Gender and the Law Blog

Barriers to Reproduction and Family that Deny the Dignity of Black and Disabled Women

Mary Crossley, Reproducing Dignity: Race, Disability, and Reproductive Controls, UC Davis L. Rev. (forthcoming)  

Human rights treaties and American constitutional law recognize decisions about reproduction as central to human dignity. Historically and today, Black women and women with disabilities have endured numerous impairments of their freedom to form and maintain families. Other scholars have examined these barriers to motherhood. Unexplored, however, are parallels among the experiences of women in these two groups or the women for whom Blackness and disability are overlapping identities. This Article fills that void. The disturbing legacy of the Eugenics movement is manifest in many settings. Black and disabled women undergo sterilizations at disproportionately high rates. Public benefit programs discourage their childbearing. Their ability to pursue motherhood is diminished by disproportionately high rates of institutionalization (either treatment-related or carceral) and low rates of access to assisted reproduction. Becoming pregnant is riskier, with risks flowing from medical ignorance regarding maternity care (for disabled women) or high rates of maternal mortality and criminal prosecutions (for Black women). Finally, if they become mothers, Black and disabled women are more likely to lose custody of their children to the state.

This Article argues that barriers to bearing children and forming families debase the dignity of Black and disabled women in meaningfully similar ways. In so doing, it points to an opportunity. Recognizing similarities (while appreciating differences) may equip participants in social movements – whether racial justice advocates, disability justice proponents, or reproductive justice activists – to build stronger coalitions to advance the dignity of reproductive choices for all women.

Motherhood Penalty May Fuel Workplace Lawsuits From Pandemic

Motherhood Penalty May Fuel Workplace Lawsuits in Pandemic

Stephanie Jones struggled to balance her day job for Eastern Airlines with new responsibilities after her 11-year-old son’s school closed in March as part of her Pennsylvania town’s response to the coronavirus.

 

The single mother, who served as the airline’s director of revenue management, said her repeated requests to have two hours a day off were met with the blunt response that it “was not in the interest of the company or yourself.” She was fired soon after, allegedly because she had “conflict” with co-workers.

 

Earlier this month, Jones filed one of the first federal lawsuits under the Families First Coronavirus Response Act, which requires paid sick leave for parents when schools or daycare centers close because of the virus. Eastern Airlines and its attorney didn’t respond to a request for comment.

 

Jones’ lawsuit is an early indicator of potential lawsuits from parents and caregivers—especially women—as a result of Covid-19, employment law attorneys and academics warn.

 

“We are at risk for a whole new round and increased interest in family responsibilities discrimination,” said Joan Williams, a law professor at the University of California Hastings and director of the Center for WorkLife Law. “You have a recipe for discrimination. Inevitably, there will be assumptions about who is valuable and who is performing up to snuff. That’s where the lawsuits start.”

 

The “motherhood penalty” has been oft-used to describe persistent gender disparities that working mothers can encounter, as documented by a surge in discrimination lawsuits related to caregiving in recent decades as more women enter the workforce.

 

It’s exacerbated during the pandemic, lawyers and professors say, and could lead to more claims of sex discrimination in hiring, firing, pay, and promotions; pregnancy bias from mothers who must choose between their safety and getting paid; and family leave law violations.

Review of Judge Diane Wood, Sexual Harassment Litigation in the Real World

Brooke Coleman, JOTWELL, The Real World: Reviewing Diane Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.

Judge Wood is a beloved jurist and renowned civil-procedure expert. This makes her real-world take on the state of sexual harassment litigation a great read. Judge Wood reminds us that Title VII of the Civil Rights Act has been on the books for more than fifty-five years. As the #MeToo movement starkly revealed, however, Title VII and similar laws meant to prohibit sex discrimination in the workplace and beyond have not done the job. This is true even when there is Supreme Court precedent that should be working. Cases such as Meritor Savings Bank v. Vinson (recognizing harassment in the absence of a quid pro quo) or Oncale v. Sundowner Offshores Services, Inc. (recognizing sexually harassment by a person of the same sex) have been in place for decades. But Judge Wood shows that in the real world, “even blatant cases of sexual harassment frequently fail” in our federal district and appellate courts.

 

To unpack why, Judge Wood surveys a set of Seventh Circuit sexual harassment cases. The cases are startling. First, lest anyone think that corporations and individuals are routinely slapped with sexual harassment lawsuits over “innocuous or misunderstood” behavior, these cases prove the opposite. The stories are harrowing. One female employee endured repeated sexual advances by her supervisor, including an episode where he followed her while she was on a walk and grabbed her. Another female worker was told by her supervisor that he could see down her blouse during her interview. That supervisor also repeatedly said things such as, “You know you want me, don’t you?” And still another male supervisor grabbed a female employee’s breasts and buttocks and, on another occasion, simulated a sexual act on her while holding a zucchini between his legs. In all of these cases and most others Judge Wood details, the female employees did not prevail.

