Wednesday, December 29, 2021

Analyzing Social Norms as Applied to Child Sex Trafficking

Melissa Breger, Stemming the Tide: Social Norms and Child Sex Trafficking, 126 Dickinson L. Rev. 135 (2021)

Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.

Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and social norms could be applied to the issue of child sex trafficking. By vitiating the notion that buying children for sex is in any way acceptable, the demand for child trafficking will diminish.

The Nordic model has had moderate success in stemming sex buyer demand, and I borrow from it to propose further minimizing the demand for children. The Nordic model sets forth an approach by which the buyers of sex are specifically penalized, while those who are themselves purchased are not punished.

This Article is the next segment in a more comprehensive series about applying social norms theories to decrease negative behavior. Other segments have explored decreasing intimate partner violence, reforming a toxic sports culture, minimizing a rape culture, and discouraging corporal punishment against children. This Article will specifically analyze social norms as they apply to child sex trafficking.

December 29, 2021 in Human trafficking, Theory | Permalink | Comments (0)

State Legislatures Poised to Legislate Both For and Against Reproductive Choice

AP, State Legislatures in US Poised to Act on Abortion Rights

Early in the new year, the Vermont House of Representatives is due to begin debate on an amendment that would enshrine the right to abortion in the state constitution and send the question to voters in the fall.

 

Because the process began two years ago, it’s a coincidence that Vermont lawmakers will be considering the Reproductive Liberty Amendment while the U.S. Supreme Court is considering a case that could severely erode a right that has stood for half a century.

 

The pending decision in that case, expected in mid-2022, means it’s not just Vermont with abortion on the legislative agenda. State legislatures across the country will be responding to the possibility of seismic change to the 1973 Roe v. Wade ruling that legalized abortion across the U.S. Republican-led legislatures are ready to further restrict or ban abortions outright while Democratic-led ones are seeking to ensure access to abortion in their state law.***

 

A far different approach is being considered in Kansas. Republican state lawmakers have placed on the state’s August 2022 primary ballot a proposed constitutional amendment that would overturn a 2019 state Supreme Court decision. That ruling declared abortion access a “fundamental right” and part of a woman’s inherent right to bodily autonomy.

 

The amendment would say that the state constitution provides no right to abortion and that the Legislature can regulate it however lawmakers see fit — which means if Roe v. Wade is overturned, Kansas lawmakers could ban abortion completely.

 

In California, lawmakers are expected to consider a plan in the coming year to make the state a “sanctuary” for those seeking reproductive care. That could include paying for travel, lodging and procedures for people from other states where abortions have been restricted or perhaps outlawed.***

 

At least 20 states, mostly across the South and Midwest, already have laws that would severely restrict or ban abortion if the high court overturns Roe and leaves the issue up to the states, according to the Guttmacher Institute, a reproductive rights think tank.***

 

More than a dozen states, plus the District of Columbia, have statutory protections in place for abortion rights, said Elizabeth Nash, a state policy analyst with the Guttmacher Institute. That includes Massachusetts, where the Democrats who control the legislature earlier this year approved a bill over the veto of Republican Gov. Charlie Baker codifying abortion rights into state law.

 

December 29, 2021 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Overturning Roe Threatens the Loss of More Fundamental Rights

My thoughts on "The End of Roe and More," JURIST.

The Supreme Court will overturn the law recognizing a woman’s fundamental right to choose an abortion. The only question is whether it will go even further and jeopardize women’s equality, reproductive rights, and family privacy rights for all. 

 

Pending in the Court is Dobbs v. Jackson Women’s Health Organization and the question of the constitutionality of Mississippi’s ban on abortion after 15 weeks. The Court’s most recent abortion decision, June Medical Services v. Russo (2020), regarding physician admitting privileges for providers, held on to abortion rights by a thread, tied together by Justice Ruth Bader Ginsburg’s vote and Chief Justice John Roberts’ adherence to precedent. But we now have the next generation of the Supreme Court, reconstituted after the passing of Justice Ginsburg and the additions of Justices Brett Kavanaugh and Amy Coney Barrett. There are now six conservatives who have all indicated disapproval of Roe v. Wade and its ruling on reproductive choice–and these Justices were nominated for this very purpose. The math is simple: there is a solid majority to overturn Roe.***

