Gender and the Law Blog

Increasing Diversity in Legal Employment Requires Intentional Leadership

Donald J. Polden and Leah Jackson Teague, More Diversity Requires More Inclusive Leaders Leading by Example in Law Organizations, 48 Hofstra Law Review 3 (Symposium Edition, Spring 2020).

Although the legal profession has “been answering the national call for greater inclusivity in workplaces and for greater diversity in our organizations,” progress has been slow.  According to recent NALP surveys, “the gains for women and partners of color have been minimal at best.” This can be attributed to “bias in the workplace, minority and women lawyers’ inability to find adequate access to mentors in the firm or law profession, and insufficient pregnancy leave and family support policies at many firms” among other factors.

This slow progress is in spite of increasing diversity, equity, and inclusion efforts that many employers in the legal profession, including firms, have implemented.  Among those efforts have been the “creation of positions for chief diversity officers and diversity committees.”  Nevertheless, “when compared to the national populations of women and persons of color, the results of these efforts seem somewhat fledgling.” 

In order to increase progress in greater diversity, equity, and inclusion in the legal profession, including for women lawyers, this article suggests qualities leaders in legal organizations must possess and concrete steps they can take.  Such qualities include commitment to, and modeling of, fairness and respect of all persons in the organization, courage to engage in tough conversations when necessary, awareness of cognitive biases, curiosity to listen and value the viewpoints and lived experiences of others, humility to admit when mistakes have been made, and a collaborative mindset.  Concrete steps leaders can take are to seek and incorporate feedback on whether they are perceived as inclusive or creating an inclusive environment, being “visible and vocal” about why inclusivity is important (including the vulnerability of personal testimony), deliberately seeking out difference (encouraging those from other viewpoints to contribute to the conversation), and assessing impact of various efforts and programs. By focusing on leadership structures, law firms and other legal employers can “effect[uate] meaningful change in the composition of the legal profession.”

Sex Discrimination in Medical Research and its Impact on COVID

Is Sex Discrimination in Medical Research Thwarting a Cure for COVID?

This piece is part of “Women on the Frontlines: COVID and Beyond,” an online symposium examining the political, economic, social and legal status of women.

Sponsored by the Cornell Law Review with the Center for Biotechnology and Global Health Policy and co-hosted by Ms. and others, the symposium brings to light the ways women labor and lead at the forefront of society, constituting the foundation of essential workers, and performing critical services from child to medical care. But during the pandemic, women (especially women of color) suffer persistent economic constraints; health and death disparities; obstruction of rights; and the troubling perceptions of expendability. Watch “Women on the Frontlines: COVID and Beyond” for a discourse about the role of women and pathways toward a more just society.

When I read that men are twice as likely to die from COVID-19 as women, I thought of science fiction books that posit pandemics that wipe out men.  Only men. ***

 

Such scenarios could plausibly exist, given the biological differences between men and women.  Women have a more aggressive immune response than do men.  Women’s hormones, too, play a role in fighting infections by slowing the process that causes tissue damage, while testosterone can help an infection enter the cells. 

 

During previous pandemics, including the 1918 Spanish flu and the SARS outbreak, men died at higher rates than women did—even when, as was the case with SARS, women had higher rates of infection.

 

Despite the knowledge we might gain about COVID-19 and other infectious diseases from research on women, most medical research focuses on men.

 

• A study of heart disease—the leading cause of death among women—was undertaken on 22,000 men and no women. 
• A federal study on health and aging proceeded for twenty years with only male subjects. 
• Absurdly, even though women account for 80 percent of autoimmune disorder patients, the main research subjects are—you guessed it—men. 
• Even basic biological research is done mainly with male mice!  

Male-Centered Research is Killing Us

 

The dangers from male-centered research are profound.  Even though women consume 80 percent of medications in the U.S., drug research is still predominantly conducted on men and fails to consider how drugs act over the course of a woman’s menstrual cycle.  Consequently, drugs can reach the market that are actually harmful to women.  In fact, eight of the ten dangerous drugs removed from the market between 1997 and 2000 caused greater harm and fatalities for women. 

 

A wide range of medications, including some antihistamines, gastrointestinal drugs, antibiotics and antipsychotics trigger potentially fatal heart arrhythmias more often in women than men.  

