Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, April 30, 2019

Register Now for Second Women's Leadership in Academia Conference

Registration Open: Second Annual Women’s Leadership in Academia Conference: July 18-19, 2019

Registration is open for the second annual conference on Women’s Leadership in Academia, to be held at UVA Law School on July 18-19, 2019. The conference is an event of the Women’s Leadership Initiative, which was developed with the goal of advancing women professors, librarians and clinicians in leadership positions in the legal academy. Conference programming is focused on building skills and providing tools and information that are directly applicable to women aspiring to be leaders in legal education. The conference will address the unique perspectives and challenges of women and provide programming that will be useful to developing leaders. Along with panels and workshops, the conference will feature CV review and advising with recruiters. Travel scholarships are available. Early bird registration is open through May 31, and regular registration continues until the conference reaches full capacity. More information is available here. For questions, please contact Leslie Kendrick at kendrick@law.virginia.edu.

 

Call for Panel Proposals

We are currently accepting proposals for panels on issues relating to women in legal academia for the second annual Women’s Leadership in Academia Conference, to be held at UVA Law School on July 18-19, 2019. The conference will address the unique perspectives and challenges of women and provide programming that will be useful to developing leaders. Conference programming is focused on building skills and providing tools and information that are directly applicable to women aspiring to be leaders in legal education. Proposals should include a panel title, description, and proposed panelists. Selected panels will be notified by May 15, and panelists’ conference registration and travel costs will be covered. More information on the conference, including a link to provide panel proposals, is available here. Proposals are due by May 1, 2019. For questions, please contact Leslie Kendrick at kendrick@law.virginia.edu

April 30, 2019 in Call for Papers, Conferences, Women lawyers | Permalink | Comments (0)

More than the Vote: The 19th Amendment as a Proxy for Gender Equality

My latest article, More than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, forthcoming in a symposium edition of the Stanford Journal of Civil Rights and Civil Liberties along with articles by Felice Batlan and Lisa Tetrault.

The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.

This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.

This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.

April 30, 2019 in Constitutional, Family, Legal History, Scholarship | Permalink | Comments (0)

Friday, April 26, 2019

Book Review Sex and Secularism, Challenging the Idea that Secularism is Synonymous with Gender Equality

Carol Coburn, Sex and Secularism, reviewing Joan Wollach Scott, Sex and Secularism (Princeton U Press 2017),  in 105 Journal of American History (March 2019).

In Sex and Secularism Joan Wallach Scott challenges the pervasive idea that secularism has always been synonymous with gender equality, entrenching and codifying the “historical triumph of enlightenment over religion” (p. 1)***

Like many feminist historians educated in the late twentieth century, I studied and absorbed Scott's seminal article, “Gender: A Useful Category of Historical Analysis” published in 1986 in the American Historical Review. It became part of the canon of second-wave feminist theory for scholars in a variety of disciplines. Scott's clear and pervasive analysis demanded that feminist historians understand and dive deeply into dimensions of social and political power that emanated from perceived notions of sexual difference, both historic and contemporary. ***

Utilizing a wide variety of literature written by second-wave feminists and historians of race, colonialism, and religion from the nineteenth to the twenty-first century, Scott provides a plethora of examples from gender and secular discourse on religion, reproduction, and politics—ending with the most recent “clash of civilization” discourse that transcends the “Cold War” rhetoric and supports and justifies Islamaphobia in a post-9/11 world. She effectively argues, first, that gender equality is not inherent in secularism (nor ever has been) and, second, that gender equality has not been ameliorated by white, Christian racial and religious discourse or practices in either public or private spheres of a gendered world. It is her third argument about secularism that provides intriguing food for thought. Scott posits that the discourse of secularism has also “functioned to distract attention from a persistent set of difficulties related to differences of sex” regardless of the nation, government, or period (p. 4). Inequality is ingrained and has been, and continues to be, a moving target in the discourse of secularism that allows Western nations to effectively ignore, if not “hide,” the inherent core of gender inequality under the guise of focusing on the “other”—the latest threat to the “civilized” world.

April 26, 2019 in Books, Gender, Religion, Theory | Permalink | Comments (0)

Thursday, April 25, 2019

Judges on Transnational Courts: Why Simply Adding Women is not the Answer to Judicial Diversity

Kathryn Stanchi, Bridget Crawford, & Linda Berfer, Why Women: Judging Transnational Courts and Tribunals, Connect. J. of Int'l Law (forthcoming)  

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges. Instead, judges with diverse perspectives and life experiences, regardless of their gender, will make a difference in the substance and form of judicial decisions.

