Gender and the Law Blog

Commentary on the Voisine Case and Banning Guns for Serial Domestic Abusers

Slate, In Voisine SCOTUS Says Domestic Abusers Can't Have Guns. If Only Someone Would Enforce It.

From a prior post here on Gender Law Prof Blog, on Justice Thomas in Voisine oral argument, Justice Thomas Breaks 10-Year Silence to Question Federal Ban on Guns in Domestic Violence

On the interesting affiliation of Thomas and Sotomayor in the dissent, see Noah Feldman, When Opposites Converge Over Domestic Violence, Chicago Tribune.

What Thomas and Sotomayor share in common -- along with being the court's two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.

 

Thomas's worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor's concern is more with the status of the individual defendant, who may be subject to long federal sentences.

 

EEOC Report Concludes Sexual Harassment Training Ineffective and Reinforces Gender Stereotypes

Guardian, Sexual Harassment Training "Not as Effective" in Stopping Behavior at Work

Federal labor regulators have concluded that sexual harassment prevention training is often ineffective and sometimes even harmful, in a new report that strengthens growing claims that US universities are failing to combat gender discrimination.

 

A taskforce of the US Equal Employment Opportunity Commission found that workplace initiatives targeting harassment are generally focused on avoiding legal liability instead of stopping misconduct, echoing concerns of faculty at theUniversity of California at Berkeley, which has received international attention for its high-profile scandals.

 

The new report from two commissioners of the EEOC, which enforces employment discrimination laws, comes as experts have increasingly called into question the standard responses to harassment. In the face of public scrutiny, employers and college administrators typically emphasize training initiatives, but critics say there is little evidence that courses make a difference.

 

“We were surprised at the research that showed that the type of anti-harassment training that has been done to date … is not as effective in actually changing behaviors,” said Chai Feldblum, EEOC commissioner and co-author of the report.

 

Some researchers have found that training courses can reinforce gender stereotypes, make men less capable of perceiving inappropriate behavior, and may increase the likelihood that people discount victims.

SCOTUS Strikes Down Abortion Restrictions

The decision in Whole Woman's Health is here.  Decision by Breyer for 5 justice majority -Kennedy, Kagan, Ginsburg, and Sotomayor.  Striking down requirements of admitting procedures and hospital surgical centers.

SCOTUS Upholds Firearms Ban for Prior Misdemeanors of Domestic Violence

The Voisine v. U.S. decision is here. By Kagan.

Dissent by Thomas & Sotomayor (that's right) on legal standards of intentional conduct.

Is the Uber-Like Chariot for Women Illegal?

Andrew Gray, Comment, Club Chariot for Women: No Boys Allowed, Stanford Law & Policy Rev. (forthcoming)

On April 19th, an app named Chariot for Women (Chariot) launched around the United States. The app is strikingly similar to ridesharing apps like Uber and Lyft: download the app, provide your payment information, request a ride, and you’re good to go. Yet Chariot comes with one major difference—both drivers and passengers are exclusively women. The goal of the app is simple: providing safe travel for women, by women, who fear the risk of violent crimes in taxicabs or traditional ridesharing methods. 

 

The app’s creator, Michael Pelletz, may see himself as a real-life equivalent of the feminist-friendly Dev Shah from Aziz Ansari’s Master of None,5 but in reality, he may be breaking federal law. Chariot, by design, may violate Title VII of the Civil Rights Act of 1964. The law stops employers from hiring, or refusing to hire a person because of their “race, color, religion, sex, or national origin.” It is fairly obvious, given Chariot’s business model, that their hiring practices would qualify as a prima facie violation of Title VII.  However, Chariot will argue that the Bona Fide Occupational Qualification (BFOQ) exception applies here.

 

While the app’s purpose may be noble, noble intentions don’t excuse discrimination. This short essay gives a three-part overview of the legal issues Chariot will inevitably face, and argue that allowing Chariot to fall under the BFOQ exception would overextend a purposefully narrow rule. Part II argues that the plain text of the law does not support Chariot. Part III explains that Chariot will fail a multi-part test for establishing a BFOQ. Part IV will show examples of reasonable, nondiscriminatory alternatives available to chariot. The essay concludes by mentioning policy arguments for and against Chariot, and arguing that ultimately, Chariot does not have a place within the law.

