Monday, September 30, 2019
Podcast: Law Professor Discusses Gender and US Asylum Law and the Difference Feminist Legal Thought Made
Aziza Ahmed: Hi, this is Aziza Ahmed. I’m a law professor at Northeastern University’s School of Law, and I’m so happy to be talking to Deborah Anker today as part of the Signs “Ask a Feminist” series. Deborah, thank you so much for taking the time to be with us on this podcast today.
Deborah Anker: My pleasure.
AA: Your work has been so instrumental in helping advocates and lawyers acknowledge the complexity that gender brings to immigration and asylum law.
AA: I was curious to hear from you about when you felt like feminism really came to immigrants’ rights work. I’m sure in communities themselves it was there…
DA: I really thank the women’s movement for challenging the public-private distinction. That was key. And we learned that from the women’s movement—that so-called “private acts of violence” were of public concern and of human-rights concern, or were human rights violations. That was incredibly important.
AA: And became foundational to the types of gender-based asylum claims…
DA: It became very, very foundational for the cases that we brought. It was really the women’s movement that made us start thinking about it. People would come in and we would interview the man and find out what his problems were. We never thought that what happened to women would rise to the level of persecution or would be considered persecution by the adjudicators and by the authorities. That was incredibly important. That rape could constitute prosecution, that “private acts of violence” could constitute prosecution. I think we now understand that being forced to leave your child as a form of persecution.
Tracing the History of the Equal Pay Dispute Between the US Women's National Soccer Team and the Soccer Federation
The United States Women’s National Soccer Team has dominated the sport since the inaugural Women’s World Cup in 1991. Despite its success on the field, however, the team has had a contentious relationship over the last three decades with the United States Soccer Federation, the sport’s governing body in the United States. The ongoing discord between the Women’s National Team and the U.S. Soccer Federation culminated in March 2019, when twenty-eight players from the team filed a lawsuit alleging that the Federation had violated the Equal Pay Act by paying them less than it paid members of the Men’s National Team.
This Article traces the history of strife between the Women’s National Team and the U.S. Soccer Federation. The troubled relationship has resulted from the mismatch between the team’s superior results but lower pay compared to the Men’s National Team. This mismatch has its roots in competing legal and societal forces. On the one hand, Title IX caused an explosion in the participation rate for women’s soccer in the United States, which has led to the Women’s National Team’s unprecedented success. On the other hand, with the exception of the World Cup finals every four years, the viewership market for women’s soccer remains much smaller than the market for men’s soccer, which has resulted in lower revenue generation by the Women’s National Team compared to the far less successful Men’s National Team.
After explaining the history and cause of the turmoil between the team and the U.S. Soccer Federation, the Article analyzes the merits of the players’ Equal Pay Act claim. The Article contends that the Federation has the stronger position on the merits of the claim, but further argues that the Federation should renegotiate the Women’s National Team’s collective bargaining agreement in light of the Federation’s mission of “gender equality.” The Article proposes specific principles that might guide that renegotiation and lead to a successful resolution of the long-standing tensions between the Women’s National Team and the U.S. Soccer Federation.
SCOTUS to Consider Question of whether Sexual Orientation and Gender Identity are Protected by Title VII
Lots of writing and thinking about the upcoming Supreme Court cases to be heard on Oct. 8 on whether Title VII's "because of sex" extends to sexual orientation and/or gender identity. The consolidated cases are, from SCOTUSblog:
Bostock v. Clayton County, Georgia, No. 17-1618 [Arg: 10.8.2019]
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107 [Arg: 10.8.2019]
|Altitude Express Inc. v. Zarda, No. 17-1623 [Arg: 10.8.2019]
Issue(s): Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
Some of the analysis includes:
Andrew Koppelman, LGBT Discrimination and the Subtractive Moves
The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.
In a pair of cases that’ll be argued on October 8th—Bostock v. Clayton County, Georgia, No. 17-1618, and Altitude Express, Inc. v. Zarda, No. 17-1623—the Supreme Court will consider whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits that employer from firing an employee because he’s a gay man.
