Gender and the Law Prof Blog

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

Monday, July 27, 2020

The Woman Who Invented the Rape Kit and Forced Police to Starting Treating Sexual Assault Like a Crime

The Rape Kit's Secret History: The Story of the Woman Who Forced the Police to Start Treating Sexual Assault Like a Crime

MARTY GODDARD’S FIRST FLASH OF INSIGHT CAME IN 1972. It all started when she marched into a shabby townhouse on Halsted Street in Chicago to volunteer at a crisis hotline for teenagers.

 

Most of the other volunteers were hippies with scraggly manes and love beads. But not Marty Goddard. She tended to wear business clothes: a jacket with a modest skirt, pantyhose, low heels. She hid her eyes behind owlish glasses and kept her blond hair short. Not much makeup; maybe a plum lip. She was 31, divorced, with a mordant sense of humor. Her name was Martha, but everyone called her Marty. She liked hiding behind a man’s name. It was useful....

 

She began to formulate questions that almost no one was asking back in the early ’70s: Why were so many predators getting away with it? And what would it take to stop them?

 

Ms. Goddard would go on to lead a campaign to treat sexual assault as a crime that could be investigated, rather than as a feminine delusion. She began a revolution in forensics by envisioning the first standardized rape kit, containing items like swabs and combs to gather evidence, and envelopes to seal it in. The kit is one of the most powerful tools ever invented to bring criminals to justice. And yet, you’ve never heard of Marty Goddard. In many ways she and her invention shared the same fate. They were enormously important and consistently overlooked.***

 

As soon as I began to investigate the rape kit’s origins, however, I stumbled across a mystery. Most sources credited a Chicago police sergeant, Louis Vitullo, with developing the kit in the 1970s. But a few described the invention as a collaboration between Mr. Vitullo and an activist, Martha Goddard. Where was the truth? As so often happens in stories about rape, I found myself wondering whom to believe....

 

Little did I know that I would have to hunt for six months before I finally solved the mystery. I would learn she had transformed the criminal-justice system, though her role has never been fully acknowledged. And I would also discover that Louis Vitullo — far from being the inventor of the rape kit — may have taken credit for Ms. Goddard’s genius and insisted that his name be put on the equipment.

July 27, 2020 in Violence Against Women | Permalink | Comments (0)

Biden Announces Comprehensive Agenda for Women

The Biden Agenda for Women

As President, Biden will pursue an aggressive and comprehensive plan to further women’s economic and physical security and ensure that women can fully exercise their civil rights. Biden will:

  • Improve economic security. Biden will start by fighting for equal pay, investing in women-owned small businesses, expanding access to education and training, and strengthening pay and benefits in careers disproportionately filled by women.
  • Expand access to health care and tackle health inequities. Biden will expand access to high-quality, affordable health care for all women.
  • Help women navigate work and families. Biden will expand access to affordable child care and care for older Americans and people with disabilities, and provide paid leave and other important workplace benefits and protections.
  • End violence against women. Biden will work to end violence against women, continuing his leadership on this issue since he authored the Violence Against Women Act in 1994.
  • Protect and empower women around the world.

Biden will start on day one of his Administration leading by example, making sure his political appointees, including his Cabinet, and our entire federal workforce look like the country they serve. Biden has committed to selecting a woman to be his Vice President and an African American woman to be his first nominee to the U.S. Supreme Court, but his commitment to ensuring women help lead his Administration does not end there. As President, Biden will nominate and appoint people who look like the country they serve. He will reissue and mandate strict compliance with the Obama-Biden executive order to promote diversity and inclusion in the federal workforce....

Biden will also structure his Administration to ensure women’s issues remain at the forefront of policy efforts. 

As President, Biden will work with advocates across the country to pass the Equal Rights Amendment (ERA) so women’s rights are once and for all explicitly enshrined in our Constitution. Biden co-sponsored the ERA nine times. 

It's a very, very detailed read, but includes economic security, equal pay, reproductive health among other things.

July 27, 2020 | Permalink | Comments (0)

Thin and Thick Interpretations of the Nineteenth Amendment -- A More Robust Understanding of Women's Constitutional Rights

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.

 

This Article argues the Nineteenth Amendment does more. A “thick” understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting-rights plaintiffs to attack restrictive voting laws burdening women—especially those laws burdening young women of color, who are also guaranteed nondiscrimination in voting on the basis of age and race. A thick understanding of Congress’s power to enforce the Nineteenth Amendment would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. The thick understanding offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach. It also reinforces the democratic legitimacy of the Constitution. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.

