Friday, February 28, 2020
Abortion restrictions that were enacted when Republicans controlled Virginia’s General Assembly are being undone in legislation approved by the Democrats who are now in charge.
The House on Thursday gave final passage to a bill that would roll back provisions including a 24-hour waiting period before an abortion and a requirement that women seeking an abortion undergo an ultrasound and counseling. The measure would also undo the requirement that abortions be provided by a physician, allowing nurse practitioners to perform them, and do away with strict building code requirements on facilities where abortions are performed.
The Senate companion measure passed earlier in the week. The legislation now goes to Democratic Gov. Ralph Northam, who supports it.
“When this legislation goes into effect, Virginians will no longer have to navigate an obstacle course of delays and barriers in order to access a safe and legal abortion,” said Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia.
The measures passed largely along party lines, with staunch opposition from Republicans and religious advocacy groups that testified against it in committee hearings.
Republican Del. Kathy Byron said in a floor speech Thursday that the changes would lead to women being less informed about “maybe one of the most important decisions that they ever make.”
“What we're doing today is we're voting to deny women complete information on what an abortion means, its consequences, its implications, its alternatives," she said.
The law, passed Thursday in the House of Delegates, will repeal Virginia’s mandatory waiting period, which requires patients to wait 24 hours after a consultation to receive an abortion. It will allow certified nurse midwives and nurse practitioners to perform first-trimester abortion services and remove the requirement that providers give counseling to patients seeking abortions. It will also eliminate the requirement for an ultrasound before an abortion, a practice that can be traumatizing for patients. The American Medical Association says mandatory ultrasounds provide no “additional medically necessary information.” ***
“Those restrictions in the code were politically charged,” says Herring, “and it had nothing do with the provision of good care.”
Democratic state lawmakers across the country have passed similar abortion protections in the past year, as attacks on abortion access have ramped up in conservative states. In 2019, nine states—Illinois, New York, Rhode Island, Vermont, Maine, California, Nevada, New Jersey, and Hawaii—passed legislation protecting or expanding the right to an abortion. Maine also voted to allow certified nurse midwives and nurse practitioners to provide non-surgical abortions. Four states codified Roe v. Wade by enshrining the right to an abortion in their state law.
Herring says she hopes Virginia will be the next state to codify the right to an abortion. She notes that there are a record number of women from both parties in the legislature. “When women are elected and in power,” she says, “there will be a tendency that we make sure that we are protecting our interests.”
Conference, Colorado Law, Women's Enfranchisement Beyond the 19th Amendment
The Ira C. Rothgerber Jr. Conference on Constitutional Law is an annual Byron R. White Center event that brings scholars and lawyers from across the nation to the University of Colorado Law School for a discussion on a current Constitutional law issue. Topics have included the future of national injunctions, listeners’ First Amendment rights, litigation strategies that promote Constitutional change, and Presidential interpretation of the Constitution.
The 28th Annual Ira C. Rothgerber Conference is titled "Women's Enfranchisement: Beyond the 19th Amendment", and will be held on Friday, April 3rd, 2020 from 8:30am-5:00pm in the Wolf Law Building (2450 Kittredge Loop Dr, Boulder, CO 80305). 2020 will mark the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class. The 28th Annual Ira C. Rothgerber Conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement as well as the social and economic empowerment of women more broadly.
CLE credit is available for this conference, and both breakfast and lunch will be served to attendees.
Keynote Address: Reva Siegel (Yale Law)
PANEL 1: “Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”
Carolyn Ramsey (Colorado Law), Julie Suk (CUNY), Mary Ziegler (FSU Law), Susan Schulten (University of Denver)
PANEL 2: “Barriers to Political Representation”
Dara Strolovitch (Princeton), Atiba Ellis (Marquette Law), Bertrall Ross (Berkeley Law), Justin Levitt (Loyola Law), Ming H. Chen (Colorado Law)
PANEL 3: “Lived Equality: Beyond Formal Political Rights”
Aya Gruber (Colorado Law), Chinyere Ezie (Center for Constitutional Rights), Diana Flynn (Lambda Legal), Cary Franklin (UTexas Law), Scott Skinner-Thompson (Colorado Law)
On Monday morning, a Manhattan jury found Harvey Weinstein guilty of two of the five charges prosecutors brought against him: criminal sexual act in the first degree and rape in the third degree. The jury also acquitted Weinstein of two counts of predatory sexual assault, the most serious charges prosecutors had brought against him, which would have required the jury to conclude that Weinstein had committed first-degree sex crimes against two or more victims. In other words, the verdict is a mixed bag: Harvey Weinstein has now been convicted of rape. The counts that he was acquitted on, however, seem at odds with the number of allegations that have publicly surfaced against him.
