Friday, June 30, 2017
Sonia Katyal, The Numerus Clauses of Sex, U. Chicago L. Rev. (forthcoming)
There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity.
Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris’s groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.
Thursday, June 29, 2017
Call for Authors – Feminist Judgments: Rewritten Family Law Opinions
DEADLINE: FRIDAY, JULY 21, 2017
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.
Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics. With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes. Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same. A description of the process of selecting decisions, as well as a list of cases considered but not included, can be found on the application website (link below).
Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit). Rewritten decisions may be majority opinions, dissents, or concurrences. Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.
Those who are interested in rewriting an opinion or providing commentary should complete the form found here:
Applications are due no later than Friday, July 21, 2017. The editor will notify accepted authors and commentators by Monday, July 31, 2017.
First drafts of rewritten opinions will be due on Friday, February 2, 2018. First drafts of commentaries will be due on Friday, March 9, 2018.
If you have any questions, please contact Rachel Rebouché at firstname.lastname@example.org
Wednesday, June 28, 2017
Douglas NeJaime, The Nature of Parenthood, 12 Yale L.J. 2260 (2017)
In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted.
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.***
To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.
Karen Patricia Heath, New Directions in the History of Conservative Women
Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).
As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?
Here is my current stack of background reading on judicial biographies and autobiographies. I am beginning a new research project on Florence Allen. Judge Allen was the first woman appointed to a federal appellate court (the Sixth Circuit in 1934) and the first woman elected to a state supreme court (Ohio in 1922). So she is often dubbed "the first woman judge," though there were other women magistrates, trial judges, and special court judges who came before her. Allen may also be one of the first gay judges, though the historical record is murky on this historically censored point.
As I begin digging into the archives, my parallel task is to read, and in many cases re-read, the biographies of judges, particularly women judges. I have some of my own favorites -- with Linda Greenhouse's Becoming Justice Blackmun leading the pack -- but am now focused on structure, tone, and content -- what works, what adds insight, and what as the reader I am able to take away. My thought is that the Allen book project will be more intellectual history than pure biography, although the interesting personal juxtapositions of this woman's life (e.g. pro-death penalty/anti-war), inform her judicial role.
Thursday, June 22, 2017
Jon Hecht, The Surprising Sexism of Maternity Leave
Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.
“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.
"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.
"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle
The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.
The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.
"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."
However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."
However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time. It is only the time for caregiving and bonding that must be the same. Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.
Linda Greenhouse, Justice Ginsburg and the Price of Equality, NYT, discussing Ginsburg's opinion in the recent case Sessions v. Morales-Santana finding a citizenship rule that treated unwed fathers differently than mothers to violate equal protection, but denying the remedy of extending the beneficial mother's rule to fathers.
And what about Justice Ginsburg? Can we assume she’s happy with the outcome of the case, or do we suppose she wrote the remedial section with gritted teeth? Twenty-four years ago, in July 1993, she was President Bill Clinton’s first Supreme Court nominee, and I covered her Senate confirmation hearing. I had met Judge Ginsburg several times, but didn’t know her well. I found her Judiciary Committee testimony enlightening, and I wrote an analysis that appeared under the headline “A Sense of Judicial Limits.” I described her as “something of a rare creature in the modern judicial lexicon: a judicial restraint liberal.” By that I meant that while her own commitments were to liberal outcomes, she displayed an equally strong commitment to letting Congress take the lead. “In her view, equality — or any other goal — is best achieved if all branches of government have a stake in achieving it.”
So I’m ready to assume that if the remedial portion of her opinion last week was a compromise, it was one she offered willingly. Her “over to you, Congress” handoff may seem naïve in the present political climate, but it conforms with her deepest beliefs about the appropriate judicial role.
And it’s worth remembering that from her earliest years as a nervous young lawyer standing before the nine men of the Supreme Court, Ruth Ginsburg has always played a long game, with the ultimate goal, equality of the sexes, constantly in view. As this case turned out, the price for equality was high. But I don’t doubt that for Justice Ginsburg, it was a price worth paying for being able to strike a blow against still another law based on a generalization about the way “men and women are.”
I have previously blogged about my thoughts on Ginsburg's decision leveling down the remedy for equal protection. See SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?