 

Judge Wood explains that while her data are not comprehensive, these cases provide a unique window into how sexual harassment cases are handled in the real world. Sexual harassment cases are under-reported, and even when a court case is filed, it often settles. Thus, the cases in her survey represent the small number that proceed to summary judgment or trial. In many of these cases, the parties appealed on an agreed factual record.  This provides interesting insight. The agreement on the facts reveals what is actually occurring in the workplace. And the trial and appellate courts’ responses, as detailed in their opinions, provide a better sense of why these cases are unsuccessful.

 

What Judge Wood observes overall is that substantive and procedural blockades, combined with judicial skepticism of sexual harassment claims, render even the most dreadful of sexual-harassment cases dead on arrival.

No Room of One's Own: Data Suggest Covid-19 is Negatively Impacting Women's, but not Men's, Research Productivity

Early Journal Submission Data Suggest COVID-19 is Tanking Women's Research Productivity

It was easy to foresee: within academe, female professors would bear the professional brunt of social distancing during COVID-19, in the form of decreased research productivity.

 

Now the evidence is starting to emerge. Editors of two journals say that they’re observing unusual, gendered patterns in submissions. In each case, women are losing out.

 

Editors of a third journal have said that overall submissions by women are up right now, but that solo-authored articles by women are down substantially.

 

In the most obvious example of the effects of social distancing carving into women's research time, Elizabeth Hannon, deputy editor of the British Journal for the Philosophy of Science, wrote on Twitter that she’d received “negligible” submissions from women within the last month. “Never seen anything like it,” she added***

 

This doesn’t mean that COVID-19 "hasn’t taken a toll on female authors, though," Dolan and Lawless wrote, as women submitted just eight of the 46 solo-authored papers during this time. That’s 17 percent, compared to 22 percent of solo-authored papers in the larger data set.

 

"As a percentage change, that’s substantial," the editors said. "Even if women’s overall submission rates are up, they seem to have less time to submit their own work than men do amid the crisis.”

 

The revelations generated much chatter, including from gender studies scholars and women in all fields who are desperately trying to balance teaching and otherwise working from home with increased caregiving responsibilities. Those responsibilities include all-day minding of children due to school and daycare closures, homeschooling, and the cooking and cleaning associated with having one’s family at home all day, every day. Women are also spending time checking in with friends, relatives and neighbors.***

 

 It’s not that men don’t help with all this, or that they’re not also individually overwhelmed by work and family life. But women already juggled more domestic and affective, or emotional, labor with their actual work prior to the pandemic.

 

Female academics, as a group, also struggled more with work-work balance, as well: numerous studies show they take on more service work than men and are less protective of their research time, to their detriment.

 

The coronavirus has simply exacerbated these inequities by stripping away what supports women had in place to walk this tightrope, including childcare.*** “My husband is working full-time at home, as am I, and what I’m finding is for men, there is more of an expectation that he can be working all the time than there is for me.”***

 

“Silence and concentration are pivotal for my thinking and teaching,” she wrote. “This means I have less time for writing scientific articles.”

 

While she and her colleagues know they’re lucky to be employed and healthy at this time, it still feels “as if I am my own subject” in some work-life balance study.

 

Minello also expressed concern about when the crisis is over, both parents and nonparents “will participate together in open competition for promotion and positions, parents and nonparents alike.”

 

Just like academic fathers, nonparents don’t have it easy right now -- no one does. But, again, there are well-documented challenges that academic mothers, in particular, face. Those challenges, together, have been dubbed the motherhood penalty. And they’re laid bare right now.

Women Academics Submitting Fewer Papers to Journals During Coronavirus

Six weeks into widespread self-quarantine, editors of academic journals have started noticing a trend: Women — who inevitably shoulder a greater share of family responsibilities — seem to be submitting fewer papers. This threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus?

“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” says Gonzales. “We don’t want to make that our benchmark.”

Online Meetings Exacerbate Gender Inequities in the Workplace of Mansplaining and Interruptions

Mansplaining and Interruptions: Online Meetings Exacerbate Gender Inequities in the Workplace

Women across the nation are experiencing a unique side effect of coronavirus: their voices being drowned out.

 

Mita Mallick is the head of diversity and inclusion at Unilever, an international consumer goods company. In a recent interview with the New York Times, she said she was interrupted multiple times at a weekly virtual team meeting. 

 

“I’m interrupted, like, three times and then I try to speak again and then two other people are speaking at the same time interrupting each other,” said Mallick.

 

Mallick’s title of inclusion doesn’t mean anything if she can’t get a word in—and no, men are not facing similar problems. Studies show that, in meetings, men speak more often and dominate conversation. Their presence is seen as powerful and elite, while women are seen as incompetent.

 

Mallick’s experience is not unique—so much so that a popular term was coined to describe this phenomenon: mansplaining. “Mansplaining” describes a man oversimplifying common concepts to women in a degrading or condescending tone. Use it in a sentence? Women experience the act of mansplaining six times a week at work. 