Paula Monpoli similarly argues for a thick or more robust interpretation of the Nineteenth Amendment, tracing the historical development of the thin conception of the amendment post-ratification in her new book, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Aug. 2020).  See Paula Monopoli, The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification, 11 ConLawNOW 61 (2019)

Reva Siegel argues for a more robust interpretation of the Nineteenth Amendment for gender equality more generally by a better understanding of the pre-ratification history, and a symbiotic reading of the Nineteenth with the Fourteenth Amendment Equal Protection Clause.  Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J. Forum 450 (2020)

 

July 27, 2020 in Constitutional, Gender, Legal History, Theory | Permalink | Comments (0)

Thursday, July 23, 2020

Study Calls into Question Anti-Abortion Legal Arguments about Regret and Harm to Women

New Yorker, The Study That Debunks Most Anti-Abortion Arguments

Over the past several years, findings from the Turnaway Study have come out in scholarly journals and, on a few occasions, gotten splashy media coverage. Now Foster has published a patiently expository precis of all the findings in a new book, “The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having—or Being Denied—an Abortion.” The over-all impression it leaves is that abortion, far from harming most women, helps them in measurable ways. Moreover, when people assess what will happen in their lives if they have to carry an unwanted pregnancy to term, they are quite often proven right. That might seem like an obvious point, but much of contemporary anti-abortion legislation is predicated on the idea that competent adults can’t really know what’s at stake in deciding whether to bear a child or not. Instead, they must be subjected to waiting periods to think it over (as though they can’t be trusted to have done so already), presented with (often misleading) information about the supposed medical risks and emotional fallout of the procedure, and obliged to look at ultrasounds of the embryo or fetus. And such scans are often framed, with breathtaking disingenuousness, as a right extended to people—what the legal scholar Carol Sanger calls “the right to be persuaded against exercising the right you came in with.

 

Maybe the first and most fundamental question for a study like this to consider is how women feel afterward about their decisions to have an abortion. In the Turnaway Study, over ninety-five per cent of the women who received an abortion and did an interview five years out said that it had been the right choice for them.

July 23, 2020 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Federal Judge Rejects Weinstein Settlement, Saying it Fails to Adequately Compensate Victims and Creates Inequality Among Victims

NPR, Federal Judge Rejects Harvey Weinstein's $19 Million Settlement with Alleged Victims 

A federal New York judge has thrown out a proposed $18.9 million settlement between convicted rapist and former movie producer Harvey Weinstein, and several women.

 

U.S. District Judge Alvin Hellerstein said the offer failed to adequately compensate many of the victims who allege they were sexually assaulted or raped by Weinstein.

 

He also faulted the money included in the settlement that would help pay Weinstein's legal bills.

 

In a telephone hearing, Hellerstein said it was unfair to include women who'd merely met Weinstein with those making more grievous charges, Reuters reported.

 

"Not every woman was captured in the same way," Hellerstein said. "Your settlement would create inequality among all of those people."

 

Under the proposal, which was drafted after years of negotiation, each woman would have been entitled to file a claim for up to $750,000. A sum attorneys representing alleged victims say doesn't come close to covering the pain, suffering and legal costs many of the women have faced.

 

Weinstein would not have admitted any wrongdoing under the settlement.

See also Wash Post, Judge Rejects Tentative $19M Weinstein Deal with Accusers

July 23, 2020 in Courts, Equal Employment, Violence Against Women | Permalink | Comments (0)

What Took so Long for the ERA To Gain Traction?

I'm quoted in this article on the ERA.

Hannah Hayes, 100 Years On, the ERA Rises from the Ashes, ABA Perspectives Magazine (March 2020)

n March 2017, Nevada became the 36th state to ratify the Equal Rights Amendment (ERA). The move came just two months after the Women’s March on Washington drew hundreds of thousands to Washington, D.C., to protest President Donald Trump’s inauguration, as millions of women joined in simultaneous marches worldwide.

 

The vote also came 45 years after Congress passed the constitutional amendment, a move requiring ratification by three-fourths (38) of states before it became law. That year, 22 states immediately jumped on board; eight states ratified the ERA in 1973, followed by three states in 1974, with only two more states in 1975 and 1977.

 

After the decades-long gap, Nevada was followed by Illinois in 2018, and in January of this year, Virginia became the 38th state, technically making the amendment a reality. However, approval has been stalled because the amendment was introduced with a proposed two-year deadline for state ratification, and five states rescinded approval in the 45 years following their approval. Many credit the #MeToo movement and the election of President Trump with re-invigorating the women’s movement. “[Former President Barack] Obama claimed we were post-racial, but 2016 woke people up,” says Senator Pat Spearman, the democratic Nevada senator who introduced the resolution and who has since championed ratification across the country.

 

Others say, however, a persistent ground game that involved flipping seats and working state by state kept the amendment alive when many thought it had died a quiet death in the late 1970s. “I think the Women’s March helped inject vigor and also turned average people into activists,” says Kate Kelly, a human rights lawyer in the New York office of Equality Now, an international women’s rights organization, and a member of the national ERA Coalition. “Most people said it came out of nowhere, but people had been working on the ground in many states for many years. It just wasn’t getting any attention.”