This was just one trial, set up to evaluate a specific set of crimes and circumstances. But it has been impossible to think of it as anything other than a referendum on the entire contemporary #MeToo movement. Weinstein was the person whose long-ignored abuses and alleged assaults spurred thousands of women to reassess their own experiences. Donna Rotunno, Weinstein’s lead attorney, has spent her weeks in the spotlight accusing rape survivors of failing to take responsibility for their own mixed signals and explaining how the #MeToo movement has denied men their due process rights, even as her own client was enjoying his in the courtroom. Since the fall of 2017, when dozens of women first shared their stories about Weinstein, countless defenses and dismissals of the sexual misbehavior of other men have rested on the conviction that if sexual offenses don’t rise to the level of Weinstein’s misbehavior, they don’t merit consideration under the purview of #MeToo. Weinstein’s trial morphed into the ultimate #MeToo test: If a jury couldn’t convict Weinstein, the benchmark against which all other alleged abusers are now measured, what hope does any other survivor have of holding a rapist accountable in the criminal justice system?
On Monday, the system worked.
Jurors found Harvey Weinstein, a disgraced media mogul who has been accused of assault or harassment by at least 100 women, guilty of sexual assault and rape. His verdict, along with that of comedian Bill Cosby in 2018, sends a strong message that the jurors are capable of believing survivors over powerful men. A legal process in which less than 1% of sexual assault cases lead to convictions sided with survivors over a millionaire whose sexual misconduct has been an open secret for decades.
It was empowering. But while Weinstein’s guilty verdict is progress, it won’t fix a deeply broken system.
Many experts and survivors told HuffPost they thought the conviction was important but ultimately, and unfortunately, symbolic. While high-profile cases help shift cultural attitudes toward sexual assault, that doesn’t always change how the legal system treats average victims whose cases may not get the widespread media attention, the high-profile legal representation or the support of multiple accusers that the Weinstein trial did. ***
“A high-profile conviction just says that, in this case, there was enough to convict this person,” said Leigh Goodmark, the director of the gender violence clinic at the University of Maryland Carey School of Law. “But it doesn’t make any grand pronouncements for me about the system’s friendliness to people who’ve been raped and sexually assaulted.”***
There is silent, everyday violence and suffering committed against women that just don’t meet the threshold of public interest,” said Aya Gruber, a law professor at the University of Colorado.
“And Harvey Weinstein going to jail isn’t going to do anything for them.”
In the swirl surrounding Harvey Weinstein’s mixed conviction and acquittal on rape and related charges, it can be easy to overlook what hasn’t changed in the wake of #MeToo. The movement has put a spotlight on the starkly divergent views that Americans hold about what kinds of behaviors cross the line into unwanted — and, at times, criminal — acts, and about what should happen when they do.***But Weinstein’s trial and all the other changes #MeToo has brought won’t put an end to the roiling debates about what counts as consent and how we should judge long-ago assaults. We’ll continue to disagree, too, about what legal and social sanctions should apply to conduct that is “bad but not as bad” as Weinstein’s.
This is a good thing. As uncomfortable and frustrating as these conversations can be, we cannot afford to stop talking about what we expect from each other when it comes to sex and to workplace interactions.
If you're someone who claims the mantel of feminism, who believes in the innate equality of all genders, who thinks that solidarity among communities of women is a core component of the world you want to live in, I strongly encourage you to read Mikki Kendall's debut essay collection, Hood Feminism: Notes from the Women That a Movement Forgot. (Also, if you're not one of those someones, I really think you should read Hood Feminism.)