The defendant employers and the Solicitor General recently filed their briefs arguing that there’s no Title VII liability in these cases. Those briefs frame the issue in a particular, familiar way: They assume that the Court’s decision depends upon whether it would violate Title VII for an employer to implement a policy that categorically excludes all persons with same-sex orientation, gay men and lesbians alike, from the workforce—as though the cases involve what a couple of court of appeals judges (Judge Lynch in the Second Circuit and Judge Sykes in the Seventh Circuit) described as employers who “insist that [their] employees match the dominant sexual orientation regardless of their sex” and therefore hire “only heterosexual employees.”As I’ll explain in Parts IV and V of this post, I think such a categorical “heterosexuals only need apply” policy would violate Title VII, even if it equally affected gay men and lesbians alike. Before getting to that discussion, however, in Part III I explain why this common framing of the question—based on a hypothetical employer who believes that homosexuality as such is immoral and thus won’t employ gay men or lesbians—is not, in fact, the scenario raised by these cases or, indeed, by virtually any of the reported cases in which employees have alleged that they were fired because of their same-sex orientation. In Bostock and Zarda, for instance, if the supervisors in question did fire the plaintiffs (at least in part) because they were gay men--something the plaintiffs will have to establish--it's not at all obvious that they would have fired similarly situated lesbians, too. Indeed, both of the defendant employers in these cases, like almost all employers covered by Title VII, steadfastly insist that they don't have a policy or practice of hiring only heterosexuals—in part, no doubt, because such discrimination would be unlawful wholly apart from Title VII, but also because very few employers in the nation today would be willing to exclude all gay employees from their workforce: such a policy or open and notorious practice would be foolhardy, if not economically disastrous (not to mention morally odious) for almost employers.Once this crucial point is acknowledged—namely, that there’s no reason to believe these employers would have treated lesbian employees the way they (allegedly) treated the gay male plaintiffs—that ought to resolve the Title VII question, because both the Solicitor General and the defendants themselves concede that even if Congress didn’t intend to prohibit discrimination based upon sexual orientation, as such, it is a form of prohibited sex discrimination for a covered employer to treat a gay man less favorably than the employer would have treated a similarly situated lesbian (or vice versa).
The U.S. Equal Employment Opportunity Commission sued R.G. & G.R. Harris Funeral Homes on behalf of Stephens, arguing her former employer fired her because she is transgender, violating federal civil rights laws. The funeral home and its owner Thomas Rost, however have since argued that “maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”
This dispute will play out before the U.S. Supreme Court on Oct. 8, where the justices will grapple with a broader question of whether gender identity should be protected under Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, national origin, and religion. The divisive issue has been drawn into the national spotlight, and pits two federal agencies against each other.
The funeral home’s dress code argument, backed by the Justice Department, reveals a practical clash in the workplace that could be resolved when the high court issues its opinion. Whether these policies are permitted under Title VII already falls in a legal gray area, and has prompted challenges for decades and inspired some state action recently, specifically over hair or grooming policies.
Sara Kimble, Of "Masculine Tyranny" and the Women's Jury": The Gender Politics of Jury Service in Third Republic France, Law & History Review (2019)
In 1905 Hyacinthe Bélilon (1846–1913) and Camille Bélilon (1851–1930), two sisters working under pseudonyms as writers, began attending criminal trials and issuing unofficial verdicts as part of a new organization: the jury féminin, the women’s jury. Led by the sisters, this organization consisted of a panel of twelve female jurors who attended trials in Paris. As witnesses to the courtroom spectacle, these women would have been seated as members of the public audience, behind the gates of the barreau, the open space where attorneys and witnesses addressed the judges. Following each trial, the jury féminin issued their own unofficial verdicts and published their reasoning in the monthly newspaper Journal des femmes over a period of 5 years. The resulting trove of verdicts for eighty cases highlights the ways in which these unauthorized female jurors made decisions to exonerate or assign responsibility to the defendants.
The jury féminin contributed to a sustained public protest against male bias in the justice system, a condemnation of official all-male juries’ role in perpetuating a double moral standard and the inequalities of the French civil and penal codes. Their feminist legal commentary on criminal cases challenged the assumption that the legal system provided equal treatment for female victims or defendants. These activists’ courtroom appearances and published articles were forms of protest that furthered the political campaign to admit women to criminal juries, and by extension, to promote an enlarged role in civic life for women.
