Tuesday, September 29, 2020
Erika Bachiochi, Amy Coney Barrett: A New Feminist Icon, Politico
National Review, Why Left Wing Feminists Hate Amy Coney Barrett
Amy Coney Barrett is Not a Feminist Icon, Huff Post
My own view is the same as that I explained years ago when asked similarly whether then-VP candidate Sarah Palin was a feminist. No. Feminism is not just girl power, or women doing things traditionally reserved for men. Individual achievement in a field or profession (sometimes called "I-feminism") whether Vice Presidential candidate or Supreme Court Justice is not feminism. But it is a consequence of feminism and the work it has done to eradicate barriers to women's achievement. Feminism is the understanding of the gendered hierarchies and stereotypes of law and society, a commitment to reforming those gender injustices, with the goal of women's full and equal autonomy, agency, and opportunity. Under this definition, Barrett is not a feminist.
Deborah Brake & Joanna Grossman, Reproducing Inequality Under Title IX, 43 Harvard J. Law & Gender 171 (2020)
This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement either. By giving a formal “right” to stay in school and the right to equal treatment with temporarily disabled students, Title IX may be strategically deployed by proponents of restricting abortion rights to minimize the educational consequences of involuntary motherhood. The hard realities of how pregnancy and parenting impact schooling are obscured.
The article explores the legal divide between pregnancy discrimination and reproductive rights in relation to education in three parts. Part I discusses the rights included in, and omitted from, Title IX relating to pregnancy and reproduction. Part II surveys the liberty-based reproductive rights framework for pregnancy prevention and termination and discusses its limits in protecting young women from the educational effects of unwanted pregnancy and motherhood. Part III concludes by discussing the implications of separating out pregnancy discrimination from the broader set of reproductive rights and elaborating on the harms that flow from the law’s failure to recognize the educational equality dimensions of the denial of reproductive rights.
Jennifer Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power and Assault on Campuses
A groundbreaking study that transforms how we see and address the most misunderstood problem on college campuses: widespread sexual assault.
The fear of campus sexual assault has become an inextricable part of the college experience. Research has shown that by the time they graduate, as many as one in three women and almost one in six men will have been sexually assaulted. But why is sexual assault such a common feature of college life? And what can be done to prevent it? Drawing on the Sexual Health Initiative to Foster Transformation (SHIFT) at Columbia University, the most comprehensive study of sexual assault on a campus to date, Jennifer S. Hirsch and Shamus Khan present an entirely new framework that emphasizes sexual assault’s social roots—transcending current debates about consent, predators in a “hunting ground,” and the dangers of hooking up.
Sexual Citizens is based on years of research interviewing and observing college life—with students of different races, genders, sexual orientations, and socioeconomic backgrounds. Hirsch and Khan’s landmark study reveals the social ecosystem that makes sexual assault so predictable, explaining how physical spaces, alcohol, peer groups, and cultural norms influence young people’s experiences and interpretations of both sex and sexual assault. Through the powerful concepts of “sexual projects,” “sexual citizenship,” and “sexual geographies,” the authors offer a new and widely-accessible language for understanding the forces that shape young people’s sexual relationships. Empathetic, insightful, and far-ranging, Sexual Citizens transforms our understanding of sexual assault and offers a roadmap for how to address it.
Shiu-Yik Au, Andreanne Tremblay & Leyuan You, "Times Up: Does Female Leadership Reduce Workplace Sexual Harassment?"
We examine the role of female leadership in reducing the incidence of workplace sexual harassment. We estimate the incidence rate of sexual harassment through textual analysis of employees’ job reviews, published online during the period 2011-2017. We find that firms with a higher proportion of women on the board of directors experience less sexual harassment. An increase of one female director is associated with an 18.2% decrease in the sexual harassment rate. The effect is both statistically and economically significant and is not limited to female directors as we find similar results with female CEO and executives. The mechanism for reduced sexual harassment is linked to overall improved social policies. Our results are robust to several adjustments for endogeneity concerns.
Monday, September 28, 2020
Executive Order Against Training Federal Employees, Contractors and Military on Racism Applies to Sexism Too
Executive Order on Combating Race and Sex Stereotyping, White House (Sept. 22, 2020)
This executive order is an expression not only of white fragility, but also of male fragility. It reads as a defense of the oppressors. It embodies defensiveness in the face of illustrations of racial and gender privilege, while it reacts to perceived affronts to white men's moral character. While titled as an order about "stereotyping," it is most concerned with what the order calls "race and sex scapegoating."
