Gender and the Law Prof Blog

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

Monday, June 29, 2020

SCOTUS Upholds Right to Abortion, Strikes Down Physician Admitting Privileges Law

Today the US Supreme Court decided June Medical Services v. Russo striking down Louisiana's anti-abortion admitting privileges law.

The majority opinion by Justice Breyer reaffirms the legal standard of Whole Women's Health.  It is a process-heavy decision about third-party standing and a painfully detailed discussion of the district court findings.

Chief Justice Roberts joins the liberal justices in the majority on grounds of stare decisis.  This was essentially the same case as Whole Women's Health v. Hellerstadt (2016).  He also rejects the cost-benefit balancing test of Whole Women's Health, leaving only a plurality of the Court endorsing that standard and returning to the core undue burden standard of Casey.

There are multiple dissenting opinions by the remaining four justices.  Much of the debate devolves into a tangential discussion about deference to district court findings and as applied challenges. 

No woman justice wrote any opinion.  Every male justice wrote an opinion expressing his views.

June 29, 2020 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, June 24, 2020

More Than the Vote: The 19th Amendment as Proxy for Systemic Gender Equality

I have just published my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civil Rights & Civil Liberties 349 (2020).

Elizabeth Cady Stanton, pioneering leader of the women’s rights movement in the nineteenth century, famously declared the right of women to vote in 1848 at a convention in Seneca Falls, New York. She alone initially appreciated the importance of the vote both for women’s political power and participation in the governance of the country, as well as its symbolic meaning for women’s full citizenship. Her abolitionist and religious colleagues, however, were suspicious and a bit outraged by the suffrage demand, as these moralistic reformers were opposed to politics, which they viewed as fundamentally corrupt due to bribery, patronage, and abuse of power. Stanton’s friend and co-organizer Lucretia Mott was worried the demand would make the meeting “look ridiculous” and Stanton’s husband, Henry, dismissed the suffrage claim as a “farce.”

 

Nevertheless, they persisted. For seventy-two more years, women activists would fight for the right to vote by organizing annual conventions, creating associations, petitioning legislatures and constitutional conventions, writing editorials, delivering speeches, and campaigning door-to-door for what would become the Nineteenth Amendment to the U.S. Constitution.

 

This nearly century-long movement for suffrage, however, was never just about the vote. It originated as part of a comprehensive plan for women’s equality as proclaimed at Seneca Falls in the women’s Declaration of Sentiments. Stanton, the intellectual driver of the first women’s rights movement, conceptualized the vote as only one of the needed rights of women to access the political process. The elective franchise was a key piece of reform to provide women access to the right to make the laws that governed them, but it was never the sole goal. Rather, Stanton’s first-wave movement envisioned a full-scale reform of law and society to bring about women’s freedom and equal opportunity. Change was needed, she argued, in four venues: the state, family, industry, and church. She described women’s oppression as “a fourfold bondage” with “many cords tightly twisted together, strong for one purpose” of woman’s subordination.

 

Despite these broad equality efforts targeting multiple systems, the vote emerged as the primary demand for women’s rights. The Civil War “effectively killed the initial collectivity behind the broadly based humanitarian goals of the Seneca Falls Convention.” After the war, Reconstruction and the Civil Rights Amendments focused the national conversation on federal constitutional change, and particularly on the power of the vote prioritized in the Fifteenth Amendment. The Fourteenth Amendment also highlighted the issue of the vote for women by explicitly inserting gender into the Constitution for the first time, enforcing the right to vote guaranteed to “male inhabitants” and “male citizens.” Women’s rights advocates were drawn into this constitutional debate, forced to
narrow their focus and react to the national dialogue on suffrage.***

 

Pulled into this national constitutional movement, women’s rights activists utilized the demand for the vote as a proxy for a greater comprehensive agenda of both equality and emancipation from oppression. As Stanton later recalled, the vote was not the central idea of Seneca Falls, but rather “the social wrongs of my sex occupied altogether the larger place” in the early movement.  Her advocacy for the vote thus came to represent full citizenship rights, defined as full equality in civil rights and emancipation from oppressive social and religious norms.

