Gender and the Law Blog

Iceland Parliament (Almost) Reaches Gender Parity and Europe's First Female-Majority Legislature

Iceland Elected the First Female-Majority Parliament in Europe. A Recount Reversed It.

Iceland heralded a weekend election result that would have made it the first country in Europe to have more women than men in parliament. But the celebrations were brief: A late recount put it just below gender parity.

 

Early results showed women won 33 seats in Iceland’s 63-seat Parliament, known as the Althing, up from 24 in the previous vote. Hours later, a surprise recount in the west of the country changed the outcome, leaving female candidates with 30 seats, according to state broadcaster RUV.

That is still the highest representation for women in Europe, at nearly 48 percent, ahead of Sweden and Finland with 47 percent and 46 percent, respectively.

 

“The female victory remains the big story of these elections,” politics professor Olafur Hardarson told the state broadcaster after the recount.

 

On average, just over a quarter of legislators globally are women, according to data from the Inter-Parliamentary Union. Only three countries — Rwanda, Cuba and Nicaragua — have more women than men in parliament, while Mexico and the United Arab Emirates have a 50-50 split.

 

Iceland, a North Atlantic island of 371,000 people, has been ranked the most gender-equal country in the world for more than a decade by the World Economic Forum, based on measures such as economic opportunities, education, health and political leadership. It even bettered its overall score last year at a time when global progress stagnated during the coronavirus pandemic.

The Messy Legal Future of a Post-Roe World of Abortion Law

Greer Donley, David S. Cohen, and Rachel Rebouché,  The Messy Post-Roe Legal Future Awaiting America, The Atlantic

America now faces the very real possibility that in just a few months’ time, the Supreme Court will interpret the U.S. Constitution to no longer protect the right to abortion. On September 1, S.B. 8—the most stringent abortion ban since before Roe v. Wade—took effect in Texas. Completely ignoring the protections of Roe, the Supreme Court refused to intervene. Though the Court’s decision was procedural in nature, it speaks volumes about the justices’ view on the importance of abortion rights and the future of Roe. That will matter greatly when, later this term, the Court decides a different abortion case, Dobbs v. Jackson Women’s Health Organization, addressing a Mississippi law that, like S.B. 8 and the copycat laws coming down the pike, challenges the fundamental holding of Roe by banning abortion before fetal viability. If the Court does overturn Roe, much of the American legal landscape—and with it, the lived experiences of millions—could change overnight, and the result will be a giant, legal mess.***

 

Navigating a post-Roe country will be anything but simple. Perhaps the only certainty to expect is that a post-Roe country will be one of inequity. A little fewer than half of U.S. states, mostly concentrated in the South and the Midwest, are poised to ban abortion in almost all cases if the Supreme Court overrules Roe. Some of these bans will start immediately, either because of pre-Roe laws still on the books or new “trigger laws” that will take effect the moment Roe is overturned. Scholars and activists have long noted that wealthy women in those states will be able to travel to other states to obtain abortions. But three-quarters of people seeking abortions are low-income, a group that is disproportionately people of color, and they will face barriers that will make it almost impossible to get to another state.***

 

But beyond the inevitable inequality resulting from overturning Roe, not much else is clear. The basic rule of Roe is straightforward: Abortion before viability must be legal in every state. This rule may not ensure practical access everywhere—abortion care is very difficult to obtain in many places—but it does outline some clear prohibitions. However, if Roe is overturned, we will live in a country where every state creates its own rules. Some states will ban abortion almost entirely, some will allow it with substantial restrictions, and others will codify reliable and equitable abortion access.

New Book and Reviews: Anita Hill's "Believing" Sees Sexual Harassment and Gender-Based Violence as a Cultural and Structural Problem That Hurts Everyone

Anita Hill, Believing: Our Thirty-Year Journey to End Gender Violence

“An elegant, impassioned demand that America see gender-based violence as a cultural and structural problem that hurts everyone, not just victims and survivors… It’s at times downright virtuosic in the threads it weaves together.”—NPR

From the woman who gave the landmark testimony against Clarence Thomas as a sexual menace, a new manifesto about the origins and course of gender violence in our society; a combination of memoir, personal accounts, law, and social analysis, and a powerful call to arms from one of our most prominent and poised survivors.