What Took So Long?

 

While the Nineteenth Amendment, which was ratified in 1920, recognized women’s right to vote, it did not make women equal under the law. Further, it was only one strand of a series of demands made by Elizabeth Cady Stanton and abolitionist Lucretia Mott at the historic Seneca Falls Constitutional Convention in 1848 that included a broad list of social and civil rights, such as no-fault divorce and equal marital property rights. The Equal Rights Amendment was authored by Quaker abolitionist Alice Paul in 1923 and revised in 1943.

 

“Paul had a group of women lawyers from every state who analyzed the statutes in each state, and they came up with 350 statutes in 30 different areas of law where there was inequality,” says Tracy Thomas, director of the Center for Constitutional Law at the University of Akron (Ohio) School of Law.

 

According to Thomas, the ERA was met with opposition from the beginning. ERA advocates clashed with the labor movement, which was fighting for minimum wage and workplace safety. “The way they had been successful was by saying that women needed protection because legislators could understand that, so there was the fear that if you said the women were equal to men, nobody would get workplace protection,” Thomas explains.

 


Eventually, those issues faded following the passage of the Fair Labor Standards Act in 1938 and the rise
of the civil rights movement.

July 23, 2020 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

The Law's Historic Unwillingness to Shield Black Girls from Acts of Sexual Violence

Mikah Thompson, Just Another Fast Girl: Exploring Slavery’s Continued Impact on the Loss of Black Girlhood,  
Harvard Journal of Law and Gender, Forthcoming

A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. Survivors experience negative reactions not just from White society but also from their own African-American community. Stereotypes about Black girls also influence the players in the justice system, including police officers, prosecutors, defense attorneys, and jurors. In light of the recent shift in societal attitudes ushered in by the #MeToo and #TimesUp movements, it is important to consider whether our culture can now move away from the stereotypes that have left Black girls unprotected for centuries.

July 23, 2020 in Legal History, Race, Violence Against Women | Permalink | Comments (0)

Monday, July 20, 2020

Giving Gender Discrimination a Meaningful Remedy: Rewriting Justice Ginsburg's Opinion in Morales-Santana

I have just published: Tracy Thomas, Rewriting Sessions v. Morales-Santana, in Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouche ed., July 2020)

In Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), the Supreme Court in an opinion by Justice Ginsburg struck down a citizenship law that discriminated against children born abroad to US citizens based on whether the citizen was their father or their mother.  The opinion was widely held to be a model of equal protection analysis, documenting the legal history of the Court's gender equal protection law and recognizing the masculinity side of gender discrimination against men.  

However, the opinion was problematic for its refusal to order a meaningful remedy for the petitioner.  The Court did not grant the discrimination victim relief, but instead ordered the government to adopt formally equal rules going forward, and that those rules should be the more stringent rule for fathers. The Court was focused on restraining the government rather than redressing the individual's harm.

I have written about the remedial problem of so-called leveling down unequal treatment to deny the benefit.  Tracy Thomas, Leveling Down Gender Equality,  Harvard J. Law & Gender (2019).

In this book chapter, I apply these criticisms to rewrite the Court's opinion to properly award a meaningful remedy as required by due process.  This book is part of the US Feminist Judgments Project rewriting key court decisions as if they had been informed by feminist theory. 

 

 

 

July 20, 2020 in Books, Constitutional, Family, Masculinities, SCOTUS | Permalink | Comments (0)

"Where is God When we Need Her?" Women's Right to Freedom of Religion or Belief as Key to Promoting Gender Equality

Cochav Elkayam-Levy, "Where Is God When We Need Her? Women’s Right to Freedom of Religion or Belief as Key to Promoting Gender Equality"  95, Tulane L. Rev. (forthcoming)


Belief is a fundamental right of every woman. It articulates women's freedom to follow their aims and beliefs and protects their personal autonomy to pursue their chosen faith (be it theistic, non-theistic or atheistic). It also guarantees that women would be able to freely express their diverse opinions, moral convictions and experiences without social or other constraints. Yet this article reveals that women’s belief liberties are a blind spot in human rights law. The right to freedom of religion or belief has thus far been widely viewed by the international community as an obstacle to women's advancement; Among many aspects of this problem, this article considers the implications of the omission of the right to freedom of religion or belief from the Women’s Convention. It shows that states receive little guidance on how to secure this right in ways that also respect the right to gender equality. It also identifies a conflict syndrome by which women are predominantly viewed through the lens of harmful practices. Lastly, it calls attention to the fact that, presently, no state is being systematically supervised for implementing this fundamental right of women. Examining possibilities for change, the article demonstrates that the right of women to gender equality and to freedom of religion or belief are inseparably linked and that international mechanisms protecting women’s belief liberties could tremendously contribute to advancing women’s equal status.