 

In 1993, Congress adopted a law designed to ensure that women were allowed to participate in medical research. 

 

When discrimination persisted, the National Institutes of Health in 2016 announced guidelines requiring federally-funded scientists to enroll women in studies, to disaggregate medical research data by sex, and to study female animals and female cells as well.

Students Sue Texas School District over Bans on Boys Wearing Long Hair

Wash Post, A Texas School District Bans Boys from Wearing Long Hair. Now, Some Students are Suing.

School officials in Texas forced a 9-year-old boy to serve an in-school suspension for a month, deprived him of recess and normal lunch breaks, and banished him from campus to an alternative school — all to pressure the fourth-grader into getting a haircut, a new lawsuit says.

 

Still, the boy refused to obey what he believes is an unjust school policy that bans boys from having long hair.

The boy, identified as A.C. in court documents, is one of seven students suing a Texas school district for what they call a discriminatory policy that requires boys to wear short hair. The American Civil Liberties Union of Texas filed the federal lawsuit Thursday on the students’ behalf against the Magnolia Independent School District, which serves some 13,000 students about 40 miles northwest of Houston.

 

The students, aged 7 to 17, allege that the district’s policy prohibiting boys from wearing long hair is based on gender stereotypes that violate the Constitution. They say administrators apply it unevenly, allowing some boys to wear long hair that violates the district’s grooming standards while punishing others. Those suing the district said that punishment has caused them “immense and irreparable harm.”

NASDAQ Board Diversity Regulations Challenged in Court

NASDAQ Board Diversity Regulations Face Another Court Challenge

A conservative think tank asked a federal appeals court to review the SEC’s approval of Nasdaq Inc. rules intended to boost the number of women and minorities on corporate boards.

 

The National Center for Public Policy Research on Tuesday submitted a petition with the U.S. Court of Appeals for the Third Circuit to review the regulations the Securities and Exchange Commission approved Aug. 6.

 

Another group, the Alliance for Fair Board Recruitment, previously filed a challenge to the rules Aug. 10 in the U.S. Court of Appeals for the Fifth Circuit. The alliance also sued over California’s requirement for corporate board diversity.

 

The Nasdaq rules require companies listed on the exchange to have at least one female board member and at least one who identifies as an underrepresented minority or LGBTQ—or explain why they don’t.

 

The SEC doesn’t have the authority to approve board diversity requirements for Nasdaq-listed companies, said Peggy Little, senior litigation counsel for the New Civil Liberties Alliance, which is representing the National Center for Public Policy Research.

 

“Congress could not constitutionally confer this power on any administrative agency,” Little said in a statement. “And the government may not collaborate with Nasdaq to effectuate something it is prohibited by the Constitution to do itself.”

The case is National Center for Public Policy Research v. SEC, 3d Cir., petition for review filed 10/5/21.

 

Experts Weigh In on Biden's National Gender Equity Strategy

Biden's National Gender Equity Strategy: Here's What Experts Say About It

On Friday, the White House released the country’s first-ever National Strategy on Gender Equity and Equality, which aims “to advance the full participation of all people — including women and girls — in the United States and around the world,” according to a fact sheet the White House released summarizing the 42-page report. The strategy seeks “to combat discrimination and harmful gender norms that affect people of all genders: women and girls — including transgender women and girls — gender nonbinary and gender nonconforming people, as well as men and boys,” the report notes.

 

It outlines 10 priorities for reaching gender equity and equality, in the realms of economic security; gender-based violence; health; education; justice and immigration; human rights and equality under the law; security and humanitarian relief; climate change; science and technology; and democracy, participation and leadership.

 

It also suggests an intersectional approach to achieving those priorities, aiming to address the “impact of intersectional discrimination” on the basis of gender, race and other factors, such as sexual orientation, disability and socioeconomic status. And the report promises a whole-of-government implementation plan, requiring federal agencies to submit within nine months at least three internal goals supported by the strategy, including at least one that each agency can immediately implement.***

 

On Friday, the White House released the country’s first-ever National Strategy on Gender Equity and Equality, which aims “to advance the full participation of all people — including women and girls — in the United States and around the world,” according to a fact sheet the White House released summarizing the 42-page report. The strategy seeks “to combat discrimination and harmful gender norms that affect people of all genders: women and girls — including transgender women and girls — gender nonbinary and gender nonconforming people, as well as men and boys,” the report notes.