 

Women and mansplaining have been together formally since Rebecca Solnit’s 2008 essay, “Men Who Explain Things,” when she coined the term (after a man tried to explain her own book to her)—but men’s condescending behavior towards women, specifically to feel more dominant in social settings, has been around for decades. 

 

Most recently, there was the slightest ounce of hope that the digital, remote workplace—forced by COVID-19 pandemic—would make the problem of mansplaining a little bit better. Perhaps the act of everyone behind a camera with buttons to push “mute” and “unmute” would civilize meetings and provide equal speaking time for all.

 

News flash: It didn’t. 

 

Deborah Tannen, a Georgetown University professor of linguistics and the author of eight books on women and men in the workplace, knew that Zoom conferencing and other forms of remote working wouldn’t change the problem and probably make mansplaining and male conversation domination worse.

 

In person, “women often feel that they don’t want to take up more space than necessary so they’ll often be more succinct,” said Tannen.

 

Online platforms allow men to mansplain, interrupt and dominate meetings more—and now more than ever before, women can’t get a word in.

 

While being succinct automatically makes our time on video shorter, men often take women’s ideas and run with it. It’s an ownership problem too.

In her research, Tannen found that many of the inequities in meetings can be boiled down to gender differences in conversation styles and conventions. That includes speaking time, the length of pauses between speakers, the frequency of questions and the amount of overlapping talk. More often than not, men and women differ on almost every one of those aspects, Tannen said, which leads to clashes and misunderstandings.

Men don’t just talk more—they talk louder. Not surprisingly, men who speak more and louder tend to be seen with more power and as such in dominant positions. Experts believe they enjoy the opportunity to explain things to women because they perceive it makes them seem smarter and in authority. 

 

“Whatever the motivation, women are less likely than men to have learned to blow their own horn,” according to Tannen, “and they are more likely than men to believe that if they do so, they won’t be liked.”

New Series "Mrs. America" Showcases Feminist Leaders and the 1970 Fight for the ERA, While Featuring Staunch Opponent, Phyllis Schlafly

NYT, "Mrs. America Review: The Voice of an ERA"

FX on Hulu’s breathtaking “Mrs. America,” from the “Mad Men” writer Dahvi Waller, picks up in 1971. . . . The story of the fight for and against the Equal Rights Amendment, it’s not a sequel, either literally or in format: It’s a nine-part series following real historical figures.***

 

Like “Mad Men,” “Mrs. America” finds a fresh angle on a much-observed age of revolution by focusing, first, on a counterrevolutionary: Phyllis Schlafly (Cate Blanchett), the cold warrior who, in Waller’s telling, seized on the culture war over women’s rights to raise her political profile and advance a broader conservative agenda.***

 

The insight of “Mrs. America,” in the punchy words of Representative Bella Abzug (Margo Martindale), is that Schlafly “is a goddamn feminist. She may be the most liberated woman in America.” She just chooses not to see herself that way.***

 

Parallel to Schlafly’s story is an ensemble series about the 1970s feminist movement. Its principals aren’t introduced until the end of the first episode: among them, Abzug, Gloria Steinem (Rose Byrne), Representative Shirley Chisholm (Uzo Aduba), Betty Friedan (Tracey Ullman) and some less-celebrated E.R.A. warriors, including the G.O.P. activist Jill Ruckelshaus (Elizabeth Banks).***

 

The decade-long fight that unfolds is epic and swaggering, bubbling with cultural ferment and bouncing along on a soul-laced soundtrack. There is an “Avengers Assemble” feeling here, both in the gathering of historical figures — a young Ruth Bader Ginsburg even appears, briefly — and the bumper crop of acting talent. Waller is producing feminism’s most ambitious crossover event, and she relishes it.***

 

While Schlafly is the driving force of the series — it is not, after all, called “Ms. America” — the show spotlights one character at a time. The third episode, about Chisholm’s 1972 run for the presidency, rings familiar not just in the story of an outsider fighting what she calls a “rigged” party machine, but in the intra-movement clashes over whether race and gender are equal priorities. (Chisholm, whom Aduba gives a fierce magnetism, gets this from black politicians, too, who see her more as a “women’s” candidate. “I don’t look black to you?” she asks.)

South Korean's New Women's Party Built on Feminist Ideals

The Guardian, South Korean's First Feminist Party Holds Out Hope of Election Miracle

Two years year after South Korea became the centre of Asia’s #MeToo movement, the country’s first feminist party is hoping to keep women’s issues on the political agenda by winning seats in Wednesday’s national assembly elections.

 

In a campaign dominated by the government’s response to the coronavirus epidemic, the newly formed Women’s party has warned that South Korea’s poor record on sexual discrimination and violence risked being overlooked.

 

Young women have shaken up the country’s political culture in recent years with high-profile campaigns targeting the country’s molka spy cam voyeurism epidemic, strict beauty standards and the decades-old ban on abortion.