Tuesday, June 20, 2017
Supervisor Mark Farrell introduced legislation that would prohibit private employers in San Francisco from asking for and considering past salary information when deciding what salary to offer applicants. The proposal also applies to city government and its contractors.“If women are always held back and down by their salary history, they are prevented from ever catching up with men,” Farrell said. “We have to stop it.”
The legislation was praised during Wednesday’s Board of Supervisors Government Audit and Oversight Committee. Some amendments were made during the hearing, such as postponing the initial implementation date from January 2018 to July 2018 to give time for businesses and The City’s enforcement wing, the Office of Labor Standards Enforcement, to prepare. It is also timed for when the minimum wage increase occurs.
The committee is expected to hold a hearing June 21 on the proposal with a full board vote on June 27.
For the first year, OLSE would only issue warnings if there are violations, but beginning in July 2019, fines could be assessed beginning at $100, and for egregious cases the City Attorney’s Office can sue the employer.
A job applicant would be able to voluntarily disclose their salary if they are seeking a better offer, but an employer couldn’t ask an applicant for salary history. An employer could ask for the applicant’s salary expectations.
Last year, Massachusetts became the first state to adopt a similar law. New York City and Philadelphia followed suit this year.
For additional background on why salary histories contribute to discrimination, see here.
Schedule at a Glance
8:00-9:45 – COUPLES, CHILDREN & PARENTAGE: OLD CONCEPTS, NEW PERSPECTIVES
10:00 – 11:45 – BEYOND VIOLENCE: A LOOK INTO GENDER VIOLENCE AND EQUALITY
12:45-2:30 – (RE) THINKING FEMINISM GLOBALLY
2:45-4:30- REMEDYING RELATIONAL EQUALITY
8:00-9:45 – (RE) DEFINING HARM AND VICTIMHOOD
8:00-9:45 – FEMINIST JUDGMENTS: REWRITTEN TAX OPINIONS PROJECT
8:00-9:45 – STATE POWER AND REPRODUCTIVE DECISION MAKING
8:00-9:45 – REEVALUATING GENDER NEUTRALITY
10:00-11:45 – DEMOCRACY AND GENDER
12:45-2:30 – FEMINIST LEGAL STRATEGIES: COMPARATIVE PERSPECTIVES, CHALLENGES, AND WAYS FORWARD
2:45-4:30 – FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT AUTHOR MEETS READER
2:45-4:30 – GENDER ROLES AND THE STATE
2:45-4:30 – STATES OF VIOLENCE AND LEGAL ACTIVISM IN LATIN AMERICA: BRIDGING FEMINIST, INTERSECTIONAL, AND DECOLONIAL RESEARCH
4:45-6:30 – BREAKING CARCERAL WALLS, BRIDGING MOVEMENTS: FORMING A COHERENT ANTIPUNITIVE AGENDA THROUGH CROSS – SECTORAL COLLABORATIONS
Leigh Goodmark, Should Domestic Violence be Decriminalized?, 50 Harv. J. Law & Gender 43 (2017)
In 1984, the United States started down a path towards the criminalization of domestic violence that it has steadfastly continued to follow. The turn to the criminal legal system to address domestic violence coincided with the rise of mass incarceration in the United States. Levels of incarceration have increased by five times during the life of the anti-domestic violence movement. The United States incarcerates approximately 2.2 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of domestic violence did not have “a significant causal role” in the increase in mass incarceration in the United States, scholars have argued that the turn to criminal law to address domestic violence has contributed to the phenomenon of mass incarceration. Given the current focus on overcriminalization and decreasing mass incarceration, the time may be ripe to consider alternatives to criminalization of intimate partner violence. In her 2007 article, The Feminist War on Crime, law professor Aya Gruber wrote, “Although I am skeptical about the ability of criminal law to solve social inequality problems, there may be good reasons to keep domestic violence crimes solidly on the books.” Professors Cecelia Klingele, Michael Scott and Walter Dickey have called for the development of scholarship addressing “crime problems for which arrest, prosecution, and conviction are the most appropriate responses to crime, along with instances in which invocation of traditional response is particularly fruitless or counterproductive.” Both generally and specifically in the context of intimate partner violence, these articles ask about the continued utility of criminal interventions. This article takes up those questions and asks: should domestic violence be decriminalized?