July 20, 2020 in Constitutional, International, Religion | Permalink | Comments (0)

Where are the Statutes of Women? Sidelining Women in American Iconography

Melissa Weresh, Gauzy Allegory and the Construction of Gender, 25 Wm. & Mary J. Women & L. 7 (2018)

In August 2017, violence erupted in Charlottesville, Virginia when white nationalists arrived to protest the removal of a statue memorializing Confederacy General Robert E. Lee. Commenting on the controversy associated with the removal of Confederate monuments, the American Historical Association noted that the removal of a monument was intended "not to erase history, but rather to alter or call attention to a previous interpretation of history." In another effort to call attention to a silenced past, in April 20 18, The Legacy Museum: From Enslavement to Mass Incarceration opened in Montgomery, Alabama. Recognizing that "[t]he United States has done very little to acknowledge the legacy of slavery, lynching, and racial segregation," the Legacy Museum was a countermemorial effort designed to operate as "an engine for education about the legacy of racial inequality and for the truth and reconciliation that leads to real solutions to contemporary problems." More recently, the New York Times explored the issue of under· representation of women in American iconography in two articles titled, "Honor, at Last, for Ida B. Wells, 'a Sword Among Lions,' " and "These Women Deserve Statues in New York."

 

These changes to the landscape of American iconography underscore the powerful connection between history, commemoration, and public memory. This is true because "[a] monument is not history itself; a monument commemorates an aspect of history, representing a moment in the past when a public or private decision defined who would be honored in a community's public spaces."

 

Notwithstanding this recent attention, women remain underrepresented in all forms of American iconography, resulting in a deficiency in commemorative memory. When they are represented, they tend to be featured allegorically rather than historically, exacerbating the quantitative under-representation in a qualitative manner. Explanations for and implications of this quantitative and qualitative under-representation are largely unexplored in legal scholarship. This Article is therefore about the twofold erasure of women from the iconography that makes up our national memory: first, women are rarely represented at all, and second, when they are, they are represented as symbols, rather than as actual human beings. This is a troubling form of gender marginalization, or sidelining.

 

This Article begins with an empirical examination of the manner in which women have been commemorated in American iconography. It then turns to a framework of gender that incorporates features of gendered relationships and gendered significations of power, using that framework as a lens for evaluating the lack of female commemoration in American iconography. This lens also provides useful categories for evaluating the impact of allegorical as opposed to historical commemoration.

 

Against this backdrop, the Article explores potential explanations for both the lack of historical representation as well as the tendency to feature women allegorically in iconography, seeking interdisciplinary answers in fields such as classical history, art history, theology, linguistics, and commemoration studies. Noting possible explanations for both the quantitative and qualitative under-representation, the Article explores the implications of allegorical representation, emphasizing that it is important to consider not only the lack of historical representation, both quantitatively and, by virtue of allegorical representation, qualitatively, but also how that absence created and maintained hierarchies and contributed to the sidelining of women in commemorative spaces. Disconcerting consequences of allegorical representation include the objectification of the female form, and the irony of featuring idealized, allegorical images of women in areas of society and culture from which they have been historically excluded. Upon initiating this important conversation, it then turns to potential cultural, societal, and legal strategies to address this inequity.

h/t Ederlina Co

July 20, 2020 in Gender, Legal History, Pop Culture | Permalink | Comments (0)

Survey Shows 80 Percent Support Gender Equality, But Less Identify as "Feminist"

This is How America Feels About Feminism in 2020

Feminism is sometimes referred to as the other "f" word, a term so loaded its meaning is often obscured by the intense emotions around it.

This was reflected in a Pew Research Center survey released this month, which found that although nearly 80% of Americans support gender equality – and feminism is defined as "the theory of the political, economic and social equality of the sexes" by Merriam-Webster – only 61% of women and 40% of men say "feminist" describes them very or somewhat well. 

 

“I think ‘identify as feminist’ has morphed into ‘identify with a wide breadth of social, political issues that align with contemporary politics of equity and reparative justice,’ ” says Karla Holloway, who has taught African American studies, women's studies and law at Duke University. “Feminism is taken to mean a shared perspective on these issues, but because the issues divide constituencies, it turns into pushing aside the label rather than understanding it as a category that can, and does, contain complexity."  

 

Three-quarters of self-identified feminists say the country hasn’t gone far enough in giving women equal rights with men, and only 39% of nonfeminists say the same, according to the survey, which found divisions along gender, racial and political lines, as well

July 20, 2020 in Gender, Pop Culture, Theory | Permalink | Comments (0)

Tuesday, July 14, 2020

How Policing Became the Go-To Response for Domestic Violence

Aya Gruber, How Police Became the Go-To Response for Domestic Violence

In response to widespread demands to “defund the police,” a specific question repeatedly crops up: “What about domestic and sexual violence?” These “what about” questions imply that defunding, reducing, and reforming the aggressive street policing currently under public scrutiny will leave people without vital protection and trigger a tidal wave of crime.