 

It outlines 10 priorities for reaching gender equity and equality, in the realms of economic security; gender-based violence; health; education; justice and immigration; human rights and equality under the law; security and humanitarian relief; climate change; science and technology; and democracy, participation and leadership.

 

It also suggests an intersectional approach to achieving those priorities, aiming to address the “impact of intersectional discrimination” on the basis of gender, race and other factors, such as sexual orientation, disability and socioeconomic status. And the report promises a whole-of-government implementation plan, requiring federal agencies to submit within nine months at least three internal goals supported by the strategy, including at least one that each agency can immediately implement.***

 

The strategy was shaped by the input of more than 250 nonprofit, community-, faith- and union- based organizations and academics, plus more than 270 girls, young women and gender nonconforming youth leaders from more than a dozen countries, the report said.

 

The effort comes as the first major initiative of the Gender Policy Council — established by the Biden administration earlier this year, and formerly known as the White House Council on Women and Girls in the Obama administration — which will partner with the Office of Management and Budget to facilitate implementation of the strategy across federal agencies. The GPC will also prepare an annual, publicly available report for submission to the president on implementation progress, the report notes.

 

Many gender equity advocates will be eagerly awaiting those implementation reports, including four experts who spoke to The Lily about the strategy, characterizing it as a crucial — and hopeful — step toward closing gender gaps and rectifying historic inequities. But, experts say, the strategy lacks clear implementation plans and measurable goals.

Fact Sheet: U.S. National Strategy on Gender Equity and Equality

Fact Sheet: National Strategy on Gender Equity and Equality

The Biden-Harris Administration issues first-ever national gender strategy to advance the full participation of all people – including women and girls – in the United States and around the world.

The strategy identifies ten interconnected priorities: 1) economic security; 2) gender-based violence; 3) health; 4) education; 5) justice and immigration; 6) human rights and equality under the law; 7) security and humanitarian relief; 8) climate change; 9) science and technology; and 10) democracy, participation, and leadership.  These priorities are inherently linked and must be tackled in concert.

The strategy also adopts an intersectional approach that considers the barriers and challenges faced by those who experience intersecting and compounding forms of discrimination and bias related to gender, race, and other factors, including sexual orientation, ethnicity, religion, disability, age, and socioeconomic status.  This includes addressing discrimination and bias faced by Black, Latino, and Indigenous and Native American people, Asian Americans, Native Hawaiians, and Pacific Islanders, and other people of color.

The Gay Perjury Trap: Title VII before and after Bostock v. Clayton County

The Gay Perjury Trap

By: Christopher R. Leslie

Published in: Duke Law Journal, Vol. 71, No. 1, 2021

In Bostock v. Clayton County (2020), the Supreme Court held that Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. The Bostock opinion will do little to quench the urge of prejudiced employers and managers to discriminate. These employers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against LGBT employees. A better understanding of history can inform those efforts.

This Article is the first scholarship to examine an unexplored chapter in America’s history of anti-gay discrimination in the workplace: punishing gay workers for concealing their sexual orientation. Beginning in the 1960s, as federal and state law implemented procedural protections for public-sector workers, employers developed a new mechanism to evade those protections: the gay perjury trap. At its core, the strategy is simple. An employer asks job applicants about their sexual orientation. If they reveal that they are gay, decline to hire them. If gay workers conceal their sexual orientation and it is later discovered, terminate them for their dishonesty. Either way, gay workers are purged from the workforce.

The Article begins by describing the gay perjury trap, providing historical examples of the federal government and local school districts using this strategy to terminate high-performing workers who were later discovered to be gay. After discussing the inherent unfairness of the gay perjury trap, the Article then explains how prejudiced employers may attempt to deploy this strategy as a means of circumventing Title VII liability in the post-Bostock era.

Finally, the Article discusses how courts should prevent employers from using the gay perjury trap in the post-Bostock work environment. Dismantling the gay perjury trap should entail three components. First, courts should interpret Title VII as prohibiting employers from inquiring about an applicant’s or employee’s sexual orientation. Second, courts should not afford employers a general right to penalize gay workers for concealing or misrepresenting their sexual orientation. Third, courts should construe Title VII to protect employees who refuse to answer questions about their sexual orientation.