This essay makes two contributions to the dialogue about judicial diversity. First, the essay posits that the overall justice project would be better served by abandoning binary categories like “men” and “women” in favor of recognizing that there is great diversity in both sex (however measured) and gender identity (however expressed). Framing any policy discussion in terms of “men” and “women” will fail to account for biological variety, individual difference, diverse gender identities, multiple sexual orientations, and the significant role that law and society play in constructing these identifiers.

The essay’s second intervention employs an expansive view of feminism as a broad justice project to consider that multiple facets of a judge’s lived experience, identity and perspective inform decision-making. Bias and elitism in legal education and the legal profession occlude the judicial pipeline. Instead of carrying a flag for more “women” in the judiciary, advocates for more diverse courts and tribunals should focus on elevating those with the least professional capital: people of color, low-income people, immigrants, graduates of non-elite schools, professionals from rural areas, and people with non-cisgender identities, to name a few groups. Adding more women to the bench may seem to be an immediate solution, but it will not achieve the goal. Attaining true diversity will be more difficult.

April 25, 2019 in Courts, Gender, International, Judges | Permalink | Comments (0)

Seeking Contraceptive Equity under the Affordable Care Act

Greer Donley, Contraceptive Equity: Curing the Sex Discrimination in the ACA's Mandate. 71 Alabama L. Rev. (forthcoming)  

Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s Contraceptive Mandate, which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in three ways: it incentivizes them to endure the risks and side-effects of birth control when safer options exist for men; it perpetuates harmful sex stereotypes, like that women are to blame for unwanted pregnancy or that men are indifferent as to whether sex leads to pregnancy; and it fails to financially support the quarter to a third of women that rely on male birth control to prevent conception. The Mandate’s facial sex classification constitutes unconstitutional sex discrimination under the Equal Protection Clause and can only be equitably cured by extending the Mandate to cover male forms of birth control. A neutral, universal mandate will remedy the harms discussed above and create incentives for the creation of new, pharmaceutical methods of male birth control, benefiting men and women alike.

April 25, 2019 in Family, Healthcare, Pregnancy | Permalink | Comments (0)

Opting-Out by Women Lawyers and How that is Detriment to Society

Jane Bambauer & Tauhidur Rahman, The Quiet Resignation: Why Do So Many Female Lawyers Abandon Their Careers?

Thirty percent of female lawyers leave their careers. The same is true for female doctors. Over time, an increasing number of married professionals have recreated traditional gender roles, and society has lost a tremendous amount of training and well-honed talent as a result. Neither workplace discrimination nor family obligations can fully and satisfactorily explain the trend. Both of those theories assume that women take a more dependent and vulnerable position in the household because of constraints, but in one important respect, men are more constrained than women, and they are better off for it: to maintain social status, men have to work. Women do not.

This Article advances a theory and corroborating evidence that the cultural acceptance of female under-employment is a privilege in the abstract, but a curse in practice. Even under the best conditions, the early stages of professional careers involve mistakes, mismatches, and disappointments. An opportunity to escape the stress of the public sphere by focusing on the family may have great appeal in the short run even though the longrun consequences are severe. Asymmetric cultural acceptance creates an easy off-ramp for females, to nearly everybody’s detriment.

April 25, 2019 in Family, Gender, Women lawyers | Permalink | Comments (0)

Third Circuit Holds that Gender Segregated Pool Schedule for Seniors Violates Fair Housing Act

Gender-segregated Pool Schedule for Seniors Condo Discriminates Against Women, Third Circuit Says

A New Jersey condominium association’s sex-segregated pool schedule discriminates against women in its “allotment of favorable swimming times,” a federal appeals court ruled Monday.

 

A three-judge panel of the 3rd U.S. Circuit Court of Appeals at Philadelphia held that while A Country Place—a seniors condominium that has enforced the schedule since 2011—provides “roughly equal swimming time for both men and women,” women are only able to swim for 3½ hours after 5 p.m. on weeknights, while men are permitted to swim for 16½ hours during this period.

 

The schedule also only allows men to swim from 4 p.m. onward on Friday, according to the ruling, which was reported by Courthouse News Service and Asbury Park Press.

 

“Women with regular-hour jobs thus have little access to the pool during the workweek, and the schedule appears to reflect particular assumptions about the roles of men and women,” Circuit Judge Thomas Ambro wrote in the opinion.

