boys will be boys."....

 

 My body is not a sinful temptation that needs to be hidden. 
My body is not your personal, sexual object. 
My body does not overshadow my character. 
My body is not any more sexual than a man's body. 
My body is not here to look "hot" for you....

 

Being a boy refers to your gender. That's all. It does not make you constantly sexually aroused, animalistic or sexually uncontrollable, but for some reason society has come to the conclusion that you are this stereotype. This is extremely sad. This gender stereotype is unfair to all men. By telling them who they are as a man you are absolutely taking away their moral agency

 

Accommodating those opposed to gender equality?

From York University in Canada:  

After refusing to honour a male student’s request to be separated from his female classmates for religious reasons, a York University professor has found himself at odds with administrators who assert he broke their “obligation to accommodate.”

The student offered this explanation: 

“One of the main reasons that I have chosen internet courses to complete my BA is due to my firm religious beliefs, and part of that is the intermingling between men and women,” he wrote, adding “it will not be possible for me to meet in public with a group of women (the majority of my group) to complete some of these tasks.”

Prof. J. Paul Grayson, who teaches said student, responded as follows: 

The unusual request immediately troubled the professor. In a 12-page paper documenting the episode, he expressed his worry about becoming an “accessory to sexism” and, in a letter to the campus’ Centre for Human Rights, declared “I doubt that we would sanction a student refusing, for religious reasons, to interact with Blacks in classes even though Biblical justification could be found.”

More here.  

McGinley and Cooper on Ann Scales

Ann McGinley and Frank Rudy Cooper have  uploaded an article assessing the work of the late Ann Scales at Denver University College of Law.  

The abstract of their article reads: 

Ann Scales’s scholarship on masculinities in relation to sexual assault and militarism prompted us to consider exactly how power is distributed by assumptions about what is masculine. For instance, men privileged by association with hegemonic masculinities — those most dominant and preferred — are sometimes excused for acts of violence against people who are denigrated as unmasculine or excessively masculine. In one set of examples, communities excuse football players for sexual assaults on grounds that “boys will be boys.” The implication is that boys should be allowed to act out before taking on adult responsibilities, and that they need to do so in order to become men. Moreover, the “boys will be boys” narrative suggests the victims were asking for it. In another set of examples, certain types of men are granted exemptions from the normal rules of self-defense because they are seen as manly protectors of their communities. Men such as George Bush and George Zimmerman are allowed to preemptively strike men such as Saddam Hussein and Trayvon Martin because the latter’s denigrated masculinities suggested they were asking for it. Scholars should continue to explore the ways such hierarchies of masculinities distribute privileges and vulnerabilities.

Lilly Ledbetter Says President Should do More for Equal Pay

From the Washington Post:

Lilly Ledbetter was the plaintiff in the discrimination case Ledbetter v. Goodyear Tire & Rubber Co. and the namesake for the first bill President Obama signed into law. She is the honorary public policy chair for AAUW of Alabama.

Nearly five years ago, newly elected President Obama committed to equal pay for women by signing the bill that bears my name, the Lilly Ledbetter Fair Pay Act . I joyfully joined the president for the occasion, my mind racing ahead to what this action would mean for American women everywhere....

Since that bill was signed, the president has recommitted to equal pay on all the biggest stages, including in his inaugural and State of the Union addresses. It’s great to be reminded that he shares my values. Yet his pledge when he signed the bill — that it was just the first step toward closing the pay gap — has gone largely unrealized.

Opting Back In

From Bernie Jones (Suffolk), The-Opt Out Revolution, Ten Years Later.

Ten years ago, the New York Times Magazinepublished Lisa Belkin’s controversial (and now infamous) article, “The Opt-Out Revolution.” In it, Belkin argued that young women were increasingly disinterested in feminist gains in the workplace. These women were interested instead in being married and becoming stay-at-home mothers, taking care of the house and children while their husbands worked. Much hand wringing followed, as it seemed the women’s movement had been stalled in the wake of Generation X’s rejection of their Baby Boomer mothers’ efforts.

 

Ten years later, the opt-out generation wants back in, as their realities have changed since they left the workforce.

Jones' book is  Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance (NYU Press, 2012).

The FAMILY Act Would Provide Paid Leave

From the Ohio Employer's Law Blog:  Tony Soprano once said, “Family: they’re the only ones you can depend on.” If Congressional Democrats get their wish, American workers will be able to depend on the FAMILY Act to provide up to 12 weeks of paid leave each year for the birth or adoption of a new child, the serious illness of an immediate family member, or a worker’s own medical condition.  See H.R. 3712.

MLK and Malcolm X

On this MLK Day, some readers might enjoy reading my article, where I compare him, and Malcolm X, on the theme of manliness.  

Another sign that Nigeria is far from democracy

Last week, Nigeria enacted a law whose most conspicuous parts read:  

"Persons who enter into a same-sex marriage contract or civil union commit an offence and are each liable on conviction to a term of 14 years in prison."

"Any person who registers, operates or participates in gay clubs, societies and organisations or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison."