 

This essay first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women. This long view of women’s rights shows it was never only about the
vote; rather, the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. 

June 24, 2020 in Constitutional, Legal History, Religion | Permalink | Comments (0)

Study Documents Disparity in Research Productivity during the COVID-19 Pandemic

Ruomeng Cui, Hao Ding & Feng Zhu, Gender Inequality in Research Productivity During the COVID-19 Pandemic" 

We study the disproportionate impact of the lockdown as a result of the COVID-19 outbreak on female and male academics' research productivity in social science. We collect data from the largest open-access preprint repository for social science on 41,858 research preprints in 18 disciplines produced by 76,832 authors across 25 countries in a span of two years. We find that during the 10 weeks after the lockdown in the United States, although the total research productivity increased by 35%, female academics' productivity dropped by 13.9% relative to that of male academics. We also show that several disciplines drive such gender inequality. Finally, we find that this intensified productivity gap is more pronounced for academics in top-ranked universities, and the effect exists in six other countries. 

June 24, 2020 in Gender, Scholarship | Permalink | Comments (0)

Study Documents Disparity in Research Productivity during the COVID-19 Pandemic

Ruomeng Cui, Hao Ding & Feng Zhu, Gender Inequality in Research Productivity During the COVID-19 Pandemic" 

We study the disproportionate impact of the lockdown as a result of the COVID-19 outbreak on female and male academics' research productivity in social science. We collect data from the largest open-access preprint repository for social science on 41,858 research preprints in 18 disciplines produced by 76,832 authors across 25 countries in a span of two years. We find that during the 10 weeks after the lockdown in the United States, although the total research productivity increased by 35%, female academics' productivity dropped by 13.9% relative to that of male academics. We also show that several disciplines drive such gender inequality. Finally, we find that this intensified productivity gap is more pronounced for academics in top-ranked universities, and the effect exists in six other countries. 

June 24, 2020 in Gender, Scholarship | Permalink | Comments (0)

Study Documents Disparity in Research Productivity during the COVID-19 Pandemic

Ruomeng Cui, Hao Ding & Feng Zhu, Gender Inequality in Research Productivity During the COVID-19 Pandemic" 

We study the disproportionate impact of the lockdown as a result of the COVID-19 outbreak on female and male academics' research productivity in social science. We collect data from the largest open-access preprint repository for social science on 41,858 research preprints in 18 disciplines produced by 76,832 authors across 25 countries in a span of two years. We find that during the 10 weeks after the lockdown in the United States, although the total research productivity increased by 35%, female academics' productivity dropped by 13.9% relative to that of male academics. We also show that several disciplines drive such gender inequality. Finally, we find that this intensified productivity gap is more pronounced for academics in top-ranked universities, and the effect exists in six other countries. 

June 24, 2020 in Gender, Scholarship | Permalink | Comments (0)

Wednesday, June 10, 2020

In Disciplinary Proceeding Against Judge, Lawyer Argues Use of the C-Word for Woman Attorney was not Gender Bias, but Indirect Compliment

Judge's Use of the C-word Could be Seen as "Left-handed Compliment," Lawyer Argues

A part-time judge's use of the C-word doesn’t amount to obvious gender bias, his lawyer argued before New York's top court Tuesday.

 

Lawyer Michael Blakey told the New York Court of Appeals that a censure would be sufficient punishment for his client, Judge Paul Senzer of the Northport Village Court of Suffolk County, Law360 reports.

 

The New York State Commission on Judicial Conduct had recommended removal of Senzer for language in nine emails he sent while representing two clients seeking the right to visit their grandchild.

 

According to the commission, Senzer used the B-word to describe the client’s daughter, and the C-word to describe the daughter’s lawyer.

 

In one email, he referred to the daughter’s lawyer as a “c- - - on wheels.” In another, he referred to the lawyer as “eyelashes.” Senzer also referred to a court’s attorney referee as an “asshole” and the daughter and her ex-husband as “scumbags.”