Monday, June 19, 2017
I invite you to participate in the Constitutional Remedies virtual symposium in November at the Center for Constitutional Law at Akron. As a “virtual” symposium, there’s no need for travel – you can join from the comfort of your own computer via video conferencing. Papers are short (10 pages max), designed to trigger discussion and inform debate. The topic is broad, embracing issues of remedies and the Constitution appearing daily in the news. Topics submitted thus far include leveling down remedies for equal protection, enforcement of religious liberty, Eleventh Amendment concerns with contempt for the government, and TROs in the immigration cases.
We’ve extended the deadline until August 15. Full details below.
Call for Proposals
VIRTUAL SYMPOSIUM: CONSTITUTIONAL REMEDIES
The Center for Constitutional Law at Akron
Friday, November 10, 2017
Constitutional Remedies. The focus of this symposium is on the Constitution and Remedies, broadly defined. Topics for discussion might include issues of remedies for constitutional harms, constitutional concerns with remedies, or comparative constitutional remedies across countries. Such issues dominate the headlines—from immigration travel bans to religious liberty concerns to police force injunctions and national injunctions on executive power. The symposium is designed to be an interactive roundtable, allowing for deeper discussion and questioning beyond mere presentation.
Virtual Symposium. This symposium will be conducted virtually, that is by video web conferencing. The idea is to make it easier for scholars to participate and share ideas, without the barriers of travel such as limited university travel budgets, family obligations, or the demands of teaching and administration. Participants will just need a computer with a webcam and microphone to participate.
Symposium Papers. Proposals for the symposium should be related to the topic of constitutional remedies and intended to produce a short final essay of about 10 published pages. Proposals should be submitted to Professor Tracy Thomas at email@example.com by August 15, 2017. Drafts of accepted papers for the symposium should then be completed by November 1 in time for circulation to and review by participants in advance of the symposium. Finalized essays will then be published in a dedicated symposium issue in the Center for Constitutional Law’s online journal, ConLawNOW an open access journal available to interdisciplinary scholars, journalists, as well as legal scholars (also available on Westlaw).
Friday, June 16, 2017
The American Civil Liberties Union, the ACLU of Ohio and the employment law firm Outten & Golden LLP today filed a discrimination charge with the Equal Employment Opportunity Commission on behalf of a J.P. Morgan Chase employee who claims the company discriminated against him and other fathers by denying fathers paid parental leave on the same terms as mothers.
Derek Rotondo, who filed the class action charge, is a fraud investigator who has worked at J.P. Morgan since 2010. He asserts that J.P. Morgan discriminates against men by designating biological mothers as the default primary caregivers, eligible for 16 weeks of paid parental leave, while presumptively considering fathers to be non-primary caretakers, who are eligible for just two weeks of paid parental leave. Rotondo is the father of two young children, including a two-year old and a newborn just nine days old.
“When I found out how J.P. Morgan’s parental leave policy was actually implemented, I was shocked,” said Rotondo. “It was like something out of the 1950s. Just because I’m a father, not a mother, it shouldn’t prevent me from being the primary caregiver for my baby. I hope that J.P. Morgan will change this policy and show its support for all parents who work for the company.”
Rotondo’s charge — which he filed on behalf of all fathers who were or will be subjected to the same discriminatory policy — alleges that J.P. Morgan’s parental leave policy violates Title VII of the Civil Rights Act of 1964, the Ohio Fair Employment Practices Act, and other state and local laws that prohibit employers from discriminating against employees based on sex or sex-based stereotypes.
“J.P. Morgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” said Galen Sherwin, senior staff attorney with the ACLU’s Women’s Rights Project. “J.P. Morgan needs to make its family leave policy reflect the realities of modern families working in America today.”
Before the birth of his second child, Rotondo sought approval to take parental leave as the primary caregiver. But J.P. Morgan’s human resources told Rotondo that mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that “the mother” is medically incapable of caring for the child. Rotondo does not qualify under either of these exceptions, as his wife is a special education teacher on summer break and unable to return to work, and she is in good health.