 

A Country Place adopted the sex-segregated pool schedule to accommodate the Orthodox Jewish principle of tznius, or modesty. By 2016, two-thirds of the condominium’s residents were Orthodox, the opinion says.

 

Marie Curto, Steve Lusardi and his wife Diana Lusardi filed the lawsuit against the condominium association alleging violations of the Fair Housing Act and several New Jersey state laws after they were fined $50 each by the condominium association for swimming during unsanctioned times. Curto wanted to swim with her family after work, while Steve Lusardi wanted to help his wife with pool therapy after she had a series of strokes.

 

The District Court for the District of New Jersey granted summary judgment to A Country Place after it found “the gender-segregated schedule applies to men and women equally,” Ambro said.

 

The 3rd Circuit panel disagreed, holding that due to the specific inequitable features, the pool schedule discriminates against women under the FHA.

April 25, 2019 in Family, Work/life | Permalink | Comments (0)

Monday, April 22, 2019

Supreme Court Grants Cert to Resolve Circuit Split on Whether LGBTQ Bias is "Sex" Discrimination under Title VII

The US Supreme Court granted cert today in Altitude Express v. Zarda, RG & GR Harris Funeral Homes v. EEOC, and Bostock v. Clayton County on the question of "Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)."

Wash Post, Supreme Court to Decide if Anti-Harassment Employment Laws Protect on Basis of Sexual Orientation and Gender Identity

The Supreme Court on Monday added what could be landmark issues to its docket for the next term: whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.

 

The court accepted three cases for the term that begins in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.

 

The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.

Bloomberg, Supreme Court Can Settle Split on LGBT Bias in the Workplace

At least nine federal circuit courts ruled in decisions prior to 2007 that sexual orientation wasn’t covered by Title VII of the 1964 Civil Rights Act, which prohibits bias against workers and job applicants based on their “sex.” The tide began to shift in 2015, when the Equal Employment Opportunity Commission decided in a federal sector case that Title VII does apply to sexual orientation.

 

In a groundbreaking decision in 2017, the U.S. Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII covers sexual orientation when it said a lesbian job applicant could sue an Indiana community college for discrimination. While the Eleventh Circuit decided earlier that year that the law doesn’t apply to sexual orientation, the Second Circuit deepened the split in the courts with its 2018 ruling that it does.

The Supreme Court Just Took Up a Set of Very Big Cases on LGBTQ Rights

The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.***

 

The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).

April 22, 2019 in Equal Employment, LGBT, SCOTUS | Permalink | Comments (0)

Monday, April 15, 2019

US Senators Propose Anti-Sexual Harassment Bill, the "Be Heard Act"

Dems Unveil Anti-Workplace Harassment Bill

A group of Democratic lawmakers on Tuesday unveiled a bill aimed at strengthening protections against harassment in the workplace, including sexual harassment.

 

Sen. Patty Murray (D-Wash.) and Democratic Reps. Katherine Clark (Mass.), Ayanna Pressley (Mass.), Elissa Slotkin (Mich.) and Debbie Mucarsel-Powell(Fla.) introduced the "Be HEARD Act," which stands for Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace.

 

Several 2020 Democratic presidential contenders have also signed onto the legislation, including Sens. Kamala Harris (D-Calif.), Elizabeth Warren(D-Mass.), Kirsten Gillibrand (D-N.Y.), Bernie Sanders (I-Vt.), Amy Klobuchar(D-Minn.) and Cory Booker (D-N.J.), among other senators.

 

The legislation aims to eliminate the tipped minimum wage, which largely leaves service worker pay up to customers, as well as end mandatory arbitration and pre-employment nondisclosure agreements and give workers more time to report harassment, among other provisions.

Democrats' Bill to Fight Sexual Harassment, Explained

On Tuesday, Democrats in Congress will introduce legislation aimed at helping those workers. Called the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act, it would close loopholes in federal discrimination law that leave many domestic workers without legal protections from sexual harassment. It would authorize grants for low-income workers to help them seek legal recourse if they are harassed. And, crucially for food service workers like Tucker, it would eliminate the lower minimum wage for tipped workers, which many say makes servers vulnerable to harassment by customers.

 

“Some women did and do still think that in order to make the extra tip, they have to ignore unwanted touches and unwanted comments,” Tucker said, “and we shouldn’t have to.”