 

Law360 covered Blakey’s argument, made in-person before the court judges, with the exception of one judge who participated remotely.

 

“We don’t think the gender bias is obvious and we don’t concede it. We could go into multiple interpretations of the words used, but I don’t think that’s necessary. I can just point out the worst one—the C-word,” Blakey said.

 

“It’s not a C-word by itself. It’s a term of art: ‘C on wheels.’ Which, obviously, refers to the aggressiveness of that attorney. It’s a left-handed compliment is one way to look at it,” Blakey said.

 

Blakey added that the language is “obviously inappropriate” but argued that its use didn’t merit removal.

 

Senzer was referring to lawyer Karen McGuire in the C-word email. She offered a sarcastic reaction when contacted by Law360.

 

“Isn’t it every female attorney’s dream to be called a c- - - on wheels? Right?” she said, spelling out the letters for the word. “Don’t we swear our oath and say, ‘This is what I want my legacy to be’?”

June 10, 2020 in Judges, Women lawyers | Permalink | Comments (0)

Exploring the Toxic Racial Construct of the Black Welfare Queen

Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Geo.L.J., 19th Amendment, Special Edition (forthcoming)

As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

In service of these goals, we use this Article to explore a toxic racial construct often used to distract American women from our shared rights claims—the political trickster known as the “welfare queen.” This construct was born as a result of fiscal conservatives’ attacks on government anti-poverty subsidy programs in the 1980s. It relied on antipathy toward Black women—characterized as “welfare cheats” or frauds—and pathologized women of color to call for aggressive cuts to social-safety-net programs. This Article explores the remobilization of this construct in present-day electoral politics and the ways in which it compromises cross-racial coalitions and obscures the path to reform. We take as our object the 2016 presidential election and its aftermath, for in 2016, then-presidential candidate Donald Trump and his surrogates reanimated the welfare queen construct and alleged that she was stealing American democracy through voter fraud. The visceral power of this construct allowed this group of Republicans to transform Americans’ understanding of voting rights and American democracy. In so doing, their representations simultaneously sidetracked feminist efforts to build strong cross-racial coalitions. This Article explores the various paths out of our current discourse, dispelling thedistracting haze generated by the welfare queen construction. In the process, we also hope to advance our conceptual understanding of intersectional identities and their relationship to political change.

June 10, 2020 in Family, Legal History, Poverty, Race | Permalink | Comments (0)

Women's Triple Bind in Corporate Culture That Valorizes Alpha Male Culture

Naomi Cahn, June Carbone & Nancy Levit, Women, Rule-Breaking, and The Triple Bind, 87 Geo. Wash L. Rev. 1105 (2019).

Two growing literatures critique Hobbesian corporate cultures. Management analyses document the way high-stakes/zero-sum bonus systems undermine, rather than enhance, productivity as they subvert teamwork, valorize self-interested behavior, and weaken ethical standards. This literature treats negative effects of such systems, including lawless and unethical behavior, as the unintended consequences of efforts to shake up complacent institutions or replace an insular old guard with an ambitious and meritocratic new workforce. A second, darker literature terms such Hobbesian environments “masculinities contests” that select for those executives who best exemplify masculine traits such as a single-minded focus on professional success, physical strength, and the willingness to engage in no-holds-barred competition. This literature treats the rule-breaking environment that results as an incidental byproduct of the way that such cultures valorize masculine traits. Drawing on insights from criminology, psychology, and feminist theory, this Article suggests another possibility: that certain management cultures intentionally design the competitions to facilitate breaking the rules with impunity.

