Gender and the Law Blog

Amicus Brief

Prof. Nancy Dowd at the U of Florida had asked me to post this:

The Supreme Court Clinic of the University of Texas School of Law is planning to file an amicus brief in support of a cert petition in a family law/gender discrimination case and is seeking legal scholars to sign onto the brief as amici. The cert petition was filed on behalf of an unwed father who was prevented from objecting to the adoption of his newborn son. The father and the mother of the child were not married. Before the child was born the father filed a petition in state court seeking to establish paternity and also to establish custody, parent time, and child support. He also registered with Utah’s putative father registry with a sworn and notarized form, agreed to a court order of child support, and offered to assist the mother with her pregnancy-related expenses. Due to his lawyer’s oversight, unfortunately, he failed to timely file an affidavit attesting to his ability to provide for the child and setting forth his plans for care of the child, as required by Utah statute. Adoption proceedings were initiated when his son was three days old. When the adoptive parents notified the father of their intent to adopt his son without his consent, the father moved to intervene in the adoption proceeding. The adoptive couple opposed the father’s motion to intervene, based on the father’s failure to file the affidavit attesting to his ability to provide for the child and setting forth a plan for the child’s care. The court held that the father’s failure to file that affidavit left him with no rights at all regarding his three-day old son, and that this default could not be cured by a late filing. Accordingly, the father’s newborn child was placed for adoption over his objections, solely because he failed to file an affidavit, as required by state law, attesting that he was able and willing to take custody of the child and setting forth his plans for care of the child. Utah law requires unwed fathers, but not unwed mothers, to file such an affidavit before they can assert any claim to parental rights. The father challenged the affidavit requirement in state court on federal and state constitutional grounds, claiming that requiring unwed fathers but not unwed mothers to file such an affidavit was a violation of the Equal Protection Clause. He also raised a substantive due process challenge to the affidavit requirement. The district court rejected his claims and the Supreme Court of Utah affirmed. On the equal protection claim, the Utah Supreme Court acknowledged that requiring an unwed father, but not an unwed mother, to file an affidavit about future support plans is a sex-based classification triggering intermediate scrutiny, but applied a lower level of scrutiny because it found that the affidavit requirement was not particularly burdensome. Under this lower standard, the court held that the different treatment was constitutional because the affidavit requirement was a way to make unwed fathers demonstrate their commitment to the child’s best interests, while unwed mothers demonstrated such a commitment simply by carrying the child to term. According to the Utah Supreme Court, the affidavit requirement put the parents on “equal footing” regarding a demonstrated commitment to the wellbeing of the child. Professor Eugene Volokh of UCLA has filed a cert petition on behalf of the father, arguing that once an unwed father has made himself known, sought to establish his rights to the child, filed a petition for custody and an agreement to court ordered child support, imposing the additional requirement of an affidavit setting forth a care plan on the father but not the mother is a violation of the Equal Protection Clause. The University of Texas School of Law’s Supreme Court Clinic plans to file an amicus brief in support of the petition, urging the Court to grant the case. We are seeking family law scholars and gender discrimination law scholars to sign on to the brief as amici, urging the Court to grant cert. Amicus briefs filed at the cert stage are a very important tool for convincing the Court that the issues raised in the case are important and that the case warrants the Court’s attention. Our current plan is to file a brief outlining the demographic trend toward more out-of-wedlock births and thus the importance of the issue of the constitutional standard for gender-based differences in the treatment of unwed fathers and unwed mothers. We will then explain that this case raises two important issues that the Court has left open in its prior equal protection decisions about fathers and mother and that it tried unsuccessfully to resolve in Flores-Villar v. US several years ago. In particular, the case raises the questions of (1) the constitutionality of gender-based distinctions between unmarried mothers and unmarried fathers that do not help clarify paternity and (2) what “substantial connection to the child” means in the context of a newborn baby. More concretely, this case presents the very important issue whether a state can impose on the unmarried father of a newborn baby a burden to prove his willingness and ability to provide for a child even though he has diligently asserted his paternity and sought custody of the child, when it imposes no equivalent burden on the unmarried mother of the child. Finally, we will argue that the gender-based differences in this statutory scheme lack a rational basis because they rely on outmoded and inaccurate stereotypes about mothers and fathers. At this stage, we are looking for signatories to help refine and elaborate on these arguments. The sooner we have involved signatories, the better we can represent their views and promote their interests. The amicus brief is due on April 13, 2015, and the Clinic needs to give notice of its intent to file by this Friday, April 3, 2015 – and needs signatories by then. Anyone interested in being part of this effort can get more information (including an outline of the proposed brief) by emailing Clinic Director Lynn Blais at [email protected], or calling her at 512-232-1334.