The Thirteenth Amendment as Protection Against Domestic Violence

James Gray Pope, The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women and Seamen, 39 Seattle L. Rev. (2016) 

 

In Robertson v. Baldwin [1897], the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment’s prohibition on slavery and involuntary servitude.  According to the Court, seamen were “deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults,” and therefore could—along with children and wards—be deprived of liberty. From a present-day perspective, the Court’s casual deprecation of seamen’s intelligence and character might seem anachronistic, even shocking. ***

 

Robertson’s domestic exclusion raises intertwined issues of class and gender. As a general rule, the Thirteenth Amendment limits inequalities of class, where class is conceived as “power relationships among groups involved in systems of production.” Regardless of contractual consent, workers may not be legally or physically compelled to work. The Supreme Court has explained this principle in terms of class power, as necessary to prevent the “master” from dominating the “laborer”: “When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Robertson carves out a gendered exception to this protection, relegating seamen to what political theorist Carole Pateman has described as “the private sphere of natural subjection and womanly capacities.”

 

By contrast, it is an open question whether the Amendment reaches gender relations. On that issue, Robertson has historically served to block jurisprudential development by preserving the domestic sphere as a zone where services can be coerced free from Thirteenth Amendment scrutiny. As Joyce McConnell has shown, Robertson’s domestic exclusion has operated to deprive women, married or not, of protection against coercion by intimate partners. When a woman enters into an intimate relationship with a man, then, she departs the public sphere of class relations and loses her Thirteenth Amendment protection against coercion of services. Over the past few years, however, several courts have applied statutory bans on “involuntary servitude” and “forced labor” (a “species of involuntary servitude”) to protect women and children in domestic settings.

 

The Daughter Track of Elder Care

M. Christian Green, "Graceful Pillars": Law, Religion, and the Ethics of the "Daughter Track", Journal Law & Religion (forthcoming July 2016)

What is striking in these responses is the interplay and ethical tension between concepts of virtue and necessity, in a way that construes and constructs the “daughter track” as emblematic of a particular kind of filial virtue that manifests itself in what is often a situation of necessity, in which someone must step up to provide care in the face of scant resources afforded by the surrounding society. In other words, these daughters step up to bear the burden of eldercare because no one else will.

The plight of women on the “daughter track” raises crucial ethical questions about justice, care, and gender connection with eldercare. It does so in a moral and ethical context often shaped not only by the choice to care, but also by virtues forged in contexts of necessity. There are a number of conceptual frameworks in feminist philosophy and feminist legal theory that might be used to analyze the “daughter track” problem. One of the newest and most promising frameworks is the “vulnerability” framework that has been argued powerfully and eloquently about Martha Albertson Fineman. Another longstanding and influential framework is that of the “ethics of care.” With origins in the developmental psychological work of Carol Gilligan, who famously identified and juxtaposed a masculine “ethic of justice” with a feminine “ethic of care,” the ethics of care framework, originally.  

 

While the ethic of care framework might seem to be the most obvious framework for analyzing the “daughter track,” since it involves daughters providing care to elderly parents, it is not the framework that I have chosen to apply here. The origins of the ethics of care in maternal experience do not fully track the daughter care experience, as suggested by contrasts between the “Mommy Track” and the “Daughter Track” in the popular media. Motherhood is most often chosen and eagerly awaited with positive expectations of giving birth and raising to maturity a child who may end up taking care of the parents someday. Eldercare needs, while in a certain sense universal and inevitable, since we all age and most of us have parents who live into old age, often strike out of the blue or build gradually and then hit like a tsunami when a parent’s need for care becomes acute, and the process is one of decline and ultimately death, leaving the caregiver with significantly depleted energy and funds to provide for their own care.

Oregon Legally Recognizes Third Gender of Binary

^{NPR, Oregon Resident Legally Recognized as Third Gender}

An Oregon judge has allowed a 52-year-old retired Army tank mechanic to change gender identity. Not from male to female, or vice versa. But to a new, third gender.