As the subtitle makes clear, Kendall's central thesis is that mainstream feminism in the United States has been anything but inclusive, despite being "a movement that draws much of its strength from the claim that it represents over half of the world's population." In prose that is clean, crisp, and cutting, Kendall reveals how feminism has both failed to take into account populations too often excluded from the banner of feminism and failed to consider the breadth of issues affecting the daily lives of millions of women.
Many of the book's essays focus on these overlooked issues, with chapters examining how gun violence, hunger, poverty, education, housing, reproductive justice, and more are all feminist issues.***
Securing that equality, Kendall argues, requires that women accept some inconvenient truths, specifically "the distinct likelihood that some women are oppressing others.... [W]hite women can oppress women of color, straight women can oppress lesbian women, cis women can oppress trans women, and so on." If feminism is to truly represent all women, it must resist the "tendency to assume that all women are experiencing the same struggles [which] has led us to a place where reproductive health imagery centers on cisgender able-bodied women to the exclusion of those who are trans, intersex, or otherwise inhabiting bodies that don't fit the narrow idea that genitalia dictates gender."
Those already familiar with Kendall as a leader in Black feminist thought won't be surprised that Hood Feminism is grounded in intersectionality, a term coined by Prof. Kimberlé Williams Crenshaw to reflect how race and gender combine to impact Black women in the criminal justice system.
Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge Univ. Press 2020)
With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.
Wednesday, February 19, 2020
New Book: Peggy Orenstein, Boys & Sex: Young Men on Hookups, Consent, and Navigating the New Masculinity
Peggy Orenstein has spent much of her journalism career exploring the cultural forces that shape girlhood, revealing her insights in bestsellers such as Cinderella Ate My Daughter and Schoolgirls. But during her last book tour, she says, parents repeatedly asked her about boys. She realized she “needed to have the other half of the conversation.”
So for two years, Orenstein traveled across the country, interviewing 100 boys between the ages of 16 and 22.
While her work on girls has focused on the problematic disconnect they have with their bodies, Orenstein says her talks with young men illustrated “how boys are disconnected from their hearts, and how that affects their romantic relationships and sexual encounters.”
Her resulting book, Boys & Sex: Young Men on Hookups, Love, Porn, Consent, and Navigating the New Masculinity, examines relationships, consent, and a wide array of other issues related to boys’ emotional lives. And although her interviews began before Me Too, the movement only highlighted the urgency of these conversations.***
Q: You’ve said that rigid masculine norms — such as dominance, aggression, wealth, athleticism, sexual conquest, and emotional suppression — are super-harmful to guys.
A: Peggy Orenstein
Boys cling to those norms. Why? Well, you know, they get rewarded for them. You can see in the culture — we have a president who is pretty darn rewarded for clinging to those norms right now — but those norms come at a tremendous cost.
As our culture has opened up to women, professionally and educationally, certain kinds of misogyny and sexism — particularly those that happen behind closed doors — have grown more entrenched. [Boys] are at risk of engaging in violence, of violence being done to them, of binge drinking, car accidents, self-harm, suicide, depression. They have fewer friends. They’re lonelier. I mean, it’s really not a pretty sight.
Boys wrestle with the taboo of vulnerability — either rejecting it, embracing it, denying it, or capitulating to it. When we cut people off from their ability to acknowledge, recognize, and express emotion, and particularly vulnerability, we not only undermine their basic humanity but we take away the thing that is essential.
New Research Shows Bringing Up Past Injustices Against Women Alienates Men, Making Reform More Difficult
Ivona Hideg & Anne Wilson, Research: Bringing up Past Injustices Make Majority Groups Defensive, Harvard Bus. Rev.
Many organizations and institutions reference past injustices with the intention of making people more sensitive to how historic systems of oppression contribute to present-day inequalities. By drawing on social identity theory, however, we speculated that excessive focus on historical injustices can actually backfire by causing key groups to deny current discrimination and withdraw support for ongoing remediation programs.
Social identity theory posits that people derive some of their sense of identity and self-worth from their group memberships (including gender, race, religion, politics, or even sports teams), and are highly motivated to maintain and protect a positive image of their social groups. Just as an individual’s self-image can be shaken by reflecting on their own misdeeds, threats to social identity may arise when contemplating past misconduct by their group. This threat can lead to defensive behavior that diminishes or deflects perceived criticisms. As the historically-advantaged group, social identity theory predicts men will react defensively when presented with evidence of past injustices suffered by women, the disadvantaged group.