 

The only remaining question then is how far the Court will go in overturning abortion rights. One possible outcome is that the Court will also recognize a fundamental right of personhood protecting potential fetal life—a holding that would block state or federal legislation to guarantee reproductive choice.***

 

A second possible result is that the Court’s abortion ruling might also encroach on other reproductive rights such as contraception or pregnancy. The Court has shown its willingness to dilute this reproductive right of women by balancing it against the religious viewpoint interests of others, as it did in Burwell v. Hobby Lobby Stores (2014). Such a holding would have negative implications for procreation rights, pregnancy discrimination, and assisted reproduction rights including the frozen embryo cases which have supported the right not to procreate.***

 

A third possibility is that the Court might go so far as to disembowel all constitutional privacy rights of the family. Justice Thomas argued for this, dissenting in June Medical. The right to abortion and reproductive autonomy recognized in Roe was derived from the text of the Fourteenth Amendment’s protection of “liberty.”  In Griswold v. Connecticut (1965), the Court overruled a law banning contraception for married couples, finding that the Constitution protected privacy rights of the home including marriage, sex, and contraception. It located these rights in the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Subsequently, the Fourteenth Amendment became the consensus foundation for privacy in its protection of “liberty” against arbitrary government interference. Decades before Griswold, the Court recognized fundamental privacy rights of parenting and procreation. Years after, privacy supported extended familymedical autonomymarriage equality, and sexual conduct

 

Justice Thomas attacked this longstanding recognition of privacy in June Medical. He argued that the broader constitutional right to privacy was baseless. The Griswold Court had been “grasping at straws” and “turning somersaults in history,” he said, to find such a right, thus demonstrating its illegitimacy.

 

Yet, to the contrary, the many constitutional bases for family privacy establish its ubiquity, not its aberration. Griswold’s “penumbra” casting a broad shadow around the Constitution.***

 

Finally, it is possible that the Court will foreclose future arguments for abortion rights under equality theory. In Dobbs, attorneys advocating for women’s right argued the availability of abortion was critical to women’s full and equal participation in society. . . . Justice Amy Coney Barrett seems focused on eliminating this legal avenue of equality.

December 29, 2021 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, December 27, 2021

Vulnerable Bodies and Invisible Work

Ellen Gordon-Bouvier has published an article titled Vulnerable bodies and invisible work: The Covid-19 pandemic and social reproduction in volume 21 of the International Journal of Discrimination and the Law. The introduction situates the project within Martha Fineman's influential Vulnerability Theory and reveals the urgency of new approaches involving the Responsive State (internal citations omitted): 

Seldom has an event so clearly illustrated the core tenets of Martha Fineman’s vulnerability theory as the global Covid-19 pandemic has – that, as embodied beings, we share a constant and inescapable vulnerability, our fragile bodies living with ‘the ever-present possibility of harm and injury’ . * * *  

In this paper, I critically analyse the UK’s response to the pandemic through a vulnerability lens. In particular, I examine how the pandemic has affected the visibility and status of socially reproductive work, as well as the impact on those who perform it. Social reproduction, defined as ‘the maintenance of life on a daily basis and intergenerationally’ , includes a wide range of labour, including supporting and nurturing those who undertake paid work, caring for infant, elderly, sick, and disabled populations (either paid or unpaid), food preparation, and domestic work in the home. * * * Yet, the state consistently devalues social reproduction, denying its essential nature and society’s reliance upon it. * * * Instead, the state organises its institutions, including law, around an artificial image of autonomous liberal personhood, whereby the individual is imagined as rational, self-interested, and economically self-sufficient.

 

I argue in this paper that the pandemic has shattered the illusion of autonomous individualism that underlies the liberal state’s actions. Socially reproductive labour and society’s undeniable reliance on it have come into public view after being concealed for so long. In this sense, an image of an embodied ‘vulnerable subject’  has been forced to the forefront of the public imagination, also revealing the state’s ultimate control (and the individual’s corresponding lack of control) over the production of resilience against vulnerability. * * *

 

* * *  Unfortunately, as I argue, the UK’s response has retained a commitment to the autonomous liberal ideal and has been inadequate and ineffective as a consequence. Despite this, I suggest that the atmosphere of exceptionality and crisis generated by the pandemic has provided a glimmer of hope that a different way forward is possible. In particular, the state’s new willingness to consider non-means tested basic income schemes could be used to improve the conditions of those who perform socially reproductive labour. However, such measures must take care to avoid further perpetuating gender inequalities.