 

Jamie Shupe is now legally non-binary — widely believed to be a first for the United States.

 

Oregon joins several countries in recognizing a third gender. In 2014, India became the largest country in the world to have an official third option, following in the footsteps of Pakistan, Australia and Germany.

South Africa's Public Protector

WashPost, How a Quiet Wonky Lawyer Became South Africa's Corruption Buster

It’s not every day that a constitutional lawyer gets treated like a rock star. But at South African President Jacob Zuma’s State of the Union address in February, reporters jostled to hear what Thulisile Madonsela had to say about it, and onlookers took to Twitter to gush about her and her canary-yellow dress.

“Please, can we have her as president!” one pleaded.

Madonsela is not just a lawyer. She is also South Africa’s public protector, an ombudsman-like post that has come to symbolize for many a struggle for rule of law and better governance in this young democracy.

Senate Overwhelming Votes to Require Women to Register for Draft

Senate Overwhelming Votes to Require Women to Register for the Draft

The Senate voted to require women to register for the draft when they turn 18, just like men, as part of a large military authorization bill Tuesday. The new provision, passed by the Senate 85 to 13, is still far from becoming law, but comes at a time when the U.S. military has gradually lifted previous restrictions on women serving in combat roles in the armed forces.

The vote signals a changing national—and political—mood on the issue, particularly by conservative lawmakers, with the staunchest conservative wing of the Republican party still actively opposing the change.

For a related prior post, see 9th Circuit Hears Challenge to Men Only Draft

For the legal history of the draft and other military exclusions, see Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

Even Millennial Men Underestimate Women's Intelligence

Harvard Business Review, Are U.S. Millennial Men Just as Sexist as their Fathers?

The researchers found that male students systematically overestimated the knowledge of the men in their classes in comparison with the women. Moreover, as the academic term progressed, the men’s faulty appraisal of their classmates’ abilities increased despite clear evidence of the women’s superior class performance. In every biology class examined, a man was considered the most renowned student — even when a woman had far better grades. In contrast, the female students surveyed did not show bias, accurately evaluating their fellow students based on performance.

 

Feminist Judgments Conference Program Schedule Now Available

Here is the program with the terrific line up of presenters and talks at the upcoming Fall conference, The US Feminist Judgments Project: Rewriting Law, Writing the Future.  

The two-day conference features over 50 law professors and advocates speaking on a wide range of topics including broadly gender and judging, law and gender, and the future of feminist theory.  Take a look!

The conference will take place at the University of Akron School of Law, October 20 & 21, 2016.  Register here! (no conference fees).

Gender and the Importance of Language in Wills

Paula Monopoli, JOTWELL, Linguistic Theory, Gender Schemas and Wills, reviewing Karen Sneddon, Not Your Mother's Will: Gender, Language, and Wills, 98 Marq. L. Rev. 1535 (2015).

Language matters. In her recent article, Not Your Mother’s Will: Gender, Language, and Wills, Karen Sneddon details just how much language matters in the context of wills and trusts. In a comprehensive review of linguistic theory and its intersection with inheritance law, Sneddon illuminates how will clauses and trust structures reflect gender schemas about men and women.

Sneddon first lays a foundation for her hypothesis that will drafting reflects masculine and feminine roles and norms by acquainting the reader with basic linguistic theory.

Book Review Symposium on "Nine to Five" and Workplace Sex Discrimination

Concurring Opinions hosted a symposium of several book reviews on Joanna Grossman's new book Nine to Five.  Reviews are provided by Sam Bagenstos, Naomi Cahn, Nancy Dowd, Kate Silbaugh, and Verna Williams.

 

 

 

 

 

 

 

 Concurring Opinions is delighted to introduce Professor Joanna Grossman, and the participants in our online symposium on Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016).

I previously posted about the book here.