 

Despite its economic power, technological prowess and the soaring global popularity of its pop music and cuisine, South Korea remains a deeply conservative, patriarchal society. It ranked 108th out of 153 on the World Economic Forum’s 2020 Global Gender Gap Index, while women comprise just 17% of MPs in the national assembly – well below the global average of about 25% - according to the Inter-Parliamentary Union.

 

“Almost all male politicians, regardless of being progressive or conservative, are traditionalists when it comes to women’s rights,” said Lee Soo-jung, a criminology professor at Kyonggi University near Seoul, adding that some did not understand the difference between pornography and sexual crimes.

 

Launched only last month to coincide with International Women’s Day, the Women’s party is expected to struggle to attract votes from the two main parties – President Moon Jae-in’s liberal Democratic party and the conservative United Future party – and their smaller allies, as it attempts to win four of the 47 seats being contested through proportional representation in the 300-seat assembly.

 

“The two biggest parties dominate the political scene, but many diverse voices need to be heard,” Kim Eun-joo, co-leader of the Women’s party, told the Guardian on the eve of the election. “We’re not a party for women to discuss a wide range of issues – we’re about improving the lives of women, and that’s why we only have a small number of campaign pledges.”

Institutional Perpetuation of Systemic Gender and Racial Discrimination by the Continued Use of Student Evaluations Despite Research Consensus on their Bias

Debra Austin, Leadership Lapse: Laundering Systemic Bias through Student Evaluations, Villanova L. Rev. (forthcoming)   

The use of the student evaluation of teaching (SET) for high stakes faculty employment decisions amounts to a lapse in leadership. A scholarly consensus has emerged that using SETs as the primary measure of teaching effectiveness in faculty review processes can systematically disadvantage faculty from marginalized groups. The growing body of evidence shows that women and minorities get lower ratings of their teaching than white men. Using biased evaluations allows colleges and universities to discriminate against faculty whose identities deviate from white male heteronormativity.

Despite the knowledge that empirical research demonstrates these instruments are biased, the academy has accepted them as credible. Bias in student evaluations can lead an institution to determine that a faculty member who differs from the straight white male stereotype is an inadequate teacher. Faculty with lower student ratings are penalized in the hiring, retention, compensation, and promotion processes.

This article summarizes empirical research demonstrating that student evaluations are biased against female faculty and faculty of color; describes the impact on student learning; details the influence on institutional culture of using student evaluations for assessing teaching quality for performance evaluations, compensation, promotion, and retention; and suggests recommendations for evaluating teaching effectiveness in fair and responsible ways. Law schools should lead the change in this discriminatory higher education practice because they are institutions dedicated to social justice and to training leaders who will drive social change in the legal system, government, business, media, and philanthropy.

Decoding MeToo Defenses

Charlotte Alexander, Sorry (Not Sorry): Decoding #MeToo Defenses, 99 Texas L. Rev. (forthcoming)  

This Article examines the text of over two hundred public statements issued by people accused of work-related sexual harassment and misconduct as a part of the #MeToo movement. Using both computational and manual text analytics approaches, the project constructs a typology of the statements' substantive content, including admissions, denials, defenses, and apologies; their emotional content, including anger, anxiety, and sadness; and their cognitive content, including authenticity and certainty. The project also tracks specific themes throughout the statements, including attacks on the accusers, references to changing workplace norms, addiction and mental health stories, and concerns about due process. Building on this descriptive picture, the Article uses the statements to assess the #MeToo movement's progress in holding individual perpetrators to account, and in achieving structural change.

Court Dismisses on Standing Grounds, Lawsuit Against NYU Law Review for Gender and Racial Preferences for Staff and Articles

NYU Law Review Wins Dismissal of Suit Challenging its Racial and Gender Preferences

The New York University Law Review has won dismissal of a suit challenging preferences given to women and minorities in selection of members and choice of articles.

U.S. District Judge Edgardo Ramos tossed the suit Tuesday by Faculty, Alumni and Students Opposed to Racial Preferences but allowed the group to file an amended complaint. Ramos said the FASORP had not demonstrated standing to sue and had not stated a viable claim for relief.

Law360 has coverage.

The FASORP had alleged that its members were being subjected to race and sex discrimination when they submitted articles for publication, and when their work was judged and edited by “less capable students” who won spots on the law review through preferences.

The New York University Law Review has 50 spots available each year. Fifteen students are selected based on a writing competition, 15 are selected based on their first-year grades, and eight are based on a combination of both, Ramos said in his March 31 opinion. The remaining 12 slots are filled by the law review’s diversity committee.

Authors of articles submitted for publication in the law review are invited to include demographic information that includes their race, sexual orientation and gender identity. The law review says it is committed to publishing scholarship by “authors from underrepresented backgrounds.”

The FASORP had sued for alleged violations of Title VI of the Civil Rights Act of 1964 and Title IX of the of the Education Amendments of 1972. Title VI bars racial and national origin discrimination in programs receiving federal financial assistance, while Title IX bars discrimination in education programs receiving federal assistance.

Ramos found several problems with standing.