In 1991, Anita Hill began something that’s still unfinished work. The issues of gender violence, touching on sex, race, age, and power, are as urgent today as they were when she first testified. Believing is a story of America’s three decades long reckoning with gender violence, one that offers insights into its roots, and paths to creating dialogue and substantive change. It is a call to action that offers guidance based on what this brave, committed fighter has learned from a lifetime of advocacy and her search for solutions to a problem that is still tearing America apart.

NYT Review, Anita Hill Has Some Perspective to Offer

Anita Hill still speaks in the measured tones she did while being questioned before an all-white, all-male panel before the Senate in 1991 — a young law professor in a blue linen suit who would give the nation an overnight education in workplace sexual harassment.

 

Thirty years later, she is more academic than activist, focusing on pathways to progress, and continuing to teach law as a professor of social policy, law and gender studies at Brandeis University.

 

But to be honest, Hill’s patience is waning. “I really am running out,” she said in a video interview from her home in Massachusetts earlier this month.

 

Her new book, “Believing: Our Thirty-Year Journey to End Gender Violence,” due out on Tuesday from Viking, aims to channel that impatience into something more substantive — a manifesto of sorts.

NPR Review, "Believing" Is a Book Only Anita Hill Could have Written

Believing: Our Thirty-Year Journey to End Gender Violence is not a book about Anita Hill. Yes, it has plenty of her personal stories and, yes, it references her role at the center of the Supreme Court hearing firestorm that first acquainted many Americans with the concept of "sexual harassment." ***

 

The book first attempts to show how massive problems like harassment and assault are affecting everyone from the smallest children to adults, from the lowest-wage workers to the highest-paid celebrities. Then, Hill shows both the effects of the problem — the ways it not only hurts individuals but hampers political change and economic growth — and the myriad barriers to solving it. To try to tackle something so complex, she says, feels like trying to "boil the ocean."

Accidental Feminism: Gender parity and selective mobility among India's professional elite

Accidental Feminism: gender parity and selective mobility among India's professional elite

Preface to: Accidental feminism: Gender parity and selective mobility among India's professional elite

By Swethaa Ballakrishnen

Princeton : Princeton University Press, 2021.

In India, elite law firms offer a surprising oasis for women within a hostile, predominantly male industry. Less than 10 percent of the country’s lawyers are female, but women in the most prestigious firms are significantly represented both at entry and partnership. Elite workspaces are notorious for being unfriendly to new actors, so what allows for aberration in certain workspaces?

Drawing from observations and interviews with more than 130 elite professionals, Accidental Feminism examines how a range of underlying mechanisms—gendered socialization and essentialism, family structures and dynamics, and firm and regulatory histories—afford certain professionals egalitarian outcomes that are not available to their local and global peers. Juxtaposing findings on the legal profession with those on elite consulting firms, Swethaa Ballakrishnen reveals that parity arises not from a commitment to create feminist organizations, but from structural factors that incidentally come together to do gender differently. Simultaneously, their research offers notes of caution: while conditional convergence may create equality in ways that more targeted endeavors fail to achieve, “accidental” developments are hard to replicate, and are, in this case, buttressed by embedded inequalities. Ballakrishnen examines whether gender parity produced without institutional sanction should still be considered feminist.

In offering new ways to think about equality movements and outcomes, Accidental Feminism forces readers to critically consider the work of intention in progress narratives.

Eighth Amendment Jurisprudence and Transgender Inmates: The “WPATH” to Evolving Standards of Decency

Eighth Amendment Jurisprudence and Transgender Inmates: The “WPATH” to Evolving Standards of Decency

By: Bryce Daniels

Published in: Michigan State Law Review, Vol. 2021, No. 1, 2021

There has never been a greater opportunity in American history to address the challenges facing gender dysphoric inmates than now. Gender dysphoria is a mental illness characterized by severe distress at the incongruence between one’s sex and one’s internalized gender identity.

