Tuesday, December 4, 2018
Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgments of Parentage to Female Same-Sex Couples, 30 Yale J. Law & Feminism 97 (2018)
Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has extremely harmful consequences for these couples and their children, and legal reform to address the unfair treatment of same-sex parents is long overdue. The hesitation to extend to same-sex couples the simple, efficient methods of establishing legal parent status available to different-sex couples likely stems from the longstanding tie between genetic connections and the establishment of legal parentage. While the law’s historical privileging of genetic connections in parentage determinations poses some challenges for same-sex couples in obtaining access to the simple, efficient methods of establishing legal parentage in existence today, these challenges are far from insurmountable. This Article sets forth a comprehensive proposal for the federal government to require states to extend voluntary acknowledgments of parentage, which currently allow a birth mother’s different-sex partner to establish paternity through the execution of a document at the time of the child’s birth, to female same-sex couples who conceive children using sperm provided in compliance with state donor non-paternity laws. The proposal represents a logical, modest step in the right direction for ameliorating the difficulties faced by same-sex parents in obtaining legal parentage without requiring significant upheaval to state laws governing the rights of genetic parents or federal laws governing voluntary acknowledgments of parentage.
The Case of Edith Haynes Denied Admission to the Bar in 1900 Australia Because Women Were not "Persons"
Margaret Thornton, Challenging the Legal Profession A Century On: The Case of Edith Haynes, 44 Univ. West. Australia L. Rev. (2018)
This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.
Joanna Grossman, At Least for Now, Women Have Reproductive Rights, Justia
It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years. * * *
Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. * * *
In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.”
Monday, December 3, 2018
Moving Beyond MeToo to Fix the Workplace with a Formal Model of Worker-Drive Collaboration with Consumers
Gillian Thomas, MeToo Hasn't Fixed the Workplace. Here's a Playbook that Can.
The #MeToo reckoning triggered by the Harvey Weinstein scandal last year can cause whiplash. There have been emotional highs: The movement unleashed a cacophony of voices — women telling their stories, lifting others’ up, all of them mad as hell that men were still getting away with abuse, almost 30 years after “I Believe Anita,” the analog version of #MeToo.***
But the dispiriting reality is that the past year has seen only baby steps in the right direction. Women (and men) might be speaking their truth in record numbers, but the same (mostly) guys who for years have done nothing to stop harassment at companies large and small — and in fact have been retaliating against accusers, forcing them into secret arbitration hearings and absorbing the cost of settling their claims — are still the ones in charge. ***
The article goes on to recommend the following:
A formal model of worker-driven collaboration with consumers could do incalculable good if adopted more widely. The Fair Food Program, launched in 2011 in the tomato fields of Florida by the Coalition of Immokalee Workers, targets degrading work conditions, including brutal sexual abuse. (Some studies have found that 80 percent of female farmworkers have faced harassment, including rape and other assault.) It enlists the consumers of big agriculture — namely, the fast-food restaurants and supermarket chains that spend hundreds of millions of dollars on Florida tomatoes every year, such as Taco Bell, Whole Foods and Walmart — as enforcers against such abuses. The buyers pledge to pull their business from farms that violate a worker-authored code of conduct, and the workers themselves are the monitors. An independent body conducts investigations and unannounced audits of participating farms, with 80 percent of complaints resolved in less than a month. The consequences of violations are swift and strict: Harassers are fired and temporarily banned from reemployment at participating farms, while growers that fall consistently short face probation or suspension from the program.
The results are stunning. Since the program’s inception, no cases of rape or attempted rape have been reported, and only one supervisor has been found to have engaged in physical harassment since 2013. During last year’s growing season, not a single sexual harassment complaint was lodged at more than 70 percent of participating farms. What’s more, only 15 percent of the farms where complaints arose saw evidence of retaliation against accusers. Progress like this would be noteworthy for any industry, but given the exploitative starting point of big agriculture, the transformation is nothing short of miraculous.
No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings.
In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way?
Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women.
Call it the Pence Effect, after U.S. Vice President Mike Pence, who has said he avoids dining alone with any woman other than his wife. In finance, the overarching impact can be, in essence, gender segregation.
Interviews with more than 30 senior executives suggest many are spooked by #MeToo and struggling to cope. “It’s creating a sense of walking on eggshells,” said David Bahnsen, a former managing director at Morgan Stanley who’s now an independent adviser overseeing more than $1.5 billion.
This is hardly a single-industry phenomenon, as men across the country check their behavior at work, to protect themselves in the face of what they consider unreasonable political correctness -- or to simply do the right thing.
A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger.
[Umm... because no man would ever make sexual advances at a woman over age 35?!?]
* One, an investment adviser who manages about 100 employees, said he briefly reconsidered having one-on-one meetings with junior women. He thought about leaving his office door open, or inviting a third person into the room.
Finally, he landed on the solution: “Just try not to be an asshole.”
That’s pretty much the bottom line, said Ron Biscardi, chief executive officer of Context Capital Partners. “It’s really not that hard.”
Several national fraternities and sororities sued Harvard University on Monday over a 2016 rule that discourages students from joining single-gender social clubs, marking the first legal challenge to the school's policy.
Two fraternities and two sororities filed a lawsuit in Boston's federal court, while another sorority separately sued the school in Massachusetts state court. Both cases argue that the school's policy discriminates against students based on their sex and spreads negative stereotypes about students who join all-male or all-female organizations.
Starting with last year's freshman class, Harvard students who are members of single-gender clubs are barred from leading campus groups or becoming captains of sports teams. The school also refuses to endorse the students for prestigious fellowships, including the Rhodes and Marshall scholarships.
Harvard officials crafted the rule to curb secretive all-male groups known as "final clubs," whose members include some former U.S. presidents but have faced mounting criticism from the university. A 2016 report by the school accused the clubs of having "deeply misogynistic attitudes" and tied them to problems with sexual assaults.
But the rule also applies to a variety of other groups, including fraternities, sororities and even single-gender musical groups. Since the rule took effect last year, at least three sororities have cut ties with their national organizations and reopened as co-ed groups.
The Cambridge, Massachusetts, university was discriminating against students on the basis of their sex by punishing men and women who join all-male or all female-organizations, the lawsuits alleged.
The policy was motivated by sexism, with Harvard incorrectly seeking to link all-male organizations and fraternities to sexual assaults and contending that single-sex organizations subordinate women, according to the lawsuits.
“Harvard’s sanctions policy seeks to dictate the sex of people with whom men and women may associate and the gender norms to which men and women must conform,” the federal complaint said.
The policy has resulted in the elimination of nearly every women’s social organization, with Harvard administrators privately calling them “collateral damage” in their effort to punish men who join all-male groups, according to the complaint.
Title IX has an express exemption for fraternities and sororities:
Title IX does not apply to the membership practices of a social fraternity or social sorority if the active membership consists primarily of students in attendance at an institution of higher education and the fraternity or sorority is exempt from taxation under the Internal Revenue Code. 20 U.S.C. § 1681(a)(6)(A); 34 C.F.R. § 106.14(a). All other programs and activities of social fraternities and sororities are governed by Title IX if they receive any Federal financial assistance. US Dept of Education, Exemptions from Title IX