Thursday, September 26, 2019
Her name is Chanel Miller.
For four years, she has been known publicly as Emily Doe, "an unconscious woman" or simply "Brock Turner's victim." In her memoir Know My Name, she wants to set the record straight: "I am a victim, I have no qualms with this word, only with the idea that it is all that I am," she writes. "However, I am not Brock Turner's victim. I am not his anything."
In 2015, Miller was sexually assaulted by Turner on Stanford University's campus. Two Swedish graduate students were passing by on bikes and chased Turner off an unconscious Miller. Turner was convicted of three felonies but served only three months of a six-month sentence in county jail. The case became notorious for its illustration of the race and wealth gap in sentencing, and for the stinging eloquence of Miller's victim statement, which went instantly viral when it was published by BuzzFeed.
Know My Name is a devastating, immersive memoir of her sexual assault and its aftermath. We live with Miller minute by minute, thinking and feeling with her. At points, particularly during the account of her testimony, it is hard to read it and breathe at the same time.
“Know My Name” is an act of reclamation. On every page, Miller unflattens herself, returning from Victim or Emily Doe to Chanel, a beloved daughter and sister, whose mother emigrated from China to learn English and become a writer and whose father is a therapist; a girl who was so shy that, in an elementary school play about a safari, she played the grass. Miller reads “Rumi, Woolf, Didion, Wendell Berry, Mary Oliver, Banana Yoshimoto, Miranda July, Chang-rae Lee, Carlos Bulosan.” She rides her bike “through the Baylands … across crunchy salt and pickleweed.” She fosters elderly rescue dogs with names like Butch and Remy and Squid. She rages against a form that identifies “victim’s race” as white. “Never in my life have I checked only white. You cannot note my whiteness without acknowledging I am equal parts Chinese.”
“Know My Name” is one woman’s story. But it’s also every woman’s story — the story of a world whose institutions are built to protect men; a world where sexual objectification is ubiquitous and the threat of sexual violence is constant. Before Turner assaulted her, Miller had already survived one act of deadly misogyny near her college, the University of California at Santa Barbara, when Elliot Rodger, a privileged young man enraged that he’d never had a girlfriend, went on a spree and killed six people.
After the assault, Miller enrolls in art school in Rhode Island. But the East Coast proves no safer. Walking back from class, “I passed three men sitting on a car who fastened their eyes on my legs, clicked their tongues and smacked their lips, performing the sounds and hand gestures one might use if attempting to summon a cat. … I trained myself to tuck my head down, avoiding eye contact, feigning invisibility.”
Miller takes us through the trial, her steadfast, supportive attorney, the humiliation of testifying, her rage when Judge Aaron Persky sentences Turner to just six months in county jail and probation, because a longer sentence would have a “severe impact” on the onetime Olympic hopeful. She quotes Turner’s father’s complaints that “these verdicts have broken and shattered” his son, who can no longer enjoy the rib-eye steaks he once loved. Turner himself says that he wants to “speak out against the college campus drinking culture and the sexual promiscuity.” “He had lived shielded under a roof where the verdict was never accepted, where he would never be held accountable,” Miller writes.
And then there was Stanford. “Their apathy, their lack of apology I could live with, but what troubled me most was their failure to ask the single most important question: How do we ensure this does not happen again?”
Eventually, there’s a hint of justice, a tiny rebalancing of the scales. Judge Persky is recalled. Turner’s appeal is denied. Miller writes an incandescent, awesomely angry victim impact statement that blazes across the internet, beginning, “You don’t know me, but you’ve been inside me, and that is why we’re here.” While Turner registers as a sex offender, Miller signs a book contract. She texts her mother a picture of herself in New York City, enjoying a celebratory dessert of grilled peaches. Her mother texts back, “You are mommy’s dream.”
In what could be seen as defiance of the Court and indifference to Whole Woman’s Health, the Louisiana’s legislature did not repeal the “Unsafe Abortion Protection Act” or Act 620—its version of the Texas law, which requires “a physician performing or inducing an abortion” to “[h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” To place in context the Louisiana legislature’s brazen disregard of Whole Woman’s Health, imagine that state enacted a separate but equal public school segregation law based on race, in the wake of Brown v. Board of Education striking down such legislation.