Whether Title VII can effectively deter and remedy anti-gay discrimination will in significant part depend on our courts’ ability to recognize and prohibit employers from using the gay perjury trap. The post-Bostock Title VII cannot succeed if employers can use alleged dishonesty about sexual orientation as a means of punishing gay workers and of avoiding Title VII liability.

Proposed Reconciliation Plan and Paid Leave

Progressives push back on decision to shrink Biden's paid family leave program

Progressive Democrats in the Senate and House are pushing back against a preliminary decision by President Biden and Democratic leaders to significantly cut funding for a national family paid leave program from the budget reconciliation bill.

 

A group of 15 Senate Democrats led by Sen. Kirsten Gillibrand (D-N.Y.) on Wednesday sent a letter to Biden, Senate Majority Leader Charles Schumer (D-N.Y.) and Speaker Nancy Pelosi (D-Calif.) urging them to include a more robust family and medical paid leave program in the legislation.

 

“We urge you to include a national paid leave program that is meaningful, comprehensive and permanent in the Build Back Better Act. It must be universal to cover all workers, provide progressive wage replacement to help the lowest wage earners, and cover all existing types of leave with parity,” the senators wrote.

 

The letter was also signed by Sens. Richard Blumenthal (D-Conn.), Jeanne Shaheen (D-N.H.), Mazie Hirono (D-Hawaii), Tammy Duckworth (D-Ill.), Tammy Baldwin (D-Wis.), Elizabeth Warren (D-Mass.), Tina Smith (D-Minn.), Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Maggie Hassan (D-N.H.), Alex Padilla (D-Calif.), Amy Klobuchar (D-Minn.), Jacky Rosen (D-Nev.) and Ben Cardin (D-Md.).

 

It comes a day after Biden informed liberal Democrats at a White House meeting Wednesday that the emerging legislation will only provide four weeks of paid leave benefits instead of the 12 weeks initially discussed by lawmakers.

 

The program is also expected to be means tested to be limited to lower-income families. 

 

This proposed cut isn’t sitting well with Democratic senators who argue that funding a generous national paid leave program will boost the economy and address what they say is a child care crisis.

 

“Paid leave is a critical policy to improve the economic security of families, support businesses, and increase economic growth,” they wrote.

 

“The pandemic has exposed an acute emergency on top of an ongoing, chronic caregiving crisis for working people and employers alike. We cannot emerge from this crisis and remain one of the only countries in the world with no form of national paid leave. Now is the time to make a bold and robust investment in our nation’s working families,” they argued.  

Using Videos to Boost Your Scholarly Impact

As blog readers consider how to boost their scholarly impact, check out Academia.edu's video upload feature added in January 2021. It is an intriguing tool. Here is one example of this feature in action posted on Academia.edu by Hilary Parsons Dick sharing a video presentation of her scholarly talk.  Here is the written summary of her particular project too, which is of substantive relevance to readers too: 

Since the early twentieth century, US immigration policy regimes have created a discriminatory ontology of migration that conflates the legal category of the “illegal alien” and a cultural image of Mexican and Central American migrants as dangerous, criminal Others. The production of this ontology is rooted in a highly racialized process of gendering that reinscribes long-standing white supremacist views of “dangerous brown men” and “submissive brown women.” I explore these processes through an investigation of the massive regulatory changes the Trump administration made to the US asylum system, which have disproportionately affected women and children from El Salvador, Guatemala, and Honduras. I focus on a precedential ruling by Trump's Attorney General Jeff Sessions on an asylum case called the Matter of AB. I argue that Sessions deploys a semiotics of individuation to construct violence against women as a private matter that does not warrant asylum protections.

Here are instructions on how to post videos on Academia.edu. 

Black Women in American Politics in 2021

The 19th's article, A Record Number of Black Women are Expected to Run for Office in 2022, highlights the current data and trends of Black women seeking elected office. It features a new report Reach Higher:  Black Women in American Politics in 2021. 

The article highlights some important statistics in the report. 

A Black woman has still never been elected governor. No Black women won statewide elected office in 2020. And although there are a record number of Black women state legislators at 354, only 12 hold leadership posts nationwide.

There have been only two Black women to serve in the Senate — Harris and Carol Moseley Braun of Illinois — but there are currently no Black women senators, despite a record 13 Black women running for Senate in 2020.