 

The legislation could face an uphill battle in a Republican-controlled Senate. But it’s an example of a larger move toward systemic changes that would go beyond deposing a few big-name men, and help the many workers in America whose harassment never makes the news.

April 15, 2019 in Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Legal Rules of Professional Ethics as an Enforcement Mechanism Against Gender Violence and Harassment

Katherine Yon Ebright, Taking #MeToo Seriously in the Legal Profession, 32 Georgetown J. Legal Ethics (2019)

With the advent of the #MeToo movement, we have seen unprecedented interest in taking, and real initiatives to take, gender violence and harassment seriously. Actors and directors have been forced out of Hollywood. Conductors have been forced out of their concert halls, chefs out of their kitchens, professors out of the hallowed halls of academia. What of the legal profession? Attorneys are rarely professionally sanctioned for committing rape, sexual assault, sexual harassment, or domestic violence. Indeed, some jurisdictions have interpreted these gendered acts as falling outside the ambit of the rules of professional conduct.

This Article examines how the legal profession has thus far addressed gender violence and harassment, as well as how it might do so in the future. Part I reviews different states’ rules of professional conduct and their interpretations with respect to gender violence and harassment. It homes in on state-to-state discrepancies in interpreting certain shared provisions that could be used for disciplining rape, sexual assault, sexual harassment, and domestic violence. Part II then reviews enforcement patterns for states that either do or might professionally sanction gender violence and harassment. Noting that enforcement rates are staggeringly low, Part II identifies deficiencies in the rules of professional conduct that permit abusers to keep practicing without professional sanction. Part III concludes by proposing a series of reforms that would harmonize states’ understandings of gender violence and harassment and address, to some extent, the enforcement problem.

April 15, 2019 in Equal Employment, Gender, Law schools | Permalink | Comments (0)

Unsexing Pregnancy

David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 Columbia L. Rev. (2019)  

Because sex does not dictate the capacity to provide care in the home or work in the market, sex-equality law combats harmful sex stereotypes by eliminating statutes and regulations that assign these roles on the basis of sex. When it comes to pregnancy, though, courts and commentators alike chart a very different course. They assume that pregnancy is a biological event that is almost exclusively for women. Thus, equal protection jurisprudence accepts the legal assignment of carework during pregnancy to women, and a range of laws regulating pregnancy carework — from prenatal leave under the Family and Medical Leave Act to health benefits under the Affordable Care Act to employment protections under the Pregnancy Discrimination Act — apply only or mostly to women. Even though the sexed law of pregnancy stands in stark contrast to the unsexed law of parenting, the sexed pregnancy has avoided challenge and largely escaped notice.

This Article makes visible the law of the sexed pregnancy, identifies and evaluates the core tension it generates in the law of sex equality, and considers how to unravel this tension. Of course, typically only women can physically carry a child, and therefore some pregnancy regulations are appropriately sex specific. But the nine months of pregnancy encompass a range of carework, much of which has little or nothing to do with the physical fact of pregnancy. Expectant fathers can, for example, buy a carseat, quit smoking, take a childcare class, and choose a pediatrician or daycare center for the child. Given the ability to disaggregate sex from much of the carework of pregnancy, the law’s failure to do so marks women for caregiving and men for breadwinning in the same problematic way that sex-equality law has tried to combat after a child is born. And while pregnancy implicates real concerns about a woman’s constitutional right to bodily autonomy, this concern alone cannot justify the failure to scrutinize all sex-based pregnancy regulations, because much prebirth carework does not involve the woman’s body at all. After surfacing the law’s anomalous sexed treatment of pregnancy, this Article considers how to harmonize the law of sex equality. This effort can advance not only the goal of equality between the sexes, but also equality for lesbian, gay, and transgender parents, while at the same time enhancing women’s autonomy.

April 15, 2019 in Family, LGBT, Pregnancy | Permalink | Comments (0)

Wednesday, April 10, 2019

Fitting LGBTQ Discrimination into the Larger Framework of Sexism

Anthony Michael Kreis, Policing the Painted and Powdered, 41 Cardozo L. Rev. (forthcoming)  

Is homophobia also sexism?