More on the Pao Verdict

Commentary on the Ellen Pao verdict finding no gender discrimination continues

NYT, What Silicon Valley Learned from the Kleiner Perkins Case

Daily Princetonian, Pao '91 Loses Discrimination Lawsuit (quoting John and I)

Reuters, Juror in Gender Lawsuit Sympathized with Pao, Sided with Kleiner

Reuters, In Losing Gender Bias Trial, Pao's Lawyers Denied Millions in Fees

 Some of the gendered facts continue to leap off the page at me.  

• A female associate told in performance reviews to soften, be collaborative, develop consensus-- play nice.  While the male associate is told to get more operating experience. One is objective, the other subjective and dependent upon the reactions of the male colleagues.  It is the old trope of the good girl. 
  
• The male supervisor documented to the file women's marital status and whether they had children, but made no such notes for men.
• The sexualized environment of men relaying stories of pornography, strip clubs, and viewing female co-workers as sexual prey.
• Jurors reportedly dismissed the sexism as a "generational thing." So the law has an "old white men exemption"?  But the sexist behaviors are not dying out, they are being perpetuated through business culture to the next generation. 
• Jurors also reportedly didn't like Pao because she didn't remain nice and friendly on the stand. It was hard to like her. The nice girl thing again. 

Analyzing the Supreme Court's Recent Decision on Pregnancy Accommodations

The U.S. Supreme Court recently decided Young v. UPS.  By a vote of 6-3, the Court ruled on procedural grounds that summary judgment was inappropriate and Young should have been allowed to try the facts of the case.

Joanna Grossman (Hofstra) & Deborah Brake (Pitt), Forceps Delivery:The Supreme Court Narrowly Saves the Pregnancy Discrimination Act in Young v. UPS, Justia.com

The majority opinion, written by Justice Breyer, split the baby. It rejected the interpretations offered by both parties. With respect to Young’s interpretation, Breyer wrote that pregnant women were not entitled to “most favored nation” status, under which they could demand an accommodation that was offered to any other worker. This, the majority wrote, was too broad a reading of the second clause. (At least Justice Alito, who otherwise took a more narrow approach to clause two, avoided the oddly abstract and impersonal “most favored nation” terminology and instead referred to “most favored employees.”) With respect to UPS’s interpretation, the majority reasoned that such an interpretation would collapse the second clause into the first, in violation of an important principle of statutory construction. And even more damningly, this reading would have allowed the employer’s policy in Gilbert—which covered all sicknesses and accidents—to be upheld despite the incontrovertible fact that the PDA was enacted expressly to overrule that opinion.

 

The majority, instead, crafted a new approach to applying the Second Clause of the PDA, which, it claims, “minimizes the problems [of the parties’ interpretations], responds directly to Gilbert, and is consistent with longstanding interpretations of Title VII.” The Court’s approach makes use of the so-called McDonnell-Douglas test, which is used to smoke out discriminatory intent by employers accused of unlawful disparate treatment. Under that test, a plaintiff must first make out a prima facie case, demonstrating that she was treated differently from someone similarly situated but outside the protected class.