The article also highlights some of the barriers identified in the report facing Black women seeking public office. 

A June Open Secrets report analyzing the role of gender and race in competitive primaries in 2020 found that Black women Democratic candidates received less money from individual donors than any other group of candidates. Large donors on average raised a third as much for Black women as they did for White women.

Additionally, the report showed that Black women receive less money from early donors, as well as educators and retirees, who tend to fund Democratic campaigns. And while women candidates rely more heavily on women donors, those donors gave half as much to Black women and other women of color candidates as they did to White women.

More Black women have run for office as they have been frustrated by the status quo or have risen through the political pipeline, Greer said. And Black women have had growing success building diverse coalitions of voters.

Supreme Court will hear Procedural Aspects of S.B. 8 on November 1

On Friday, the Supreme Court agreed to hear limited arguments on November 1st  regarding Texas's S.B. 8. The issue before the Court is framed as: 

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.

Justice Sotomayor powerfully wrote concurring in part and dissenting in part (citations omitted): 

I cannot capture the totality of this harm in these pages. . . . [T]he State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State’s gambit has worked. The impact is catastrophic.

These ruinous effects were foreseeable and intentional. Were there any doubt, proponents of S. B. 8 have boasted in this very litigation that “Texas has boxed out the judiciary” and crowed that “[a]bortion . . . is a court-invented right that may not even have majority support on the cur- rent Supreme Court.”  

There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability. As noted, S. B. 8 was created to frustrate that right by raising seemingly novel procedural issues, and it has had precisely the intended effect. Under such unique circumstances, the equities plainly favor administrative re- lief while this Court sorts out these issues. Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.  

There are women in Texas who became pregnant on or around the day that S. B. 8 took effect. As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State. Those with sufficient resources may spend thousands of dollars and multiple days anxiously seeking care from out-of-state providers so overwhelmed with Texas patients that they cannot adequately serve their own communities. Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help. None of this is seriously in dispute.

These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this Court now. Because of the Court’s failure to act today, that relief, if it comes, will be too late for many. Once again, I dissent.

 

Being a "First" - Some Practical Advice

Nancy B. Rapoport, Being a “First” – Over and Over Again, Denver L. Rev. Forum (7/31/2021).

In this article, Professor Nancy Rapoport discusses the challenges inherent in, and lessons learned from, being a “first.”  Professor Rapaport has been a first “several times over.”  She was a “first woman law dean at the University of Nebraska College of Law, the first woman law dean at the University of Houston Law Center, [and] the first woman law dean at the William S. Boyd School of Law at the University of Nevada, Las Vegas.”  Being a first means often being judged based on stereotypes related to “gender, but also . . . racial, ethnic, political, and religious groups (to name but a few categories).”  

In light of the trials characteristic of being a “first,” Professor Rapoport provides a number of “best practices” in this article for those who find themselves being a “first.”  These best practices include “figur[ing] out why someone is reacting to you in a given way before you choose how to respond.”  Sometimes, as Professor Rapoport states, it is just not about you. Sometimes it is “people . . . reacting to you because you’re the “first” something (woman, person of color, academic, etc.).”  That is, people are “reacting to you or to the image of you that comes from a stereotype.”  Additionally, “it is perfectly fine to name [the] behavior” of a person reacting to you because you’re the “first.”  Indeed, “[s]ometimes, just asking the question politely can change the other person’s behavior.”  Professor Rapoport also encourages showcasing different leadership styles by diversifying the leadership team and, relatedly, finding potential leaders and mentoring/sponsoring those individuals.

In the end, “[b]eing a ‘first’ can be both exhilarating and scary.”  For those who are “firsts,” Professor Rapoport suggests “finding your own way to leave an institution better than you found it. And lean[ing] on other people who have been ‘firsts’ (and those who haven’t) to help you succeed.”