Federal courts have signaled a willingness to consider the unique mental health challenges facing gender dysphoric people incarcerated in state and federal prisons as covered under “cruel and unusual punishments” jurisprudence requiring “adequate medical care.” One such remedy federal courts have been called upon to require is “sex reassignment surgery” (“SRS”). Such surgery would change the petitioning inmate’s anatomy or secondary sex characteristics to more closely align with [their] internalized gender identity.

The sister circuit split between the 1st Circuit, 5th Circuit, and 9th Circuit illuminates the diverse analytical methodologies that courts and petitioners have implemented to adjudicate and resolve challenged institutional “deliberate indifference” to gender dysphoric inmates’ medical necessities.

However, there is a notable commonality between all three circuits—the reliance on the World Professional Association for Transgender Health (“WPATH”) Standards of Care (“Standards”). The Standards are compared against existing jurisprudence for determining the scope of the Eighth Amendment, and the juxtaposition leaves much to be legally desired by petitioners seeking prison-provided SRS.
The reality of federal jurisprudential reliance on states’ actions, laws, and regulations to determine the scope of the Eighth Amendment, while damning petitioners’ claims, should be viewed as providing a clear path to constitutional respite and medical care for a deeply vulnerable population.

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

By: Linda C. McClain

Published in: Family Court Review (Forthcoming)

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.

. . .

This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.

 

 

Eleventh Circuit Case on Cheerleaders Supporting Racial Justice

The Eleventh Circuit published its opinion in Dean v. Warren.  College cheerleader Tommia Dean, along with teammates, kneeled during the pre-game national anthem in support of the movement for racial justice. She alleged that the university, county sheriff, and a state legislator violated 42 U.S. § 1985(3) by conspiring to deprive her of her first amendment rights because the cheerleaders were African American and because of their protests against police brutality against African Americans. She alleged that the defendants retaliated against the kneeling by imposing a "tunnel rule" keeping the cheerleaders off the field during the national anthem for the first time in university history. The court upheld the district court's dismissal of her conspiracy claim against the sheriff, agreeing that he did not have the necessary class-based animus. 

The case reminds us that women athletes have also powerfully used their status to advocate for racial justice. The case analysis of whether these women's commitment to racial justice constitutes a class interestingly compares and contrasts a case finding that opposition to abortion was not discrimination against women.  

Dean has assuredly asserted a better qualifying class (African Americans) than the one grounding the § 1985(3) claim in Bray (women). Indeed, the class of African Americans is the strongest qualifying class imaginable because protecting African Americans and their advocates from the “massive, organized lawlessness that infected our Southern States during the post-Civil War era” was the chief purpose of § 1985(3)’s passage. Bray, 506 U.S. at 307, 113 S.Ct. 753 (Stevens, J., dissenting). We cannot say, however, that Bray offers us the latitude to apply a less demanding animus requirement to Dean’s claim on account of the strength of her qualifying class. Rather, Bray seems to have articulated the animus requirement for § 1985(3) claims across the board. See Bray, 506 U.S. at 274, 113 S.Ct. 753 (holding that, because opposition to abortion was not discrimination against women, the abortion clinics’ claim was “not the stuff out of which § 1985(3) ‘invidiously discriminatory animus’ is created”).* * * 

Dean has offered us no argument that, although women seeking abortion is not an actionable class, protestors of police brutality is—and we can think of none. See Farber, 440 F.3d at 136 (explaining that although “ ‘women,’ or ‘registered Republicans,’ may constitute an identifiable ‘class’ ... a more amorphous group ... such as ‘women seeking abortion’ or ‘persons who support political candidates’ [does not]” (alteration adopted) (citations omitted)); Aulson v. Blanchard, 83 F.3d 1, 5–6 (1st Cir. 1996) (holding that a § 1985(3) class “[must be] comprised of a distinctive and identifiable group” and therefore rejecting a class defined as “persons who support other persons opposed to the politics of the old guard” (internal quotation marks omitted)). We therefore reject Dean’s political class-based theory of § 1985(3) liability without opining on whether a more identifiable and discrete political class may ground a § 1985(3) claim.