Even more curious, imagine if the court of appeals upheld it.
One need not study this hypothetical too long nor relitigate the shameful horrors of Jim Crow in Louisiana and throughout the American south to recognize the harms it would inflict on Black students in Louisiana if such a law were in effect. The vestiges and badges of slavery would be apparent. Indeed, any claims by Louisiana that its version of separate but equal was so factually different such that Brown does not apply would be farcical. The distinctions are irrelevant when the very principle violates the constitution. Brown did not apply only in Topeka, Kansas.
In the present case, not surprisingly, both doctors and clinics challenged Louisiana’s law, securing a permanent injunction at the district court level, which the Fifth Circuit vacated in June Medical Services v. Gee. Unconvinced that the facts undergirding Whole Woman’s Health applied in Louisiana, the Fifth Circuit lifted the injunction. In doing so, the court brushed aside that more than half the clinics in Texas closed in light of the Texas admitting privileges law going into effect, because doctors could not obtain such privileges; the closure of clinics meant that in some cases women traveled hundreds of miles in order to terminate a pregnancy or simply lost access altogether; and admitting privileges bore no relation to physician competency or protecting women’s health, because abortions are safe procedures that nearly never require any form of hospitalization. ***
The Supreme Court, in a 5-4 decision voted to stay the Fifth Circuit’s decision, which allows the district court’s injunction to remain in effect until the Court decides whether to grant certiorari this fall. Tellingly, Justice Kavanaugh dissented in the ruling, giving strong indication of not only his vote should the Court grant certiorari, but also his jurisprudence on abortion rights in cases to come.
What June Medical Services teaches is the power of the antiabortion playbook to take root in legislatures across the country, causing the repeat play of legislation already determined unconstitutional by the Supreme Court (Minnesota legislators proposed an ambulatory surgical standards law, which I testified against—also after Whole Woman’s Health). The goal of the playbook is to hobble abortion access and one powerful means of doing so is to surreptitiously drive doctors out of their practices, thereby forcing clinics to close, leaving women with virtually no options for safe termination of unintended, unwanted, or unsafe pregnancies.
Throughout the year, the justices meet periodically to decide if they want to add more cases to the short list of lawsuits that are argued before the Court. Monday is the Court’s “long conference,” the annual meeting where the justices consider the backlog of petitions that were filed while the Court was on its summer break, each of which ask the Court to hear a particular case.
One of those petitions concerns June Medical Services v. Gee, a case involving a Louisiana abortion restriction that will be very familiar to anyone who’s followed the last several years of abortion litigation.
To recap: Three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court considered a Texas law that imposed burdensome restrictions on abortion clinics that, at least on the surface, appeared to be ordinary health regulations. One provision required any physician performing an abortion in Texas to have admitting privileges at a nearby hospital (a credential that is especially difficult for abortion providers to obtain). Another required abortion clinics to maintain expensive facilities, such as “a full surgical suite with an operating room.”
Whole Woman’s Health was a challenge to what abortion-rights advocates often refer to as “targeted restrictions on abortion providers” or “TRAP” laws — laws that masquerade as efforts to make abortions safer but whose real purpose is to drive up the cost of operating abortion clinics until they shut down.
Many abortion clinics, for example, only offer medication abortions — a non-surgical abortion induced by pills. As Whole Woman’s Health explained, “the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication” because “complications would almost always arise only after the patient has left the facility.” Simply put, it makes no sense to require facilities that perform no surgeries to have a full surgical suite.***
Which brings us back to Gee, the case the Court will discuss next week. The Louisiana law at issue in that case is nearly identical to the admitting privileges law struck down in Whole Woman’s Health. Nevertheless, a panel of the conservative United States Court of Appeals for the Fifth Circuit upheld this extraordinarily similar law, largely resting its decision on a contested factual claim that it may be easier for doctors to obtain admitting privileges in Louisiana than it is in Texas.
That prompted a strongly worded dissent from Judge Patrick Higginbotham, a Reagan appointee. The Fifth Circuit majority, Higginbotham wrote, ignored the Supreme Court’s command that “‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden’ on the exercise of that right.”
