Gender and the Law Blog

5 reasons why LGBT rights are popular in America

The five reasons were compiled by Rolling Stone, based on interviews with LGBT advocates.  The reasons are not especially surprising, but one--Reason #3--is perhaps worth mentioning because it highlights how business and commerce can be an important partner (or means) in the cause of civil rights: 

3. States are realizing that being gay-friendly is good for business.

 

Transgender Rights in Maryland

In said Maryland: 

The Maryland House of Delegates on Thursday approved a bill banning discrimination on the basis of gender identity, positioning the Old Line State on track to join 17 others and the District of Columbia in protecting the rights of transgender individuals.

More:

Senate Bill 212, otherwise known as the Fairness for All Marylanders Act of 2014, made it through the Democratic-controlled House by a vote of 82-57, after more than two hours of floor debate. It passed the state Senate earlier this month, 32-15, and now heads to the desk of Democratic Gov. Martin O’Malley for signature.

Porn's Influence on Children Is "Shockingly Equivocal"

From the NYT: 

It turns out that the research suggesting that teenagers and pornography are a hazardous mix is far from definitive. In fact, many of the most comprehensive reports on this subject come to conclusions that amount to “we can’t say for sure” shrugs.

Based on a recent report commissioned by the British Prime Minister, the results: 

...the report found a link between exposure to pornography and engagement in risky behavior, such as unprotected sex or sex at a young age. But little could be said about that link. Most important, “causal relationships” between pornography and risky behavior “could not be established,” the report concluded.

Duquesne Presents "The VAWA and its Impact on the US Supreme Court and International Law"

As part of a statewide program to spotlight the Violence Against Women Act, Duquesne University School of Law is pleased to present a half-day program on the 20-year history of this Act, providing both a domestic and international focus.

The U.S. Supreme Court has heard several cases that directly or indirectly involve victims of gendered violence. Most of these cases have been the result of either legal issues raised under VAWA or increased state involvement as encouraged by VAWA. These cases have had mixed results. On occasion, the Court has recognized state complicity in the perpetration of gendered violence and how the law might impact those in abusive relationships. But more frequently, it has ignored or dismissed victims and has refused to recognize any affirmative state obligations to end gendered violence. These later cases contrast sharply with cases decided in international tribunals that have reframed gendered violence as a human rights issue.

In this continuing legal education course, keynote speaker Professor Cheryl Hanna (Vermont) will review some of the key Supreme Court cases in this area, and will then discuss cases from both the Inter-American Court of Human Rights and the European Court of Human Rights to contrast current American and international approaches of ending violence against women and girls. She hopes to spark discussion and debate as to how advocacy before the U.S. Supreme Court and in international law might evolve to better vindicate the rights of women in spirit in which VAWA was intended.

Obama Urges Raise in Minimum Wage for Tipped Workers to help Low-Income Women

From Reuters, White House Urges Higher Pay for Tipped Workers

The White House said on Wednesday raising the minimum wage for workers who receive tips would disproportionately benefit low-income women and help close the gender pay gap in which men earn higher pay than women.

The federal minimum wage for workers who receive tips is $2.13 an hour - well below the minimum wage of $7.25 an hour. Even though employers are required to make up any shortfall between the tipped minimum and the standard minimum if gratuities fall short, one in 10 workers earn less than the minimum wage, the White House said.

"This provision is difficult to enforce," the White House Council of Economic Advisers said in a report. The president has asked Congress for an 18 percent, $41 million increase in funding for Department of Labor Wage and Hour division investigators to hold employers to the law.

Female Correctional Workers and the Challenge to Employment Law

Brenda Smith (American) and Melissa Loomis (American), have posted After Dothard: Female Correctional Workers and the Challenge to Employment Law, 8 Fla. In'tl U. L. Rev. 469 (2013).

This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than men to hold these positions and be married. 

Women's entry into correctional spaces has had several unintended consequences. First, it has complicated the experiences of other marginalized groups in those institutions. In particular, women's progress in correctional institutions has increased female inmates' exposure to supervision by male staff, which places them at greater risk for sexual victimization. Second, it has diminished privacy of both male and female inmates in custodial settings. Third, it has resulted in female correctional employees' disproportionate involvement in prohibited intimate contact with male inmates and youth in custody. These sexual interactions have resulted variously in termination, resignation, prosecution, procreation, and litigation; complicating feminist theories of power, consent, and equality. Finally, it has complicated key employment law jurisprudence. 