Recovering the Legal History of Women's Right to Hold Public Office

Elizabeth Katz, Sex, Suffrage, and State Constitutional Law: Women's Legal Right to Hold Public Office,  
Yale Journal of Law & Feminism, Forthcoming

Relying on extensive historical research, this Article is the first to examine how women advocated for the legal right to hold public office in state-level litigation, constitutional amendments, legislative lobbying, and other venues for more than a century. From the 1840s through the 1940s, women in many states were excluded from holding even mundane public offices because of state constitutional language and judicial holdings. Opponents of women’s officeholding feared that permitting women to hold posts would deprive men of their rightful opportunities, radically alter gender norms, and fuel the flames of the women’s suffrage movement. The nation’s first women lawyers were particularly active in challenging these restrictions, with results varying by region and reflecting distinct legal, political, and social cultures. Women in the West obtained public offices relatively early, in part because they were the first to secure suffrage. Women in the Northeast and South faced the most difficult hurdles because conservative state judiciaries construed constitutional silences as implying women’s exclusion from office. The Midwest emerged as the contested middle ground; although women could not vote in Midwestern states for most of the studied period, many courts nevertheless held that they were entitled to hold both appointed and elected offices.

Recovering the history of women’s legal right to hold public office challenges three major conventional wisdoms. First, it undermines the commonplace claim in scholarship on women’s legal and political history that officeholding was not a meaningful part of women’s advocacy or experiences until after ratification of the Nineteenth Amendment in 1920. This account instead shows that proponents of women’s rights have long demanded women’s access to public posts, and women held positions more than a half century prior to the federal suffrage amendment. Second, this Article challenges prominent scholarship—mostly focused on interpreting the Reconstruction Amendments—that treats officeholding as an obvious or inevitable twin to suffrage. Foregrounding women’s history and state-level advocacy emphasizes the legal possibility and practical reality of severing these political rights. Third, and relatedly, the Article calls for more attention to state constitutional law and regional variation. The women’s officeholding story clearly demonstrates how focusing on one geographical area, providing a single national account, or limiting analysis to the federal level obscures essential developments in securing rights.

It's Not About Leaning In. Negotiation Will Not Fix Sexism

Andrea Schneider, Indisputably, Negotiation Will Not Fix Sexism

Let’s start with the obvious–it pains me to realize that negotiation can’t fix everything.  As someone who loves to teach negotiation–and has long believed in the power of positive asking–I also need to recognize when individual action will not–and cannot–fix the ingrained biases and structural sexism that exists in the workplace.  A slew of recent studies back up this point in variety of ways that also point to a more nuanced understanding of what does need to be fixed.

To give a little history–many read Lean In and/or Women Don’t Ask and took these books as a call to focus on women’s deficiencies in negotiation.   This was despite that the fact that I and others had found no differences in perceived assertiveness among lawyers or other leaders.  (More from me in TEDx talk version here and research article here.)

Caveat– this is not to deny that differences in levels of assertiveness are found among young women in competitive, one shot negotiations with limited knowledge nor to discount the fact that failure to negotiate a higher starting salary leads to less money down the road.  It IS to say that these younger, less confident women should not be the template for advice to mature women in the workplace.  Numerous workplace studies have since confirmed that women and men ask for raises and promotions at the same rate–the problem is who receives them.

So–it is not that women don’t ask and it is not that women can’t lead–it is that the men (and women) who evaluate them do not promote them and underestimate their potential.  A study from Yale shows the disconnect between performance (in which women were rated highly) and potential (where moderately performing men were still given higher potential ratings than highly performing women )   This video interview with Prof. Kelly Shue talks through the study beautifully and the impact, over time, of this underassessment of women.  She and her researchers found that women were 14% less likely to be promoted each year–which resulted in a drop off from 56% women at the entry level to 14% women district managers.

Similarly, in an op-ed last week in the Wall Street Journal, renowned gender researcher Laura Kray and postdoc scholar Margaret Lee take on the “women don’t negotiate myth” and demonstrate that the pay gap results from women being given less responsibility over time–women lead smaller teams (despite the HBR results showing that women lead better) and this smaller leadership responsibility leads to less salary.

Moreover, study after study in Harvard Business Review have now shown that women are perceived as better leaders by their peers in 360 degree reviews–scoring higher than men on 17 of 19 measures before the pandemic and–in the face of a crisis–outperforming men even more.