This question was the focus of pioneering scholarship nearly three decades ago and has been the subject of reignited controversy because of litigation over marriage rights, employment discrimination, educational opportunities, fair housing, religious exemptions, and military service. Even though some courts, federal agencies, and state employment commissions have recognized that sexual orientation and gender identity discrimination are subsets of sex discrimination, including the landmark Title VII decisions Hively v. Ivy Tech and Zarda v. Altitude Express, academics, judges, and public administrators have been unable to articulate a plain theory of sexual orientation discrimination as sexism. Without a straightforward theory to operationalize into law, some judges are unpersuaded that sexism and homophobia are linked. Appellate judges have struggled to find consensus even when they agree that sexual orientation discrimination is sex discrimination.

This Article’s objective is to reconsider the relationship between sexism and homophobia, by reexamining prior scholarship with new historical evidence and an exploration of recent LGBTQ rights jurisprudence to provide a more complete, easily digestible analytical framework that explains how homophobia fits in in the larger puzzle of American sexism. The Article argues that American law’s historical and more contemporary maltreatment of sexual minorities is a product of a particular brand of sexism — ambivalent sexism — which utilizes a carrot and stick approach to subjugate both women and sexual minorities simultaneously. Ambivalent sexism punitively targets visible gender non-conformity while patronizingly rewarding individuals compliant with traditional gender expectations at the expense of women.

The Article contends that the path-dependent consequences of actions taken by Progressive Era lawmakers and the early administrative state in response to the LGBTQ community’s amplified visibility in the nineteenth-century and the reappropriation of paternalistic legal theories initially used to restrict women’s rights, constitute the crux of homophobia in the law. The Article proffers how ambivalent sexism animates the homophobic state and urges courts and administrative actors to recognize that homophobia is a type of sexism.

April 10, 2019 in Gender, LGBT, Theory | Permalink | Comments (0)

Tuesday, April 9, 2019

An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation

Catherine Ross Dunham & Christopher Leupold, Third Generation Discrimination: An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation 

 In this progressive era of #MeToo and other movements which highlight the reality of women’s experiences in the workplace and other settings, the question arises as to why discrimination-based civil lawsuits are not more successful for female litigants. The courts have served as an important tool in reforming discriminatory workplace cultures by directly addressing and punishing overtly discriminatory workplace behavior such as blatant pregnancy and gender discrimination or grievous acts of sexual harassment. But the same courts have not been able to function as a safe haven for women who have their careers curtailed by implicit bias-based gender discrimination brought under Title VII. Gender discrimination lawsuits brought under a theory of bias-based discrimination, more specifically bias-based gender discrimination, have not offered reliable remedies for female litigants and have not impacted workplace culture in any meaningful way.

Bias-based gender discrimination theory involves structural discrimination – facially neutral workplace policies that are applied to favor the male dominant group and consequently written and managed by a male-dominated upper hierarchy. Successful litigants in bias-based gender discrimination cases must convince the judicial decision-maker not only that the law of Title VII applies, not only that the facts at issue constitute discrimination, but also that the workplace is mired in multi-layer structural discrimination flowing from an implicit bias against female employees. In order for the federal courts to function fully as interpreters of Title VII, policing our workplaces for equity and inclusion, the judicial gatekeepers must engage their own biases and preconceptions when evaluating the subject workplace.

This article follows an earlier piece which theorized there is an additional layer of implicit bias-based discrimination which inhibits the success of plaintiffs in Title VII lawsuits. That article argued that lawsuits seeking relief under facts of implicit bias-based workplace discrimination are further inhibited by bias in the courts, specifically the implicit biases of the federal judges who monitor the progress of the plaintiff’s case. This additional layer of implicit bias-based discrimination, Third Generation Discrimination, theorizes that a federal judge may be influenced by his or her own traits when evaluating gender discrimination cases which involve bias-based theories of gender discrimination.

This article is based on the authors’ study of Title VII cases in federal district courts over a ten-year period. The authors studied the judicial rulings on dispositive motions in Title VII cases and compared those outcomes to demographic information for the deciding judge, including race, gender, age and political affiliation. Part II of the article summarizes the theories of Second and Third Generation Discrimination, creating a framework for the research to follow. Part III of the article describes and explains the relevant research by outlining the parameters of the sample, explaining the statistical method followed, and discussing the research results. Part IV of the article analyzes the results of the authors’ research and theorizes how the authors’ findings can inform future discussions of gender discrimination.