Massaro on Religious Exemptions

A timely article by Toni Massaro has been uploaded.  Its titled "Nuts and Seeds:  Disclosure of Religious Exemptions" and its abstract reads:  

Closely watched cases pending before the United States Supreme Court address whether for-profit businesses may claim a statutory or constitutional right to an exemption from general laws that burden religious expression. These cases are part of a wider trend of expanded constitutional rights for for-profit actors, and of increased judicial and legislative sympathy for exemption requests by religious actors.

This Article offers a first look at steps government might take if the current trend continues, and if more exemption requests for commercial actors are allowed. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions, without unduly burdening the exempted commercial religious actors. It examines in particular an “exemption-subject-to-notice” option, under which exempted commercial actors would be required to provide notice to adversely affected third parties, or be subject to government-provided notice of their non-compliance. The Article concludes that a notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a “third way” for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.

Feinberg on Non-Marital Relationship Statuses

Jessica Feinberg, Mercer Law, has uploaded "The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era:  A Proposal."  The abstract reads:  

Based on recent achievements by the same-sex marriage movement and current societal attitudes, it seems clear that it is only a matter of time before same-sex marriage is recognized by the majority of jurisdictions within the United States. When this occurs, society will be left with an important decision regarding whether the widespread legalization of same-sex marriage marks the beginning or the end of the discussion in this country regarding adult relationship recognition. Hopefully, it will mark the beginning of the discussion. Individuals face incredibly limited options when it comes to legal recognition of their important relationships. The federal government and the majority of states recognize only one relationship status, marriage, leaving couples with the narrow choice of marriage or non-recognition. It is time for the United States to follow the lead of other countries in creating an effective and comprehensive system of adult relationship recognition that does not depend solely upon marriage. There is ample evidence that marriage is in trouble in the United States. Increasing numbers of individuals are eschewing marriage for non-marital cohabitation, those who marry do so later in life, and the divorce rate continues to hover around fifty percent. As marriage rates decrease, increasing numbers of individuals are left in the unfortunate position of having inadequate legal protections for their relationships. Many people likely would benefit from the introduction of a third option; namely, a state-based non-marital relationship status that offered a true alternative to marriage and was recognized by the federal government. This article offers an innovative proposal for a new system of non-marital relationship recognition in the United States.

Burris on Sexual Assault in the Military

Matthew David Burris, US Dept. of Justice, has uploaded "Thinking Slow about Sexual Assault in the Military."  The abstract reads:  

This article examines the current public discourse on sexual assault in the military through the complementary lenses of behavioral economics and the law. The article evaluates the "crisis" narrative central to this discourse and suggests it is not supportable by the best available data. Moreover, the article suggests that in driving potentially counterproductive public policy initiatives, this narrative is harmful to victims of sexual assault. The article recommends several practical steps the Department of Defense might take in the near-term to expose and rebut this harmful narrative and forestall these potentially counterproductive public policy initiatives. These steps include a reappraisal of the rhetoric senior DoD officials employ when speaking publically about the very real problem of sexual assault in the military, as well as advocating for a "whole of government" approach to gathering data on sexual assault and its victims. The article suggests the evidence-based prevention and response solutions impelled by these data hold out the best hope for reducing the incidence of sexual assault in the military.

The New Yorker: Women Justices Rock the Hobby Lobby Argument

 

From Jeffrey Toobin, Women Justices Rock the Hobby Lobby Argument

There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.

 

The issue in the case is straightforward. The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception. The owners of Hobby Lobby, a large (thirteen-thousand-employee), privately held chain of stores, regard certain kinds of birth control (like the I.U.D. and morning-after pills) as forms of abortion, which is against their religious principles. Does the employees’ right to choose and obtain birth control trump the employer’s right to religious freedom?

 

There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power. 

A Federal Judge's Shocking View of How Women Lawyers Should Dress

From the Wall St. J., Judge Kopf Causes a Stir with a Blog Post about Female Lawyers

The title of it, “On being a dirty old man and how young women lawyers dress,” captures what follows. In the post, Judge Kopf urges female lawyers to wear less revealing clothes, while confessing his conflicted feelings over his sexual attraction to a young female lawyer in her late 20s who comes to court in skimpy outfits.

Writes the judge:

 

True story. Around these parts there is a wonderfully talented and very pretty female lawyer who is in her late twenties. She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.

“Ewwww!” was the response from an Omaha World-Herald columnist in a scathing piece about the post. “Are you kidding me?” said a Nebraska prosecutor interviewed by the columnist. “This is a federal judge.”