In a Hobbesian world, where some profit handsomely from defying convention, zero-sum competitions play a role that extends beyond valorizing alpha males. They select for leaders who will lie, shortchange their families, and break the law to get results—and do so without explicit orders that might subject upper management to accountability for the practices. In such a world, women fall behind not necessarily because of misogyny, though such environments often breed it. Instead, they lose because of a triple bind. First, women cannot prevail in such competitions unless they can outmaneuver men, credibly display greater devotion to the job, or more brazenly flout the laws. Second, they are disproportionately disliked and punished for displaying the self-centered, rule-breaking behavior of men. Third, women become less likely to seek positions because they correctly perceive that they could not thrive and are more likely than men to decide they do not wish to do so on such terms, reinforcing the male-identified character of such environments. Where these companies’ business models depend not just on the ability to upend traditional practices, but to break the law, the companies cannot address gender disparities without addressing the business model itself. The Article concludes that gender inequality is intrinsically intertwined with the evisceration of the rule of law in corporate America.

June 10, 2020 in Business, Masculinities, Workplace | Permalink | Comments (0)

Webinar: Past, Present and Future of the Law and Politics of Reproduction

The Center for Public Health Law Research at Temple University’s Beasley School of Law is sponsoring a webinar with the Harvard Law and Policy Review on the past, present, and future of the law and politics of reproduction on June 30, 2020 at 12:00 p.m. ET.

In the wake of the Supreme Court’s landmark decision, June Medical Services v. Russo, we are convening the authors of four influential books on reproductive justice and health, Professors David S. Cohen, Michele Goodwin, Carol Sanger, and Mary Ziegler, for a timely conversation moderated by NPR’s Sarah McCammon. There will be time for questions from participants. 

To register for the webinar, please visit https://bit.ly/JuneMedicalCPHLR

June 10, 2020 in Abortion, Conferences, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 9, 2020

Minnesota Supreme Court Reaffirms Severe and Pervasive Standard for Sexual Harassment

Minnesota's Top Court Declines to Toss Out "Severe or Pervasive" Test in Bias Cases

The Minnesota Supreme Court has reaffirmed the requirement that workers alleging they were subjected to a hostile work environment under state law prove that harassment was “severe or pervasive” in order to prevail.

The seven-member court in a unanimous decision on Wednesday rejected a bid by Assata Kenneh, who says nonprofit residential care facility operator Homeward Bound Inc fired her for complaining about sexual harassment, to lower the bar for plaintiffs to show that discrimination interfered with their ability to work.

To read the full story on Westlaw Practitioner Insights, click here: bit.ly/2Bz9E9o

Minnesota's "severe or pervasive" standard was borrowed from jurisprudence developed under Title VII of the Civil Rights Act of 1964, the federal law barring workplace discrimination. Kenneh argued that the standard was confusing, and was not necessary because unlike Title VII, Minnesota law contains a precise definition of sexual harassment.
 
But the court said the standard reflected a "common-sense understanding" that sexual harassment must be "more than minor" to create a hostile work environment.
 
Homeward Bound hired Kenneh to work at a residential facility for people with disabilities in 2014, and two years later she transferred to a different facility and transitioned into a role as a program resource coordinator. Kenneh claims that in the few months after her transfer, the company's maintenance supervisor routinely made sexually-charged comments and gestures, including licking his lips and telling Kenneh she was "beautiful" and "sexy."
 
Kenneh complained and while the maintenance supervisor denied her claims, he was told to cease the behavior and not to be alone with Kenneh. But the harassment did not stop, she says, and she was ultimately fired after asking for a more flexible schedule so she could avoid the supervisor.
 
Kenneh sued Homeward Bound in state court in Minneapolis, accusing the company of creating a hostile work environment and retaliation in violation of state anti-discrimination law. Homeward Bound denied the claims and said Kenneh was fired over performance and attendance issues.
 
A state judge in 2018 granted the company's motion to dismiss. He said the supervisor's conduct was "boorish and obnoxious," but that Kenneh had failed to meet the high bar of showing that it was either severe or pervasive.
 
A mid-level appeals court last year affirmed. Kenneh appealed, arguing that requiring plaintiffs to prove conduct was severe or pervasive places a higher bar on them than the text of the state law. The law defines sexual harassment as "unwelcome sexual advances or communication of a sexual nature (that) has the purpose or effect of substantially interfering with an individual's employment."
 
Kenneh's lawyers argued that the federal standard, which Minnesota courts began applying to state-law claims in 1986, has been applied inconsistently and created confusion, and was different from proving substantial interference.
 