 

April 9, 2019 in Courts, Equal Employment, Gender, Workplace | Permalink | Comments (0)

Gender in Comparative Constitutional Change

Silvia Suteu, Gender in Comparative Constitutional Change, Forthcoming in Xenophon Contiades and Alkmene Fotiadou eds., Routledge Handbook on Comparative Constitutional Change (2019)

This chapter seeks to bridge the gap between the expanding literatures on comparative constitutional change and gender and constitutionalism. Starting from an inclusive definition of gender, the chapter maps and evaluates areas of recent intense constitutional activity in the field of gender equality and non-discrimination, as well as the formal and informal mechanisms used for bringing about reform. The chapter looks in particular at the continued fight for women’s rights, especially access to abortion and gender quotas, and to gender and sexual minority rights, in particular marriage equality and the recognition of a non-binary conception of gender. The chapter contextualises these issues and concludes that the framing of these debates will be very important, as will be the promotion of a change in societal attitudes alongside any constitutional and legislative change.

April 9, 2019 in Abortion, Constitutional, International | Permalink | Comments (0)

Reproductive Rights Stories: FMLA and the Supreme Court's Decision in Nevada Dept of Human Resources v. Hibbs

Sam Bagenstos, Nevada Department of Human Resources v. Hibbs: Universalism and Reproductive Justice" 
Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel, eds., Forthcoming)

The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton — just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism — the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by Chief Justice Rehnquist, relied heavily on feminist universalist arguments. Even at the time of Hibbs, though, evidence was accumulating that the FMLA’s universalist approach was not sufficient to achieve the underlying goals of feminist lawyers and activists: disestablishing gender-role stereotypes and promoting equal opportunities for women and men throughout society. Hibbs thus represents the triumph of feminist universalism, even as it highlights the limitations of the feminist universalist project.

April 9, 2019 in Books, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Thursday, April 4, 2019

Catharine MacKinnon on the Butterfly Effect of Activist Politics and Legal Change

Video, The Butterfly Effect with Catharine MacKinnon

The always-impressive Catharine MacKinnon discussing substantive equality, male dominance grounded in sexual abuse and gender subordination, and legal change.

April 4, 2019 in Equal Employment, Gender | Permalink | Comments (0)

Catharine MacKinnon on What MeToo Has Changed

Catharine MacKinnon, What #MeToo Has Changed

But #MeToo has been driven not by litigation but by mainstream and social media, bringing down men (and some women) as women (and some men) have risen up. The movement is surpassing the law in changing norms and providing relief that the law did not. Sexual-harassment law prepared the ground, but #MeToo, Time’s Up, and similar mobilizations around the world—including #NiUnaMenos in Argentina, #BalanceTonPorc in France, #TheFirstTimeIGotHarassed in Egypt, #WithYou in Japan, and #PremeiroAssedio in Brazil among them—are shifting gender hierarchy’s tectonic plates.

 

Until #MeToo, perpetrators could reasonably count on their denials being credited and their accusers being devalued to shield their actions. Many survivors realistically judged reporting to be pointless or worse, predictably producing retaliation. Complaints were routinely passed off with some version of “She isn’t credible” or “She wanted it” or “It was trivial.” A social burden of proof effectively presumed that if anything sexual happened, the woman involved desired it and probably telegraphed wanting it. She was legally and socially required to prove the contrary. In campus settings, in my observation, it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one quarter of a person.***

 

The #MeToo movement is finally breaking this paralyzing logjam. Structural misogyny, with sexualized racism and class inequalities, is being challenged by women’s voices. No longer liars, no longer worthless, today’s survivors are initiating consequences few could have gotten through any lawsuit—in part because the laws do not permit relief against individual perpetrators, more because the survivors are being believed and valued as the law seldom has.***

 

The #MeToo mobilization, this uprising of the formerly disregarded, has made increasingly untenable the assumption that the one who reports sexual abuse is a lying slut. That is already changing everything. A lot of the sexual harassment that has been a constant condition of women’s lives is probably not being inflicted at this moment.

April 4, 2019 in Equal Employment, Gender, Media, Pop Culture | Permalink | Comments (0)

Justice Ginsburg's Legacy and the Draft Case

Linda Greenhouse, Why R.B.G. Matters, NY Times

For the judicial icon otherwise known as R.B.G., Justice Ruth Bader Ginsburg’s past few roller-coaster months have included being lionized by Hollywood, laid low by cancer surgery, and most recently issuing one of the Supreme Court term’s more important decisions, placing limits on civil forfeiture, within a day of returning to the bench. People who know almost nothing about the court and can’t name another justice know her name. In a celebrity-saturated age, she is one of the culture’s most unlikely rock stars.