Wednesday, September 18, 2019
Emily Prifogle, Law & Laundry: White Laundresses, Chinese Laundrymen, and the Origins of Muller v. Oregon
Forthcoming, Studies in Law, Politics, and Society
This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely the entangled histories of white laundresses’ labor and labor activism in Portland, as well as the labor of their competitors — Chinese laundrymen. In so doing, the article offers an intersectional reading of Muller that incorporates regulations on Chinese laundries and places the decision in conversation with a long line of anti-Chinese laundry legislation on the West Coast, including that at issue in Yick Wo v. Hopkins (1886).
Tuesday, September 17, 2019
Suzanne A. Kim & Edward Stein, Gender in the Context of Same-Sex Divorce and Relationship Dissolution.
This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same-sex couples upon divorce or other relationship dissolution. When same-sex couples marry, the legal system and society at large may project conceptions of gender onto same-sex couples, often in a manner that conflicts with couples’ intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same-sex relationships.
This article, part of a Wills, Trusts, and Estates Meets Gender, Race, and Class Symposium, explores the relationship between trusts and gender by looking at the language, myths, and trends that appear in current trust law. After discussing the relationship between gender and inheritance law more generally, the article focuses on the three dominant characteristics: divided ownership; privacy; and existence over time. Using a universe of recent cases, it discusses how gender affects fiduciary and settlor identity, including who is being chosen and by whom to serve as trustee and what language is being used to describe this important role. It then considers the impact of trustee identity and power from the perspective of trust privacy. It concludes by examining trust duration, which captures a larger problem having to do with “objectivity.” In Justice Engendered, Martha Minow explains that the “special burden and opportunity” of the law is to create “opportunities for insight and growth,” to “engender” justice by using language to help “remake the normative endowment that shapes current understandings.” This article argues that an “engendered” approach to trust law uses perspective, rhetoric, and “subtexts” to disrupt rather than ignore or reinforce existing social patterns and myths, to unearth embedded assumptions in language, and to notice when a particular vantage point is being used and “appreciate a perspective other than one’s own.” It concludes that although some courts are taking this “engendered” approach toward trusts and trustees, there is work yet to do.
A few short years ago, law schools were falling out of favor with young Americans looking for a route to affluence, influence, or both. Business schools, on the other hand, were attracting more students than ever. ***This year, the number of applicants to U.S. law schools is up an estimated 3.2%, after rising 8.1% last year.Still, a law degree is rightly no longer seen as quite the path to a secure and remunerative career that it used to be, and a lot of today’s law school applicants seem less interested in their future earnings profiles than in using their legal skills to fight the power, or something like that. In one survey conducted by test-prep provider Kaplan, 87% of law-school admissions officers said “the current domestic political climate” was a significant factor in 2018’s applications increase. In another, 45% of students taking Kaplan LSAT prep courses this February said the political climate affected their decision to apply for law school, up from 32% a year earlier.
In legal circles this phenomenon has come to be called the “Trump bump,” which sounds about right. More precisely, with young people and college graduates both tending to give the president low approval ratings, it seems likely that most of these political-climate-inspired applicants are inspired by opposition to Trump and his policies. Also, all of this year’s and most of last year’s applicant gains were driven by women, who as a rule like the current president a lot less than men do. As recently as 2013, women were still a minority among applicants to U.S. law schools. This year they accounted for 55%. So U.S. law schools will for at least the next few years be churning out more smart, politically engaged, probably left-leaning lawyers, most of them women.
Massachusetts Historical Society Conferences
Call for Papers for the 2020 Conrad E. Wright Research Conference
“Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of their Ratifications, October 16-17, 2020
Deadline: November 1, 2019
The year 2020 marks the anniversaries of two critical amendments to the United States Constitution. Spaced fifty years apart, the Fifteenth and Nineteenth Amendments, ratified in 1870 and 1920, respectively, prohibited the use of race or sex to deny American citizens the franchise. However, the amendments did not prevent states from adopting other methods of discrimination. Viewed as the product of two different movements—abolitionism and the Civil War on the one hand and the Progressive campaigns and the First World War on the other—these two periods and amendments are not often considered together. This conference revisits the long journey to secure voting rights for African Americans and women in United States history. It considers the legal precedents and hurdles that each amendment faced, the meaning and uneven outcomes of each, the social context that allowed for ultimate ratification, the role of key individuals and groups in these respective contexts, and how each amendment has been remembered over time.