Here are the EEOC Guidelines on Parental Leave:
For purposes of determining Title VII's requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).
Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
EXAMPLE 14: Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment
An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.
EXAMPLE 15: Discriminatory Parental Leave Policy
In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.
JP Morgan has explained its policy as applying to primary caregivers, who are presumably women. And it has precluded consideration of equal caregiving between parents. That is expressly discriminatory under the guidelines. See Jessica Lee, Congratulations on the Birth of Your Baby! Now Get Back to Work
Many employers now offer longer amounts of leave to “primary caregivers” and less to “secondary caregivers,” rather than to “mothers” and “fathers.” Does changing the labels actually change whether this is sex discrimination? Hardly. Despite their outward appearance of neutrality, these policies often still discriminate against men, and result in men getting less leave than women. Employers may say “primary/secondary caregiver” but they really mean “mom and dad.” Some employers even discriminate against fathers by automatically assuming that mothers are primary caregivers and fathers are not, requiring dads to provide various types of proof that they truly are a caregiver. One employer advised a new father that could not be considered a primary caregiver unless his wife was “in a coma or dead.”
The Supreme Court's recent decision in Sessions v. Morales-Santana lends additional strong support for a finding of discrimination.
Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, [the citizenship laws for children born abroad differentiating] for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.
However, the plaintiff is unlikely to get the exact remedy he seeks of 16 paid weeks.
1. JP Morgan could revise its policy in accordance with the EEOC guidelines and distinguish that the longer time for women is based on physical medical recovery for women, or make slight adjustments as in the example to provide women 16 paid weeks and men 6 paid weeks.
2. The company could level down and provide no paid leave to anyone. That was also the result of the Supreme Court's Morales-Santana decision. See discussion here. The question will go to whether the company wants to continue to provide paid leave to recruit and retain valued women employees in competition with other firms, or whether it believes that the economics of extending paid leave to more men will be too costly.
The federal Family Medical Leave Act requires only that certain employers provide both women and men 12 weeks of unpaid leave for caring for a new child.
The Atlantic, The Push for Gender-Inclusive Curricula Marches On
In 1971, groundbreaking research quantified just how underrepresented and misrepresented women were in U.S. high-school history textbooks, finding, for instance, that there was more textbook space devoted to the length of women’s skirts than to the suffrage movement.
Big textbook publishers like McGraw-Hill, Macmillan Publishers, and the American Psychological Association printed guidelines about how to publish less sexist material. Universities funneled money into new women’s-studies courses; San Diego State University launched the first department of women’s studies in 1970. Congress passed the Women’s Education Equity Act in 1974, which funded more research and the creation of national resource centers to help school districts that wanted to deliver bias-free educations.
Even the Texas State Board of Education, which has long had a disproportionate and conservative influence on what information gets included in national textbooks, hopped on the gender-equality train, issuing a proclamation that textbooks should include “women in leadership and other positive roles with which they are not traditionally identified” and offer “goal choices and lifestyles for girls and women in addition to marriage and homemaking.”
For a while, textbooks and teaching at the secondary and university levels improved. Sexism became more subtle, and women’s stories more common. Scholars pushed not only for gender analysis, but for intersectional analysis along lines of race, class, ability, and sexual orientation, and called women’s-studies pioneers out for “the white-middle class, heterosexual bias of academic feminism [that] pervades research and teaching about women.”
But then, in the mid-90s, the movement stalled—particularly in the K-12 setting. Since then, says David Sadker, a pioneering researcher in the field, “things have been frozen in time … in two decades, there’s been very little progress, and some retrenchment.” Though some research shows that the omission of women is not as great as it once was—and that textbooks have significantly improved when it comes to the inclusion and treatment of women and gender since the 1960s—the subject is still underrepresented.***
The goal of the movement was not to simply hold women leaders up as heroines or societal anomalies, to paraphrase the 18th-century feminist author and activist Mary Wollstonecraft; its advocates wanted women and gender to be treated as more than “sidebar history.” Though showcasing women’s stories on their own is important, women’s-history pioneers also saw unearthing and integrating women’s stories as a gateway to better understand the laws, institutions, systems, and movements that are most familiar to Americans—and to correct and complicate them.