The FASORP had failed to identify even one injured member with specific allegations of harm, Ramos said. The FASORP also failed to plead a concrete and particularized injury or a real or immediate threat of repetition of that injury, he said.

Study Shows Sexism had a Politically Consequential Effect in the 2016 Presidential Election

Ann Owen & Andrew Wei, Hostile Sexism and the 2016 Presidential Election 

We use Google Trends data over the 2004-2015 period to identify hostile sexism and examine its effect on support for Hillary Clinton in the 2016 general election. An area’s sexist search volume is a significant negative predictor of Clinton’s two-party vote share. Although we find no evidence that hostile sexism was more prevalent among conservative and less educated whites prior to the election, we do find evidence that it had a larger impact in areas with this demographic. We argue that demographic groups targeted by Trump may have been more receptive to his rhetoric. Our main contribution to the literature is showing that sexism had a politically consequential effect. We calculate that sexism cost Clinton 2.6 percentage points of her two-party vote share. In state-level simulations that are made possible by our use of Google Trends data, we show that Clinton would have won an additional 190 electoral college votes if every state had the same level of sexism as the least sexist state.

Empirical Insight into the Best Types of Law for Protecting Pregnancy

Jennifer Bennett Shinall, Protecting Pregnancy, 106 Cornell L. Rev. (2020) 

Laws to assist pregnant women in the workplace are gaining legislative momentum in the United States, both at the state and federal levels. This year alone, four such laws will go into effect at the state level, and federal legislation is advancing farther than ever before in the House of Representatives. Four types of legislative protections for pregnant workers currently exist—pregnancy accommodation laws, pregnancy transfer laws, paid family leave laws, and state disability insurance programs—but very little is known about how each type of legislation performs, relative to the others. This Article provides empirical insight into this question, which is important for setting legislative priorities. After exploiting the differential timing of these laws’ passage at the state level, the Article finds across multiple specifications that pregnancy accommodation laws and paid family leave laws have several labor market benefits for women who have given birth in the past year. Conversely, pregnancy transfer laws may have unintended, negative consequences for women who have recently given birth. The results suggest that advocacy groups, who have typically favored all four types of legislation, should shift their focus to supporting accommodation and paid family leave laws.

What Taylor Swift and Beyonce Teach Us About But-For Causation in Sex Discrimination Cases

Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, U. Penn. L. Rev. (forthcoming)

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated. 

How the 1918 Flu Pandemic Helped Advance Women's Rights

How the 1918 Flu Pandemic Helped Advance Women's Rights

***One hundred years ago, a powerful strain of the flu swept the globe, infecting one third of the world’s population. The aftermath of this disaster, too, led to unexpected social changes, opening up new opportunities for women and in the process irreversibly transforming life in the United States.

 

The virus disproportionately affected young men, which in combination with World War I, created a shortage of labor. This gap enabled women to play a new and indispensible role in the workforce during the crucial period just before the ratification of the 19th Amendment, which granted women suffrage in the United States two years late

 

Why did the flu affect more men than women?

 

Known as the Spanish flu, the 1918 “great influenza” left more than 50 million people dead, including around 670,000 in the United States.

 

To put that in perspective, World War I, which concluded just as the flu was at its worst in November 1918, killed around 17 million people – a mere third of the fatalities caused by the flu. More American soldiers died from the flu than were killed in battle, and many of the deaths attributed to World War I were caused by a combination of the war and the flu.

 

The war provided near perfect conditions for the spread of flu virus via the respiratory droplets exhaled by infected individuals. Military personnel – predominantly young males – spent months at a time in close quarters with thousands of other troops. This proximity, combined with the stress of war and the malnutrition that sometimes accompanied it, created weakened immune systems in soldiers and allowed the virus spread like wildfire.***

 

It was more than just male conscription in war, however, that led to a greater number of men who were infected and died from the flu. Even at home, among those that were never involved in the war effort, the death rate for men exceeded that of women. Demographic studies show that nearly 175,000 more men died than women in 1918.

 

In general, epidemics tend to kill more men than women. In disease outbreaks throughout history, as well as almost all of the world’s major famines, women have a longer life expectancy than men and often have greater survival rates.

 

The exact reason why men tend to be more vulnerable to the flu than women continues to elude researchers. The scoffing modern term “man flu” refers to the perception that men are overly dramatic when they fall ill; But recent research suggests that there may be more to it than just exaggerated symptoms.

 

Flu Brought More women into the Workforce

 

The worker shortage caused by the flu and World War I opened access to the labor market for women, and in unprecedented numbers they took jobs outside the home. Following the conclusion of the war, the number of women in the workforce was 25 percent higher than it had been previously and by 1920 women made up 21 percent of all gainfully employed individuals in the country. While this gender boost is often ascribed to World War I alone, women’s increased presence in the workforce would have been far less pronounced without the 1918 flu.***

 

Women began to move into employment roles that were previously held exclusively by men, many of which were in manufacturing. They were even able to enter fields from which they had been banned, such as the textile industry. As women filled what had been typically male workplace roles, they also began to demand equal pay for their work. Gaining greater economic power, women began more actively advocating for various women’s rights issues – including, but not limited to, the right to vote.***

 

How the Flu Helped Change People's Minds

 

Increased participation in the workforce allowed many women to obtain social and financial independence. Leadership positions within the workforce could now be occupied by women, especially in the garment industry, but also in the military and police forces. The U.S. even got its first woman governor, when Nellie Taylor Ross took her oath of office, in 1923, in Wyoming. An increased ability to make decisions in their personal and professional lives empowered many women and started to elevate their standing.