 

As prominent prison abolitionist Mariame Kaba has explained, the police have never been the solution to violence against women. Few women actually report rapes to police, and when they do, officers disbelieve and mistreat them. Kaba and others point out that police officers frequently commit domestic and sexual violence themselves, often using their authority to get away with it.

 

Still, some argue that this reality calls for more policing. Laws and policies could require officers to believe women and make arrests in their cases. This may, in turn, increase reporting and victim satisfaction. Some policies like this already exist in the form of special victims units where officers are trained to be victim-centered and trauma-informed and to pursue cases to arrest. One letter to the editor responding to Kaba suggested that we could change the face of policing: “I disagree that we should abolish the police. Instead, we should simply replace male policemen with more women.”

 

It is tempting to see aggressive rape and domestic violence policing as the solution to violence against women, especially as the coronavirus lockdown is increasing such violence. But we have been down that road before, and it just led to more harm for marginalized people, including women.

 

Beginning in the late 1970s, battered women’s activists launched a remarkably successful campaign for states and police departments to adopt laws and policies that encouraged, even required, police officers to arrest in domestic violence cases. Before the policies, officers who responded to “domestic disputes” often did not arrest, instead choosing to mediate between the parties or temporarily remove the suspect from the scene. Department policies even encouraged police not to arrest.

 

In the early days of the movement, many feminists also rejected strict law enforcement. Black activists within the movement vociferously opposed increasing police presence in the lives of people of color. Social scientists warned that arrest “initiates a judicial process which, experience tells us, has little chance of a productive outcome,” as researcher Morton Bard observed.

 

Consequently, much of the early battered women’s movement was oriented not around policing but around services like helping women obtain housing, employment, and public benefits

July 14, 2020 in Race, Violence Against Women | Permalink | Comments (0)

Virtual Conference: The 15th & 19th Amendments on the Anniversary of their Ratifications

Massachusetts Historical Society, “Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of Their Ratifications

“Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of their Ratifications, October 12-16, 2020

Registration opens in August!

As a result of ongoing public health concerns, the Massachusetts Historical Society has altered its original plan for an in-person conference in October 2020. Rather than meeting for two days of sessions, we will host the conference panels online between Monday, 12 October and Friday, 16 October 2020. The originally scheduled keynote panel will be postponed until it is safe to hold the event in person at the MHS.

Download Conference Schedule 

The year 2020 marks the anniversaries of two critical amendments to the United States Constitution. Spaced fifty years apart, the Fifteenth and Nineteenth Amendments, ratified in 1870 and 1920, respectively, prohibited the use of race or sex to deny American citizens the franchise. However, the amendments did not prevent states from adopting other methods of discrimination. Viewed as the product of two different movements—abolitionism and the Civil War on the one hand and the Progressive campaigns and the First World War on the other—these two periods and amendments are not often considered together. This conference revisits the long journey to secure voting rights for African Americans and women in United States history. It considers the legal precedents and hurdles that each amendment faced, the meaning and uneven outcomes of each, the social context that allowed for ultimate ratification, the role of key individuals and groups in these respective contexts, and how each amendment has been remembered over time.

At a later date, a keynote panel will feature feature Profs. Alison M. Parker (University of Delaware) and Lisa Tetrault (Carnegie Mellon University) and will be moderated by Prof. Alex Keyssar (Harvard).

July 14, 2020 in Conferences, Constitutional, Legal History, Race | Permalink | Comments (0)

Guest Blogger Julie Suk on the ERA as a Political Question

Guest Blogger, Julie Suk is Professor of Sociology & Political Science, The Graduate Center - CUNY, and Visiting Professor at Yale Law School.  She is the author of the new book We the Women: The Unstoppable Mothers of the Equal Rights Amendment (forthcoming August 2020). You can follow her @JulieCSuk

 

Julie Suk, The Feminist ERA Worth Fighting For:: A Political Question

Virginia became the 38th state to ratify the Equal Rights Amendment earlier this year, one hundred years after the Nineteenth Amendment and nearly fifty years after the ERA was adopted by Congress. My forthcoming book, We the Women, chronicles women’s long battle for the ERA to argue that the 1972 Equal Rights Amendment should be added to the Constitution, despite the passage of roughly forty years after the ratification deadline.