The law also makes it a criminal offense to advocate for gay rights as well.  

Inmate's right to transgender surgery....

The story from Jan. 17 begins:  

A federal appeals court in Boston today upheld a judge’s ruling that a transsexual inmate convicted of murder is entitled to a taxpayer-funded sex change operation as treatment for her severe gender identity disorder.

I am otherwise quite supportive of a person's right to gender self-definition, but the backstory in this instance is grim and cuts against my sympathy:  

The ruling came in the case of convicted wife killer Michelle L. Kosilek. Formerly named Robert Kosilek, she struggled for years with feelings that she was a woman inside a man’s body. Kosilek’s wife, Cheryl, thought she could cure Kosilek, the court said. But Kosilek strangled her in Mansfield in 1990 and dumped her body in a car at a mall in North Attleborough.

 

Sexist Ads on the Gender Blog?

So a funny thing happened on the way to the blog…

Browsing through prior posts I was surprised by the ads that popped up.  Right next to our story on abortion protest buffer zones, appeared a political ad for a Texas senator trumpeting his Right to Life stance.  I checked the Reproductive Rights Law Prof Blog, and yep, the same right to life ad there.  But not when I went to the Business Law Prof Blog. 

Checking back a few hours later, the ad morphed into a video ad for a video game (I think) for something called Legends of Angels featuring a Victoria-Secret-esque screenshot of a woman’s chest clad in tight fitting bikini top. 

 Grrr. Why is it so hard to take women’s concerns seriously?  Why is it that mentions of “women” automatically trigger sexist depictions and marketing? 

No worries, my colleagues comforted me, it’s kind of funny.  Really?  Tina Fey and Jimmy Fallon are funny.  This, not so much.

Also, they counseled, it’s just the algorithm.  Oh, ok it’s just the innocuous mechanical formulation of the robotic computer.  But, hello, Dorothy, there is someone moving the levers behind the curtain.  People program these formulas.

As Soraya Chemaly (Salon) explained in Will Robots Make Us Sexist? this is one example of “how discriminatory norms manifest themselves through technology.” 

The tech industry is not known for its profound understanding of gender or for producing products optimized to meet the needs of women (whom the patriarchy has cast as “second intelligence” humans). Rather, the industry is an example of a de facto sex-segregated environment, in which, according to sociologist Philip Cohen, “men’s simple assumption that women don’t really exist as people” is reinforced and replicated. Artificial intelligence is being developed by people who benefit from socially dominant norms and little vested personal incentive to challenge them.

I am not amused.

What We're Reading

My weekend read is Sue Monk Kidd's new book, The Invention of Wings.  (Kidd the author of The Secret Life of Bees and the classic feminist theological memoir, The Dance of the Dissident Daughter).  

NPR's Book Review Finding Flight in "The Invention of Wings" says:

In simple terms, the book is the fictionalized history of the Grimké sisters, Sarah and Angelina (Nina), who were at the forefront of the abolitionist and women's rights movements, wound around the intriguing narrative of a young slave, Hetty, who was given to Sarah as an 11th birthday present. Sarah despises slavery, even at that early age, and out of principle attempts to reject the gift....

 

The novel is a textured masterpiece, quietly yet powerfully poking our consciences and our consciousness. What does it mean to be a sister, a friend, a woman, an outcast, a slave? How do we use our talents to better ourselves and our world? How do we give voice to our power, or learn to empower our voice?

The reviewer notes that she was "appalled that I had never heard of the Grimkés before, and thank the author sincerely for allowing me to make their acquaintance."  

The Grimke Sisters  were among the first female public abolitionist speakers.  Their testimony was particularly powerful as they recounted first-hand witnessing of slavery as daughters of a slaveholding family in South Carolina.  Sarah Grimke was arguably the first advocate for women's rights in her Letters on the Equality of the Sexes (1837).

 

Addressing Women's Economic Vulnerability in Retirement

Joan Entmacher and Amy Matsui (both of the National Women's Law Center) have published Addressing the Challenges Women Face in Retirement: Improving Social Security, Pensions, and SSI, 46 John Marshall L. Rev. 749 (2013).

It is a truth universally acknowledged (or it should be) that women are more economically vulnerable than men in retirement. On average, women’s lifetime earnings are lower than men’s, and divorce, single parenthood, and widowhood have a particularly detrimental impact on women’s economic security. Thus, women reach retirement with lower Social Security benefits, smaller pensions and retirement savings, and fewer assets than men. However, women actually need more assets to achieve retirement security because they generally live longer than men, face higher health care costs, and spend more years alone. In 2011, almost 11 percent of women 65 and older lived in poverty compared to about six percent of men 65 and older, and about one in five older single women and older Black and Hispanic women were poor.2 For these reasons, addressing America’s retirement crisis requires policy solutions that specifically address the challenges women face in retirement, especially low-income women, women of color, and single older women.

 

What's Personal Jurisdiction Got to do with the Birth Control Mandate?