 

With the war over and increased female participation in the labor force, politicians could not ignore the critical role that women played in American society. Even President Woodrow Wilson began to argue in 1918 that women were part of the American war effort and economy more broadly, and as such, should be afforded the right to vote.

 

Outside of work, women also became more involved in community decision-making. Women’s changing social role increased support for women’s rights. In 1919, the National Federation of Business and Professional Women’s Clubs was founded. The organization focused on eliminating sex discrimination in the workforce, making sure women got equal pay and creating a comprehensive equal rights amendment.

See also Rebecca Onion, Did We Fail to Memorialize Spanish Flu Because Women Were the Heroes?

And yet, for years, Americans didn’t talk about it much in public. Historians of the flu, starting with Alfred Crosby, whose 1976 book America’s Forgotten Pandemic was the first comprehensive account of the outbreak in the United States, have long wondered at the curious fact that this terrible experience left so little mark on the cultural record. Looking at major American newspapers and political discourse in the years after the flu ended, Crosby found that the whole thing seemed to have vanished without a trace. “The flu never inspired awe, not in 1918 and not since,” Crosby wrote. Crosby notes that the major writers of that generation, who were busy memorializing the experience of the Great War and probing the depths of the “modern” soul, didn’t talk much about the flu either. It was left to a few scattered authors less central to the canon—Katherine Anne Porter, William Maxwell, Thomas Wolfe—to write about the epidemic in the ensuing decades. It wasn’t until the end of the 20^th century that American historians and documentarians turned their attention to the pandemic.

 

What was it about the flu that provoked this silent response? Is there something about mainstream American culture, with its optimism and pride, that simply refuses to reckon with the idea of mass death from an unstoppable illness? A close read of recent history suggests that the 20^th century silence about the flu epidemic of 1918–19 shows how uneasy many Americans have been with failure, death, and loss, and how strongly most of the nation seems to prefer stories that celebrate heroic achievement to those that memorialize acts of caregiving. Indeed, as the flu came and went, the only people who felt like they’d done anything to help were nurses, who offered palliative care to alleviate symptoms as the sick suffered on. Given America’s somewhat pathological focus on results-oriented medicine, and aversion to the acceptance of death, it’s little wonder that these women’s efforts went unhailed.

 

Divorce as a Substantive Gender-Equality Right

Karin Carmit Yefet, Divorce as a Substantive Gender-Equality Right, 22 U. Penn J. Const'l L. 455 (2020)

This Article—the first half of a diptych that continues with Divorce as a Formal Gender-Equality Right,
22 U. PA. J. CONST. L. (forthcoming April 2020)—draws on the insight that the position of women in society
is nowhere better reflected and constituted than in a nation’s personal status laws. Contemporary feminist and
constitutional scholars have devoted much attention to how the laws of marriage affect women’s status in society,
but they have largely ignored the potential for divorce to vindicate gender equality norms—and many have
overlooked recent political and legal developments that threaten to substantially restrict dissolution rights.

This diptych seeks to fill in the academic void in feminist and constitutional scholarship by developing the
constitutional argument for divorce as a gender equality right. Recognizing that there are competing conceptions
of what constitutional gender equality means, the thesis is that every interpretation of equal protection must
guarantee a right of unilateral, no-fault exit from matrimonial chains. This Article establishes the status of
marital freedom as a gender-equality right under various substantive visions of constitutional equality. The
subsequent Article, Divorce as a Formal Gender-Equality Right, 22 U. PA. J. CONST. L. (forthcoming
April 2020), establishes the status of marital freedom as a gender-equality right under a formal understanding
of constitutional equality.

To expose the gender-equality implications of divorce law, this diptych unearths the lineage and function of divorce
restrictions as gender-status regulation and outlines the gender-specific burdens they impose on women. It further
unveils contemporary attempts to restrict divorce as reflecting impermissible status-based judgments about women’s
capacities, roles, and destinies. All in all, this diptych concludes that divorce restrictions coerce women to perform
the work of wifehood without altering the conditions that continue to make such work a principal cause of their
subordination. This makes unilateral no-fault divorce a fundamental right for women attempting to navigate the
world as equals and an imperative for a constitutional system committed to disestablishing gender hierarchy.