We tested these ideas through our recent research.***
These converging results suggest invoking past discrimination can threaten men’s social identity and undermine their perceptions of current levels of discrimination, consequently lowering their support for policies meant to ameliorate this situation.
What might be done to mitigate these negative effects? Must we sidestep these discussions of current groups’ shameful history, sacrificing its capacity to enrich our understanding for fear of triggering defensive backlash? Rather than simply avoiding discussions of the past, we reason that historically-advantaged groups (men, in these studies) might be more open to information about past injustices if there was a way to lessen the threat to their social identity.***
This work has important implications for policy-makers and organizations seeking to implement diversity and equity policies. Despite the intuitive appeal of using past injustices to bolster the case for such initiatives, this approach can undermine progress by threatening the social identity of key participants. As the efficacy of diversity and equity programs depends on establishing broad-based support, getting both men and women to view these policies positively should be considered an important pre-condition for success.
Shawn Fields, Institutionalizing Consent Myths in Grade School, 72 Oklahoma L. Rev. (2020)
Scholars and advocates have long decried antiquated notions of consent in the criminal law of rape and sexual assault. Significant progress has been made to redefine consent in criminal codes and in our collective consciousness as freely given, informed, enthusiastic, explicit, revocable, and to be considered from the perspective of the consenting party. But despite this progress, the criminal justice apparatus continues to fixate on details irrelevant to the consent calculus such as the victim’s dress. This obsession with the victim’s clothing reflects a troubling willingness to imply consent or, alternatively, blame the victim for provocatively “asking for it.” Significant scholarship has demonstrated the corrosive impact of this fixation, resulting in a “credibility discount” of women making sexual violence allegations, the acquittal of defendants engaged in clearly criminal sexual conduct, and a concomitant reluctance of female victims of sexual violence to even engage with the criminal justice system.
None of the foregoing is new or particularly controversial. But while this unfortunate reality has been well examined, this Essay reflects upon a lesser explored, early root cause of the status quo: the hard wiring of consent myths in grade school through gendered dress codes and the gendered messaging these dress codes institutionalize about consent. Increasingly pervasive, increasingly sex obsessed dress codes feed narratives at an early age that girls are sexual objects who are responsible for the assaultive behavior of perpetrators and who “ask for” any unwanted sexual attention their dress may attract.
This Essay highlights the dangerous, highly sexualized justification often given by school administrators for gendered dress codes: a desire to create a “distraction-free learning environment” for boys. This messaging sexualizes underage girls, forces them to become hyper-cognizant about their physical identity, and signals a male entitlement to act inappropriately towards the female body for which the female will be punished. At root, these dress codes, and the justifications behind them, normalize and excuse sexually predatory behavior as a natural “distracted” reaction while blaming the victim for provoking the unwanted behavior. This institutionalization – which continues to grow – naturally feeds corrosive narratives that persist in criminal sexual assault adjudications, including implied consent, the requirement of a “perfect victim,” and the myth of the “unstoppable male.”
Tuesday, February 18, 2020
Gonzaga University School of Law's 2020 human rights conference, Women's Rights as Human Rights, is confirmed for June 7-8, 2020 in Florence, Italy. The conference will open on June 7 with an evening keynote reception at Palazzo Budini Gattai in central Florence, sponsored by The Center for Civil and Human Rights at Gonzaga Law. Our keynote speaker is the Honorable Bernice Donald, Judge of the U.S. Court of Appeals for the Sixth Circuit and former Chair of the ABA Center for Human Rights. On June 8, we will host our all-day program at the British Institute in Florence. We are holding five panels, starting with a plenary session, followed by concurrent panels that will address topics including gender and violence, online misogyny, and intersectionality and culture. We are thrilled that our confirmed speakers span the globe, with distinguished academics and lawyers from Argentina, Botswana, Croatia, Egypt, Great Britain, Italy, Kenya, Lebanon, South Africa, Spain, and the United States.