The Minnesota Supreme Court on Wednesday disagreed. Anti-discrimination law is not a "general civility code," Justice Anne McKeig wrote for the court, and the severe or pervasive standard ensures that only conduct that a reasonable person would find abusive or hostile is actionable.
 
The case is Kenneh v. Homeward Bound Inc, Minnesota Supreme Court, No. A18-0174.

June 9, 2020 in Equal Employment, Workplace | Permalink | Comments (0)

New Study Reports on Prison System's Failure to Address Women's Health and Safety Behind Bars

The attorney featured in this ABA story, Julie Abbate, and I were colleagues many years ago at the law firm of Covington & Burling. There we worked together on a class action pro bono case, along with Caroline Brown, Leecia Eve, Peter Nickles, and National Women's Law Center attorneys Debbie Brake and Brenda Smith. Glad to see she is still working on these issues.

The case we brought on behalf of the women prisoners of DC raised claims of unconstitutional conditions, pregnancy and healthcare, sexual assault and harassment, and inequalities in education and employment.  Women Prisoners of DC Dep't of Corrections v. DC (filed 1993).  Ultimately, through the appeal to the DC Circuit, we won most of the claims--except healthcare. Women Prisoners v. DC, 93 F.3d 910 (D.C. Circ. 1996).

ABA J, New Study Looks at the Prison System's Failure to Address Women's Health and Safety Behind Bars

The number of incarcerated women is growing, and with it the unique and pressing needs of female prisoners in the system. In response, the U.S. Commission on Civil Rights did an 18-month investigation. It released a report, Women in Prison: Seeking Justice Behind Bars, in February.

 

The population of women in prison has increased dramatically since the 1980s, according to the report, and the rate of increase has outpaced that of men. In 2017, women accounted for approximately 225,000 of the slightly more than 2 million people in local, state and federal facilities in this country, according to the Sentencing Project, which tracks incarceration statistics.

 

The Women in Prison report cites disciplinary disparities between men and women—with a particularly negative impact on LGBT-identified women and women of color—and notes that many prisons do not meet the health, prenatal and personal hygiene needs of female inmates. It stresses the impact of women being incarcerated far from home with limited visitation access and having their parental rights terminated.

 

The commission is calling on the Department of Justice to expand its investigation capacity and continue to litigate enforcement of incarcerated women’s civil rights in states that violate them; it asks Congress to enact stricter penalties for noncompliance with the Prison Rape Elimination Act, focused on inmate safety, and to consistently appropriate funding sufficient to ensure correctional agencies comply; and it urges institutions to provide more mental health treatment programs.***

 

Given the COVID-19 pandemic, “If ever there was a time to focus on lowering the prison population and looking at who could be [housed] in less restrictive settings, it is now,” says Judith Resnik, a Yale Law School professor and founding director of its Arthur Liman Center for Public Interest Law.

 

She calls the coronavirus crisis “an early cri de coeur [a passionate outcry] that makes that plain many women do not need to be in prison.” And she adds, “There is nothing in the law saying that people can be sentenced to the risk of serious illness or death.”

 

In an effort to mitigate virus risks after some staff members and inmates tested positive, Decatur Correctional Center in Illinois released several mothers and babies in March.

 

Attorney Julie Abbate observes, “Prison systems were not built with women in mind.”

 

Abbate, national advocacy director of Just Detention International in Washington, D.C., has been a relentless fighter for the rights of female prisoners. She is the former deputy chief in the Special Litigation Section of the Civil Rights Division, a member of the ABA Criminal Justice Section, and she testified before the commission in hearings about the study.

 

She drafted a resolution adopted by the ABA House of Delegates in 2019, urging governments to enact legislation, and correctional and detention facilities to enact policies that provide female prisoners with unrestricted access to free toilet paper and a range of free feminine hygiene products. Since then, she has been working with state correctional agencies and county sheriffs to help implement the ABA policy.

 

Abbate says disparate prison disciplinary rules are also a particular concern.