December 27, 2021 in Family, Gender, International, Theory | Permalink | Comments (0)

Hair Rules: Race, Gender, and Stigmatization in Schools

Patricia A. Banks has published Hair Rules: Race, Gender, and Stigmatization in Schools in Volume 25 of the University of Pennsylvania Journal of Law and Social Change. The abstract summarizes: 

As laws banning racial hair discrimination in schools are proposed across the United States, it is increasingly important to understand how grooming policies can stigmatize students. This essay engages social science theory and research on stigmatization and the case of Arnold v. Barbers Hill Independent School District to investigate the cultural constructions of male students who wear long locs. Drawing on content analysis of court documents around this Texas lawsuit involving two black male cousins who were disciplined in school because of refusing to cut their locs, I examine how school officials justified the school district’s hair rules through associating the defendants’ hairstyle with a range of stigmatizing attributes. The conclusion considers the potential for this court case, as well as hair discrimination legislation, to mitigate the stigmatization of boys who wear long locs, long braids, and long twists. I argue that to fully address the stigmatization of boys who wear these styles, laws and policies must be attentive to race as well as gender.

December 27, 2021 in Constitutional, Education, Gender, Race | Permalink | Comments (0)

Improving State Data Collection About Sex and Gender

Ben Collier and Sharon Cowan of the University of Edinburgh have posted a recent article on SSRN titled Queer Conflicts, Concept Capture and Category Co-Option: The Importance of Context in the State Collection and Recording of Sex/Gender DataThe abstract summarizes: 

Queer, trans and non-binary lives, bodies, relationships, and communities often complicate the taken-for-granted processes through which the state manages those under its power. In this article, we explore the forms of power and harm at play in attempts to quantify people through administrative processes of state data collection about sex and gender, and, in the current UK and Scottish context, examine some of the sites for wider conflicts over constructions of sex and gender in public life. We emphasise the need to collect sex / gender data in way that reflects the intersectional lives of data ‘subjects’. We also suggest that governments and public bodies should not adopt a unitary definition of sex or gender in data collection exercises such as the census, or other administrative categories such as criminal justice records, and argue that those who lobby to record ‘sex not gender’ in data collection are engaging in a strategy of concept capture, i.e. replicating a binary, biological model of sex, that excludes trans and non-binary people, through the co-option of number of administrative and legal categories across a wide range of social and political life. We conclude by recommending that public bodies asking about sex and gender should: co-produce questions with the community that is being surveyed; ensure that the wording of each question, and its rubric, is sensitive to the context in which it is asked and the purpose for which it is intended; and avoid attempting to offer any overarching standard definition of sex or gender that would be applicable in all circumstances. To engage in meaningful sex / gender data collection and recording that does not cause harm, governments and public bodies should avoid relying on reductive, over-simplistic and generalistic categories that are designed to fit the standardised norm. In being attentive to individual contexts needs and interests when formulating categories and records, they can make space for more intersectional experiences rather than generalised category-type data to be made visible.

December 27, 2021 in Gender, International, LGBT | Permalink | Comments (0)

Wednesday, December 22, 2021

New Book: Intimate States--Gender, Sexuality, and Governance in Modern US History

From Larry Solum, at the Legal Theory Blog:

The Legal Theory Bookworm recommends Intimate States: Gender, Sexuality, and Governance in Modern US History, edited by by Margot Canaday, Nancy F. Cott, & Robert O. Self.  Here is a description:

Fourteen essays examine the unexpected relationships between government power and intimate life in the last 150 years of United States history.
 
The last few decades have seen a surge of historical scholarship that analyzes state power and expands our understanding of governmental authority and the ways we experience it. At the same time, studies of the history of intimate life—marriage, sexuality, child-rearing, and family—also have blossomed. Yet these two literatures have not been considered together in a sustained way. This book, edited and introduced by three preeminent American historians, aims to close this gap, offering powerful analyses of the relationship between state power and intimate experience in the United States from the Civil War to the present.

