Gender and the Law Blog

Originalism and the Gender-Neutral Constitution

An Op-Ed in WaPo.....

Indeed, the argument is made that under originalism it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as “he,” and the framers clearly intended that they be male.

— Erwin Chemerinsky, Constitutional Law: Principles and Policies (3d ed. 2006) (citing Richard B. Saphire, Judicial Review in the Name of the Constitution, 8 U. Dayton L. Rev. 745, 796-97 (1983)

Gendering the Marriage Penalty in Tax

Stephanie Hunter McMahon (Cincinnati) has posted Gendering the Marriage Penalty, in Controversies in Tax Law (Ashgate 2015):

Abstract:

    

In 1969 Congress amended the Internal Revenue Code to create a marriage penalty. The penalty was not felt by all married couples: Only those couples in which spouses earned roughly equal amounts and who filed joint tax returns paid a penalty. Thus, the 1969 change in law had a gendered effect of discouraging some wives from earning income, but the alternative was not without its own gendered results. If gender marks the impact of the 1969 legislation, was gender what motived the change in law? It would be easy to assume that at the end of the 1960s, a socially conservative legislature reacted to a developing women’s movement. From the legislative debates, sexism certainly pervaded congressional discussion of women’s role in the family and the economy. However, this only tells part of the story and does so by focusing on the result that remains of interest today. Economic forces were a larger part of the story. The context of the 1969 revision shows it as part of an economic movement evolving since the end of World War II as policymakers adopted tax legislation in an attempt to improve the economy and fight the Cold War. Not only policymakers in Washington but also many women’s groups shared this focus on national economics. The focus on economic issues resulted in a lack of analysis of how this change in tax policy would affect various groups of women. The development of the marriage penalty highlights the need to consider the consequences of legislation prior to its enactment. In this case, particular concerns (largely economic) drove legislation that imposed most of its cost on a segment of society that was not focused on this issue.

UAE imprisoning rape victims under extramarital sex laws – investigation

From the Guardian UK: 

Hundreds of women, some of them pregnant or domestic servants who are victims of rape, are being imprisoned in the United Arab Emirates every year under laws that outlaw consensual sex outside marriage, according to a BBC Arabic investigation.

Secret footage obtained by BBC Arabic show pregnant women shackled in chains walking into a courtrooms where laws prohibiting “Zina” – or sex outside marriage – could mean sentences of months to years in prison and flogging.

“Because the UAE authorities have not clarified what they mean by indecency, the judges can use their culture and customs and Sharia ultimately to broaden out that definition and convict people for illicit sexual relations or even acts of public affection,” said Rothna Begum, women’s rights researcher at Human Rights Watch in London.

While both men and women could in theory be imprisoned for having sex outside marriage, the investigation – which will air at the opening of BBC Arabic festival on 31 October – found that in reality pregnancy is often used as proof of the “crime”, with domestic female migrant workers – numbering about 150,000 in the UAE – left most vulnerable.

No ‘Appreciable Progress’ for Women in Partnership Ranks

From Bloomberg News: 

It's back to the future — and not in a good way for women seeking equity partnership in the nation’s 200 largest law firms.

Women have not made “appreciable progress” since 2006 in either attaining equity partnership or increasing their pay to be on par with their male colleagues once they grasp the brass ring, according to a study by the National Association of Women Lawyers released on Tuesday.

The results: Women represent 18 percent of equity partners, an increase of two percent since 2006, according to NAWL’s findings. Even after they’ve made it into the equity ranks, they make about 80 percent of what their male colleagues bring home. In 2006, women had made 84 percent.

Temple Law Prof Marina Angel Awarded AALS Lifetime Achievement Award

The AALS Women in Legal Education Section announced that Professor Marina Angel (Temple University Beasley School of Law) will be awarded the 2016 Ruth Bader Ginsburg Lifetime Achievement Award.

Her bio details her extensive accomplishments and leadership of women in the profession. "A Temple law professor for nearly 40 years, Professor Angel’s scholarship, teaching, advocacy, and service truly embody the spirit and purpose of this distinction."  