 

Yet for all the accolades that have come her way, I’m willing to bet that among the most meaningful to her is one that doesn’t even mention her name. I’m referring to the decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally.

 

Justice Ginsburg’s influence shone through the spare and refreshingly direct 19 pages of Judge Gray H. Miller’s opinion. He held that the old arguments against registering (and theoretically drafting) women accepted by the Supreme Court when it last considered the question 38 years ago no longer apply now that women are welcomed by the military and eligible for all roles, including combat positions, for which they meet the sex-neutral qualifications.

 

As might be expected in a case dealing with women in the military, Judge Miller quoted liberally from Justice Ginsburg’s 1996 opiniondeclaring unconstitutional the exclusion of women from the state-supported Virginia Military Institute. Any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females,” Justice Ginsburg wrote in one passage Judge Miller cited.

 

What really caught my attention was how, beyond the V.M.I. references, Justice Ginsburg’s pre-judicial career is embedded throughout Judge Miller’s opinion, National Coalition for Men v. Selective Service System. It’s not that Judge Miller directly cited many of the cases that the young lawyer Ruth Ginsburg won, and in which she methodically showed the nine men of the 1970s Supreme Court how to construct a jurisprudence of sex equality. Rather, he cited the cases that built on the cases that relied on Ruth Ginsburg’s Supreme Court victories. Reading his opinion is like opening a set of Russian dolls, each one nested inside the one that just opened.

April 4, 2019 in Constitutional, Courts, Judges | Permalink | Comments (0)

Understanding the Origins, Use, and Misuse of the Term "Toxic Masculinity"

The Problem With the Term "Toxic Masculinity"

Over the past several years, toxic masculinity has become a catchall explanation for male violence and sexism. The appeal of the term, which distinguishes “toxic” traits such aggression and self-entitlement from “healthy” masculinity, has grown to the point where Gillette invoked it last month in a viral advertisement against bullying and sexual harassment. Around the same time, the American Psychological Association introduced new guidelines for therapists working with boys and men, warning that extreme forms of certain “traditional” masculine traits are linked to aggression, misogyny, and negative health outcomes.***

 

Masculinity can indeed be destructive. But both conservative and liberal stances on this issue commonly misunderstand how the term toxic masculinity functions. When people use it, they tend to diagnose the problem of masculine aggression and entitlement as a cultural or spiritual illness—something that has infected today’s men and leads them to reproachable acts. But toxic masculinity itself is not a cause. Over the past 30 years, as the concept has morphed and changed, it has served more as a barometer for the gender politics of its day—and as an arrow toward the subtler, shifting causes of violence and sexism.

 

Despite the term’s recent popularity among feminists, toxic masculinity did not originate with the women’s movement. It was coined in the mythopoetic men’s movement of the 1980s and ’90s, motivated in part as a reaction to second-wave feminism. Through male-only workshops, wilderness retreats, and drumming circles, this movement promoted a masculine spirituality to rescue what it referred to as the “deep masculine”— a protective, “warrior” masculinity—from toxic masculinity. Men’s aggression and frustration was, according to the movement, the result of a society that feminized boys by denying them the necessary rites and rituals to realize their true selves as men.***

 

The question is: Where do these sexist attitudes come from? Are men and boys just the victims of cultural brainwashing into misogyny and aggression, requiring reeducation into the “right” beliefs? Or are these problems more deep-seated, and created by the myriad insecurities and contradictions of men’s lives under gender inequality? The problem with a crusade against toxic masculinity is that in targeting culture as the enemy, it risks overlooking the real-life conditions and forces that sustain culture

April 4, 2019 in Gender, Manliness, Masculinities, Pop Culture | Permalink | Comments (0)

Wednesday, April 3, 2019

Video Lecture re: France Replacing the Word "Race" in its Constitution with "Sex," Adopting an ERA

Emmanuelle Saada, Video, "Without Distinction . . . of Sex": The Constitutional Politics of Race and Sex in Contemporary France

This lecture provides an analysis of the French parliamentary debate in June 2018 and unanimous adoption of a change in its Constitution to the foundational statement about the “inalienable” rights of citizens.  The change was to delete the word “race” from the list of those categories protected from discrimination and to add the word "sex," which practically adopts an ERA. 

See also France Replaced the Word "Race" -- with "Sex" -- in its Constitution (June 2018)

April 3, 2019 | Permalink | Comments (0)