But the procedural path by which the ERA gets saved will shape the ERA’s long-term legitimacy and feminist potential. That is why I filed an amicus brief in the litigation brought by Virginia in pursuit of a judicial declaration of the ERA’s validity, arguing that Congress, not the courts, should decide in the first instance what to do about the ERA ratification deadline. Joined by distinguished constitutional law professors Erwin Chemerinsky, Reva Siegel, and Noah Feldman, our brief applies the logic of Coleman v. Miller, which affirmed Congress’s power over time frames for ratification, and treated the reasonableness of ratification time frames as a nonjusticiable political question. In the lawsuit, the three states that ratified the ERA after the deadline are suing the National Archivist, who refuses to publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.  Virginia claims that Article V does not authorize Congress to impose ratification deadlines on sovereign states. The court has allowed an intervention by states that have not ratified the ERA, or voted to rescind their prior ratifications. In their motion for summary judgment, filed earlier this week, the intervenors urge the court to conclude that “the ERA that Congress proposed in 1972 failed of adoption in 1979 and can no longer be ratified,”and that they possess sovereign power as states to rescind their ratifications. If the court reaches the merits of the intervenor states’ arguments, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.

Our amicus brief supports no party, even though Virginia’s goal of a court declaring the ERA to be part of the Constitution now, after a century of struggle, is admittedly enticing for the ERA proponent. But here’s what ERA proponents can gain if Congress votes to removes the deadline first: feminist legislative history that guides its future meaning. This path could take longer, because congressional action to save the ERA might not be accomplished until after November’s election.

Pro-ERA groups like the ERA Coalition have already made incrementally successful efforts to persuade Congress to remove the deadline. In Congress, the House passed a resolution lifting the deadline on ratification in February 2020, and a similar resolution has been introduced in the Senate with 48 sponsors so far.  (Thirty-five Senate seats are on the ballot this November). The ERA’s long-term legitimacy depends on Congress taking action to remove the deadline before Trump-appointed federal judges take the opportunity to declare the ERA forever expired. 

More importantly, congressional action is more likely to produce the robust ERA that its proponents are fighting for.  As 8 amicus briefs filed by many women’s groups make clear, ERA proponents want the ERA to go farther than judicially-created sex equality under the Equal Protection Clause, to reach pregnancy discrimination, the problems brought to light by the #MeToo movement, and the gender inequities in caregiving and essential work laid bare by the Covid-19 crisis.  They want the U.S. Constitution to learn from gender equality provisions promoting real equality in other constitutional democracies around the world that were adopted after the ERA was proposed. That robust ERA, moving beyond what was intended or imagined in the 1970s, is already being made by lawmakers through legislative hearings and debates about removing the deadline. This overtly political debate will not be part of a judicial decision in a litigation about Article V.

The 116th Congress had record numbers of women and women of color elected. When the House voted in February 2020 to recognize the ERA as valid “whenever ratified” by three-fourths of the states – which occurred when Virginia became the 38th state to ratify the ERA in January, that vote came after two hearings and a floor debate. In April 2019, due largely to the persistent advocacy of the ERA Coalition, the House Judiciary Committee held a hearing on removing the deadline on the ERA.  In that hearing, constitutional law giant Kathleen Sullivan pointed to the gender equality provisions in constitutions around the world, and called the absence of such a provision in the United States a “national embarrassment.”  In November 2019, the House Judiciary Committee voted to report the ERA deadline removal favorably for a full vote by the House.  Unlike the all-male House Judiciary Committee that reported the ERA out in 1971, nearly one-third of the current committee consists of women. Several women of color on the committee, like Congresswoman Sheila Jackson Lee of Texas, explained why the ERA was still needed in the markup hearing.  Congresswoman Pramila Jayapal said that the ERA could reach discrimination based on pregnancy, childbirth, and caregiving responsibilities.  “A vote for the ERA is a vote for families,” she said, countering the 1970s STOP-ERA campaigns depicting the ERA as anti-family.

The House Judiciary Committee’s written report, issued in January 2020, suggested that the ERA

could provide a basis for Congress to engage in affirmative efforts to support gender equality both at home and in the workplace. Additionally, under some theories, the ERA could provide a basis for plaintiffs to challenge laws or policies that have a disparate impact on women, or support efforts to create gender balance in certain contexts.  Additionally, the ERA's prohibition against discrimination “on account of sex” could be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.

In the floor debate leading to the House’s vote to lift the deadline, several Congresswomen from various states, ranging in age, race, and ethnic background, spoke to give the ERA meaning, including some who opposed it.  Speaker Nancy Pelosi said the ERA would help protect pregnant women and new mothers who were in the workforce.  Congresswoman Rashida Tlaib, the first Muslim woman ever elected to Congress, said that the ERA was “about women of color, women with disabilities, transgender women, immigrant women.” In both the Judiciary Committee report and the floor debate, ERA opponents expressed the fear that the ERA would expand abortion access, to which Judiciary Committee Chairman Nadler responded, “If people on the other side want to admit that equality of rights under the law means there must be a constitutional right to abortion, well, that is wonderful.“ Congress – the lawmaking body of democratically elected representatives from throughout the nation – is the only institution that can make the ERA address twenty-first century concerns, as new constitutional meanings emerge from dynamic dialogue with the political opposition.