SCOTUS Upholds Domestic Violence Enforcement Ban on Guns

Yesterday, the US Supreme Court decided US v. Castleman, in an opinion by Justice Sotomayor.  The Court held that intentionally or knowingly causing bodily injury to a family member “has, as an element, the use . . . of physical force,” 18 U. S. C. § §921(a)(33)(A)(ii), and thus constitutes a “misdemeanor crime of domestic violence,” §922(g)(9).  A person convicted of a misdemeanor crime of domestic violence is forbidden from possessing firearms.  The defendant here was selling firearms on the black market.  For more, see Adam Liptak, NYT, Sweeping Ruling on Domestic Violence; Ms., Supremes Disarm Domestic Abuser

What the Feminist Challenge to Coverture Means for the Modern Fathers' Rights Movement

Michael Higdon (Tennesse) has posted Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, Alabama L. Rev. (forthcoming). Higdon explores

“Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy. 

Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other.

This argument, though, is based on the assumption that feminists fought coverture by demanding equal parenting rights.  Nineteenth-century feminists did challenge coverture and its restrictions on property and contract by demanding formal and substantive equality of rights.  But, for parenting rights, these feminists demanded gender-specific rights of sole female control. Challenging the prerogative of forced marital sex, the marital rape exception, involuntary motherhood, and parental custody and guardianship laws, feminists demanded unilateral, woman-only control.  Voluntary motherhood, the right to choose when to procreate, the unilateral right to refuse sex, and maternal custody presumptions were the solutions--all gender-specific, unilateral, female-only rights.  Why?  Because in parenting, the woman was the sole partner who had to bear the pregnancy and care for the child. 

more leisure time for men?

According to the Organization for Economic Cooperation and Development, men apparently have more leisure time than do women.  

“In virtually every country, men are able to fit in valuable extra minutes of leisure each day while women spend more time doing unpaid housework,” according to the OECD. But the sharper point was that gender inequality is most stark in India, where the average man spends just 19 minutes a day on “routine housework” and the average woman spends almost five hours on such duties.

Of course, stats must be taken with some qualification and skepticism.  Somehow the claim that there is more leisure time for men seems apt for those who can afford not to work.  There is this to consider as well: 

Millions of Indian men do huge amounts of housework — but in single-man or all-male households. Three years ago, I spent a few weeks in Mumbai interviewing dozens of auto rickshaw drivers for a long essay about their lives. An overwhelming majority of them lived in all-male households, often sharing a single room and cooking for one another. It’s not just them. Millions of poor and lower-middle-class Indian men leave behind their villages and families every year to work in cities as daily wage laborers, construction workers, auto rickshaw or taxi drivers, security guards, fruit or vegetable sellers, waiters or domestics, transferring the small surplus incomes of their city lives into economic security for all of their dependents back in the village.

Such a man runs his own household expertly and sometimes with evident pleasure, shopping, chopping, cooking and cleaning at high speed, being ribbed by his mates all the while. On his annual visit back to the village, though, he puts his feet up and doesn’t do even the 20 minutes of routine housework that would make him above average.

Islamic Law in the British Courts

While the Hobby Lobby case, in the eyes of some, pits religion against law, in the UK there is another interesting case that seems to suggest a union between the two.  From the UK Express: 

Islamic law denying women and "unbelievers" an inheritance will be effectively enshrined in the British legal system for the first time under new guidelines.  

More: 

Campaigners have warned that the move could pave the way for a 'parallel legal system' for the UK's Muslim communities.

And Baroness Cox, who is leading a Parliamentary campaign to protect women from religiously sanctioned discrimination, branded the decision "deeply disturbing", adding that she planned to raise the issue with ministers.

She said: "This violates everything that we stand for. It would make the Suffragettes turn in their graves.

 

The Future of Women's Legal History

Mary Ziegler (Florida State) has been blogging with us this past month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.

As I end my visit to Gender and the Law, it’s worth imagining what women’s legal history will look like in a decade or decades from now. I’ve suggested that we reevaluate what counts as a women’s legal movement—that we look in new and unanticipated directions when we do women’s legal history. We should also carry on important work that questions the definition of law. It is easy to fall back on traditional understandings: we study lawyers and professional identity, the relationship between social movements and legal reform, the influence of women on legal doctrine and of legal doctrine on women’s lives and the meaning of gender.

But women have always practiced law in unconventional ways, in unpredictable places. Historians are teaching us that women created law regardless of whether they had formal legal training. Social workers, bureaucrats, grassroots advocates, politicians, and ordinary citizens interpret the law in ways that matter, even if we cannot find evidence of their visions in contemporary rules. My own work explores how new understandings of constitutional law have formed in abortion clinics or street protests. These interpretations of the law looked very different from the ones set forth by the federal courts. Those practicing law were abortion providers and social workers, patients and doctors. Even though these women never sought legal counsel or changed black-letter rules, their understandings of law shaped who got reproductive healthcare and how women understood themselves and their decisions. These narratives about the past teach us how gender and law have remained fluid and contested. What we mean when we talk about women’s legal history will certainly change, since both gender and law remain open to re-imagining.

