Friday, March 19, 2021
Honored to receive the 2021 Beyer Award for Best Faculty Publication for my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, XV Stanford J. Civil Rights & Civil Liberties 349 (2020).
The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.
This paper 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 that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.
Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)
From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.
A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.
Hat tip Lisa Tetrault
Courtney Joslin, Surrogacy and the Politics of Pregnancy, 14 Harvard L. & Policy Rev. 365 (2020)
This Essay examines the regulation of pregnancy through a less commonly explored lens — surrogacy legislation. Initially, the dominant position of feminist advocates was to understand the practice of surrogacy as antithetical to women’s equality and reproductive autonomy. Due in part to their active and persuasive involvement, the early legislative trends tracked this position; most of the legislation enacted in the 1980s and early 1990s banned surrogacy. By the mid-1990s, however, the legislative tide turned. All of the comprehensive surrogacy statutes enacted since that time permit and regulate surrogacy. This shift was due in part to a growing sense among some feminists and others that permitting surrogacy can promote the goals of liberty and equality.
At times, however, too little attention was paid to the details of these permissive surrogacy schemes. As a result, permissive surrogacy statutes in some states may undermine these aims. This Essay focuses on one such type of statute: surrogacy provisions that authorize potentially sweeping control over the lives, bodily integrity, and decision making of people acting as surrogates. For example, a number of permissive surrogacy schemes expressly authorize contract clauses that require people acting as surrogates to undergo risky and invasive medical procedures over their clearly stated, contemporaneous objection. But such schemes are not inevitable. This Essay concludes by highlighting recent examples that illustrate how permissive surrogacy legislation can foster, rather than impede, the ability of people to control decisions about their own bodies
Thursday, March 11, 2021
"Reverse Title IX" Procedures Favoring Mostly Male Respondents as Continued Structural Discrimination Rather than Overcorrection
Sarah Lynnda Swan, Discriminatory Dualism in Process: Title IX, Reverse Title IX, and Campus Sexual Assault, 73 Oklahoma L. Rev. (2020)
For decades, the Title IX process of adjudicating campus sexual assault has been heavily weighted against complainants (usually women). However, at some universities, this weighting has recently flipped, such that Title IX procedures at these institutions now seem weighted not against complainants, but against respondents (usually men). This “reverse Title IX” trend is typically described as an overcorrection, stemming from schools’ over-zealous attempts to comply with the Title IX requirements the Obama Administration imposed in 2011.
This Article offers a different account of Title IX’s procedural flip. It argues that Title IX’s procedural switch can be productively viewed through the lens of discriminatory dualism. Discriminatory dualism posits that structural discrimination frequently divides into two seemingly opposite—but in fact mutually supportive—strands. Applying the theory of discriminatory dualism here suggests that reverse Title IX is not a mere overcorrection. Instead, it is part of a patterned, recurring, and common way that structural discrimination upholds existing social hierarchies.
Echoing other examples of discriminatory dualism, Title IX’s twinned procedural problems work to sustain existing gendered and social hierarchies in three main ways. First, procedural unfairness to respondents functions to “confirm” the stereotype underlying the initial procedural problems with Title IX: that women are not credible witnesses and are committed, at all costs, to punishing men for perceived slights and imagined harms. Second, the emergence of the reverse Title IX strand undermines the complaints about unfairness to complainants, suggesting that they are misplaced and that the “real” problem is discrimination against men. The confusion created by these dueling complaints undermines the legitimacy of the Title IX system of adjudication as a whole, rendering all findings potentially suspect. Finally, Title IX’s discriminatory dualism creates a double bind, under which universities are portrayed as only capable of adjudicating in ways that are either unfair to complainants or unfair to respondents. These consequences all work to the detriment of
those seeking gender equality.
Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.
The Supreme Court found that both arguments flopped: when suffrage had been granted to all male citizens regardless of race the Amendment had held up, despite the change to the electorate, and the ratification powers Leser questioned had in fact been granted by the Constitution. (And in a few states where things were iffy, it didn’t matter because enough other states had ratified.)
So, while the 19th Amendment granted women the right to vote, Leser made sure that the right could actually be used, even where the state constitution said otherwise. It’s not one of the more famous Supreme Court decisions in American history, but without it the electorate would be, well, lesser.
For scholarship on Leser v. Garnett, see Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Press 2020) and Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115 Harvard L. Rev. 945 (2002).
Erika Rackley & Rosemary Auchmuty, The Case for Feminist Legal History, 40 Oxford J. Legal Studies 878 (Dec. 2020)
It may be that we are witnessing a highpoint of interest in the lives of early women lawyers, and women’s legal history generally, both within and outside the academy, fuelled by the twin centenaries of the (partial) extension of the vote to women in 1918 and the formal admission of women to the legal profession the following year.1 Without doubt the anniversaries provide an opportunity to insert women into legal history (and history generally) and to mark the dedication, commitment and sacrifice of those involved in bringing them about. But without a strong scholarly method, politics and purpose, there is a danger that these celebrations will also encourage the proliferation of well-meaning but uncritical heroine narratives replete with myths and anecdote.