My favorites of her work are:

 Susan Glaspell's Trifles and A Jury of Her Peers: Woman Abuse in a Literary and Legal Context, 45 Buffalo L. Rev. 779 (1997) 

Criminal Law and Women: Giving the Abused Woman Who Kills A Jury of Her Peers Who Appreciate Trifles, 33 AM. CRIM. L. REV. 229 (1996).  

 

Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. of Legal Education 548 (2003)

 

Prof. Angel will be honored at the AALS meeting Saturday, January 9th, 2016, 12:15-1:30 p.m. in New York City. 

 

 

Remembering the Battle for Women's Suffrage

Lots in the media with the advent of the release of the movie Suffragette on the British women's suffrage movement.

Time, The Real Women's Suffrage Milestone that Just Turned 100

Remembering the mammoth women’s suffrage parade of October 1915

They came on horses and carriages. They marched on foot. There were old women with canes and young mothers with babies. They dressed in white and carried banners with phrases like “A vote for suffrage is a vote for justice” and “You trust us with the children; trust us with the vote.” It was Oct. 23, 1915, and tens of thousands of women flooded Fifth Avenue in a spectacular, five-mile suffrage parade that all but shut down New York City.

 

Time, How a Little-Known Supreme Court Case Got Women the Right to Vote 

 

Pop quiz: when did women in the United States get the right to vote?

If you answered June 4, 1919, or Aug. 18, 1920 — the dates on which the 19th Amendment was passed and ratified — then you’re almost right. Yes, the Amendment guaranteed that the right to vote could not be denied on account of sex. But the right wasn’t fully secured until this day, Feb. 27, in 1922. That’s when the Supreme Court decided Leser v. Garnett.

Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.

NPR, American Women Who Were Anti-Suffragette

 

As the 19th century ended and the 20th began, the American wave of women pushing for access to the ballot box gathered momentum. But it wasn't until the 19th Amendment to the Constitution was ratified in 1920 that voting rights were guaranteed for all women.

 

Hard as it is to imagine today, there were certain women — mostly forgotten — during that period of duress who did not believe that women deserved the right to vote. Some called these naysayers "anti-suffragettes" or "anti-suffragists." Some called them "remonstrants" or "governmentalists." Some called them just plain "antis."

 

 

 

 

Lawwsuit for Denial of Intersex Passport

Reuters, Navy Veteran Sues US State Department for Denying Intersex Passport

A Navy veteran from Colorado who identifies as neither male nor female has sued the U.S. Department of State after being denied a passport for refusing to select a gender on the application, court documents showed on Monday.

                            

Dana Zzyym claimed in a federal discrimination lawsuit filed in the U.S. District Court in Denver that it was a constitutional violation to force an “intersex” person to pick either a male or female when seeking to travel abroad.

                            

“I am not male, I am not female, I am intersex, and I shouldn’t have to choose a gender marker for my official U.S. identity document that isn’t me,” Zzyym said in a statement.

                            

The lawsuit names U.S. Secretary of State John Kerry and the director of the Colorado passport agency as defendants.

                            

The State Department did not respond immediately to a request for comment.

NY transgender protections rely on 1945 law

The story from NY: 

ALBANY -- Gov. Andrew Cuomo’s move to provide legal protections to transgender New Yorkers hinges on interpreting the word “sex.”

Cuomo late Thursday introduced regulations that would legally prevent New York employers, businesses and housing providers from discriminating against transgender individuals and those with gender dysphoria.

Within hours of Cuomo’s proposal, conservative groups pushed back, questioning whether the governor has the legal authority to install such rules. The Cuomo administration has stood its ground, with one official calling the plan a “progressive interpretation” of a law that first took effect in 1945.

The Day Iceland Women Went on Strike for Equality -- 40 Years Ago Today

BBC, The Day Iceland's Women Went on Strike

Forty years ago, the women of Iceland went on strike - they refused to work, cook and look after children for a day. It was a moment that changed the way women were seen in the country and helped put Iceland at the forefront of the fight for equality.

 

When Ronald Reagan became the US President, one small boy in Iceland was outraged. "He can't be a president - he's a man!" he exclaimed to his mother when he saw the news on the television.