Study Shows Restricting Prosecutorial Discretion on Racial and Gender Disparities Reduced Gender Gap of Men Being More Likely than Women to Receive Sentence Enhancements

Andy Yuan & Spencer Cooper, Racial, Gender Disparities and Prosecutorial Discretion: Evidence from Blakely v. Washington 

We investigate the causal effects of restricting prosecutorial discretion on racial and gender disparities. Blakely v.Washington 542 U.S.296 (2004) exogenously introduced a significant constraint on North Carolina state prosecutors' discretion in seeking sentence enhancements by raising their burdens of proof from "preponderance of evidence" to "beyond a reasonable doubt." Through a regression discontinuity design, we find striking evidence that restricting prosecutorial discretion eliminated the entire preexisting gender gap of men being 28% more likely to receive sentence enhancements than women. However, we find no evidence suggesting a racial gap of sentence enhancements both pre and post Blakely.

CAL Eliminates Spousal Rape Exemption

Carrie Baker, California Eliminates Spousal Rape Exemption

On Thursday, California Governor Gavin Newsom (D) signed a bill mostly eliminating an antiquated distinction in California law between “spousal rape” and rape, which has for years resulted in more lenient penalties for perpetrators who rape their spouses.

 

“From the beginning of our efforts, we have been clear that rape is rape. A marriage license is not an excuse for committing one of society’s most violent and sadistic crimes,” said Assemblymember Christina Garcia, chair of Legislative Woman’s Caucus. “The first question a rape victim is asked should not be whether or not they are married.”

 

Assembly Bill 1171 eliminates section 262 on spousal rape in the California Penal Code to ensure perpetrators convicted of raping a spouse are subject to the same mandatory imprisonment and sex offender registry requirements as those convicted of raping someone who is not their spouse. The previous law had allowed spousal rapists to plea bargain their sentence down to probation and gave judges discretion as to whether to list them on the state’s sex offender registry.

 

“The rape of a spouse was probation-eligible in every case, even those involving force or violence, compared to rape of a non-spouse, which involved a three-year mandatory sentence to prison. That created all kinds of inequalities and unfairnesses,” said Michele Dauber, a Stanford law professor and chair of Enough is Enough Voter Project, who led the effort to pass the bill.***

 

The previous law also did not allow prosecution for rape when a spouse was unable to give legal consent because they were under the influence or unconscious, when a perpetrator threatened their spouse with retaliation, or when a perpetrator fraudulently represented the situation. A.B. 1171 law removes these spousal exemptions.

Gallup Poll Shows US Women are Largely Dissatisfied with How They're Treated

Gallup Poll:  U.S. Women are Largely Dissatisfied with How they’re Treated. Most Men don’t See a Problem

Women’s satisfaction with the treatment of their gender in the United States is at a record low, according to a Gallup poll. A majority of men, however, don’t see a problem.

 

The study, released last week, found that 53 percent of Americans are very or somewhat satisfied with the treatment of women in society — tying a record low that first hit when the #MeToo movement gained national attention in 2017. Since 2016, women’s satisfaction has dropped 17 points to 44 percent, while men’s fell by five points to 61 percent, according to Gallup’s findings.

 

The poll also found that 61 percent of men think men and women have equal job opportunities, while 33 percent of women agree. However, majorities of both genders, 72 percent of women and 61 percent of men — favored affirmative action programs for women.

 

Gallup’s findings underscore how men and women view gender equity issues differently in the United States, said Radhika Balakrishnan, a professor of women’s gender and sexuality studies at Rutgers University, adding that male privilege can often distort men’s perception of gender disparities.***

 

Gallup’s findings underscore how men and women view gender equity issues differently in the United States, said Radhika Balakrishnan, a professor of women’s gender and sexuality studies at Rutgers University, adding that male privilege can often distort men’s perception of gender disparities.

 

2019 Annual Survey The Cost of Women's Success, Law School Survey of Student Engagement

Law School Survey of Student Engagement, 2019 Annual Survey: The Cost of Women's Success

Meera Deo, Director's Message:

It is with great pride and pleasure that I share the 2019 Annual Results, which is the first LSSSE publication dedicated to gender. To date, few researchers have studied the background of women entering legal education, their success in law school, or the barriers that women law students overcome. *** 

 

Past Annual Results have highlighted similarities and differences based on gender, with regard to debt load, scholarships, and career expectations/preferences, to name just a few. Yet, this LSSSE publication devoted entirely to gender arrives at an opportune time. With increasing numbers of women in law school, policymakers and the general public might assume that gender is a non-issue, that the experiences of women and men are roughly the same, or that gender disparities are a thing of the past. Regrettably, LSSSE data confirm that none of these myths represent the current state of women in legal education. As with faculty diversity, increased numbers do not translate directly into improved experiences.***

 

Overall, this report reveals that women as a whole are succeeding along various metrics ranging from academic performance to student engagement. These achievements are especially impressive given the background demographics of women law students today, many of whom enter law school with fewer resources than their male classmates. In spite of these accomplishments, there is room for improvement. Especially given how hard women law students work and the sacrifices they make to excel, we owe them greater support.