Liz Morris, & Joan Williams, What Young v. UPS Means for Pregnant Workers and Their Bosses, Harvard Business Review.

The U.S. Supreme Court case decided this week makes it significantly more likely that pregnant women denied workplace accommodations will succeed in their legal claims against the employers who denied them.

 

The Court’s decision in Young v. UPS holds that there may be some situations in which employers can accommodate some groups of employees, without also accommodating pregnant employees, but then creates a test so strict that it in effect eliminates employers’ ability to do just that

Ellen Pao

Ellen Pao recently lost her high-profile gender discrimination lawsuit.  The case was big news because it brought to public attention the glaring dearth of women in the tech industry, and whether such dearth might be caused by prejudice.  

A NYT background story on the case.  Some commentary by Fortune magazine.  A discussion by CNET of Pao's post-verdict tweets.  Some comments by Prof. Tracy Thomas and I in the Daily Princetonian (Pao had graduated from Princeton).  

“You hold women in contempt”: Frat culture isn’t an aberration, it’s everything men learn about being a “real man”

...thus reads the headline from Salon: 

There are a lot of stories out there right now about frat culture, which is maybe why I find myself circling back to bigger questions about masculinity. Or at least the version of masculinity on display in some of these fraternities.

 What does it say about men and their relationships with other men that sexual aggression is often seen as a way to bond? What does it say about men’s desire to belong that so many guys don’t intervene even if they feel like what’s going on around them is totally wrong? Is the routine sexism we see coming out of many fraternities right now an aberration, or is it just a particularly grotesque expression of how men are taught to feel about and treat women? And if that’s the case, what are we supposed to do about it?

 

And: 

 

I reached out to Michael Kimmel, a professor of sociology at Stonybrook University and one of the nation’s most influential researchers on men and masculinities, to get his perspective on fraternities, male friendship, cultural messaging about “real” men and what it might mean to remake masculinity into something healthier for men and women. Our conversation has been condensed and lightly edited for clarity.

Read the rest here. 

"Political Lobby for Frats Wants to Make It Harder to Enforce Title IX"

From Slate: 

The political arm of the national fraternity system—known as the Fraternity & Sorority Political Action Committee (FratPAC)—is getting involved in the campus rape debate. Sadly, it seems it wants to make it as hard as possible for schools to discipline students who sexually abuse or harass each other. Bloomberg reports:

The groups' political arm plans to bring scores of students to Capitol Hill on April 29 to lobby for a requirement that the criminal justice system resolve cases before universities look into them or hand down punishments, according to an agenda reviewed by Bloomberg News.

"If people commit criminal acts, they should be prosecuted and they should go to jail,” said Michael Greenberg, leader of 241-chapter Sigma Chi, one of many fraternities participating in the legislative push.

The sentiment may sound fair-minded; it's anything but. FratPAC is singling out sexual assault as the only crime it wants universities to handle in this way. Underage drinking, drug dealing, burglary, assault—all of these actions break both school rules and the law, but FratPAC is not asking universities to wait for the criminal courts to adjudicate these crimes before punishing the students for breaking their corresponding school rules. In the situation it's proposing, a school could punish a student for stealing from another student without waiting for the courts to adjudicate the matter; but if a student rapes another student, the school couldn't act.

A Guide to Feminist Pedagogy

Vanderbilt, A Guide to Feminist Pedagogy

Feminist pedagogy is not a toolbox, a collection of strategies, a list of practices, or a specific classroom arrangement.  It is an overarching philosophy—a theory of teaching and learning that integrates feminist values with related theories and research on teaching and learning.