Our speaker opening is on our panel, Technology, Speech, and Misogyny, a topic of intense importance and debate. Confirmed speakers on the panel include two highly published co-presenters from law schools in England and Scotland, a JD/PhD from the University of Houston Law Center, and Privacy Counsel at Common Sense Media. If you are interested, we can confirm that we can reimburse $500 of airfare and provide three nights at our conference speaker hotel, also in central Florence. We also charge no registration fee for speakers, and we include all speakers at the keynote reception, the conference luncheon, and our closing Tuscan dinner.
Interested individuals should submit a one-page abstract and CV to the conference chair, Professor Brooks Holland (email@example.com), no later than February 24, 2020.
Friday, February 14, 2020
Available on Amazon
Book Review, How Long Did We Wait?
What if, in the years after the Civil War, the United States Congress had heeded the advice of Elizabeth Cady Stanton and Susan B. Anthony and guaranteed universal suffrage as a basic condition of citizenship—for men and women—black and white? Had the democratic franchise been vastly expanded and administered by the federal government, might modern U.S. history have taken a different turn? Would the rights of all citizens have been safer, and the integrity of elections more secure? Would communities in states across the country be better protected against voter suppression today?
In her compelling new history of the U.S. women’s suffrage movement, Suffrage: Women’s Long Battle for the Vote, Ellen Carol DuBois asks us to ponder these provocative questions. Yet she is clear-sighted about how intractable the argument proved to be in its time, and how remote the prospect of women’s suffrage really was in a society governed by entrenched patriarchy and states’ rights.
America’s pioneers of racial and gender justice shared many common values and forged deep bonds during the 1850s. Stanton and Anthony participated as anti-slavery organizers, while Frederick Douglass, Sojourner Truth, Lucretia Mott and Lucy Stone endured criticism for supporting the campaign for women’s rights that began at Seneca Falls—not just the right to vote, but also to own property and accumulate wealth, to access higher education and profitable employment, and to marry and divorce freely.
Such an expansive human rights vision, however, found no place in the aftermath of a bloody war to defend the union and eradicate slavery.
The House of Representatives took one giant step Thursday by voting to remove the 1982 ratification deadline for the Equal Rights Amendment.
For a summary of the issues regarding the ratification deadline, see The Arguments as to Why the ERA Can Still be Ratified Now After the Deadline
The U.S. House has voted to remove the deadline on ratifying the Equal Rights Amendment in an attempt to revive the amendment.The 232-183 vote fell largely along party lines with five Republicans supporting the measure and zero Democrats opposing it.
Changing the deadline is a key part of one route that some ERA proponents believe would lead to the amendment becoming a part of the Constitution, but the path forward is uncertain.
The proposed amendment says simply, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex," and it has had a renaissance in recent years, with three states ratifying it since 2017.
However, the bill may well be stymied after this vote.
Senate Majority Leader Mitch McConnell, R-Ky., said earlier this month that he's "personally not a supporter" of the amendment, and the Trump administration's Office of Legal Counsel has said that it considers the ERA "expired."
During debate on the House floor, Republicans leaned on antiabortion and constitutional arguments to oppose the ERA, arguing that enshrining protections for women in the Constitution would mean abortion could not be restricted. Democrats focused on the legality of deadlines and the importance of equal rights.“This has nothing to do with the abortion issue. That is an excuse, not a reason,” said House Speaker Nancy Pelosi (D-Calif.), arguing that women are still paid less than men for similar work, and often are shorted on pensions and maternity leaves.
The Center for Constitutional Law at the University of Akron School of Law sponsored the conference The 19th Amendment at 100: From the Vote to Gender Equality (including video link of conference).
Here are some of the papers from the conference:
Ellen Carol DuBois, The 19th Amendment at 100: From the Vote to Gender Equality: Woman Suffrage: The Afterstory, 11 ConLawNOW 53 (2020)
Paula A. Monopoli, The 19th Amendment at 100: From the Vote to Gender Equality: The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification, 11 ConLawNOW 61 (2020)
Jamie R. Abrams & Nickole Durbin, The 19th Amendment at 100: Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLawNOW 75 (2020)
Gwen Jordan, 19th Amendment at 100: "We Must Forget Every Difference and Unite in a Common Cause - Votes For Women": Lessons From the Woman Suffrage Movement (Or, Before the Notorius RBG, There Were the Notorious RBGs, 11 ConLawNOW (2020)
Ann D. Gordon, More Pathways to Suffrage, Other Than the 19th Amendment, 11 ConLawNOW 91 (2020)
Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, Yale L.J. Forum (Jan. 20, 2020).