 

Foreword, Deborah Jones Merrit

Why do gender differences in legal education persist? Scholars often point to women’s heavier family responsibilities. This LSSSE report, however, undercuts that explanation. Eleven percent of women law students report that they spend more than 20 hours a week caring for dependents—but so do 8.6% of men students. Family commitments may explain some of the gender gap in legal education, but they do not tell the whole story.

 

Instead, as this report suggests, law schools must question their own practices. Do admissions offices place too much weight on LSAT scores (which favor men) rather than undergraduate grades (which favor women)? Do women receive as much scholarship money as men? Do traditional classroom pedagogies discourage women’s participation? Do institutional support measures target men more effectively than women? More transparent data could help answer some of these questions.

 

Gathering data and addressing these questions would benefit women of all races and ethnicities; the gender gaps identified in this report cut across those lines. Promoting gender equity could also help law schools attract and support first-generation students. As this report notes, women currently outnumber men in that category.
Despite their burdens, women achieve marked success in law school. Among LSSSE respondents, women’s reported grades exceed those of men overall—as well as within each racial or ethnic group. Four-fifths of women, moreover, rate their law school experience as “Good” or “Excellent.” These outcomes are worth celebrating, but they do not guarantee gender equity. Law schools must build on their progress to give women the same economic opportunities as men and to make them fully at home in the classroom.

CA SB 826 and its affects on the Labor Market regarding Female Directors

How Deep is the Labor Market for Female Directors? Evidence from Mandated Director Appointments

By: Daniel Greene, Vincent Intintoli, Kathleen M. Kahle

We examine the depth of the labor market for female directors following an exogenous shock to demand caused by California Senate Bill 826. Despite a surge in female appointments, new female director qualifications remain stable when benchmarked to control groups, indicating a deep labor market. Relative to the same control groups, we likewise find little evidence that investors view female director appointments more negatively following the law. However, stock returns to new female director appointments do not offset negative returns to the 2018 enactment of the law, suggesting that overall, investors still anticipate negative effects.

Forced Marriage: Law and Practice in Pakistan

Forced Marriage: Law and Practice in Pakistan

By: Sania Islam

This research examines the reasons why and the circumstances in which Pakistani women began a common-law relationship against their will, and the role played by their families. A recent national survey shows that 4.1 percent of indigenous women were obliged to marry and 4.8 percent were sold. This practice is conceptualized as an expression of both family and partner violence against women, but it is not often labelled and recognized as such. Forced marriage is associated with women’s transgression of traditional gender roles and rape, as well as traditions and practices that consider women’s opinions and consent as unnecessary. Forced marriages are less common now than they were in the past because of the greater awareness of women’s rights. But the practice persists. The link between non-consensual marriages and intimate partner violence is discussed, and public policy implications are presented. Forced marriage is frequently portrayed as an issue which only affects South Asian women and girls, however, this is not correct. Forced marriage affects a wide range of communities, including Irish Traveller, Turkish, Roma, Afghan, South Asian, Kurdish, Iranian, Arab and African communities. There are no religions which support or advocate the practice of forced marriage. Forced marriage can happen to anyone from any background, regardless of social class, financial status and sexuality, which include people who identify as lesbian, bi-sexual, gay and transgender, or are perceived as such. In a UK context, the needs and experiences of some affected groups are often less visible, and only specific groups are highlighted. It is important to be aware that forced marriage disproportionately impacts women and girls and is therefore recognized as a form of violence against women and girls. When a forced marriage occurs, several human rights are breached. Women’s experience of abuse often does not end with the pressure to marry. Many women are also subjected to different forms of abuse within the context of their marriage. This can range from emotional, psychological and financial abuse to sexual and physical violence.