The prohibitions on addressing racism in federal employment training and contractors have been mentioned in the media and challenged by scholars.
Less discussed have been the provisions that also prevent teaching about sexism. The Order prohibits federal workplaces, unions, military, and federal contractors from teaching about such "divisive concepts" as sexism, male privilege, or systemic sexism.
It decries "sex scapegoating," defined as: "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."
The order provides an example of a training of concern: "Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other."
Melanie Wilson, A Reckoning Over Law Faculty Inequality, 98 Denver L.Rev. (2020)
In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.
Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body. If law schools are serious about changing, then they should read Unequal Profession. As this review demonstrates, Unequal Profession is a definitive resource for improving inequality in legal education.
Friday, September 25, 2020
Call for Papers: Examining Black Citizenship from Reconstruction to Black Lives Matter
The Center for Constitutional Law at Akron
Virtual Symposium (online)
Friday, Feb. 5, 2021, 9am to 5pm
This year celebrates 150 years of the Fifteenth Amendment, 100 years of the Nineteenth Amendment, 55 years of the Voting Rights Act, and just over 55 years of Title VII. Each of these laws brought some systemic change to the participation of Black citizens in the polity. This symposium will explore the ways in which the reconstructed Constitution intended or neglected to establish political and civil citizenship rights regardless of race. Drawing on current social movements like Black Lives Matter, MeToo, SayHerName, and Defund the Police, this academic discussion reflects on the role of law in creating, sustaining, and resolving the identified problems.
Topics for presentation in the broad umbrella of this symposium might include: how social movements transform or engage the law, how academics translate social movements, a reconstructed history of the 15th or 19th Amendment, the Jim Crow and Jane Crow eras and their continuing effects, current battles for voting rights regarding felons, polling restrictions, and other limitations with disparate impact, intersectional dimensions of justice including Black feminism, the causes and consequences of Black Lives Matter, vestiges of slavery, reparations for slavery, policing reform, mass incarceration, judicial remedies for citizenship violations, and/or the gendered differences of black citizenship rights.
The Virtual Symposium is sponsored by the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial for the purpose of promoting scholarship and education on matters of constitutional law. The Center includes five affiliated faculty fellows, student fellows, an online journal, ConLawNOW, a JD certificate program in constitutional law, a social justice project, and a Masters of Law in social justice.
Papers presented will be published in a symposium edition of ConLawNOW. ConLawNOW is an online, open-access journal that is also indexed in Westlaw, Lexis, and Hein. It is designed to publish shorter works of 10-20 pages within a short editorial timeframe to get scholarship into the public discourse more quickly. Recent authors published in ConLawNOW include Larry Solum, Paula Monopoli, Ernie Young, Harold Koh, Helen Norton, Judge Jeffrey Sutton, Ruthann Robson, and Julie Suk.
Those interested in presenting a paper should submit a proposal detailing the intended presentation to Professor Tracy Thomas, Director of the Center for Constitutional Law, at firstname.lastname@example.org by December 1. Draft papers should then be submitted by January 20, 2021 for circulation among the other participants for the symposium. Final papers will be due by March 1, 2021, and expected to publish by early April.
Tuesday, September 22, 2020
Symposium, Fri. Sept. 25, Two Centuries of the Equal Rights Amendment, University of Florida School of Law
Please join scholars, legislators, and practitioners on Friday, September 25 for the Symposium, Two Centuries of the Equal Rights Amendment. This Symposium addresses many questions left unanswered after the recent ratification of the Equal Rights Amendment by Virginia. It has taken 97 years for the ERA to meet the technical requirements of Article V. But will it take its rightful place as the Twenty-Eighth Amendment? And will it be Congress, or the courts, that make it happen?
Please visit the Symposium website for a detailed schedule. This Symposium may be attended on a per panel basis and is free and open to the public. Please register to receive the Zoom link and Outlook invitation. 6.5 Florida CLEs pending.