Virginia Judge Holds Domestic Violence Victim in Contempt After Testimony

A Loudon County, Virginia judge has held a domestic violence victim in contempt after she testified as a witness in the criminal case.  The stated reason for the contempt ruling and subsequent incarceration was the judge's belief that the witness appeared intoxicated. The judge concluded that the witness "rocked back and forth in the witness stand" and that “her speech was lethargic and rambling, and at times unnaturally alternating between high and low tones.”  The witness admitted to having smoked marijuana earlier in the day. 

She was sentenced to ten days in jail. In a motion seeking to vacate the ruling, however, several witnesses contradicted the judge's perception. The victim's lawyer sought to vacate the contempt ruling, arguing that the judge had no basis for the citation and that she was denied her due process rights. The judge denied this motion. 

The Washington Post reports that this jailing has "angered women's rights groups" who already face stark challenges in getting domestic violence victims to testify against their abusers. The victim's lawyer indeed explains that the witnessed appeared "agitated because she was facing her alleged abuser at trial and testifying on a difficult subject matter."

Struggles to Enforce Louisville's New "Buffer Zone" Ordinance

Louisville, KY's Metro Council passed an ordinance authorizing a 10-foot "buffer zone" around its EMW Women's Surgical Center, the State's longstanding clinic providing abortion care in Kentucky since 1981. After a lawsuit was dismissed challenging the ordinance as a ban on "sidewalk ministry," the buffer zone ordinance took effect this month. Clinic escorts report that protesters are ignoring the buffer and the police are not responding. Local News WHAS11 reports that Louisville's Metro Police Department gave the following statement to Metro Council Members' inquiries regarding non-enforcement: 

LMPD responded to two calls for service to EMW Women’s Surgical Center Saturday morning regarding posted signs and protestors entering the buffer zone.  As the ordinance is written, LMPD must witness the violation, either in person or via recording, prior to giving a written warning.  An individual may not be cited for a violation of the ordinance without a prior written warning.  Repeated violations must be witnessed by LMPD in person to be followed by a citation and fine.

LMPD is currently working on the logistics of tracking the written warnings as well as a training and enforcement plan.  We have been in communication with the County Attorney’s office regarding the enforcement of the ordinance as well as both EMW and Metro Council regarding these issues.  Given the department’s current staffing issues and other priorities, it is neither feasible nor prudent to post officers outside EMW for the purpose of witnessing an infraction.

 

New Book Tarana Burke and The Surprising Origins of MeToo

Tarana Burke Talks About the Surprising Origins of #MeToo

Four years ago, Tarana Burke was a devoted but little-known activist with a vision for how victims of sexual violence could find empathy and healing.

 

Now she sits at the center of a social movement that never seems to stop surging — most recently, toppling New York’s governor and erupting in new corners of the globe.

 

Until now, Ms. Burke has never told her own story. In her memoir, “Unbound: My Story of Liberation and the Birth of the Me Too Movement,” which Flatiron Books is releasing on Tuesday, she reveals a close but complicated historical link between the civil rights movement and MeToo.

 

Last week, she spoke about what she owes to activists in Selma, Ala., why she turned away from them, and how her personal experiences, from Catholicism to an up-close view of the Central Park jogger case, influenced her founding of the MeToo movement.

A Critique of Bostock and the Failure of its Formalism to Embrace an Anti-Stereotyping Principle

Anthony Kreis, Unlawful Genders, Law & Contemporary Problems (forthcoming)

Professor Kreis critiques Bostock v. Clayton County for its neglect to expressly embrace an anti-stereotyping principle, which would have more fully revealed the interconnected relationship between discrimination against women and LGBTQ people. He is concerned that the formalistic focus on sex as a textual matter obscured the historical regulation of gender roles meant to oppress both women and sexual minorities. Professor Kreis argues that courts should revisit this more closely in the constitutional law space and analyze LGBTQ-related constitutional claims as sex discrimination.