 

It was November 1980, and Vigdis Finnbogadottir, a divorced single mother, had won Iceland's presidency that summer.  The boy didn't know it, but Vigdis (all Icelanders go by their first name) was Europe's first female president, and the first woman in the world to be democratically elected as a head of state.

 

Many more Icelandic children may well have grown up assuming that being president was a woman's job, as Vigdis went on to hold the position for 16 years - years that set Iceland on course to become known as "the world's most feminist country".

 

But Vigdis insists she would never have been president had it not been for the events of one sunny day - 24 October 1975 - when 90% of women in the country decided to demonstrate their importance by going on strike.

Tokyo Ward to Start Issuing Same-Sex Partnership Certificates

From the WSJ blog: 

Tokyo’s Shibuya ward said Friday that it will start accepting applications for same-sex partnership certificates beginning next week after passing an ordinance earlier this year that permits the ward to recognize the partners equivalent to those married under the law.

According to the ward, same-sex couples applying for a certificate must both reside in Shibuya and be at least 20 years old. They must also be unrelated and have no spouses or other same-sex partners. The ward will also require that the couple submit notarized documents proving their relationship.

The ward said it will start issuing the certificates beginning Nov. 5.

More on the Feminist Judgments Project

More on the forthcoming book from the U.S. Feminist Judgments Project

FYI - the Conference on the project Rewriting the Law. Writing the Future. is next year, October 20 & 21, 2016 at the Center for Constitutional Law following the release of the book.

Mother Jones, See How Your Life Would Change if We Cloned Ruth Bader Ginsburg

"Feminist Judgments" puts a new spin on famous Supreme Court cases.

 

In 2012, Justice Ruth Bader Ginsburg made headlines by saying she hoped to see an all-female Supreme Court one day. "When I'm sometimes asked when there will be enough [women justices] and I say, 'When there are nine,' people are shocked," she explained during a legal conference in Colorado. Nobody "ever raised a question" when nine men dominated the court, added the now-82-year-old, one of three women on the bench today.

 

If Ginsburg got her wish, what might that mean for America? And what if women had taken a majority of seats on the highest court a long time ago? That's a question raised by dozens of feminist law scholars and lawyers across the United States who are putting together a new book, Feminist Judgments, in which they re-examine 24 of the most significant Supreme Court cases related to gender—dating from the 1800s to the present day—and rewrite the court's final decisions as if they had been the judges.

 

More than 100 people applied to help write the book, which will be published sometime next spring, according to Kathryn Stanchi, a law professor at Temple University and one of three editors overseeing the project. All selected applicants agreed to follow an important rule: They could only base their revision on the legal precedent that bound the Supreme Court back when the case was first decided.

 For earlier coverage on this blog see here and here.

"When Women's Rights Are Not Enough"

From HuffPost: 

Around the world, women in 155 countries face legal restrictions on the economic opportunities available to them, according to the recent World Bank Group's reportWomen, Business and the Law 2016, which highlights the challenges women face in the global economy and underscores the need for legal reform.

These legal barriers are just the beginning of the obstacles women face to accessing economic opportunities. Establishing women's equality in the law is critical, but more work is needed to dismantle the social and cultural norms that prevent women from knowing and accessing their rights.

A Feminist Perspective on Children and Law

Laura Rosenbury, A Feminist Perspective on Children and Law: From Objectification to Relational Subjectivities

Abstract:     

This chapter presents a new framework for thinking about feminism and children. The chapter begins by chronicling feminist challenges to law’s objectification of children, highlighting the many ways that children remain the objects of adult and state authority despite the demise of the patriarchal family. Children’s dependencies are thought to justify such treatment, yet feminist analysis exposes the ways in which law constructs aspects of that dependency. Law’s role in constructing children’s dependency in turn provides a basis to question law’s continued treatment of children as objects rather than subjects.

The second part of the chapter proceeds to articulate a relational approach to children’s subjectivity. Building on the work of Martha Minow, this approach highlights children’s experiences as active participants in multiple relationships directly and indirectly mediated by law. Children’s relationships are not confined to the family, nor do they solely involve hierarchal dynamics of development and control. Children instead experience a broad range of interactions as children, separate from or in addition to their interests in becoming adults, even as they remain dependent on adults for many aspects of their lives. Children’s relationships therefore blur the traditional distinction between subjects and objects, providing a foundation for law to acknowledge and foster children’s intrinsic interests as children.