Naomi Cahn & Linda McClain, Gendered Complications of Covid-19: Towards a Feminist Recovery Plan, Georgetown Journal of Gender and the Law, 2020
Gendered inequalities are on the frontlines of Covid-19. The catalogue of Covid-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. The pandemic has exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly Black, Latina, and Native American, are at the intersection of the inequities in the emerging stay-at-home economy. This Article argues that Covid-19 is likely to have complex implications for gender equality and gender equity as state and local governments, the federal government, and private actors focus on recovery plans. The negative impact includes hundreds of thousands of deaths, lingering health complications for many among the several million people who have already contracted the virus, massive economic disruption and loss for individuals, families, and communities and the exacerbation of structural inequalities. The creative policy responses prompted by the devastating impact of Covid-19 provide promise for building a more transformative and equitable future. Indeed, any roadmap to resilience is incomplete without addressing the gender inequities in our social infrastructure. Proposing a feminist recovery plan, this Article focuses on a set of issues relating to gender inequities concerning work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly, women of color— in providing essential but undervalued care work.
Katharine Baker & Michelle Oberman, Consent, Rape and the Criminal Law, The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds.), Oxford University Press, 2021 (Forthcoming)
The story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction of rape crimes, including the role played by social norms. Second it argues that, by changing rape’s definition to an inquiry focused upon whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. In short, the law’s message that unwanted sex is wrong matters. It is naïve to think that a change in law would, on its own, end rape culture. But there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.
Julie Dahlstrom, Trafficking to the Rescue?, 54 UC Davis L. Rev. (forthcoming)
Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking law against a range of defendants, such as fundamentalist leader Warren Jeffs, Olympic Taekwondo coach Jean Lopez, and well-known photographer Bruce Weber. These efforts have largely succeeded, as federal district courts signal broader judicial acceptance of such federal trafficking claims.
This Article traces federal human trafficking law from its origins to these recent innovative cases. It then considers how civil litigators are turning to human trafficking statutes to overcome decades-old systemic problems with legal responses to gender-based violence. The Article explores how the TVPRA offers unique, pragmatic advantages for plaintiffs. Yet, this trend involves risks, as the expanding deployment of trafficking statutes may lead to constitutional challenges, disproportionate criminal penalties, and confusion about the meaning of trafficking as a legal concept. This Article examines what these efforts signal about the future of human trafficking law as well as the field of gender-based violence.
Tuesday, September 15, 2020
The United States Supreme Court's historic June 15 decision about LGBTQ workers' rights had its first impact on how courts define sex discrimination at colleges.
The U.S. Court of Appeals for the 11th Circuit concluded that Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions, also protects transgender students from discrimination based on their identity, said the court's Aug. 7 decision, written by Judge Beverly Martin.
"We conclude that Title IX … prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex," Martin wrote.
Martin drew upon the Supreme Court's new interpretation of "sex," which includes sexual orientation and gender identity, and decided a transgender high school student in Florida could sue his former school district for its bathroom policy. The policy blocked the student, who identifies as male, from using the boys' bathroom because he was not biologically male and required him to use a female or gender-neutral bathroom, court documents said.
The decision could impact how colleges in the 11th Circuit, which encompasses Alabama, Florida and Georgia, implement bathroom policies and could subject colleges within the states to Title IX lawsuits related to discrimination against transgender students more broadly
A new Pew Research study shows a clear majority of women, across all ages and education levels, identify as feminists. Overall, 61 percent of female respondents said “feminist” describes them “very” or “somewhat well.”
The group most likely to identify as feminist was among women ages 18-29, at 68 percent. The 50-64 cohort was least likely to, at 57 percent—nevertheless, still a healthy majority.
In terms of education, having a bachelor’s degree or higher drove higher feminist self-identification—72 percent, versus high school-educated at 54 percent.
Additionally, feminist identification plays a role in political party affiliation: Women who are Democrats or lean toward the Democratic party are significantly more likely to identify as feminists than their Republican or Republican-leaning counterparts—75 percent, compared to 42 percent.
In addition, a majority of Americans (64 percent) say feminism is empowering, and 42 percent see it as inclusive. Nevertheless, although a majority of both men and women consider feminism to be “empowering,” a majority of men (52 percent) consider it to also be “polarizing.”
A legal fight against Walmart Inc. that became the largest employment class-action lawsuit in history will become a series at Netflix Inc. from actress Amy Adams and “The Big Short” director Adam McKay.