The fourteen essays that make up Intimate States argue that “intimate governance”—the binding of private daily experience to the apparatus of the state—should be central to our understanding of modern American history. Our personal experiences have been controlled and arranged by the state in ways we often don’t even see, the authors and editors argue; correspondingly, contemporary government has been profoundly shaped by its approaches and responses to the contours of intimate life, and its power has become so deeply embedded into daily social life that it is largely indistinguishable from society itself. Intimate States makes a persuasive case that the state is always with us, even in our most seemingly private moments.

And from the reviews:

Intimate States is a stunning achievement, challenging conventional thinking that sharply divides public from private; sex and gender from politics; identity from material concerns. In its breadth and depth, originality, and cohesiveness, Intimate States also manages to avoid the usual pitfalls of edited volumes; while far-ranging, it offers a single and coherent argument of profound importance.”― Deborah Dinner, Emory University
 
 
The Table of Contents:
 
1: Reconstructing Belonging: The Thirteenth Amendment at Work in the World, Stephanie McCurry
2: The Comstock Apparatus, Jeffrey Escoffier, Whitney Strub, and Jeffrey Patrick Colgan
3: Morals, Sex, Crime, and the Legal Origins of Modern American Social Police, William J. Novak
4: The Commerce (Clause) in Sex in the Life of Lucille de Saint-André, Grace Peña Delgado
5: “Facts Which Might Be Embarrassing”: Illegitimacy, Vital Registration, and State Knowledge, Susan J. Pearson
6: Race, the Construction of Dangerous Sexualities, and Juvenile Justice, Tera Eva Agyepong
7: Eugenic Sterilization as a Welfare Policy, Molly Ladd-Taylor
8: “Land of the White Hunter”: Legal Liberalism and the Shifting Racial Ground of Morals Enforcement, Anne Gray Fischer
9: Sex Panic, Psychiatry, and the Expansion of the Carceral State, Regina Kunzel
10: The Fall of Walter Jenkins and the Hidden History of the Lavender Scare, Timothy Stewart-Winter
11: The State of Illegitimacy after the Rights Revolution, Serena Mayeri
12: What Happened to the Functional Family? Defining and Defending Alternative Households Before and Beyond Same-Sex Marriage, Stephen Vider
13: Abortion and the State after Roe, Johanna Schoen
14: The Work That Sex Does, Paisley Currah

 

December 22, 2021 in Books, Constitutional, Legal History, LGBT | Permalink | Comments (0)

The Fight for Reproductive Rights Insists on Women as Subjects in Their Own Right

Suzanna Danuta Walters,  Subject: Man. Object: Woman. Verb? Control.

As I listened to the arguments in the Mississippi abortion rights case on Dec. 1, a friend texted me to say, “God but they just hate us, don’t they?” And while hatred of women—what is often referred to as misogyny—is alive and well, it is undergirded by something else that is both less tangible and more terrifying. 

 

The late, great feminist philosopher Simone de Beauvoir wrote about this as women’s “otherness” in a world of gender binaries and gendered power created by (and for) men. For Beauvoir, the core of sexism is this denial of women’s subjectivity: She is not self to herself but an object for male definition. 

 

In that sense, it is not simply or only “hatred” that motivates the sexists of the world, but the very desire to define and therefore to control. 

 

How else to explain young men at, say, frat parties wanting to have sex with (e.g. rape) women who are literally not present, passed out from too much alcohol. To do this—to want this—one first needs to imagine women as both object (not fully human) but also as there in the world primarily for you, a man.

 

And here, we can see how the attacks on reproductive rights are connected with the prevalence of sexual assault and harassment: the male expectation that women are there (exist) largely for their pleasure and use—be it use as sexual objects, wifely helpmates, motherly providers of care and comfort. Both sexual assault and the denial of reproductive bodily autonomy say to women: You are here for me.  Because if women are fully self-determined—can determine when and if they have children, when and with whom they have sex—then they cannot be there, fully, inevitably, without their own desire, for you. For a man. 

 

The fear of women’s autonomy and self-actualization—the desire for us not to call the shots on our own lives—is then less about some visceral hatred but about both dehumanization (Beauvoir’s “other”) and the wish to maintain a system where women are cultivated as objects for male use.