 

“For men, an assault in prison usually involves a violent fight. For women, it could be pushing or hair-pulling. For both, it’s punished as assault,” she says, adding that women are particularly at risk of violence and sexual abuse in prison. “Whenever you have scarcity and deprivation, it creates power over women. An unscrupulous correctional officer could pressure a woman to perform a sexual act on him [and say,] ‘Do it, or I’ll put you in isolation.’ The fear of being separated from her children drives a woman to comply.”

 

The report also notes solitary confinement for minor violations denies women good-time credits and shorter sentences.

 

The commission is calling on prisons to implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions.

 

In some states, things seem to be improving, albeit slowly. Lhamon points to recent disciplinary changes under guidelines adopted and enforced by the Alabama Department of Corrections and MCI-Framingham, a women’s medium-security facility in Massachusetts. She says data showed “astonishing progress” in inmate safety after those institutions implemented a gender-responsive trauma-informed disciplinary policy.

 

Those policies are informed by studies on the different characteristics and pre-incarceration experiences of men and women (particularly trauma), and generate information on how to meet the unique needs and challenges of female inmates.

 

Data after implementation of those policies has shown “extraordinary, just jaw-dropping” improvements, she says, adding that the new disciplinary policies could be models for other states to follow.

 

Lhamon says the commission is working with Sen. Brian Schatz (D-Hawaii) on his bipartisan efforts with Sen. John Cornyn (R-Texas) urging better oversight of Prison Rape Elimination Act compliance. The commission is also working with U.S. Rep. Pramila Jayapal (D-Wash.) on the Dignity for Incarcerated Women Act, which she co-sponsored with U.S. Rep. Karen Bass (D-Calif.). The bill addresses many issues raised in the commission’s report, and companion legislation was reintroduced in the Senate last year by Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.).

June 9, 2020 in Healthcare, Legislation | Permalink | Comments (0)

How Courts Have Responded to Equal Protection Claims of Pregnant Citizens Since the Nineteenth Amendment

Reva Siegel, The Pregnant Citizen, from Suffrage to the Present, Georgetown L. J. (forthcoming)

This Article examines how courts have responded to the equal protection claims of pregnant citizens over the century women were enfranchised. The lost history it recovers shows how equal protection changed—initially allowing government to enforce traditional family roles by exempting laws regulating pregnancy from close review, then over time subjecting laws regulating pregnancy to heightened equal protection scrutiny.

It is generally assumed that the Supreme Court’s 1974 decision in Geduldig v. Aiello insulates the regulation of pregnancy from equal protection scrutiny. The Article documents the traditional sex-role understandings Geduldig preserved and then demonstrates how the Supreme Court itself has limited the decision’s authority.

In particular, I show that the Rehnquist Court integrated laws regulating pregnancy into the equal protection sex-discrimination framework. In United States v. Virginia, the Supreme Court analyzed a law mandating the accommodation of pregnancy as classifying on the basis of sex and subject to heightened scrutiny; Virginia directs judges to look to history in enforcing the Equal Protection Clause to ensure that laws regulating pregnancy are not “used, as they once were . . . to create or perpetuate the legal, social, and economic inferiority of women.” In Nevada Department of Human Resources v. Hibbs, the Court then applied the antistereotyping principle to laws regulating pregnancy, as a growing number of commentators and courts have observed.

I conclude the Article by considering how courts and Congress might enforce the rights in Virginia and Hibbs in cases involving pregnancy under both the Fourteenth and the Nineteenth Amendments. To remedy law-driven sex-role stereotyping that has shaped the workplace, the household, and politics, the Article proposes that Congress adopt legislation mandating the reasonable accommodation of pregnant employees, such as the Pregnant Workers Fairness Act. These sex-role stereotypes affect all workers, but exact the greatest toll on low-wage workers and workers of color who are subject to rigid managerial supervision.

When we locate equal protection cases in history, we can see how an appeal to biology can enforce traditional sex roles as it did in Geduldig—and see why a court invoking Geduldig today to insulate the regulation of pregnancy from scrutiny under Virginia and Hibbs would not respect stare decisis, but instead retreat from core principles of the equal protection sex-discrimination case law.