Additional papers from the conference are forthcoming in the Akron Law Review.
Wednesday, February 12, 2020
In the #MeToo era, women who make sexual misconduct allegations against powerful men can count on public support, but the rape trial in New York of former movie producer Harvey Weinstein has shown that accusers should brace for far less friendly treatment in a court of law. ***
During the trial that began on Jan. 6, Weinstein’s attorneys have questioned his accusers about their appearance at the time of the alleged attacks, their drinking habits and whether they used Weinstein to land a Hollywood acting job.
“Just because we live in the Me Too era doesn’t mean you don’t attack in defense of your clients,” said Tom Mesereau, who represented comedian Bill Cosby in his sexual assault trial.***
Legal experts said the movement has complicated the work of defending someone like Weinstein because a jury is more likely to sympathize with the alleged victims.
But accusers should not expect a shift in legal standards or tactics, experts said.
***As more survivors have come forward to call out perpetrators of sexual assault and harassment, a legal backlash to the MeToo movement has been brewing. While it’s well known that powerful men have preemptively quashed accusations with payoffs and nondisclosure agreements, less well known is that dozens of men who claim they are victims of false allegations have sued their accusers for speaking out publicly. The plaintiffs include celebrities and college students, professional athletes, professors, and politicians. At least 100 defamation lawsuits have been filed against accusers since 2014, according to Mother Jones’ review of news reports and court documents. Prior to October 2017, when the MeToo hashtag went viral, almost three in four claims were brought by male college students and faculty accused of sexual misconduct; they usually sued their schools as well as their accusers. Since MeToo took off, cases have been filed at a faster rate, with three in four coming from nonstudents.
This list of cases is not comprehensive, but attorneys confirm that these suits are becoming more common. The Time’s Up Legal Defense Fund, which helps workplace harassment victims pay their legal bills, has assisted 33 accusers, including Lopez, who have been sued for defamation in the past two years—nearly 20 percent of its caseload. As the number of cases grows, so does the chilling effect: Defamation lawsuits are being used “more and more to try to silence people from coming forward,” says Sharyn Tejani, director of Time’s Up. “It was not something that we expected would take as much of our time and money as it has.”
Bruce Johnson, a Seattle lawyer who specializes in First Amendment cases, says that before fall 2017, he was contacted twice a year by women who were worried about being sued if they spoke out about sexual violence or harassment or who were threatened with legal retribution for doing so. Now it’s every two weeks, he says. Alexandra Tracy-Ramirez, a lawyer who represents both survivors and accused perpetrators in campus-related cases in Colorado and Arizona, has also noticed more accusers speaking out and facing the prospect of being sued.
Young people today have become much more open-minded about gender roles — it shows up in their attitudes about pronouns, politics and sports. But in one area, change has been minimal. They are holding on to traditional views about who does what at home.
A new survey from Gallup found that among opposite-sex couples, those ages 18 to 34 were no more likely than older couples to divide most household chores equitably. And a sociology study published last month found that when high school seniors were asked about their ideal family arrangement with young children, almost a quarter said it was for the man to work full time and the woman to stay home, a larger share than desired any other arrangement.
The fact that home life doesn’t look all that different from half a century ago surprises researchers, because in most other ways, attitudes about gender roles have changed a lot. There’s now almost universal support for women to pursue careers or political office. Women get more education than men. And young people are much more accepting of people not identifying as either a man or a woman.
Both new studies were based on surveys that have been repeated over time, and they show that women now do a little less housework and child care, and men do a little more. But a significant gap remains — women spend about an hour more a day than men on housework, and an hour more on child care, other research shows.
Thursday, February 6, 2020
Symposium Book Discussion: The Common Law Inside the Female Body by Anita Bernstein
Symposium Contributors: Bridget J. Crawford, David S. Cohen, Joanna L. Grossman, Cyra Akila Choudhury, Margaret Chon, Maritza I. Reyes, Teri A. McMurtry-Chubb, Anita Bernstein
The Common Law Inside the Female Body: In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.