 

Both the fight for reproductive autonomy and sexual freedom (which includes freedom from sexual assault and harassment) are dependent upon inverting this ethos and insisting that women are there for themselves, subjects in their own right whose needs and desires are expressions of their own unstoppable humanity.

December 22, 2021 in Abortion, Theory | Permalink | Comments (0)

Black Women and Girls and the Twenty-Sixth Amendment

Mae Quinn, Black Women & Girls and the Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, and the First Wave Youth Suffrage Movement, 43 Seattle L. 1237 (2020).

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

 

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content; it also expands upon the historical sections in that work to draw connections among different civil rights movements and move beyond the limited dualistic narratives that have been offered to date regarding suffrage in this country. Although there is much more to learn and tell, this Article advances the important ongoing project of lifting up and celebrating the multilayered identities and contributions of Black women and girls who impacted United States youth enfranchisement—including Diane Nash, Carolyn Quilloin, and Philomena Queen.

December 22, 2021 in Constitutional, Legal History, Race | Permalink | Comments (0)

Monday, December 20, 2021

Q&A with Editor of Feminist Judgments: Rewritten Property Opinions

Eloisa C. Rodriguez-Dod has compiled an edited volume of Feminist Judgments: Rewritten Property Opinions. This volume continues the tremendous momentum begun by the Feminist Judgments Project. Describing the book in a Q&A, Rodriguez-Dod explains: 

This book answers the question of whether feminist perspectives and methods could change the shape of property law. A group of diverse property law scholars rewrote significant fundamental property law cases from a feminist perspective. The rewritten cases cover a broad range of property law topics, including landlord-tenant, patents, zoning, publicity rights, land titles, concurrent ownership, and takings. This book demonstrates how rewritten opinions from a feminist perspective could have made property law more just and equitable for women and marginalized groups. It also shows how property law is not neutral, but rather shaped by the society that produces it and the judges who apply it.

This volume of the feminist judgments project is likely of interest to judges, scholars, and students interested in the development of property law. The larger goals of the global project are described as: 

The United States Feminist Judgments Project is part of a global collaboration of hundreds of feminist law professors who reimagine and rewrite key judicial decisions from a feminist perspective. The touchstone of the project is that the rewritten opinions must use the facts and precedent of the original opinion, but bring to the process of judging a feminist perspective that takes into account race, class, gender, disability and other status groups historically marginalized by the law. In this way, the Project seeks to show that United States jurisprudence is not objective or neutral, but rather deeply influenced by the perspectives of those who are appointed to interpret it. As a consequence, the Project also shows that previously accepted judicial outcomes were neither necessary nor inevitable, and that feminist judges could have changed the course of American jurisprudence.

December 20, 2021 in Books, Theory | Permalink | Comments (0)

Report on the Impacts of Racism and Colonialism on Sexual and Reproductive Health, Rights, and Justice

The International Center for Research on Women published its report titled Sexual and Reproductive Health, Rights, and Justice: A Closer Look at the Historical Impacts of Racism & Colonialism. The key findings include: 

Global racial justice is inextricably linked to sexual and reproductive health and rights (SRHR) and gender equality. Histories of slavery and colonialism have shaped our current public and global health system and its existing hierarchies – all rooted in multiple and intersecting forms of exclusion.

Efforts to advance SRHR should incorporate a reproductive justice lens to address the structural impacts of slavery and colonialism that are linked to negative health outcomes and disruptions in access to affordable quality care. This history has shaped restrictive abortion policies and programs and has been linked to population control and non-rights based family planning.

* * * 

Our review of current literature on global health and racial justice demonstrates that a reproductive justice lens is a critical component in advancing SRHR and gender equality. As access to safe abortion and critical sexual and reproductive health services are increasingly disrupted and politicized, it is imperative that the U.S. Government and SRHR sector integrates intersectionality in funding and policy decisions and reverse harms done domestically and globally.