June 9, 2020 in Constitutional, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, June 4, 2020

Posts on Race and Gender from the Gender and Law Prof Blog

To browse the posts on race and gender here on the Gender & Law Prof Blog, click here.  (Or go to the home blog page, categories, and select "Race")

Recent posts include research on theory like intersectionality and hood feminism; gender, race, and crime; pay gaps for black women; inequality for black women, black women lawyers, and black women academics; black women in the #MeToo and suffrage movements; and many others.

June 4, 2020 in Race | Permalink | Comments (0)

Women Employees Over 55 Face Dual Threat from Covid-19 Layoffs

Older Female Employees Face Double Jeopardy During Covid-19 Layoffs

According to AARP employment data, women over the age of 55 face a dual threat to their careers and earning power amid the financial and labor market turmoil due to Covid-19. In April, approximately 20 million jobs were lost in the United States and the unemployment rate reached a staggering 14.7%.

 

Between March and April, the unemployment rate for women age 55 and over catapulted from 3.3% to 15.5%, the largest increase reported by the Department of Labor’s Bureau of Labor Statistics.

 

This stark data is consistent with numerous studies that have found that the stereotypes leading to ageism and sexism are exacerbated when combined in a single employee.

Why Are Older Women Impacted So Acutely?

Various factors have converged to magnify the labor-market toll on two separate sets of workers: female and older employees. It is thus an unfortunate reality that older female employees will be hit harder by the unforgiving Covid-19 employment landscape. As discussed below, this is often referred to as “sex-plus” discrimination, meaning sex discrimination plus some other protected characteristic such as age or race. . . . 

June 4, 2020 in Equal Employment, Workplace | Permalink | Comments (0)

Best Practices for University Faculty on Gender Equity for People of Color

Constance Wagner, In Search of Best Practices on Gender Equity for University Faculty: An Update" 
Norman Shachoy Symposium at Villanova Law School, 2019

This article updates the author’s earlier work on the search for gender equity among women faculty in the university setting in the United States. The author reflects on the fact that some of the literature in this area does not sufficiently address the challenges facing women of color. She seeks to fill the gap in her own research by referencing best practices discussed in three recent books on the professional lives of university faculty who are women of color. She argues that future work on best practices for achieving gender equity must address issues of intersectionality of race, gender, and class in order to develop effective tools for change in the university setting. This article was prepared for the 2019 Norman Shachoy Symposium at Villanova Law School, which focused on “Gender Equity in Law Schools”.

June 4, 2020 in Education, Gender, Law schools, Race | Permalink | Comments (0)

Monday, June 1, 2020

Contracting Pregnancy and the Laws of Regulating Surrogacy

Rachel Rebouche, Contracting Pregnancy, 105 Iowa L. Rev. (2020)

Several states recently have passed laws that permit and regulate gestational surrogacy, changing course from the prohibitions that characterized an earlier era. These statutes require mental health counseling before pregnancy and legal representation for all parties to the contract. Scholars and practitioners alike herald this legislation as the way forward in protecting the interests of both intended parents and surrogates. State law, however, may not resolve a recurrent tension over who controls prenatal decision making in gestational surrogacy agreements. Intended parents want authority to make decisions regarding the pregnancy. Contract provisions cater to that desire and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care.

Analyzing the most controversial terms of surrogacy contracts—those governing prenatal testing, prenatal behavior, and abortion—this Article demonstrates that neither statutory rights nor contractual remedies adequately address disputes over prenatal care. Rather, mental health professionals who provide pre-pregnancy counseling and lawyers who draft surrogacy contracts have greater effect on parties’ expectations and conduct. Lawyers, in implementing surrogacy contracts, help build trust between parties that induces compliance with otherwise unenforceable terms. When there is a conflict between the parties, lawyers diffuse it.