From the introduction:

There was a real cost to Bostock’s formalism. The majority opinion correctly understood that it is impossible to divorce discrimination on the basis of a person’s sexual orientation or gender identity from their sex assigned at birth. However, beyond noting that a person has to notice and take account of a person's sex before they can take account of their sexual orientation and/or gender identity, the Court did not explain why discrimination is often the result of the connection. Specifically, the Bostock decision failed to sufficiently explain why the link between the two kinds of discrimination is non-severable. This could have been done by applying an anti-stereotyping principle. This principle, which courts have recognized since the 1970s and 1980s in both the employment discrimination context and in constitutional law,  stands for the proposition that gender-based assumptions about what men or women can do and assumptions about how men or women should act are impermissible forms of sex discrimination. While the principle has been applied to a variety of stereotypes that manifest by employers’ and legislators’ expectations of how men and women can or should behave, it has not been broadly applied to claims of discrimination on the basis of sexual orientation, though it has been more regularly applied to gender identity discrimination claims.

 

Sex stereotype theory can both explain and address anti-LGBTQ discrimination because misogyny, homophobia, and transphobia are inextricable from one another.

Symposium 10/15 Reproducing Injustice: Covid-19, Reproduction, and the Law

Reproducing Injustice: Covid-19, Reproduction, and the Law, Drexel Law School, Oct. 15

Reproductive rights are under attack in the United States, with a record number of restrictive abortion bills introduced in state legislatures this year alone. The United States continues to report high rates of maternal mortality and morbidity, with pregnant people of color at greater risk of adverse health outcomes related to childbirth and experiencing mistreatment by their health care providers at disproportionately high rates. In addition, gaps in access to health care, legal services, and other critical resources mean that many poor people and people of color face particular burdens as parents trying to raise their children in safe and healthy environments. Political divisions regarding reproduction have been exacerbated by the COVID-19 pandemic. As we look forward to a post-pandemic future, it seems important to ask: What kinds of trends do we see as we consider reproductive health and rights through the lens of the pandemic? How can lessons from the COVID-19 era inform future efforts to increase access to health services, defend reproductive rights, and promote reproductive justice? The Drexel Law Review Volume XIV presents Reproducing Injustice: COVID-19, Reproduction, and the Law, a symposium designed to facilitate a conversation about reproductive health and rights in the wake of the COVID-19 pandemic, and what we can take away from the past year and a half to advocate for reproductive justice moving forward.

RSVP

CFP Rutgers Law, Feminism in the Law--An Exploration of Justice Ginsburg's Legacy

Call for Papers

The Women’s Rights Law Reporter is seeking submissions for its annual symposium entitled “Feminism in the Law: An Exploration of Justice Ginsburg’s Legacy.”

The symposium will be held on December 2, 2021 from 3-5 pm on the Newark campus in conjunction with Rutgers Law School’s ceremony for the renaming of 15 Washington Street in honor of the late Justice. As a Rutgers Law School faculty member, Ruth Bader Ginsburg served as the first faculty adviser to the Women’s Rights Law Reporter, which is the nation’s oldest legal periodical focusing on the field of women’s rights law.

The symposium will explore Justice Ginsburg’s lasting legacy and the work that still needs to be done in the field of gender, sexuality, and the law. The symposium promises to be a very well publicized and attended event that will include opening remarks by Justice Ginsburg’s daughter, Professor Jane Ginsburg. We hope to include a wide range of scholars on the panel who can discuss how Justice Ginsburg’s achievements have impacted their own work and scholarship.

The symposium is being planned as an in-person event, subject to evolving New Jersey health regulations. In the event that the event cannot be held live, we will hold the symposium virtually. We are also open to a hybrid format if a panel member is unable to travel due to health concerns.

Those interested in participating should submit an abstract (~750-1,000) words and CV to [email protected] with the subject “RBG Symposium Submission” by September 30, 2021.  Given the short timeline, decisions will be made by October 15, 2021. Those selected will be contacted via email and provided information about traveling to Rutgers Law School for the symposium. We will provide a modest honorarium per speaker as well as reimbursement for reasonable travel expenses.