December 20, 2021 in Healthcare, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching

As we design our Spring syllabi, I am excited to share my own recent publication that came out this month in volume 48 of the Hofstra Law Review titled, Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching. The article draws heavily on the work of feminist and critical pedagogies. The abstracts explains: 

Two seismic curricular disruptions create a tipping point for legal education to reform and transform. COVID-19 abruptly disrupted the delivery of legal education. It aligned with a tectonic racial justice reckoning, as more professors and institutions reconsidered their content and classroom cultures, allying with faculty of color who had long confronted these issues actively. The frenzy of these dual disruptions starkly contrasts with the steady drumbeat of critical legal scholars advocating for decades to reduce hierarchies and inequalities in legal education pedagogy.

This context presents a tipping point supporting two pedagogical reforms that leverage this unique moment. First, it is time to abandon the presumptive reverence and implicit immunity given to problematic Socratic teaching despite the harms and inadequacies of such performances. Professor Kingsfield depicted an archetype of Socratic teaching where the professor wields power over students instead of wielding knowledge to empower students. He used strategic tools of humiliation, degradation, mockery, fear, and shame. Socratic performances that are professor-centered and power-centered do not merit the reverence and immunity they still receive after decades of sound critiques. This critique is framed as a call to “cancel Kingsfield.” Socratic teaching can (must) be performed inclusively. This Article proposes a set of shared Socratic values that are student-centered, skills-centered, client-centered, and community-centered.

Second, this Article proposes refining law school accreditation standards to ensure that students achieve learning outcomes equitably in inclusive classrooms. Accreditation reforms cannot happen around the architectural perimeter of legal education. Nor can reforms be implemented solely in episodic siloes by staff, external speakers, or even robust seminar courses. Rather, accreditation standards need to hold institutions accountable to measuring learning outcomes and addressing identified disparities and inadequacies in the curricular core of legal education.

December 20, 2021 in Education, Theory | Permalink | Comments (0)

Thursday, December 16, 2021

The Long History of Feminist Legal Theory

I just published The Long History of Feminist Legal Theory in the online edition of The Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas & Verna Williams eds. Nov. 2021).

The conventional idea is that feminist legal theory began in the 1970s, in the second-wave feminist movement. However, the foundations of feminist legal theory were first conceptualized much earlier, in 1848, and developed over the next century and a half through distinct periods of thought. That development began with the establishment of the core theoretical precepts of gender and equality grounded in the comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. Feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.

An earlier (non-paywall) version is available here: The Long History of Feminist Legal Theory (SSRN).  

December 16, 2021 in Books, Legal History, Theory | Permalink | Comments (0)

A Reassessment of the Use and Gender Politics of the Singular "They"

A Little Word That Means a Lot: A Reassessment of Singular "They" in a New Era of Gender Politics, Gender & Society (Nov. 20, 2021)

In 2019, Merriam-Webster named they its Word of the Year in recognition of the “surprising fact” that lookups had risen a remarkable 313% over the previous year. This surge of interest in singular they attests to the rising visibility of genderqueer, nonbinary, and trans activism in the United States. A 2018 survey found that a majority of Americans have heard about gender-neutral pronouns and that nearly twenty percent of Americans know someone who uses nonbinary personal pronouns. In recent years, gender-inclusive pronoun practices—including pronoun “go-rounds” and adding pronouns to email signatures—have been widely adopted on campuses and in workplaces, and new legal protections have been created to prevent misgendering with pronouns.

 

Skeptics dismiss these practices as a fad, but English speakers have been using the singular they in situations when a person’s gender was nonspecific or unknown for at least 600 years. Esteemed authors including William Shakespeare and Jane Austen used it unapologetically as an indefinite pronoun. Today, it likely would go unnoticed to hear someone exclaim, “That car just cut me off! They should learn to drive.”

 

In fact, the idea that singular they is ungrammatical was produced by a political campaign that began in the late eighteenth century. At that time, scholarly authorities insisted that singular he be used instead of singular they on the grounds that “the Masculine gender is more worthy than the Feminine, and the Feminine more worthy than the Neuter.” In promoting usage of he as a generic pronoun, grammarians sought to discredit competing options. They dismissed the paired binary term he or she as cumbersome and argued that singular they creates ambiguity about whether we are discussing one person or many. Of course, the generic he creates a parallel ambiguity with respect to gender, but they pushed this concern aside.***

 

Meanwhile, since the early 2010s, a new generation of language reformers, led by lesbian, gay, bisexual, transgender, queer/questioning and more (LGBTQ+) activists, has taken up the cause of singular they. These activists promote language practices that recognize people with nonbinary gender identities, incuding singular they used as a nonbinary personal pronoun. Using singular they as a nonbinary personal pronoun resists biological essentialism and affirms everyone’s right to determine their own gender identity.