It begins with our beliefs and motivations:  why do we teach? why do students learn? what are the goals of learning? We know that the consequences of our motives for teaching and learning are significant: Keith Trigwell and Mike Prosser have shown that the instructor’s intentions in teaching (“why the person adopts a particular strategy”) have a greater impact on student learning than the instructor’s actual strategies for teaching (“what the person does”) (78). Their research has shown that approaches to teaching that are purposefully focused on the students and aimed at changing conceptual frameworks lead to deeper learning practices than teacher-centered, information-driven approaches (Trigwell 98). The implications are that the instructor’s fundamental beliefs and values about teaching, learning, and knowledge-making matter.

In this guide, we explain some of the fundamental beliefs, values, and intentions behind feminist pedagogy to inform a deliberate application in specific classrooms–any and all classrooms, as feminist pedagogy can inform any disciplinary context. (For a more focused exploration of feminist pedagogy specifically within the women’s studies classroom, see Holly Hassel and Nerissa Nelson’s “A Signature Feminist Pedagogy: Connection and Transformation in Women’s Studies.”)

[H/t Kathy Feltey]

The Glass Ceiling of the Australian Supreme Court

Harry Hobbs, Finding a Fair Reflection on the High Court of Australia

Of the 51 Justices appointed to the High Court of Australia, only four have been women. Although all eminently qualified, there is something fundamentally wrong with this statistic. The principle of fair reflection is neither at odds with the fundamental principle of judicial impartiality, nor controversial when it comes to federal balance on the Court. It is time that the untrammelled discretion of the Attorney General is confined to require a 40% composition of either gender on the Court. Doing so would increase the quality of the Court’s decisions, and its sociological legitimacy.

"Law faculty diversity: Successes and failures"

From a WaPo article by Jim Lundgren:

How diverse are tenured and tenure-track law faculties? Which ethnic and gender groups are now the most under- and over-represented in law teaching compared to a very broad measure of the pool: English-fluent, full-time working lawyers of a similar age?

In “Measuring Diversity: Law Faculties in 1997 and 2013,” which can be downloaded from SSRN, I explore tenure-track law school diversity in 1997 and 2013. For the gender and ethnicity of law professors in 2013, I use data released by the ABA, representing the 2013-2014 academic year. For the lawyer population, I use data from the government’s 2011-2013 American Communities Surveys.

This study finds that diversity hiring in law schools has been a great success, at least as to ethnicity and gender. All large traditional affirmative-action groups in law teaching are now at or above parity with full-time lawyers, and such groups as women, minorities, and minority women are significantly over-represented in law teaching compared to working lawyers. Indeed, the only ethnic and gender groups that are more than a half slot short of parity on a typical tenure-track faculty of about forty are non-Hispanic whites, males, and non-Hispanic white males, the groups typically thought of as over-represented.

Male Law Students Participate a Lot More Than Female Law Students

The research was done at Harvard Law School.   It's available here.  

Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges

Available here.  The abstract:

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases. 

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the “optimal” setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

 

France Debates Weight Laws for Fashion Models

NYT, French Parliament Debates Weight Standards for Fashion Models

The French Parliament is debating legislation that would effectively set minimum weights for women and girls to work as models, a step that supporters of the bill say is necessary to combat the persistence of anorexia.

 

If it becomes law — it is backed by President François Hollande’s Socialist government — modeling agencies and fashion houses that employ models whose body mass index measurements do not meet minimum standards would face criminal penalties.

 

Israel already bans the use of underweight and underage models, while other countries, including Italy and Spain, have weighed legislation similar to the one under consideration in France but for now continue to rely on voluntary pacts with the fashion industry.

Missouri Proposes Legislation for Equal Pay

Webber Presents Legislation Aiming to Address the "Pay Gap" Between Men and Women Workers

 A Missouri House committee on Monday heard legislation that aims to reduce the pay gap that exists between men and women in Missouri.

 

The bill, sponsored by Rep. Stephen Webber, D-Columbia, would require the Missouri Department of Labor and Industrial Relations to create guidelines detailing best practices for achieving pay equality for both public and private employees.