 

The Argument for Acknowledging Women's Acts of Violence

Jamie Abrams, The Feminist Case for Acknowledging Women's Acts of Violence, 27 Yale J. Law & Feminism 101 (2016)

Abstract:     

This Article makes a feminist case for acknowledging women’s acts of violence as consistent with — not threatening to — the goals of the domestic violence movement and the feminist movement. It concludes that broadly understanding women’s use of strength, power, coercion, control, and violence, even illegitimate uses, can be framed consistent with feminist goals. Beginning this conversation is a necessary — if uncomfortable — step to give movement to the movement to end gendered violence.

The domestic violence movement historically framed its work on a gender binary of men as potential perpetrators and women as potential victims. This binary was an essential starting point to defining and responding to domestic violence. The movement has since struggled to address women as perpetrators. It has historically deployed a “strategy of containment” to respond to women as perpetrators. This strategy includes bringing male victims of domestic violence within existing services, monitoring exaggerations and misstatements about the extent of women’s violence, and noting the troublesome line between perpetrator/victim for women. This strategy achieved specific and important goals to domestic violence law reforms. These goals included retaining domestic violence’s central and iconic framing as a women’s issue, preserving critical funding sources and infrastructure to serve victims, and thwarting obstructionist political challenges largely waged by men’s rights groups.

While acknowledging that these goals were sound and central to the historic underpinnings of domestic violence law reforms, this Article considers whether the strategy of containment is too myopic and reactive to endure. It begins a discussion of whether moving beyond a strategy of containment might paradoxically advance the efficacy of both domestic violence law reforms and the feminist movement. It suggests that moving beyond the strategy of containment would strengthen the infrastructure and foundation of the domestic violence movement. It would move beyond the limited masculinist frame dominating domestic violence, beyond the pathologized and marginalized frame depicting women abusers, and toward a more inclusive movement. It further examines potential gains to the broader feminist movement, such as preserving the movement’s sustained legacy, diffusing gender stereotypes, righting skewed legal standards, and advancing women’s political and professional status.

 

The Argument for Acknowledging Women's Acts of Violence

Jamie Abrams, The Feminist Case for Acknowledging Women's Acts of Violence, 27 Yale J. Law & Feminism 101 (2016)

Abstract:     

This Article makes a feminist case for acknowledging women’s acts of violence as consistent with — not threatening to — the goals of the domestic violence movement and the feminist movement. It concludes that broadly understanding women’s use of strength, power, coercion, control, and violence, even illegitimate uses, can be framed consistent with feminist goals. Beginning this conversation is a necessary — if uncomfortable — step to give movement to the movement to end gendered violence.

The domestic violence movement historically framed its work on a gender binary of men as potential perpetrators and women as potential victims. This binary was an essential starting point to defining and responding to domestic violence. The movement has since struggled to address women as perpetrators. It has historically deployed a “strategy of containment” to respond to women as perpetrators. This strategy includes bringing male victims of domestic violence within existing services, monitoring exaggerations and misstatements about the extent of women’s violence, and noting the troublesome line between perpetrator/victim for women. This strategy achieved specific and important goals to domestic violence law reforms. These goals included retaining domestic violence’s central and iconic framing as a women’s issue, preserving critical funding sources and infrastructure to serve victims, and thwarting obstructionist political challenges largely waged by men’s rights groups.

While acknowledging that these goals were sound and central to the historic underpinnings of domestic violence law reforms, this Article considers whether the strategy of containment is too myopic and reactive to endure. It begins a discussion of whether moving beyond a strategy of containment might paradoxically advance the efficacy of both domestic violence law reforms and the feminist movement. It suggests that moving beyond the strategy of containment would strengthen the infrastructure and foundation of the domestic violence movement. It would move beyond the limited masculinist frame dominating domestic violence, beyond the pathologized and marginalized frame depicting women abusers, and toward a more inclusive movement. It further examines potential gains to the broader feminist movement, such as preserving the movement’s sustained legacy, diffusing gender stereotypes, righting skewed legal standards, and advancing women’s political and professional status.

 

SCOTUS Upholds Serial Offender Provisions of Tribal Domestic Violence Act

Justice Ruth Bader Ginsburg wrote the opinion for a unanimous Court in US v. Bryant holding that two convictions of domestic violence in tribal court without provision of counsel can be put together to constitute "serial offenses" which are felonies under federal law.