Margo Lindauer, "Please Stop Telling her to Leave": Where is the Money: Reclaiming Economic Power to Address Domestic Violence, 39 Seattle U.L. Rev. 1263 (2016)
In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support for victims. I discuss the feasibility of using these systems to provide such support. From there, I provide a safety and security analysis with an eye towards economic freedom.
Thursday, June 15, 2017
Linda Berger, Bridget Crawford & Kathy Stanchi have posted Using Feminist Theory to Advance Equal Justice Under Law, 17 Nevada L.J. 539 (2017). Their essay provides an overview of the Feminist Judgments Conference held in October 2016 at the Center for Constitutional Law at Akron. Papers from the conference are forthcoming in the Nevada Law Journal and the Akron Law Review. A talk by Judge Elinore Marsh-Stormer from the conference is available here, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).
Progress toward gender justice faces multiple and growing challenges, not only in the United States Supreme Court but at every level of political and cultural debate and decision making. Within this context, feminist theory and methods are more necessary than ever.
It is therefore timely and fitting that more than 200 hundred lawyers, judges, professors, students, and members of the public gathered for The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at The University of Akron School of Law. The conference had several purposes. First and foremost was to celebrate the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court.1 Both this volume, the first in a series, and its organizing focus, the United States Feminist Judgments Project, grew out of the work of the Women’s Court of Canada and the U.K. Feminist Judgments Project. * * *
A second purpose of the conference at the Center for Constitutional Law was to provide a forum for asking (and attempting to answer) a series of discrete questions about judges and the judicial function. Prime among these questions is whether judicial diversity matters—that is, whether it is important to have judges who are representative of many different groups of people as well as many different ways of thinking. On a simplistic level, our reaction might be that of course diversity on the bench matters. As Sally Kenney, our conference keynote speaker, eloquently argues, diversity in positions of power in all branches and all levels of government, including representation by women, is a reflection of the health of our nation’s democracy. In Kenney’s view, diversity on the bench is a requirement of a representative democracy—it is a civic right and responsibility.
The conference also sought to raise the “woman question”—the baseline feminist question of the 1980s and 1990s. The “woman question” asks whether women are represented in decision-making positions and how the law affects women. * * *
The third purpose of the conference was to showcase the work of an international group of professors, attorneys, and other researchers who rely on, challenge, complicate, or extend feminist legal theory. The panels at the conference represented a dazzling array of subject matters, methodologies, and inquiries. Evident throughout the conference presentations were what Martha Chamallas has called some of the recurring “moves” of feminist legal theory: treating women’s experiences as an appropriate subject for legal scholarship, exploring complex identities, challenging implicit bias, and unpacking women’s choices.* * *
The fourth and final goal of the conference—and one that extends to the pages of this issue of the Nevada Law Journal—is to create a community. For two days in Akron, Ohio, the assembled group came together to think in a sustained way about the highest and best aspirations for what the law could be, especially as the law relates to the unfinished promise of economic, social, and political equality between and among women, men, and people of all gender identities.
Katie Eyer, Protected Class Rational Basis Review, 95 N.C. Law Rev. (2017)
It is commonplace today to associate rational basis review exclusively with groups that are not formally afforded heightened scrutiny under the Supreme Court’s equal protection precedents: groups like gays and lesbians, people with disabilities, and undocumented immigrants. Thus, discussions of the benefits of nurturing a jurisprudence of meaningful rational basis review typically focus exclusively on such “unprotected” groups. In contrast, rational basis review is rarely thought of as providing important protections for groups such as racial minorities and women, who have secured “protected class” status and therefore are subject to regular heightened review of group-burdening classifications.
Drawing on extensive original archival research, this Article challenges this common conception. Race and sex discrimination litigators have often historically relied on rational basis arguments as a complement to heightened scrutiny. And during eras when robust rational basis review was prevalent—such as the 1970s—these claims have often succeeded. Today, as a result of, inter alia, the LGBT rights cases (which have expanded judicial conceptions of the scope of rational basis review), we stand at a moment of increased possibility for meaningful rational basis review. Rational basis arguments thus ought to form a part of how we conceptualize the contemporary possibilities for race and gender justice claims.