 

“A number of studies here in Missouri and nationally have documented over time, consistently, that women make less than men do,” Webber said. He pointed directly to a study released last month by the Women’s Foundation which showed that a woman in Missouri makes 71 percent of what a man in an equal position, in the same location and with an equal education would make.

"Nebraska bill would end fathers' rights in rape cases"

The story: 

LINCOLN, Neb. (AP) — The biological fathers of children conceived through a sexual assault would lose their parental rights under a proposal reviewed by Nebraska lawmakers.

Sen. Tommy Garrett of Bellevue presented the proposal to the Judiciary Committee on Wednesday. Garrett says women who are sexually assaulted often feel pressure to terminate their pregnancy or put the child up for adoption to keep their assailant out of their lives.

Garrett says 29 other states have passed laws to end fathers' parental rights in rape cases. Supporters of the bill say 25,000 to 32,000 pregnancies occur because of rapes each year.

Garrett says the bill allows fathers to reclaim parental rights if their convictions are overturned. He says the bill still needs some work, but creates important protections for women.

__

The bill is LB358

Pope Condemns Gender Theory as Attack on Family

The story: 

NAPLES, Italy, March 23, 2015 (LifeSiteNews.com) -- For at least the third time in his pontificate Pope Francis has used very strong language to condemn the gender theory, one of the intellectual underpinnings of the ‘LGBT’ agenda. Speaking Sunday with young people on his voyage to Naples, Italy, Pope Francis spoke of the “ideological colonization” of families seen throughout Europe and the West.

“Gender theory is an error of the human mind that leads to so much confusion," he said. “So the family is under attack.” As to how to deal with the “secularization” or the “ideological colonization,” the pope said he does not have the answer. He pointed however to the Synod on the Family, which he called inspired by the Lord.

And: 

The comments echo those made in an in-flight interview Pope Francis gave while returning from Manila in the Philippines on January 19, 2015. Francis lamented the Western practice of imposing a homosexual agenda on other nations through foreign aid, which he called a form of “ideological colonization” and compared it to the Nazi propaganda machine.

Asked by a reporter to explain the phrase “ideological colonization,” the pope gave an example from 1995 when, he says, a minister of education in a poor area was told she could have a loan for building schools so long as the schools used a book that taught “gender theory.”

And: 

"This is ideological colonization,” he said. “It colonizes the people with an idea that wants to change a mentality or a structure." This ideological colonization, he added, “is not new, the dictators of the last century did the same.”  "They came with their own doctrine. Think of the BalilLa (The Fascist Youth under Mussolini), think of the Hitler youth."

Sweden Introduces Gender-Neutral Pronoun

From the Guardian UK: 

The official dictionary of the Swedish language will introduce a gender-neutral pronoun in April, editors at the Swedish Academy have announced.

“Hen” will be added to “han” (he) and “hon” (she) as one of 13,000 new words in the latest edition of the Swedish Academy’s SAOL.

The pronoun is used to refer to a person without revealing their gender – either because it is unknown, because the person is transgender, or the speaker or writer deems the gender to be superfluous information.

“For those who use the pronoun, it’s obviously a strength that it is now in the dictionary,” one of the editors, Sture Berg, told AFP on Tuesday.

Divorce and the Fathers' Rights Movement.

Legal History Blog, Dinner and Divorce and the Fathers' Rights Movement. Deborah Dinner's (Wash U) latest piece.  From the abstract:

A vast literature documents the history of the women’s and gay liberation movements in the late twentieth century, but we still know little about how heterosexual men navigated dramatic change in the legal regulation of families. This Article provides the first legal history of the fathers’ rights movement. It analyzes how middle-class white men responded to rising divorce rates by pursuing reform in both family law and welfare policy. This history offers novel insight into the relationship between the private law of divorce, which regulates largely middle-class families, and public welfare state policies, which have the greatest effect on poor families. This Article challenges the assumption that these private and public family law systems operate in parallel, showing instead that they are interdependent.