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084. Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings. 

The Court held that the use of the uncounseled convictions did not violate the defendant's Sixth Amendment or Fifth Amendment due process rights.

Justice Ginsburg spent much of the opening pages of the opinion detailing the problem of domestic violence against Native American women.

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner.  American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” American Indian women experience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in severity over time.” 

 Justice Thomas wrote a concurrence questioning the Court's precedents on federal tribal jurisdiction:

It is time that the Court reconsider these precedents. Until the Court ceases treating all Indian tribes as an undifferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty. And, until the Court rejects the fiction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all encompassing control over the “remnants of a race” for its own good. 

 

 

Gender Quotas as a Judicial Remedy

My latest paper:  Remedying Sex Discrimination with Gender Quotas: "Just Because," Harvard J. Law & Gender (forthcoming)

Abstract:     

 

When newly-elected Canadian Prime Minister Justin Trudeau was asked by surprised reporters why he appointed women as fifty percent of his new cabinet, he responded simply, “Because it’s 2015.” Just because. Because it’s time. In fact, he suggested, it is long past time for having to justify including women as one-half of the power structure when women constitute one-half of the population. And it’s time for meaningful change in shared governance by something as pragmatically simple as selecting fifteen women and fifteen men for appointments.

Similarly, it is long past time for justifying the need to reform American institutions that exclude women from the power structure. Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial band-aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding and resistant, systemic sex discrimination. And the way to get there might be quotas.

“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Trudeau's cabinet decision shows. This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representations to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.

 

Study Concludes Women Experience the Institution of Marriage as Oppressive

Is Marriage Worth the Trouble for Women?  The short answers is "No."

First, confounding the view of marriage as the female heaven and haven is the fact that marriage actually appears to benefit men more than it does women. Research has shown that the "marriage benefits"—the increases in health, wealth, and happiness that are often associated with the status—go disproportionately to men. Married men are better off than single men. Married women, on the other hand, are not better off than unmarried women.

 

Second, in contrast to the myth that marriage is a woman’s ultimate and sacred fulfillment is the reality that roughly two-thirds of divorces are initiated by women.***

 

A recent paper by Stanford sociologist Michael J. Rosenfeld analyzed longitudinal data from the How Couples Meet and Stay Together survey—a survey of a nationally representative sample of 2,262 adults in heterosexual relations followed from 2009 to early 2015.

 

The results revealed an intriguing pattern: As expected, women initiated roughly two thirds (69%) of the breakups in heterosexual marriages. However, the gendered trend in relationship breakups held only for marriages and not for other non-marital unions. Moreover, women in marriages, but not in other relationships, reported lower levels of satisfaction.*

 

This finding appears to provide support for the notion that women experience the institution of marriage as oppressive, in large part because it emerged from and still carries the imprint of a system of female subjugation.

 

H/t Marcia Zug

 

Why the Stanford Sex Offender Sentence is So Unusual

WashPost, What Makes the Stanford Sex Offender's Six Month Jail Sentence So Unusual

Most people accused of rape are never found guilty — the Rape, Abuse and Incest National Network estimates 97 of 100 avoid punishment. Turner’s crime, however, had witnesses. He was charged with three felonies related to sexual assault and convicted in March on all counts. He faced a maximum prison sentence of 14 years, with prosecutors recommending six.

 

But last week, Judge Aaron Persky leveled instead a punishment that ignited fury nationwide: Six months in the county jail, followed by three years’ probation.

 

The penalty sharply deviated from the sentencing norm. The majority of convicted rapists in the United States go to prison. The average sentence length is 11 years, according to the Bureau of Justice Statistics:

 

Turner, to be sure, was not convicted of rape. The two rape charges he originally faced were dropped. But at least two of the three remaining charges — assault with intent to commit rape of an intoxicated woman, sexually penetrating an unconscious person with a foreign object and sexually penetrating an intoxicated person with a foreign object — fall under the Justice Department's definition of rape: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”