Misunderstanding Transgenderism as a Question of Gender Rather than Sex

Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minnesota L. Rev. (forthcoming)  

A central tenet of sex discrimination law is the protection of gender nonconformity: unless a feature of biological sex requires it, regulated entities may not expect that individuals will conform their gender performance to the stereotypes of their sex. This doctrine is critical to promoting the antistereotyping aims of sex discrimination law by allowing gender nonconformers from aggressive women to caregiving fathers to challenge expectations that would limit them to the gender performance that accords with their sex. More recently, courts have extended gender nonconformity protection to transgender persons in cases where discrimination is due to the transgender person’s gender performance. The Supreme Court will consider this new law of gender nonconformity this term in EEOC v. R.G. & G.R. Harris Funeral Homes, which asks whether sex discrimination law of the workplace covers transgender discrimination.

Notwithstanding its partial success, the gender nonconformity doctrine is the wrong path for pursuing transgender rights. The doctrine has led to losses when transgender persons are discriminated against not for their gender performance, but for seeking recognition as their identified sex rather than the sex they were assigned at birth. Transgender plaintiffs are likely to continue to lose under the doctrine when seeking such recognition in the long list of contexts—like bathrooms, dress codes, sports, schools, and beyond—that are still lawfully sex segregated. Even transgender plaintiffs’ successes under the doctrine are Pyrrhic victories. Under the gender nonconformity doctrine, a plaintiff who was designated male at birth but who identifies as female is an effeminate man rather than a woman. The doctrine thus reinforces the notion that transgender persons are their birth-designated sex, contrary to substantial medical and legal authority, and to the claims of transgender persons seeking recognition as their identified sex. And treating transgender plaintiffs as gender nonconformers risks harm not only to transgender rights, but to protection for gender nonconformity, by raising the bar to prove such claims, even in paradigm cases. Regardless of the outcome in Harris, this Article has implications for transgender rights throughout sex discrimination law.

These losses and harms are not inevitable. They all stem from one error—misunderstanding transgenderism as a matter of gender rather than sex—that can be corrected. As a few courts have suggested, discrimination on the basis of seeking recognition for one’s identified sex is discrimination on the basis of sex. Contrary to the concerns of some courts and scholars, extending protection to transgender discrimination would advance rather than undermine the antistereotyping aims of sex discrimination law. Doing so under the right theory can protect transgender persons while promoting sex discrimination law’s historic role in fighting sex stereotypes.

Sex Segregation and Economic Opportunity in the Supreme Court's Decision in Roberts

Elizabeth Sepper, Sex Segregation, Economic Opportunity, and Roberts v. U.S. Jaycees, 28 William & Mary Bill of Rights J. (2020)  

This symposium on the intersections, synergies, and conflicts between rights largely focuses on constitutional rights and their relationships in judicial decisions. From this perspective, Roberts v. U.S. Jaycees—and the issue of sex-segregated clubs more generally—stands at the intersection of First Amendment rights to association, expression, assembly, and privacy. But rights construction, or dynamism, is not so neatly bounded by the Constitution.

In this essay, I argue that what was dynamic and synergistic in Roberts was not the Jaycees’ constitutional interests, but rather women’s statutory rights to economic opportunity and to equal membership. Litigation came to set mere statute against constitutional freedom of association. But the statutory and cultural commitments of the time influenced the construction of those constitutional rights. In a decade-long movement culminating in the Supreme Court, working women, local Jaycee chapters, and feminist groups forged connections between legal frameworks—federal and state, statute and constitution—that the law holds separate. Public accommodations equality under state statutes coalesced with landmark employment law protections under the Civil Rights Act of 1964.

The movement shifted public discourse and, eventually, governmental and judicial perspectives from unexamined acceptance of a pervasively sex-segregated public to the integration of clubs once thought private. It highlighted dual harms of the U.S. Jaycees’ treatment of women—an affront to fair play in the business world and the maintenance of gender hierarchy within the organization and society-wide. Justice O’Connor’s noted concurrence and Justice Brennan’s majority opinion respectively adopt these frames. Although the Jaycees might seem a relic of a time long past, the social and legal movement leading to the Supreme Court proves relevant for ongoing debates about the permissibility of segregated organizations, the emergence of #MeToo, and the tactics of effective social movements.

Gender Bias in Marital Division at Divorce Independent of Caretaking Roles

Jennifer Bennett Shinalll, Settling in the Shadow of Sex: Gender Bias in Marital Asset Division, 40 Cardozo L. Rev. (2019)  

Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital asset division laws to account adequately for this prevalence. In spite of the progress made by the women’s movement over the past half-century, married, heterosexual women endure as the primary caretaker in the majority of households, and married, heterosexual men endure as the primary breadwinners. Undoubtedly, women who have made career sacrifices during a marriage face a harsh economic reality when the marriage breaks down. But this Article is the first to question whether the persistence of traditional gender roles is solely responsible for the gender imbalances in economic security following a divorce.