In 1978, the Democratic National Committee voted on new rules for the selection of primary delegates that included the Equal Division Rule. The policy requiring state delegations to the Democratic National Conventions to be made up equally of men and women was also extended to apply to all national party bodies across the states and territories, and it was first applied in the 1980 Democratic Primary—the same year women became the majority of Democratic voters, making up a whopping 60 percent of all voters in the primary contests.
In 1987, the rule made it to the Supreme Court. In the Bachur v. Democratic National Party case, the Court upheld the rule “as a means to broaden public participation in party affairs,” equating it to parties’ ability and right to open their primaries to unaffiliated voters.***
A total of 115 out of 192 countries use gender quotas, including 75 percent of the countries which rank above the U.S. for gender parity in national legislatures. Many countries and individual political parties around the world have instituted gender quotas to deal with the ongoing low number of women running and winning elections, countering the idea that the low number of women in elected positions is due to a lag effect which will eventually and naturally catch up.
Most opponents of gender quotas suggest that they are undemocratic because they grant women candidates an unfair advantage not given to men, but this ignores the fact that our own democracy and electoral system finds its basis in granting more rights, opportunities and privileges to white men. Carol Bacchi, a professor of political science, suggests that gender quotas, rather than privileging women with preferential treatment, are instead “an attempt to redress entrenched privilege.”
My article discussing political gender quotas, and gender quotas more generally is Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender (online) (Nov. 2016).
Third Circuit Upholds Philadelphia Ban on Employers Asking About Salary History Against First Amendment Challenge
In a decision that could have national implications for the wage equity movement, a federal appeals court Thursday sided with the city of Philadelphia, saying it can ban employers from asking job applicants their salary history.
The U.S. Court of Appeals for the Third Circuit partly reversed a 2018 lower court decision that said the city could not ban employers from asking about salary history, but could ban them from relying on it to set wages. The Greater Philadelphia Chamber of Commerce sued the city after the law was passed in 2017, claiming it violated the commercial-speech rights of employers.***
The 67-page unanimous opinion, representing the three-judge panel, was written by Judge Theodore McKee, who wrote that while the provision does limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.”***
Philadelphia was the first city in the country to pass such a ban, following a statewide ban in Massachusetts. More than a dozen states and municipalities followed suit, including New Jersey.
Tuesday, February 4, 2020
There are now 3 lawsuits seeking a judicial decision on the 38 ratifications of the Equal Rights Amendment and whether the 1982 (or 1979) deadline prohibits those ratifications.
I've written a short explanation of the arguments made in support of the ERA's enactment now. See Tracy Thomas, The Arguments as to Why the ERA Can Still be Ratified Now--After the Deadline
Despite the court action, there is an argument that Congress's amendment deadline is a political question that cannot be decided by the courts. In Coleman v. Miller, 307 U.S. 433 (1939), SCOTUS held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts. (Coleman concerned the timeliness of a 13 year delay in ratification of the proposed Child Labor Amendment.)
Attorney General Lawsuit to Enforce ERA (DC)
The lawsuit will likely become the vehicle for deciding that question, said Virginia Attorney General Mark R. Herring, who brought the suit along with Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford. Two other federal lawsuits on the matter are also pending.***
The latest suit, assigned to U.S. District Judge Rudolph Contreras, contradicts a Justice Department memo earlier this month that said the national archivist, who certifies the ratification of amendments, should not do so for the ERA, citing the 1982 deadline. The archivist has said he will follow the DOJ advice unless a final federal court decision overrides it.
See also WSJ, States Seek Ruling on Equal Rights Amendment Ratification Deadline [pay wall]
Proponents' Lawsuit to Enforce ERA (Mass.)
Another lawsuit has been filed in Massachusetts from ERA Proponents seeking to challenge Congress' authority to make amendment deadlines mandatory. Equal Means Equal v. Ferriero (D. Mass. filed 1/7/2020).
AG Lawsuit to Block ERA (Alabama)
Three states that did not ratify ERA have sued to block certification of the amendment. In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted. Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019). They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.
All lawsuits seek an injunction to direct the actions of the National Archivist to either record, or not record, the 38 state ratifications. Once recorded, the ERA automatically becomes an amendment in two years.