Through the mid-twentieth century, marriage shaped the relationship not only between men and women but also between middle-class men and the state: men supported children and wives in exchange for legal protection of male familial authority. In the 1960s and 1970s, escalating divorce rates and the emergence of no-fault divorce laws upset this balance. By the mid-1980s, activists and federal and state legislators forged a new political compromise: fathers’ rights activists conceded ongoing child support obligations in exchange for greater access to custody upon divorce. This “divorce bargain” catalyzed a shift from common law presumptions favoring maternal custody to statutory recognition of joint custody. In so doing, it reinforced private rather than public responsibility for children living in nonmarital families.

The divorce bargain promoted formal equality and sex neutrality within private family law, but also entrenched gender and class inequalities. The bargain failed to challenge women’s disproportionate responsibility for childrearing within marriage, yet enabled men to use custody rights as leverage in child support and spousal maintenance negotiations. In addition, tying paternal responsibilities to custody rights advanced middle-class men’s caregiving interests but hurt those of low-income fathers who could not afford to pay child support. The state vilified these men as “deadbeat dads” who did not merit legal protection. The history of fathers’ rights advocacy for the divorce bargain, therefore, reminds us not to confuse liberalism with equality.

The Law of (Un)equal Protection and Fatherhood Bonuses

Keith Cunningham-Parmeter (Willamette), (Un)equal Protection: Why Gender Equality Depends on Discrimination, 109 Northwestern Law Review 1 (2015).

From the abstract:

 Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader anti-subordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses — laws that give families additional parental leave when fathers stay at home with their newborns — have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.

"Gender Defender Day" in a Washington Middle School

 

The story: 

A Battle Ground Middle School hosted "gender defender" day, but a school district spokesman said the name was misleading. March 19, 2015 (KOIN 6 News)

BATTLE GROUND, Wash. (KOIN 6) — Thursday was “gender defender” day at a Battle Ground middle school, and some parents weren’t happy about it.

Lorelei Hunsaker, 11, showed up at Chief Umtuch Middle School dressed in protest of gender defender day. She said the day was designated for girls to wear pink and boys to wear blue —  and she believes that reinforces outdated stereotypes of what boys and girls should aspire to be when they are older.

“It’s a gender neutral school and it’s pretty good about these things,” Lorelei told KOIN 6 News. “It’s just that this day is sexist and I’m not okay with sexism.”

Lorelei decided against wearing pink or blue, instead she wore dark clothing in protest.

For the 11-year-old’s mother, it goes beyond pink and blue clothes. She is part of a nontraditional family in which she is the main bread winner. Her husband cares for their kids, and gender identification may not fall along traditional lines in their household.

“Why would you even have a gender-oriented event to show school spirit?” Lorelei’s mother, Andrea Isom, asked. “Why does gender matter when it comes to being a good student?”

Punitive Damages Permitted in Ellen Pao Case

Feb. 24, 2015: Ellen Pao, center, with her attorney, Therese Lawless, left, leaves the Civic Center Courthouse during a lunch break in her trial. (AP)

From Fox News: 

SAN FRANCISCO –  A California trial judge ruled Saturday that a woman suing a Silicon Valley venture capital firm in a high-profile gender bias case may seek punitive damages that could add tens of millions of dollars to the $16 million in lost wages and bonuses she is pursuing.

San Francisco Superior Court Judge Harold Kahn denied a request by lawyers for Kleiner Perkins Caufield & Byers to have Ellen Pao's demand for unspecified punitive damages thrown out. Pao, the interim CEO of the news and social networking site Reddit, claims she was passed over for a promotion at the firm because she is a woman and then fired in 2012 after she complained.

Kahn said there was enough evidence for the jury considering Pao's lawsuit to conclude that Kleiner Perkins acted with malice, oppression or fraud, which in California is the legal threshold for awarding damages that are designed to punish and deter particularly bad behavior.