“Kings of America” will follow three women involved in the lawsuit, which went to the Supreme Court in 2011: a Walmart heiress, an executive and a saleswoman at the retail chain. Adams stars as one of the women, and McKay will direct the first episode of the series.
The case involved female employees suing Walmart for alleged gender discrimination -- including pay disparities and favoring male workers -- on behalf of potentially more than a million employees. That made it the largest lawsuit of its kind. Walmart is the biggest private employer in the U.S. and the world’s largest company based on revenue.
With billions of dollars at stake for Walmart, the Supreme Court blocked the suit from proceeding as a class action in a 5-4 vote in June 2011. The late Justice Antonin Scalia argued there was no “convincing proof of a companywide discriminatory pay and promotion policy.”
Friday, September 11, 2020
Zoom Webinar The Centenary of the 19th Amendment: New Reflections on the History and Future of Gender, Representation, and Citizenship Rights
Zoom webinar at Boston University School of Law, Friday, September 25, “The Centenary of the 19th Amendment: New Reflections on the History and Future of Gender, Representation, and Citizenship Rights.” The speakers include law professors, political scientists, and political practitioners, and Rachel B. Tiven, a/k/a The Daily Suffragist. Here is the link for the program and registration:
Several papers from the conference will appear in a mini-symposium issue of the Boston University Law Review, Volume 100, Issue 5, due out in October 2020:
Lesley Wexner, Law and Non-Legal Entitlements: Kate Manne's Entitled: How Male Privilege Hurts Women, Verdict
Philosopher Kate Manne’s first book Down Girl exploded into the popular consciousness just a few years ago. She rejected a simplistic view of misogyny as simply men who hate women and instead developed a broader view that misogyny serves “primarily a property of social environments in which women are liable to encounter hostility due to the enforcement and policing of patriarchal norms and expectations. . . . Misogyny functions to enforce and police women’s subordination and to uphold male dominance.” Given Manne’s sharp analytic approach, I eagerly awaited her follow-up, Entitled, just now published. This new work focuses on how “privileged men’s sense of entitlement. . . is a pervasive social problem with often devastating consequences.”
Coming to Manne’s new work as a law professor, I thought about how Entitled might fit within the property literature. It reminded me, in a good way, of Robert Ellickson’s infamous article on Shasta County and the role of informal norms in managing property rights. Ellickson’s investigation of ranchers and farmers was seminal in challenging the Coasean intuition that in the absence of transaction costs, initial property entitlements are irrelevant since parties will simply bargain their way to the efficient outcome. He urged law and economics to think about and account for the development and the enforcement of informal norms and what those might tell us about the recourse to the law to enforce legal entitlements. Manne makes a similar move, but one step earlier. She suggests that to successfully challenge both the law and the informal norms, more of society needs to first clearly see and understand the original underlying entitlements. Her book identifies, names, and explores a whole universe of entitlements that often benefit men at the expense of women. While many of the entitlements Manne identifies are not legal entitlements provided for by the state, they are pervasive, they shape a great deal of human interaction, their use as the social default disfavors women, and society is having a difficult time bartering to what I see as the appropriate socially optimal egalitarian outcome. I found her entitlement framework illuminating and will spend the rest of this post explaining how the framework exposes different entitlements in American society.
Wednesday, September 9, 2020
Women's Right to Vote in New Jersey (1776-1807) and its Analogy to the Marginalization of Voters Today
Note, Campbell Curry-Ledbetter, Women's Suffrage in New Jersey 1776-1807: A Political Weapon, 21 Geo. J. Gender & Law 705 (2020)
Women had the right to vote in New Jersey from 1776 – 1807. Traditionally, historians have treated women’s suffrage in New Jersey as an insignificant historical anomaly. More recent works, however, show that women’s voting played an important role in the increasingly contested elections of the era and was a critical part of New Jersey’s efforts to define the “body politic.” This paper examines the ways in which the Federalist and Republican parties weaponized women’s suffrage between 1797 and 1807. It argues that both parties tied women to allegations of voter fraud and depicted them as political pawns to delegitimize the opposing party’s electoral victories. Over time, these attacks diminished support for female suffrage and contributed to women’s disenfranchisement in 1807. It argues further that the treatment of women voters in the late 18th and early 19th century and their disenfranchisement is analogous to the treatment of marginalized voters today and modern efforts to implement strict voter restrictions.
Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)
The "#MeToo" Movement has forced corporations and the entertainment industry, as well as state and federal executive and legislative branch officials, to take a hard look at gender inequities and sexual harassment in the workplace. But, how does our judicial system fare? Is the one branch of government charged with being fair and impartial in the interpretation and application of our laws truly fair and impartial? Between 2010 and 2018, the Iowa Supreme Court was the only state supreme court in the country that did not include any women or people of color. Does it matter? Is there an institutional bias when only one gender reviews, decides and writes opinions? Is the lack of female perspective on the court detrimental to women?
This piece considers the real possibility of implicit gender bias in judicial opinion writing by deconstructing four recent Iowa Supreme Court ethics opinions written by an all-male Court wherein the survivors were female clients and/or intimate partners of the male attorney/abuser. Not only do the case results themselves raise questions but also the language those results are wrapped in may be even more revealing. This article examines both these results and language through the eyes of an Iowa woman who served as a trial court judge in Iowa's largest judicial district.
Ruthy Lowenstein Lazar, Me Too? The Invisible Older Victims of Sexual Violence, 26 Mich. J. L. & Gender 209 (2020)
A review of legal research on violence against women and elder abuse reveals a disturbing picture. There is hardly any American legal research examining sexual abuse of older women and its conceptualization in legal literature and treatment in the legal system.
This Article attempts to fill the abovementioned gap and to bring the hidden issue of sexual violence against older women to light. Scholars writing on rape, violence against women, and elder abuse tend to analyze age and gendered sexual violence separately from each other, without accounting for their interplay. This Article proposes a conceptual framework of sexual abuse of older women that integrates age and gender in the analysis.
To achieve this end, this Article examines 109 publicly available American cases involving sexual violence against women over the age of 60, between the years 2000 and 2018, which are based on a search of 1,308 American cases. Based on this new empirical database, this Article offers an opportunity for analyzing the social and legal “taboo” regarding sexual abuse of older women.
Despite findings indicating that sexual abuse of older women (and older people in general) is a significant issue creating serious consequences for victims, the Article shows that legal actors, social workers, health professionals, family members, and society miss its signs. Sexual abuse of older women is being noticed and treated by the criminal justice system only when it reflects a “real rape” scenario. The obstacles to effective prosecution and to full access to the criminal justice system are distinctive in the case of older victims because of the effect of age, the way age shapes the experience of older victims of sexual violence, the effects of sexual violence on the victims, and its interplay with gender.
Although sexual violence against older women is a form of elder abuse, it should be viewed separately from other forms of elder abuse and should be understood as part of a wider context of gender-based violence. There is a need for a holistic approach to sexual violence of older women, which perceives the sexual violence as a unique phenomenon and provides older women with legal and social mechanisms that fit their needs and experience both as women and elderly people.
Tuesday, September 8, 2020
Leigh Goodmark, The Anti-Rape and Battered Women’s Movements of the 1970s and 80s
The Oxford Handbook on Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds., Forthcoming)
The anti-rape and battered women’s movements of the 1970s and 1980s grew out of the women’s liberation movement of the late 1960s and early 1970s. Early grassroots organizing around responding to rape and domestic violence relied heavily on community-based strategies, including the creation of shelters and safe houses and feminist self-defense classes. Using the new vocabulary of the women’s liberation movement, feminist advocates soon began to highlight the ways existing rape and domestic violence law shored up the patriarchy, characterized women as the property of their fathers and husbands, and enabled the state to sidestep responsibility for violence. Reacting to a legal system whose responses to gender-based violence included official policies of non-interference, skepticism about women’s credibility, and what they saw as inappropriate concern for the privacy of the family, some anti-violence advocates moved away from the grassroots community-based strategies of the early anti-rape and battered women’s movements. Instead, they pushed for greater state intervention in rape and domestic violence via the criminal legal system. But the movement was not united in embracing such strategies. Feminist organizing of the 1970s and 80s around changing rape and domestic violence law reflected the tensions between competing visions of the role of the state in addressing gender-based violence, visions shaped by race, class, and professional status. By the end of the 1980s, culminating in the passage of the Violence Against Women Act in 1994, pro-state intervention feminists had successfully implemented their carceral agenda—a policy choice that is being reexamined today.