 

Law never simply reflects reality, however, but also always has regulatory effects. The final part of the chapter analyzes the ways in which law constructs subjectivity by relying on the category of “child”. The child is the empty space against which the category of the adult subject comes into being. Attempts to recognize children’s subjectivity therefore challenge the very meaning of subjectivity in law. This constitutive relationship between children and adults may create conflicts of interest for feminists, and otherwise make change difficult, but it also highlights another way that adults and children are interdependent. Subjectivity therefore need not hinge on autonomy or a lack of dependency. Instead, law might recognize children as subjects even amidst their dependency, thereby constructing children as participants in multiple relationships and settings mediated by law.

The Search for the Women's Declaration of Sentiments

This is a new Nicholas Cage movie in the making; National Treasure III: Finding the Feminists. 

WashPost, White House is Searching for the Origins of Women's Rights

White House chief technology officer Megan Smith on Wednesday launched a nationwide search for the original "Declaration of Sentiments," the document signed in July 1848 at the Women's Rights Convention in Seneca Falls, N.Y..

The historic resolution, which called for not just women's suffrage but equal pay and the right to attend college, is not technically a government document. But Smith, who spent part of her childhood in upstate New York, wanted to see it for herself once she started working for the administration in the fall of 2014. There was one catch: the National Archives didn't have it, and no one knew where it was.

"So the game begins," Smith recounted in a phone interview from Houston, where she was preparing to make the announcement at the Grace Hopper Celebration of Women in Computing Wednesday afternoon.

Elizabeth Cady Stanton wrote the resolution before the Seneca Falls conference, which took place July 19-20, 1848. Historians know that anti-slavery activist Frederick Douglass  took it to the print shop of his newspaper, The North Star, to print it.

"We don’t know where it goes from there," said Smith, adding she doesn't think the original document was intentionally excluded from the nation's historic coffers. "There’s nothing malicious here. This is simply a lack of consciousness. For most Americans, if you asked them what the Declaration of Sentiments is, they would have no idea what you’re talking about." ***

While several of the items on the Declaration of Sentiments have been addressed through changes to U.S. laws on voting, marriage and divorce, among other matters, others are still a work in progress. The political debate over equal pay for women continues to rage, a subject the suffragists outlined when they wrote, "He has monopolized nearly all the profitable employments, and from those she is permitted to follow, she receives but a scanty remuneration."

A printed version of the Declaration of Sentiments is here.

Our conference at the Center for Constitutional exploring the historical origins of women's equality and the Declaration of Sentiments on the 200th Anniversary of Elizabeth Cady Stanton's birth is on Thursday, Nov. 12.  Details are here.

And my book exploring Stanton's complex and nuanced feminist theories of gender equality in marriage, divorce, property, and parenting is forthcoming from NYU Press, 2016.

 

Sen. Bob Casey's Campus Sexual Assault Bill

The story: 

Colleges and universities in the U.S. are now required to disclose incidents of domestic and dating violence, such as stalking, in their annual crime reports, thanks to a sexual assault reform bill that went into effect this academic year.

Introduced by Democratic Pennsylvania Senator Robert Casey and Democratic New York Representative Carolyn Maloney, The Campus Sexual Violence Elimination Act (SaVE Act) is among the more substantial updates to the Jeanne Clery Act, the 1990 sexual assault prevention bill requiring colleges and universities that receive federal funding to disclose campus crime data like rape, assault and robbery.

Colloquium: The Origins of Feminist Equality

Presenting work from my forthcoming book at the upcoming conference at the Center for Constitutional Law at Akron.  Please join us - details below.

 

"Marine Corps Study Finds No Detriment to Morale in Mixed-Gender Combat Units"

From the NYT: 

The Marine Corps has long held concerns that integrating women into combat units could erode morale in all-male platoons and lead to increased sexual tension that would undermine fighting capability. But a Marine Corps study made public by a women’s advocacy group this week found that after months of testing mixed-gender combat units, troops reported morale equal to that of all-male groups and higher than noncombat integrated groups

In addition, the study found sexual assault levels no higher than in the Marines as a whole.