Legal history tells one small part of the story of women who have transformed our understanding of family, community, society, and law. Fundamentally, women’s legal history helps us understand not just where we are but where we can go. It reminds us of how women will continue to redefine what law could mean and be. 

The Problem with Dress Codes

Middle School Girls Picket for the Right to Wear Leggings

The girls’ cause is about much more than the right to bear L’eggs. By emphasizing the disruptive consequences of leggings, administrators are attempting to fix boys’ juvenile behavior by placing an unfair burden on the girls who are supposedly distracting them. (As Hasty put it: “Not being able to wear leggings because it’s ‘too distracting for boys’ is giving us the impression we should be guilty for what guys do.”) The result is that the school is actually preventing these girls from focusing on their schoolwork by asking them to pay more attention to their own bodies.

Reading Up on Hobby Lobby v. Women

The U.S. Supreme Court hears argument in the contraceptive mandate cases today.  Lots of good reading on the case and its far-reaching implications.

From WaPo, Here's What You Need to Know about the Hobby Lobby Case

From NYT, Ruling Could Have Reach Beyond Issue of Contraception

From Slate, Who's the Boss? Why are our Employers Making our Health Insurance Choices in the First Place?

From Hamilton & Griffin's Blog

Lots of good questions being asked out there.  Why is religion always in opposition to women's rights?  Why does gender discrimination seem more palatable than race -- What if employers refused health insurance coverage for black employees?  And how did we get to this place of inserting our employers into our private health decisions?

 

 

Japanese Soldiers' Rape of Korean Women

The sadistically euphemistic term "comfort women" is often gently introduced by the Japanese Empire to refer to the thousands of Korean women kidnapped by Japanese soldiers and subject to repeated rape in military camps during World War II.  

Three Western law professors from St. Louis, Toronto, and Cornell have a new article about the topic, available for download here.  The abstract reads:  

How can critical legal feminists find a way to respond, truthfully and ethically, to the horrors of wartime sexual slavery institutionalized in the Japanese military’s system of “Comfort Women,” while recognizing, at the same time, that claims on behalf of victims of sexual violence are often appropriated by nationalist, imperialist, and capitalist agendas? A first step is to understand how the bewildering range of political, legal, and cultural interventions that constitute the Comfort Women incident collide with one another, refashion one another, and give one another energy. Part of a larger project on the place of multi-situational law in an equally multi-situational politics, this brief presentation, as a very first step, identifies what we term the diplomatic style and analyses its collision with the constitutional law style in a landmark 2011 judgment of the Constitutional Court of Korea. 

The Court found the Korean government liable for violating the constitutional rights of former Comfort Women because it has not used the dispute settlement procedure available under a 1965 bilateral treaty to seek compensation from the government of Japan. This result is in marked contrast to a 2010 Philippine decision on the equivalent issue as regards Filipina Comfort Women. In keeping with the reluctance of courts in many countries to intervene in foreign affairs, the Supreme Court of the Philippines held that the “political question” doctrine in domestic law prevented it from considering the wisdom of the Philippine government’s position that all postwar claims against Japan have been settled, and held, furthermore, that a state has no duty of diplomatic protection under international law.

We show that distinguishing diplomacy from other law/politics concerns that account for courts’ hands-off approach to foreign affairs helps us to think about the implications of the Korean Constitutional Court’s judgment. By injecting itself into diplomacy, and by taking on the responsibility for managing diplomatic tactics, the Court also makes itself relevant — and arguably vulnerable — to the constituencies to which diplomats have long been vulnerable. Whereas scholars often tend to treat law as a funnel for politics, the relationship of law to politics becomes (as with the relationship of diplomacy to politics) more of an eddy than a funnel. It is on this point, more than on the linkage of international rights to constitutional duties, that we perceive a glimmer of feminist hope in the decision.

In 1993 Japan apologized, sort of.  Some other scholarship on the topic are here and here.  

Revenge Porn

I had no idea there was even a name for it.  But that's the name.  From the Daily Beast: 

Shockingly, almost no legal sanctions existed previously for those engaged in the hideous phenomenon of "revenge porn," in which jilted men (and let's be honest: it's almost always men)disseminate nude photos and videos of women who clearly had not guessed that they were involved with a person who might have a penchant for disseminating nude photos and videos when jilted. And, with the exception of a few states, neither did sanctions exist for the scumbags attempting to make money off of hosting collections of previously private pornography.

Here's NY's first case about revenge porn.  This generation of law students already seems to know quite a bit about it.