My colleague, Will Huhn (Akron), explains here the implications of the Supreme Court's decision this week in Daimler AG v. Bauman. The Court in Daimler ruled that the federal courts in California lacked personal jurisdiction over the German corporation Daimler to adjudicate claims for human rights violations arising in Argentina.

What's the connection to the birth control mandate cases? In those cases the owners of two private, for-profit business corporations contend that their individual rights to freedom of religion "pass through" to the corporation -- that the corporations are in effect the "agents" of the principal shareholders, and that this is why the corporations have the right to deny their employees health insurance coverage for birth control.

In Daimler the Ninth Circuit Court of Appeals had held that MBUSA was the "agent" of Daimler AG, and that the substantial business presence of MBUSA in California could be imputed to Daimler AG. The Supreme Court was not persuaded by this agency analysis. (pp. 15-17) Instead the Court respected the separate corporate personhood of the parent company:

 

Even if we were to assume that MBUSA is at home in California, and further to assume MBUSA's contacts are imputable to Daimler, there would still be no basis to subject Daimler to general jurisdiction in California, for Daimler's slim contacts with the State hardly render it at home there. (p. 18)

It would be anomalous for the Court to adhere to corporate identity for purposes of personal jurisdiction and liability for tort, and yet to ignore corporate identity to give effect to the personal religious choices of stockholders. If corporations are legal fictions -- if they are in essence simply the shareholders -- then shareholders should be liable for corporate torts, debts, and taxes. Corporations are either separate and independent legal entities or they are not. For-profit business entities may or may not have the right to freedom of religion; but they are not the same "persons" as their stockholders, directors, officers, or employees.

Good Arguments by Judge Kern

 

On Jan. 14, 2014, Judge Terence Kern, a federal judge in the Northern District of Oklahoma, rejected an Oklahoma ban on gay marriage.  He made two points that seemed especially apt.  

First, he addressed the incorrigibly perplexing, but inconsolably persistent, objection by foes of gay marriage that said marriage threatens traditional heterosexual unions.  Judge Kern, an Okie who graduated from Oklahoma State and the University of Oklahoma School of Law, wrote:  "Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country."   

Next, he pointed out something important as a matter of legal interpretation:  moral disapproval in and of itself is a dicey basis for upholding a law.  Here, Judge Kern enlisted the concurrence by Justice O'Connor in Lawrence: “Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis.”

 

Men's Studies Press

Who knew?  I didn't. There's a Men's Studies Press that publishes books about, well,...you know.  

Women are Better at Managing Money

Um... not sure if this is a good thing, or a bad thing?  Want Better Hedge Fund Returns? Try One Led by a Woman

“There is meaningful alpha to be gained from investing in women-owned and -managed funds,” Meredith Jones, a director at Rothstein Kass who wrote the report, said in an interview. “There appear to be both behavioral and biological factors that impact women’s ability to manage money and make them consistent.”

Women are different in behavior and biology in relation to money?  Because they are less risk adverse.  Is this even difference feminism? 

Abortion Buffer Zone in Doubt

Yesterday, the Supreme Court heard argument in the case over an abortion buffer zone.  We previously blogged about this case here.

The Court has upheld such prophylactic legislation for buffer zones around clinics in Hill v. Colorado.  And it has upheld a similar 35 foot buffer zone in Madsen v. Women's Health Center as a prophylactic remedy to protect against further assaults and violations of constitutional rights.  In these past cases, the Court seemed to give more deference to legislation rather than judicial remedies.  But now, in possibly striking down a legislated buffer zone, it seems to be leaning the other direction: contemplating permitting a broader restriction on the protestors protected speech only after a harm has been established in a judicial case.  I wrote a little about this contrast between prophylactic legislation and remedies in Congress' Section 5 Power and Remedial Rights, 34 UC Davis L. Rev. 673 (2001).  

 

Matriarchy as a Social Construction and Economic Function

Tonya Brito (Wisconsin) has posted What we Talk About When we Talk About Matriarchy, Mich. St. L. Rev. (forthcoming).

Is post-recession America experiencing a shifting landscape between men and women? This question has been raised in recent research studies and books that compare labor market trends for men and women and, more specifically, gender differences apparent in the impact of the economic downturn. While in recent decades women have made significant advancements in a number of domains, including education and the labor market, the recession has ushered in a public debate about whether those trends have accelerated to the point that women are not just doing better but are surpassing and dominating men. The word matriarchy has been and remains a socially constructed term. Its use in public discourse reflects anxieties surrounding female independence and their transgression of conventional and gendered social roles. Looking back at previous "matriarchies," however, we see that the economic opportunity (or lack thereof) of men figures into patterns of family union and stability. Even today, as social mores have loosened and public acceptance of nontraditional family forms has increased, the tendency to see the gains of women as a net loss to men persists (and vice versa). Instead, more attention ought to be paid to how government rules and regulations unduly constrain the capacity of families to adapt flexibly to economic hardship, particularly families at the lower end of the income ladder. Lacking access to a fully adequate social welfare system, such families need at their disposal a full range of options when jobs are scarce, including the matriarchy option