"A new law to save minors from survival sex will force them into state custody"

From the Guardian UK:

It’s not novel that minors in the US can, in very rare cases, be sentenced to reform programs or secure confinement for actions that wouldn’t be illegal if adults did them. But the system used to punish youth for the likes of skipping school or drinking has never been used systematically to address cases where minors engage in survival sex – meaning, youths who exchange sex for money, shelter, food, drugs or other needs.

And: 

That is about to change, even though treating juveniles charged with prostitution like truants will increase arrests and extend court-involvement and institutionalization of victims.

The Western Story of American Women's Suffrage

Ms., Once Upon a Time in the West

Few people outside of women’s rights historians understand that American women fought for political enfranchisement for nearly 75 years—from when Elizabeth Cady Stanton made suffrage a rallying cry at the Seneca Falls Convention in 1848 until the ratification of the 19th Amendment in 1920. And while a chunk of that time was referred to as “the doldrums” by eastern suffragists, in the West, women’s rights activists had far more exciting experiences. In fact, by the time national suffrage passed, 14 western states had already enfranchised women voters.

 

In pop culture, the American West belongs to rugged cowboys and macho gunslingers. Left out of those depictions are the women, immigrants, former slaves and Native Americans who also made homes on the range. Far from just the wives, mothers, daughters and playthings of frontiersmen as portrayed in books and films, women arrived in the West, single or with their families, for the same reasons men did—for adventure, for livelihood or to escape the oppressive social mores that dominated the eastern United States.

 

“The West is supposed to be he-man country, not some place where the little ladies mattered, or were even present,” notes Dr. Virginia Scharff, distinguished professor of history at the University of New Mexico and chair of Western Women’s History at the Autry National Center. “But there were indigenous women in the West long before there were Marlboro Men, and they were absolutely essential to the survival of their communities. And once American migrants started showing up, women were a big part of conquest and resistance in the West.”

 

As Scharff alludes, some of western women’s early political advancement was inherently tied up in the goals of white Americans. “Early western suffragists often referred to ‘frontier’ egalitarianism and ‘chivalry,’” as reasons why western states were more amenable to politically active women, “but this was an ethnocentric conclusion that privileged white women,” writes Dr. Rebecca Mead in her book How the Vote was Won. Indigenous women would not realize the right to vote as American citizens until 1924 (sometimes much later in certain states). Similarly, women of color struggle against tacitly sanctioned racial and ethnic discrimination that continues to impact their ability to vote. Nevertheless, for the women who stood to benefit most from suffrage, frontier territories—anxious to attract more white families and often understanding of the equal work demanded of both male and female homesteaders—were the earliest successful battlegrounds for suffrage.

OH Introduces Equal Pay Bill

Cleveland.com Democratic Ohio Lawmakers Introduce "Equal Pay" Bill

Two Northeast Ohio representatives introduced legislation aimed at closing the pay gap between Ohio men and women by requiring state employers to review employee salaries and encouraging all employers to adopt policies supporting equal pay among men and women working comparable jobs.

 

Democratic Reps. Stephanie Howse of Cleveland and Kathleen Clyde of Kent said Wednesday the bill is necessary because Ohio women make 78 cents for every dollar a man earns. Nationally, black women earn 63 cents and Hispanic and Latina women earn 54 cents for every $1 earned by white men.

 

"Part of our bill seeks to root out the systemic undervaluing and undperpaying of women's work," Clyde said at a Wednesday news conference.

House Bill 330 has little chance of clearing the Republican-controlled Statehouse. The bill has 24 co-sponsors, all Democrats.

 

The Ohio Equal Pay Act would require state and local governments to evaluate employee pay for comparable work across job categories and eliminate pay associated with "women's work." Positions that have similar duties, responsibilities, and general requirements would be considered in the same "class." A class would be considered women-dominated if more than 70 percent of those employees are female and men-dominated if more than 80 percent of those employees are male.