Once selected, draft articles should be submitted by November 22, 2021. We are looking to have a final draft of paper submissions by January 25, 2021. We are, however, willing to accommodate you if you are unable to adhere to this timeline. Paper length should be roughly 5,000 words; however, we are willing to consider pieces that are either longer or shorter. Papers will be published in the spring edition of the Women’s Rights Law Reporter.

We look forward to reading your submissions and are anticipating a very successful, thought-provoking symposium.

Sincerely,

Samantha Arnold & Siena Carnevale

Co-Editors-In-Chief, Women’s Rights Law Reporter

After DOJ Investigation San Jose State University Will Pay $1.6 Million to 13 Student Athletes in Sexual Harassment Case

San Jose State to Pay $1.6 Million to 13 Students in Sexual Harassment Case

Investigations by the university and the Justice Department identified 23 student-athletes who had been inappropriately touched by an athletic trainer, officials said.

San Jose State University has agreed to pay $1.6 million to 13 female student-athletes who alleged that they had been sexually harassed by a former athletic trainer, federal prosecutors and the university said on Tuesday.

 

In a letter to California’s state university system, the Civil Rights Division of the U.S. Department of Justice concluded that the university had failed for more than a decade to respond adequately to reports of sexual harassment against the trainer and violated Title IX, a law that prohibits sex-based discrimination in federally funded schools.

 

The university, the letter stated, did this “despite widespread knowledge and repeated reports of the allegations.” As a result, student-athletes experienced “further sexual harassment,” the department said.

 

Starting in 2009, the Justice Department said in a statement, student-athletes had reported that the trainer repeatedly subjected them to “unwelcome sexual touching” of their breasts, groins, buttocks and pubic areas during treatment in campus training centers.

 

The investigations by the university and the Justice Department identified 23 student-athletes who they said had been inappropriately touched by Scott Shaw, the trainer, according to the university. The department offered $125,000 to each of them, the university said, and 13 accepted the offer.

 

Mr. Shaw, who was the university’s director of sports medicine until he retired last year, and his lawyer could not immediately be reached for comment on Tuesday evening.

 

The Justice Department also found that the university retaliated against two employees in its athletics department, one of whom had repeatedly alerted school officials to the threat posed by Mr. Shaw, and the second had opposed retaliation against the employee who reported the threat. The second employee, the department said, was fired.

New Book -- Just Get on the Pill: The Uneven Balance of Reproductive Politics

Krystale Littlejohn, Just Get on the Pill: The Uneven Burden of Reproductive Politics (UC Press)

Understanding the social history and urgent social implications of gendered compulsory birth control, an unbalanced and unjust approach to pregnancy prevention.

The average person concerned about becoming pregnant spends approximately thirty years trying to prevent conception. People largely do so alone using prescription birth control, a situation often taken for granted in the United States as natural and beneficial. In Just Get On the Pill, a keenly researched and incisive examination, Krystale Littlejohn investigates how birth control becomes a fundamentally unbalanced and gendered responsibility. She uncovers how parents, peers, partners, and providers draw on narratives of male and female birth control methods to socialize cisgender women into sex and ultimately into shouldering the burden for preventing pregnancy.

 

Littlejohn draws on extensive interviews to document this gendered compulsory birth control—a phenomenon in which people who give birth are held accountable for preventing and resolving pregnancies in gender-constrained ways. She shows how this gendered approach encroaches on reproductive autonomy and poses obstacles for preventing disease. While diverse cisgender women are the focus, Littlejohn shows that they are not the only ones harmed by this dynamic. Indeed, gendered approaches to birth control also negatively impact trans, intersex, and gender nonconforming people in overlooked ways. In tracing the divisive politics of pregnancy prevention, Littlejohn demonstrates that the gendered division of labor in birth control is not natural. It is unjust

Book Review Biography of Iconic Civil Rights Feminist Dorothy Pittman Hughes

Carrie Baker, The Story of Iconic Feminist Dorothy Pittman Hughes: "With Her Fist Raised." 

Many of us have seen the iconic photo of interracial sisterhood with Gloria Steinem and Dorothy Pitman Hughes from 1971, now part of the Smithsonian Institution’s National Portrait Gallery in Washington, D.C. While we know a lot about Steinem from popular media, history books, autobiographies and even a Broadway play, most of us know very little about Pitman Hughes. But we should.