In the Senate, Republican Lisa Murkowski has cosponsored S.J. 6, lifting the ERA deadline, along with Democrat Ben Cardin.  The Senate resolution now has 48 cosponsors.  On June 4, 2020, Senator Murkowski recognized the 101st anniversary of the Senate’s adoption of the women’s suffrage amendment. She pointed to Virginia’s ratification of the ERA and urged her Senate colleagues to remove the deadline. “I have asserted time and again . . . that you cannot put a time limit on women’s equality. . . Women’s equality is fundamental to the American way of life, and it is far past time to be expressly recognized in the Constitution.” In that same speech, she acknowledged the persistence of racial injustice and its connection to the struggle for women’s equality: “Today, June 4, is not only a recognition of women’s suffrage, but it is the funeral of George Floyd.”

Congressional efforts to remove the ratification deadline create opportunities for lawmakers to articulate why the ERA remains necessary and what its twenty-first century goals are. Congressional completion of ERA ratification will make the contributions of women lawmakers part of the twenty-first century ERA’s legislative history.  A judicial decision about the ratification deadline simply can’t do the feminist heavy lifting that the women in Congress are doing.  In 1978, women in Congress led the first extension of the ERA deadline, and clarified the ERA’s goals in those debates.  In the past year, as it debated the deadline removal, Congress has been at the center of updating the ERA to respond to the twenty-first century needs of all the nation’s people.  These meanings will become part of the ERA if Congress acts to remove the deadline.

July 14, 2020 in Books, Constitutional, Guest Bloggers | Permalink | Comments (0)

Wednesday, July 8, 2020

SCOTUS Holds that Employer's Religious Liberty Trumps Women's Right to Healthcare and Birth Control

The U.S. Supreme Court decided Little Sisters of the Poor v. Pennsylvania (July 8, 2020), in a split opinion, with the majority written by Justice Thomas.  Justices Kagan and Breyer concurred in the judgment.

Justice Ginsburg strongly dissented,. recognizing the threat to not just women's healthcare, but women's equality.

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. *** Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services. 

July 8, 2020 in Healthcare, Religion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Gender Diversity and Diversity Fatigue: Shifting the Focus to Corporations and Systemic Solutions

Douglas Branson, Gender Diversity, Diversity Fatigue, and Shifting the Focus, 87 Geo. Wash. U. L. Rev. 1061 (2019)

The women’s movement has been with us for approximately 50 years. Women are airline pilots, police officers, engineers, fire fighters, physicians, and veterinarians. By contrast, the progress to corporate senior executive positions has been paltry, in fits and starts, at best in baby steps. Ascendant males would tell you that women have made no business case for increasing the number of female executives. In response, this Article contends that the focus, exclusively upon women themselves, is all wrong. The focus should be on corporations themselves, the employers, and not exclusively on aspiring women. Beyond lip service, corporations have done little, throwing a few dollars at STEM programs that may lead to a first or second position, but not to leadership roles. Information technology empirical studies show that of the measly 4.8% of executive positions women hold, only two are held by women with STEM degrees. All of the remaining 25 female executives have law or business degrees with MBAs predominating. The tech industry attempts to crowd out women completely, by hiring males from foreign countries who enter the United States with H1-B visas that allow them to stay for six years and often permanently. It is high time for corporations themselves to undertake concrete steps of the nature with which this Article concludes.

See also Douglas Branson, The Future of Tech is Female (2018)

The Future of Tech is Female considers the paradoxes involved in women’s ascent to leadership roles, suggesting industry-wide solutions to combat gender inequality. Drawing upon 15 years of experience in the field, Douglas M. Branson traces the history of women in the information technology industry in order to identify solutions for the issues facing women today. Branson explores a variety of solutions such as mandatory quota laws for female employment, pledge programs, and limitations on the H1-B VISA program, and grapples with the challenges facing women in IT from a range of perspectives.

Branson unpacks the plethora of reasons women should hold leadership roles, both in and out of this industry, concluding with a call to reform attitudes toward women in one particular IT branch, the video and computer gaming field, a gateway to many STEM futures. An invaluable resource for anyone invested in gender equality in corporate governance, The Future of Tech is Female lays out the first steps toward a more diverse future for women in tech leadership

July 8, 2020 in Books, Business, Technology, Workplace | Permalink | Comments (0)

Tuesday, July 7, 2020

MeToo - What Next?

Deborah Rhode, #MeToo: Why Now? What Next?, Duke L. J. (2019)

This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.

July 7, 2020 in Equal Employment, Pop Culture, Workplace | Permalink | Comments (0)

June Medical Returns SCOTUS Precedent to Less Demanding Standard of Casey

Caroline Mala Corbin, June Medical is the New Casey

The atmosphere awaiting the Supreme Court’s decision in Planned Parenthood v. Casey felt similar to the one awaiting today’s decision in June Medical Services v. Russo.  At stake was whether the U.S. Constitution would continue to protect a woman’s right to abortion. Casey reaffirmed that right but lowered the level of protection. June Medical does the same. In fact, Casey is likely to be the controlling Supreme Court precedent on abortion once again.