Instead, this Article posits that gender bias against women — bias that is completely separate from women’s caretaking or breadwinning status — also harms women in divorce proceedings. This gender bias may be harbored by judges, mediators, lawyers, and even litigants themselves. To test this theory, the Article utilizes an experimental vignette study, fielded on 3,022 subjects. Subjects were randomly assigned to view one of several highly similar scenarios where a couple is divorcing after a long-term marriage, and asked to divide marital assets between them. In half of the scenarios, the male spouse was the sole breadwinner and the female spouse was the principal caretaker, consistent with traditional gender roles. But in the other half of the scenarios, the situation was reversed, with the female as the sole breadwinner and the male as the primary caretaker. Comparing results across subjects reveals that subjects consistently favored the male spouse over the similarly situated female spouse. On average, both male and female subjects assigned a greater share of the marital assets to the male breadwinner than to the female breadwinner. Male and female subjects also assigned a greater share of the marital assets to the male caretaker than to the female caretaker. The results are consistent with gender bias, as subjects penalize the female spouse in both the stereotypic (male-breadwinner/female-caretaker) and the nonstereotypic (female-breadwinner/male-caretaker) scenarios. Given these sustained preferences for the male spouse in the divorce setting, the Article concludes by considering empathy induction, auditing, and legal presumption reforms to counter the effects of bias in divorce settlements and to assist women, at last, in gaining equivalent economic standing with men after a divorce.

The Map Strategy of State Adoption of Women's Suffrage as Critical to Passage of the 19th Amendment

Really enjoyed the talk by historian Dr. Susan Schulten this morning at the virtual conference, Women's Enfranchisement Beyond the 19th Amendment. 

Here is a written essay that summarizes some of Dr. Schulten's points.  Susan Schulten, The Crooked Path to Women's Suffrage, Wash. Post.

Schulten discussed the "map strategy" of women's suffrage leaders during primarily the 19 teens.  Leaders used visuals and media to illustrate the acceptance of women's suffrage in the West.  The geographical maps boldly displayed the evolution of thought and the wave of progress moving from west to east. 

This map strategy supports a thesis that the suffrage state strategy was critical to the passage of the federal constitutional amendment.   We often dismiss this state strategy - dominant from 1885 to 1918, - as ineffective.  But Schulten's talk showed the converse.  That not only did the state by state approach work for full or partial suffrage in many states, but that it was this state success that provide the evidence for a federal amendment.  The state progress demonstrated the state experimentation with the issue and decision in favor of such rights as a foundation to bolster the legitimacy of the federal amendment.

As an aside, Schulten also added some facts to the historical question of why President Woodrow Wilson switched from anti suffrage to pro suffrage.  Schulten suggests it was the National American Women's Suffrage Associations (NAWSA's) support of Wilson and WWI  that swayed him to support it.  This was in contrast to Alice Paul and her National Women Party's (NWP) opposition to both Wilson and the war and her militant pickets of the White House in support of women's suffrage.  Kimberly Hamlin also tracks the active lobbying work of Helen Hamilton Gardender, NAWSA's lead lobbyist, as critical to Wilson's shift.  See Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardener (Norton 2020).  Schulten notes that Wilson wrangled the final vote for the 19th Amendment from peace talks at Versailles and as he battled the pandemic Spanish flu. 

CFP: Pandemics and the Constitution (Deadline 4/19)

Call for Papers

Pandemics and the Constitution

In response to the COVID-19 outbreak, governments have rapidly imposed restrictions on everyday life that would have seemed unthinkable only a few weeks ago. While as late as mid-March media was repeating the line that draconian measures to contain the virus like those taken in Wuhan, China, could not occur in the United States, Americans have very quickly adjusted to tight restrictions on daily life. Commentary about the constitutionality of coronavirus-related restrictions by legal scholars has just begun to appear in the popular media. Existing jurisprudence has been characterized as recognizing a “seemingly unlimited power to quarantine” on the parts of states.  Much of this legal precedent, however, is over a century old, predating many shifts in thinking in legal thinking and constitutional law on civil liberties, procedural due process, and the role of the federal government.

Because scholarship on this subject will be a vital guide to the public and legal community in the months ahead, ConLawNOW is seeking to publish, on an expedited timeline, a written symposium of short essays (preferably 5–10,000 words, about 10 published pages) on the constitutional boundaries of government response to pandemics.  Topics may include, but are not limited to, constitutional permissibility of restrictions on movement and travel, legitimacy of closing and limits on commerce, the proper scope of state power to act for the public health, constitutionality of the suspension of fundamental rights like abortion or gun rights, constitutional implications of delays in courts, trials, and juries, First Amendment parameters of restrictions on gatherings and religious services, permissibility of mandated medical testing, surveillance, and tracking, government ability to delay or cancel elections, and Eighth Amendment implications for inmates.

Submissions will be considered and published on a rolling basis.  Papers submitted prior to April 19 will receive priority consideration.  To submit, please email your manuscript to [email protected].  Questions may be directed to [email protected] or editor David Belfiglio at [email protected].

 ConLawNOW is an online journal sponsored by the Congressionally-established Center for Constitutional Law and the Akron Law Review.   It is an open access journal, also indexed in Westlaw, Lexis, and Hein.