Such an approach has the potential to revitalize what has long been a stalled constitutional jurisprudence around sex and race discrimination. As many scholars have acknowledged, it is extraordinarily rare for courts today to find that a government actor engaged in intentional discrimination against women or racial minorities—the contemporary standard for triggering heightened scrutiny. But as the history unearthed herein demonstrates, courts (especially lower courts) have, at times, been willing to find that racially and gender-impactful laws violate rational basis review. Moreover, such review has often had the capacity to undermine widely shared assumptions regarding the rationality of entrenched structures of race and gender oppression. As such, protected class rational basis review may present one of the few realistic alternatives for reviving a meaningful project of race- and gender-based constitutional change today.
A summary from SCOTUSblog:
At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”
Here's more from Debbie Brake, Remedial Grief:
The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights. The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory. One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them. The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause. The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.
This tried and true tactic is not merely a remnant of segregation. Leveling down surfaces periodically as a response to equality claims. In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off. In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination. Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down. Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether. Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination. ***
Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention. The Morales-Santana decision is no exception. Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension. One the one hand, the Court identifies a general preference for extension. On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation. The Court’s invocation of these two principles is somewhat mystifying. The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source). Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent. If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter. In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.
By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group. Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.
And Brake, Remedial Grief, Part 2:
The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.
Wednesday, June 14, 2017
Signs Special Issue: Gender and the Rise of the Global Right
As political events across the world have made clear, the right wing is ascendant: from the election of Donald J. Trump in the United States; to the Brexit victory in the United Kingdom; to the rise of rise of rightist, nationalist, anti-immigrant, and neo-Nazi parties across Europe; to the election of the Hindu nationalist Bharatiya Janata Party in India; to the Philippine president’s professed admiration for Adolf Hitler; to the impeachment of a democratically elected woman leader in Brazil; to the military coup and gendered crackdown in Egypt; to the virulently antigay legislation in Uganda, in which US–based Christian evangelicals played no small role. Far less studied are the myriad ways in which the global Right represents a particular politics of gender. Indeed, backlash against perceived shifts in gender and sexual norms may have partly spurred the Right’s rise. And right-wing movements have often justified themselves by invoking gender and sexuality—whether through a desire to return to or preserve “tradition” and “shared values” or by stoking anxieties about the sexual threats represented by racial, foreign, or religious others.
These developments present an urgent need for feminist theorizing, across regions and disciplines. It is of critical importance that the central role of gender and sexuality in the rise of the Right be recognized and that the voices of critique be feminist ones, including investigations of the Rights’ representational politics, its workings in discourse, mass media, human rights, law, and culture broadly conceived. We welcome submissions from all disciplines, and especially submissions that are engaging across disciplines and that are themselves inter- or transdisciplinary.
Possible areas of focus might include:
- The gender politics of local right-wing resurgences, the transnational linkages among them, and comparative critiques of their cultures, discourses, and modes of organizing, funding, coordination, and transmission.
- Comparisons of the present moment with past historical shifts, such as the colonial encounter, and their gendered implications for the postcolonial present.
- The fault lines within right-wing gender politics, in which racialization determines which women are to be protected and which are threats, to be deported, jailed, or “liberated.”
- The role of religion and religious actors in right-wing politics, and the gendered agendas they advance.
- The Right’s use of the language of women’s rights, human rights, LGBT rights, or other rights discourses; the role of right-wing women in dignifying, legitimating, and speaking for their movements.
- Right-wing attacks on women’s and gender studies; efforts to discredit the field and establish right-wing ideologues in academic settings.
- Gendered life under repressive regimes; the role of networks, undergrounds, and samizdat.
- The media politics and cyberpolitics of the Right; the discursive structures of mainstream and social media; the gendered phenomenon of the internet troll.
- The interrelations between various gender-related crusades (e.g., the transnational antichoice movement, resistance against LGBT rights, the introduction of transphobic policies, efforts to stop antiviolence legislation).
- Right-wing masculinities (e.g., fathers’ movements, men’s-rights movements, militarist gender ideologies, and constructions of boyhood).