 

To understand what this means, let me provide a brief background on abortion and the Supreme Court.  As most people realize, the Supreme Court declared that the right to abortion was a fundamental right in Roe v. WadeRoe also required strict scrutiny of any abortion regulation, where regulations of first trimester abortion (when the vast majority of abortions occur) were presumptively unconstitutional.

 

What many do not realize is that the Supreme Court subsequently dialed back the level of protection in Planned Parenthood v. Casey (1992). In a 5-4 decision, the Supreme Court reaffirmed that abortion was still a constitutional right. However, the Court replaced the strict scrutiny test with the undue burden test, making abortion much easier to regulate.  According to the Casey Court, as long as a law did not impose an “undue burden” on women seeking an abortion, it was fine.  An undue burden occurs when the state places a substantial obstacle in the path of a woman hoping to end her pregnancy. Unfortunately, the Supreme Court in Casey and subsequent cases made clear their view that very few regulations impose an undue burden. Waiting periods? No undue burden.  Outlawing a safer procedure? No undue burden.  Under the Casey regime, states were able to severely restrict access to abortion by passing laws ostensibly to protect women’s health, but in reality undermined it by making abortion more expensive, time-consuming, and difficult to obtain due to clinic closures.

 

Quite unexpectedly, in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court strengthened the undue burden test, providing heightened protection for abortion rights. The analysis of whether a law imposed an undue burden now had two questions instead of one. As before, courts must consider whether a law created a substantial obstacle in the path of a women seeking an abortion.  But in addition, the Court would consider the actual benefit of the law. If the stated goal was to improve women’s health, states must provide evidence to that effect. This is critical because, as mentioned above, states regularly passed laws which they claimed were to make abortion safer for women but were really designed to just make it harder.***

 

However, also similar to CaseyJune Medical signals less protection for abortion rights going forward. Although Justice Breyer’s plurality opinion relied on the highly protective undue burden test as formulated by the Whole Woman’s Health majority, which requires examination of both the actual benefit of the law, as well as the burden imposed by the law, Chief Justice Roberts did not.  Chief Justice Roberts, who provides the crucial fifth vote to reaffirm that abortion was a constitutionally protected right, repudiates the Whole Woman’s Health test. Instead, he wrote that “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” In other words, the test for whether an abortion regulation violates the constitution is the Casey test with one question, not two. Thus, like CaseyJune Medical reaffirms abortion is a constitutional right while cutting back protection for abortion.

July 7, 2020 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Women are Being Written Out of Abortion Jurisprudence

Dahlia Lithwick, Women are Being Written Out of Abortion Jurisprudence

It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russothe major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.

 

In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. ***

 

There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roeand  Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and processThe regard for a woman’s right to choose itself? That doesn’t even register as material.

July 7, 2020 in Abortion, Constitutional, Judges, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Mount Rushmore will Temporarily Put Women on the Rocks

Wash Post, 19th Amendment Anniversary Celebration will Put Women on Mount Rushmore, Temporarily

In late August and early September, Korp’s project, “Look Up to Her,” will become one of a number of ways the Women’s Suffrage Centennial Commission will mark the anniversary, along with a commemorative coin and medal produced by the U.S. Mint and a virtual event at the Kennedy Center. She’ll project the images of 14 female leaders of the suffrage and civil rights movements on Mount Rushmore, including women who never themselves got the right to vote.

 
For two weeks, Abigail Adams, Sojourner Truth, Clara Barton, Harriet Tubman, Elizabeth Cady Stanton, Susan B. Anthony, Ida B. Wells, Alice Paul, Jeannette Rankin, Gladys Pyle, Mabel Ping-Hua Lee, Zitkala-Sa, Nellie Tayloe Ross and Rosa Parks will be projected in pairs flanking Mount Rushmore’s four presidents — George Washington, Thomas Jefferson, Abraham Lincoln and Theodore Roosevelt — in several-minute increments.

 

When the 19th Amendment was ratified on Aug. 18, 1920, it granted American women the right to vote after nearly a century of protest. But black women still faced significant barriers to casting ballots. Native American women were still not considered U.S. citizens. The Chinese Exclusion Act prevented Chinese immigrants from becoming U.S. citizens until 1943.

 

Korp says she intentionally chose to include women such as Truth, who was born a slave and died before she had the right to vote; Zitkala-Sa, a Native American who at the time was not a citizen under U.S. law; and Lee, a Chinese immigrant who fought for suffrage knowing it would not apply to her.

July 7, 2020 in Legal History, Pop Culture | Permalink | Comments (1)