Feminist legal history provides a counter to this. Anchored in a commitment to disciplinary, social and political change, feminist legal history seeks not only to inform about women in law in the past, to uncover new histories, but also to challenge, and ultimately transform, our understandings of the past and present, and indeed the future. Its purpose is twofold: unlike its popular dopplegangers, typically focusing on women in the legal professions, feminist legal history is concerned with both ‘the production of knowledge of the past’ (an important end in itself, when so little is still known about women’s history) and, crucially, setting down ‘the substantive terms for a critical operation that uses the past to disrupt the certainties of the present’, opening up the possibility of imagining different futures.2
However, the doing of feminist legal history as an academic discipline and method remains largely undeveloped in the UK.3 This article seeks to address this absence by delineating its method, scope and purpose. We begin by exploring the exclusion of women and women’s engagement with policy and law reform more generally within traditional accounts of legal history. We go on to consider the methodological and substantive goals of feminist legal history, which relate both to the production of knowledge (by including women’s stories and establishing women as agents of change) and to feminist legal history’s disruptive purpose (by asking the ‘women’ question, challenging assumptions of progress, debunking heroine narratives and (re)locating the position and role of men). Drawing on examples of women’s experiences in and of law in the UK and Ireland, we seek to demonstrate the agency of women—both individually and in groups—in effecting legal, political and social change. We conclude with a call for scholars to take up the insights and methods of feminist legal history—to acknowledge the existence and different experiences of women in/and law, the ways they negotiated and fought to overcome the legal obstacles and opposition they faced (and still face)—before climbing onto their shoulders and continuing the fight for justice.
Historian TJ Boisseau and I similarly have argued for a feminist legal history in our book, aptly titled, Feminist Legal History (NYU Press 2011). See also Tracy A. Thomas & Tracey Jean Boisseau, Law, History & Feminism, introduction to Feminist Legal History.
h/t Kimberly Hamlin
President Biden on Monday ordered Education Secretary Miguel Cardona to re-examine his predecessor Betsy DeVos’s controversial rule strengthening the rights of those accused of sexual harassment or assault on the nation's campuses. And, raising the hopes of the rule's critics, Biden said in his order that Cardona should consider “suspending, revising, or rescinding” it.
To mark International Women’s Day, Biden signed an executive order spelling out that it’s his administration’s policy “that all students should be guaranteed an educational environment free from discrimination on the basis of sex.” And discrimination, he said, includes sexual harassment and violence, as well as discrimination based on sexual orientation or gender identity.
The order directed Cardona to review within 100 days the Education Department’s regulations and policies to make sure they comply with the antidiscrimination policy. Biden specifically mentioned the department’s policy on Title IX of the Education Amendments of 1972.
DeVos last May reversed the Obama administration’s policies on campus sexual assault and harassment, angering women’s and civil rights groups but bringing praise from those who believe the rights of the accused are often trampled upon by institutions.
Saying her rule would balance campuses’ response to allegations of harassment and abuse that have “often stacked the deck against the accused,” DeVos required colleges to hold live hearings and allow for the cross-examination of those alleging misconduct. Women’s rights groups said it would discourage victims from coming forward.
DeVos’s rule, among other things, also allowed colleges and universities to raise the bar on deciding whether sexual misconduct took place to a “clear and convincing” standard instead of whether there was a “preponderance of evidence” against the accused. The rule also allowed institutions to ignore allegations of misconduct that happened off campus, except at fraternities and sororities or at events that are part of a university program.
DeVos took the stance after critics said guidance issued by the Obama administration in 2011 and 2014 was skewed against the accused. T
Friday, March 5, 2021
Cornell Law School & London South Bank University are hosting an exciting global online conference on Friday, March 26, 2021, entitled "Beyond Western Hegemonies of International Law and Feminist Theory." The central theme of this conference will focus on the legacies and repercussions of the hegemony of Western thought within both feminist research and practice in the sphere of international law and attempts and proposals for overcoming these. Professor Chandra Mohanty, a pioneer and expert in women's and gender studies will be delivering the keynote entitled “Transnational Feminism as Insurgent Praxis.”
The full conference schedule and registration details are available here: https://support.law.cornell.edu/conferences/TLF/
the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.
The week March 8th, International Women’s Day, was chosen as the focal point of the observance....
In 1979, Molly Murphy MacGregor, a member of our group, was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.
The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981...
By 1986, 14 states had already declared March as Women’s History Month. This momentum and state-by-state action was used as the rational to lobby Congress to declare the entire month of March 1987 as National Women’s History Month. In 1987, Congress declared March as National Women’s History Month in perpetuity. A special Presidential Proclamation is issued every year which honors the extraordinary achievements of American women.
Adam Chilton & Mila Versteeg, The Effect of Constitutional Gender Equality Provisions,
During the second-half of the twentieth century, provisions guaranteeing gender equality became a common feature of national constitutions. In that same period, de facto gender equality noticeably improved around the world. It is not clear, however, whether these trends are related. We explore the relationship between constitutional gender equality provisions and de facto gender equality using three different research methods: (1) cross-country regressions using data on national constitutions and gender equality; (2) a natural experiment made possible by the forced inclusion of a gender equality provision in Japan’s constitution; and (3) a survey experiment conducted in Japan on the effect of information on Japan’s legal obligations and support for reforms that would improve gender equality. Across all three methods, we find no evidence that constitutionalizing the right to gender equality translates into improved de facto gender equality. We conclude by offering some suggestive evidence that provisions guaranteeing maternity leave and protecting motherhood may be associated with improved gender equality, but these findings need further investigation.