 

The recent publication of Pitman Hughes’s biography—With Her First Raised: Dorothy Pitman Hughes and the Transformative Power of Black Community Activism—by University of Massachusetts historian Laura Lovett shares this forgotten history. According to Lovett, her book offers “a history of the women’s movement with children, race and welfare rights at its core, a history of women’s politics grounded in community organizing and African American economic development.”...

 

Throughout her life, Pitman Hughes sought to make the lives of ordinary women better by working to empower communities to meet their needs—whether that was child care, recognition of Black women’s inherent beauty or access to economic resources or local healthy food. The book recounts her early experiences of racism, including “routine extralegal violence from the Ku Klux Klan and the White Citizens’ Councils,” her work with the Congress on Racial Equality (CORE), the Black Panthers and Malcolm X, and her friendships with people like Flo Kennedy and Ti-Grace Atkinson, as well as Steinem....

 

“Dorothy’s style was to call out the racism she saw in the white women’s movement. She frequently took to the stage to articulate the way in which white women’s privilege oppressed Black women but also offered her friendship with Gloria as proof this obstacle could be overcome,” said Lovett.

 

Pitman Hughes also organized the first shelter for battered women in New York City, co-founded the New York City Agency for Child Development working to expand child care services in the city and was a co-founder of the National Black Feminist Organization.

Accountability for Nassar Abuse

U.S. gymnasts testified in Congress last week seeking greater accountability for all of the failures in institutions and oversight that allowed Larry Nassar to abuse so many.

Dr. Amanda Potts and I previously analyzed the Victim Impact Statements (VIS) in the Michigan criminal case to consider these larger issues of accountability. Our article, The Language of Harm: What the Nassar Victim Impact Statements Reveal About Abuse and Accountability came out last year in the Pittsburgh Law Review. Last week's testimony resurrects the relevance of the conclusions of this linguistic analysis. 

This Article uses corpus-based discourse analysis to examine this impactful collection of VIS for their larger lessons in law, policy, and society. This analysis reveals several takeaways for further analysis and examination. It reveals the challenges that rape, sexual assault, and abuse survivors face in naming the crime and describing the harms. These challenges are particularly fraught and complex when powerful systems and institutions allow abusers to flourish, resulting in systemic and interconnected betrayals and failures. The VIS call for better platforms for survivors to heal, to speak, and to voice their harms beyond these episodic and rare moments offered by the #MeToo Movement, or, as in the Nassar case, made available due to the specific facts and judicial management of a case. The VIS reveal that, while Nassar has been held accountable, the larger limits of language, law, and accountability ensure that future cases will surface, absent better preventative policies. These VIS broadly call for powerful law and policy reformation that will hold perpetrators and their enablers accountable and meet the full range of victims’ needs outside of the criminal justice system.

Texas Doctor's Washington Post Statement on Providing Abortion Care After September 1

San Antonio physician, Alan Baird, published an Opinion piece yesterday in the Washington Post. Having begun practicing obstetrics and gynecology before the Court's decision in Roe v. Wade, Dr. Baird describes his reaction to Texas's S.B. 8. 

For me, it is 1972 all over again.

And that is why, on the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.

I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.

The opinion closes powerfully with the following text: 

I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly. Represented by the Center for Reproductive Rights, my clinics are among the plaintiffs in an ongoing federal lawsuit to stop S.B. 8.

I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. I have spent the past 50 years treating and helping patients. I can’t just sit back and watch us return to 1972.

It will be important to watch next steps in enforcement. 