This conference invites scholars from various disciplines to discuss common themes and challenges surrounding the amendments and papers can cover any topic relating to them. We welcome submissions from all historical, political science, and legal fields.
A keynote panel and reception will take place on Friday, 16 October. The panel features Profs. Alison M. Parker (University of Delaware) and Lisa Tetrault (Carnegie Mellon University) and will be moderated by Prof. Alex Keyssar (Harvard). The full conference day will take place on Saturday, 17 October.
Interested parties are encouraged to submit either individual paper presentations or full panels (with or without commenters) by November 1, 2019. Application materials must include a paper description and CV for individual submissions. Full panel proposals must include paper descriptions and individual CVs along with a description of the panel itself. Paper proposals should not exceed one page and accompanying CVs should not exceed ten pages in length. Please submit applications materials and/or questions to firstname.lastname@example.org.
In First, California Passes Bill Requiring Public Universities to Provide Medication Abortion on Campus
At a time when conservative states are sharply limiting abortion access, California signaled a new frontier in abortion-rights on Friday with the passage of legislation that would require all public universities in the state to provide medication abortion on campus.
The bill, which would use money raised from private donors to equip and train campus health centers, grew out of a student-led movement at the University of California, Berkeley, and it has sparked the introduction of a similar bill in Massachusetts.
Anti-abortion groups say they are likely to challenge the legislation if Gov. Gavin Newsom signs it into law. He has a month to decide. A spokesman declined to say what he will do, but last year during his campaign for governor, Mr. Newsom said he supported a similar effort.
Friday, September 13, 2019
Illinois companies will no longer be allowed to ask job applicants or their previous employers about salary history under a measure Democratic Gov. J.B. Pritzker signed into law Wednesday.
Advocates say asking applicants about their salaries at previous jobs helps perpetuate a wage gap between men and women doing the same jobs. Illinois lawmakers passed two previous versions of the legislation, but Pritzker’s predecessor, Republican Gov. Bruce Rauner, vetoed both. ***
The measure Pritzker signed, which takes effect in 60 days, passed with bipartisan support this spring in the House and Senate. Workers will be able to seek up to $10,000 in damages if employers violate the law, and it also protects the right of employees to discuss their salaries and benefits with co-workers.
Tuesday, September 10, 2019
The Atlantic, How Black Suffragettes Subverted the Domestic Sphere
A few decades after her graduation from Oberlin College, the scholar and educator Anna Julia Cooper wrote a stern missive in the Ohio university’s alumni journal. Having relocated to Washington, D.C., where she worked in the district’s first Colored Settlement House, Cooper wrote in the early 1900s with clarity and conviction about the importance of social service. She exalted the domestic sphere as a cornerstone of broader community support—and, in doing so, also illustrated just how unevenly groups like white religious entities metered their care. Her letter, published amid the struggle against gendered discrimination at the ballot box, revealed rifts in which groups of Americans most readily earned others’ sympathy and respect. One hundred years after the passage of the 19th Amendment guaranteed white women the right to vote, Cooper’s work still offers an instructive lens through which to consider social movements and interpersonal dynamics alike.
Like those made by other black suffragettes, the statement, titled “The Social Settlement: What It Is and What It Does,” was an often pithy indictment of the sociopolitical landscape—and, implicitly, a blueprint for what might be improved. ***
Sometimes referred to as the mother of black feminism, Cooper was born into slavery around 1858 in Raleigh, North Carolina. She would go on to spend most of her long academic and community–oriented career living in Washington, D.C., where she helped establish the Colored Women’s League (which later became part of the National Association of Colored Women’s Clubs, led by the likes of Mary Church Terrell, the organization’s first president). As white women across America endeavored to secure voting rights for themselves—and made calculated choices to exclude black people from those efforts—Cooper produced some of the most foundational analysis of injustice in the United States, most notably the overlaps of racism and sexism.