This Article identifies the consequences of relational contracting for surrogacy, including shielding parties’ behavior from view and entrenching the power of fertility agencies and brokers. It concludes by suggesting how law might challenge the dominance of professionals and agencies by opening the fertility market to a broader population of participants.

June 1, 2020 in Abortion, Family, Healthcare, Pregnancy | Permalink | Comments (0)

United Nations Working Group Declares Eight US States In Breach for COVID Restrictions on Abortion

US States Manipulating Covid-19 Pandemic to Restrict Abortion Access, Rights Experts Charge

Members of the UN Working Group on Discrimination against Women and Girls issued a statement on Wednesday expressing regret that states such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee “appear to be manipulating the crisis” to curb women’s reproductive rights.

 

UN experts are concerned some US states – such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee – appear to be manipulating crisis measures to restrict access to essential. services.

 

“This situation is also the latest example illustrating a pattern of restrictions and retrogressions in access to legal abortion care across the country. We fear that, without clear political will to reverse such restrictive and regressive trends, states will continue pursuing this pattern,” said Elizabeth Broderick, Vice-Chair of the Working Group.***

 

The Working Group was also extremely concerned by the US insistence to remove references to “sexual and reproductive health and its derivatives” from the Global Humanitarian Response Plan (HRP) on COVID-19, as expressed through a letter on 18 May from USAID to the UN Secretary-General.

 

“We reiterate that sexual and reproductive health services, including access to safe and legal abortion, are essential and must remain a key component of the UN’s priorities in its responses to the COVID-19 pandemic,” said Ms. Broderick.

 

“Removing references to sexual and reproductive health from the HRP will have devastating consequences for women worldwide. It will seriously undermine the international community’s joint effort to respond to women’s health needs in this time of crisis.”

 

Global Times, US Women's Rights Breach

Some US states are exploiting the coronavirus crisis to restrict access to abortion, a group of independent United Nations (UN) rights experts said on Wednesday.

Eight states have used COVID-19 emergency orders - which suspend medical procedures not deemed immediately necessary - to limit access to pregnancy terminations, said the UN Working Group on Discrimination against Women and Girls.

The group singled out Alabama, Arkansas, Iowa, Louisiana, Ohio, Oklahoma, Tennessee and Texas.

"We regret that the above-mentioned states, with a long history of restrictive practices against abortion, appear to be manipulating the crisis to severely restrict women's reproductive rights," said the group's vice-chair Elizabeth Broderick.

The independent experts do not speak for the UN but report their findings to the world body.

 

"For many women in the US, bans on abortion during this pandemic will delay abortion care beyond the legal time limit or render abortion services completely inaccessible," said Broderick.

Those who do seek termination services will be forced to travel interstate, thereby risking their own health and disregarding public health guidelines, the experts said.

"Abortion care constitutes essential health care and must remain available during the COVID-19 crisis," Broderick added.

"Restrictions on access to comprehensive reproductive health information and services, including abortion as well as contraception, constitute human rights violations and can cause irreversible harm."

The group said it was "inherently discriminatory" to women to deny them access to services only they require.

June 1, 2020 in Abortion, Healthcare, International | Permalink | Comments (0)

New Book: Syndicate Women: Gender in Organized Crime

Chris Smith, Syndicate Women: Gender and Networks in Chicago Organized Crime

In Syndicate Women, sociologist Chris M. Smith uncovers a unique historical puzzle: women composed a substantial part of Chicago organized crime in the early 1900s, but during Prohibition (1920–1933), when criminal opportunities increased and crime was most profitable, women were largely excluded. During the Prohibition era, the markets for organized crime became less territorial and less specialized, and criminal organizations were restructured to require relationships with crime bosses. These processes began with, and reproduced, gender inequality. The book places organized crime within a gender-based theoretical framework while assessing patterns of relationships that have implications for non-criminal and more general societal issues around gender. As a work of criminology that draws on both historical methods and contemporary social network analysis, Syndicate Women centers the women who have been erased from analyses of gender and crime and breathes new life into our understanding of the gender gap.

June 1, 2020 in Books, Gender, Legal History | Permalink | Comments (0)