Coverture Analysis in Insurance Coverage Case

The Kentucky Court of Appeals published an interesting decision of note on September 3 in Bratcher v. State Farm Fire and Casualty Co., et. al.  The plaintiff was injured in a motorcycle accident and filed a claim for benefits under her parents' policy listed as "Bratcher, Don & Tina." The plaintiff lived in her parents' rental property. The plaintiff's mother had separated from her father and moved into the rental property with the plaintiff just before the accident. The insurance coverage would include the plaintiff only if she was a "resident relative" defined as a person who lives "primarily with the first person shown as a named insured on the Declarations Page and who is [related to that "person"]" (emphasis in original). Person is defined as "a human being." State Farm moved for summary judgment arguing that she did not reside primarily with the person on the Declarations Page because that was only her father.  The Circuit Court agreed. The plaintiff argued on appeal that the parties were listed together as husband and wife and held equal status as named insureds. The Court of Appeals agreed and held that both mom and dad were first-named insureds on the policy. Because Mom had just moved in with the plaintiff, there was a genuine issue of material fact as to whether the plaintiff was a resident relative, so the case was remanded for proceedings consistent with the decision. 

Judge Dixon's Concurring Opinion is particularly interesting in how it draws out the historical points on coverture (emphasis in original). 

It is within this context of history I turn to State Farm’s denotation of Don as the first-named insured. While much has changed in the past 50 years, apparently much stays the same.

The law governing family relationships has developed significantly during the latter half of the 20th Century; married women are generally accorded the same rights as unmarried women, and strides toward recognizing the equality of women and men have been made and are continuing. Nevertheless, there remain vestiges of the historical treatment of women generally, and married women in particular, within our law, a treatment which at common law merged the married woman’s identity into that of her husband. 5 WILLISTON ON CONTRACTS § 11:1 (4th ed. 2021). Has Tina’s identity herein been merged with that of her husband? The uncontested proof indicates Appellant’s mother, Tina, purchased these insurance policies and paid the premiums for them. Under normal contractual circumstances, Tina would be considered the owner of the policies. Yet, State Farm representatives unilaterally chose to list the “insured” as “Bratcher, Don & Tina L,” conducting a credit check only on Don. Why not Tina? Is her credit irrelevant and insignificant? In fact, Tina was the only one between the two with actual employment. Does she have no independent identity? Nevertheless, due to the most random of circumstances, State Farm contends that because Tina, not Don, resided with Appellant in a home owned jointly by Tina and Don, their daughter–Appellant–is excluded from coverage solely because Don is the first-named insured. Thus, presumably, if Don were residing with Appellant instead of Tina, she would be covered by the policies in question. Such certainly smacks of the sex discrimination of a bygone era. Why else would State Farm choose a man as first-named insured over his wife who actually purchased the insurance policies herein and who paid all of the premiums for the policies? State Farm should not be allowed to benefit from such action.

Gender Equity in Law School Enrollment: An Elusive Goal

Deborah Jones Merritt and Kyle P. McEntee, Gender Equity in Law School Enrollment: An Elusive Goal, 69 Journal of Legal Education 1, 102 (2021).

This article addresses the somewhat hidden gender inequity in law school enrollment.  Although the percentage of students self-identifying as female has reached over fifty percent in nationwide aggregated law school enrollment statistics, this number obscures the fact that law schools have not yet achieved greater gender equity.

Professor Merritt and Director McEntee utilize a variety of weighing measures to conclude that “[w]omen are still less likely than men to apply to law school, less likely to gain admission when they do apply, and less likely to attend the most prestigious schools after admission.”  The authors delve into the common reasons that deter students from applying for law school and note that key concerns, such as expense and confidence of successful completion, are felt more acutely by women than by men.  Thus, women are applying for law school at a lower rate than their similarly situated male counterparts. At the institutional level, law schools tend to place greater emphasis on LSAT scores rather than college grades, even though statistically the former favors male candidates while the latter favors female candidates. These, and other factors, lead to an underrepresentation of female admittees at laws schools generally ranked higher in the US News system, and an overrepresentation in those generally ranked lower.  This perpetuates the inequity into legal practice, as “[h]ighly ranked schools open employment doors that, as a practical matter, are not available to graduates of lower-ranking schools” and attending them increases the likelihood of finding a practicing position in the legal profession more broadly. 

The authors conclude by discussing various steps an institution can take to address these gender inequities and asserts the importance of doing so.  “Assuring full equity for women in law school enrollment is the first step toward achieving full gender equity throughout the legal profession.”