- Links between the gendered effects of global economic crises or structural adjustments and the rise of the Right.
- The representational politics of the global Right, in literature, film, music, art, and popular culture; representations and works of literature that resist, subvert, and push back against the arguments of the new Right and its normalizers.
Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We welcome essays that make a forceful case for why the global rise of the Right demands a specific and thoughtfully formulated interdisciplinary feminist analysis and why it demands our attention now. We seek essays that are passionate, strongly argued, and willing to take risks. The issue will be coedited by Agnieszka Graff, associate professor at the Center for American Studies at the University of Warsaw; Ratna Kapur, visiting professor of law at Queen Mary University of London; and Suzanna Danuta Walters, Signs editor in chief and professor of sociology and women’s, gender, and sexuality studies at Northeastern University.
The deadline for submissions is September 15, 2017.
I blogged yesterday about the Supreme Court's decision in Sessions v. Morales-Santana and its remedying of sex discrimination by leveling down, or withdrawing a benefit from one sex, rather than leveling up and extending the benefit to both.
Here is more on the leveling down remedy.
Michael Dorf, Equal Protection and Leveling Down as Schadenfreude
My Verdict column this week explores Monday's Supreme Court ruling in Sessions v. Morales-Santana, in which the Court invalidated a federal statutory provision that confers citizenship on children born outside the U.S. to unwed U.S.-citizen mothers in some circumstances in which such citizenship is denied to children born outside the U.S. to unwed U.S.-citizen fathers.
As I note in my column, an equal protection violation can be remedied either by leveling up (everyone gets the benefit) or leveling down (no one does). The leading case is Heckler v. Mathews. Justice Ginsburg's majority opinion in Morales-Santana parses what I call Congress's "fallback" intent to conclude that the right remedy (absent further congressional intervention) is leveling down. On Take Care, Ian Samuel argues that this "mean remedy" could harm people who thought they were U.S. citizens. Yet the Court says that its holding applies only "prospectively." Not good enough, Samuel complains, because, he says, the Court does not explain what "prospectively" means. I agree that Justice Ginsburg's opinion could have been clearer but she approvingly cites the Solicitor General's merits brief and reply brief on this point. The SG's argument at the relevant pages really only makes sense on the assumption that "prospective" application means application to children born abroad to U.S.-citizen mothers after the date of the Court's opinion--unless and until Congress changes the law.
Because Samuel reads the opinion as harsher than I believe it is, he ends up preferring the approach--at least in practical effect--of Justices Thomas and Alito. Yet, as I shall explain, I do not think that their approach is possible without overruling Heckler v. Mathews.
To see why, we need a brief recap of Heckler v. Mathews. The Social Security Act contained a provision that conferred certain benefits on women but not men. In what Congress no doubt thought was a fiendishly clever poison pill, the statute also provided that in the event that the courts struck down the sex-based preference, no one would get the benefit, i.e., the fallback was leveling down. Then, when a man challenged the law as sex discrimination, the government argued that he lacked standing, invoking the poison pill: Even if the male challenger prevailed on his equal protection claim, the government said, he wouldn't get any benefit; thus his injury was not redressable by a favorable ruling.
The SCOTUS disagreed. Although validating Congress's right to level down via a fallback provision, the Court said that the plaintiff's injury was nonetheless redressable by a favorable ruling. Sure, he wouldn't receive the financial benefit but he would get something else of value, namely, equal treatment. ***
Leveling down as a remedy for an equal protection violation has an element of schadenfreude about it. But it nonetheless comports with our notions of what equality is about.
Perhaps that is what formal equality is about. But feminists talk about equity as a concept broader than pure parallelism and providing equal opportunity for all. Thus, I would argue, formalism and leveling down is not an adequately meaningful remedy for a constitutional violation.
Introducing the Equality Law Scholars’ Forum & Call for Proposals
In the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) introduce the Equality Law Scholars’ Forum to be held this Fall. This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select three to four relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 17, 2017 at Berkeley Law School.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 14, 2017.
Full drafts must be available for circulation to participants by October 27, 2017.
Proposals should be submitted to:
Tristin Green, USF School of Law, firstname.lastname@example.org. Electronic submissions via email are preferred.