Joanna Grossman, The Seeds of Early Childhood, 71 Florida Law Review Forum 117, 131 (2019)
The trajectory of childhood is often shaped before childhood even begins. Pre-birth inequalities are not natural or inevitable. Rather, we create and cement policy choices that reduce access to adult healthcare, restrict accessible contraception, impede access to abortion, and deny prenatal care. Together, these choices mean that, in the United States, we maintain very high rates of unwanted pregnancy and increasingly high rates of maternal mortality and morbidity, burdens that fall disproportionately on women of color and women of lower socioeconomic status. Equality demands that we address these disproportionate burdens.
Jenna Sapiano & Beverley Baines, Feminist Curiosity about International Constitutional Law and Global Constitutionalism, Journal of the Oxford Centre for Socio-Legal Studies, Issue 1, 2019
Cynthia Enloe’s theory of feminist curiosity inspired us to ask whether feminist International Constitutional Law (ICL) scholars and their Global Constitutionalism (GC) counterparts apply the same concept of gender to the internationalization/globalization of constitutional norms. We analyzed ICL scholarship on substantive rights to security and equality (Hilary Charlesworth and Christine Chinkin), freedom from violence (Catharine A. MacKinnon), and parity (Ruth Rubio-Marín) and GC scholarship on processes of contestation (Antje Wiener), proportionality (Anne Peters), and democratic iterations (Seyla Benhabib). Our findings, in the form of a hypothesis, are that gender specificity infuses the former and gender inclusivity, the latter. In other words, these scholars take competing approaches to protecting (ICL) and empowering (GC) women. This hypothesis sets the stage for the conversations we imagine these feminist scholars might have: Charlesworth and Chinkin with Wiener about the rule of law; MacKinnon and Peters about the separation of powers; and Rubio-Marín and Benhabib about democracy. Their collective insights could yield constructive connections that advance women’s protection and empowerment domestically, internationally, and globally.
Monday, September 9, 2019
Stephanie Kelley & Anton Ovchinnikov, "(Anti-Discrimination) Laws, AI and Gender Bias"
We use state-of-the-art machine learning models trained on publicly available data to show that the data governance practices imposed by the existing anti-discrimination laws, when applied to automated algorithmic (“AI”) decision-making systems, can lead to significantly less favourable outcomes for the minority classes they are supposed to protect. Our study is set in the domain of non-mortgage credit provision, where the US and the EU laws prohibit the use of Gender variables in training credit scoring models; the US law further prohibits the collection of Gender data. We show that excluding Gender as a predictor has little impact on the model accuracy and on outcomes for males (the majority) but leads to a 30-50% increase in credit rejection rates for females (the minority). We further show that rebalancing the data with respect to Gender, prior to training models can significantly reduce the negative impact on females, without harming males, even when Gender is excluded from the credit scoring models. Taken together, our findings provide insight on the value of transparency and accountability, as opposed to prohibition for ethically managing data and AI systems, as societies and legal systems adapt to the fast advances in automated, AI-driven, decision making. Additionally, we hope that performing the analyses in a verifiable, open-access way, as we did, will facilitate future inquiries from other researchers and interested public into this critically-important societal issue.
Kerri Lynn Stone, Competing Interests and Best Practices in the Wake of #MeToo, JOTWELL
Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem.
This piece is both important and timely
School dress codes are often enforced in uneven ways, and black girls are disproportionately targeted, students from Washington, D.C., said in a report last year from the National Women’s Law Center. Now, some of those students are beginning to speak up — organizing walkouts, lunchtime protests and meetings with administrators to call out dress codes they see as unfair.
In a new report released Wednesday, the National Women’s Law Center highlighted some of these recent shifts and rated D.C. public and charter high schools based on the strictness of their dress code policies.
The researchers found that, among 29 D.C. schools, majority-black high schools on average had more dress code restrictions than other high schools. And charter schools in the District, on average, had more than twice the number of dress code restrictions than traditional public schools in the 2018-2019 school year.
“Especially in this Me Too movement that we’re in, schools shouldn’t be teaching students that it’s okay to scrutinize girls’ bodies ... or make them feel like they have to cover up or feel less than,” said Nia Evans, author and lead researcher of the report.