 

Concomitantly, some people have advocated that singular they be used for everyone as a universal pronoun on the grounds that it is “inclusive and flexible” and protects people’s privacy, among other reasons. Yet, some transgender advocates  have objected to this proposal  arguing that denying gender recognition by avoiding gendering can be experienced as a form of violence. Finally, some people now use singular they as a default indefinite pronoun to refer to a person who is known but whose self-defined gender identity is not.

 

Our Gender & Society article, “A Little Word That Means A Lot: A Reassessment of Singular They in a New Era of Gender Politics,” considers how singular they can be used to resist and redo aspects of the prevailing gender structure. We identify three distinct usages of singular they: 1) as a nonbinary personal pronoun; 2) as a universal gender-neutral pronoun; and 3) as an indefinite pronoun when a person’s self-identified gender is unknown. While previous research has focused primarily on singular they as a nonbinary personal pronoun, our paper points to the importance of all three usages. We offer new insight into how nonbinary they challenges dominant gender norms and practices beyond incorporating additional gender categories. We propose further investigation of how using gender-neutral pronouns for everyone in specific contexts can advance progressive activists’ goals. Finally, we argue that the longstanding usage of singular they as an indefinite pronoun has new importance today in affirming gender as a self-determined identity.

 

Our analysis demonstrates that using singular they advances gender justice. Buying into the depoliticized grammar argument is not merely ahistorical but politically costly in the struggle for gender justice.

December 16, 2021 in Gender, Law schools, LGBT, Pop Culture | Permalink | Comments (0)

Wednesday, December 15, 2021

Third Circuit Denies Asylum Claim on Grounds that Women are Not a Particular Social Group

Chavez-Chilel v. US (3d Cir. Dec. 6, 2021)

Finding substantial evidence supported the BIA’s conclusion that “Guatemalan women” is not a particular social group (“PSG”) for asylum or withholding purposes, we will deny the petition.***

 

At her merits hearing, Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. She explained that she feared she would be sexually assaulted or killed if she was removed to Guatemala. The IJ denied Chavez-Chilel’s applications for asylum and withholding of removal, finding that, while she was credible and that her rape qualified as past persecution, her proposed PSG, “Guatemalan women,” did not constitute a PSG for asylum or withholding of removal purposes. The IJ concluded that this PSG was not “sufficiently particular” because there was no evidence that Guatemalan women share a “unifying characteristic” or present a “unified target” for persecution. ***

 

Substantial evidence supports the BIA’s and IJ’s finding that “Guatemalan women” is not a cognizable PSG. A PSG must be: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” S.E.R.L., 894 F.3d at 540 (quotation marks and citation omitted). Particularity “addresses the outer limits of a group’s boundaries and is definitional in nature, whereas social distinction focuses on whether the people of a given society would perceive a proposed group as sufficiently separate or distinct.” Id. (quotation marks omitted). To satisfy the particularity requirement, “an alleged social group [must] have discrete and . . . definable boundaries that are not amorphous, overbroad, diffuse, or subjective, so as to provide a clear standard for determining who is a member.” Id. at 553 (quotation marks and citation omitted).

 

Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad[] because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women). Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), ChavezChilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum. 

 H/t Brian Soucek

 

December 15, 2021 in Courts, Gender, International, Theory, Violence Against Women | Permalink | Comments (0)

Podcast Unsung History, Suffragist Mabel Ping-Hua Lee

Unsung History: Mabel Ping-Hua Lee

Cover for Unsung History

Mabel Ping-Hua Lee was born in China in 1896 but lived most of her life in the United States, where, due to the Chinese Exclusion Act, she had no path to naturalization until the law changed in 1943. Even though it would not benefit her for decades, Mabel Lee worked for women’s suffrage, leading the New York City Suffrage Parade on horseback at the age of only 16. Lee was the first Chinese woman to earn a PhD in Economics in the United States, graduating from Columbia University in 1921 with a dissertation entitled: “The Economic History of China: With Special Reference to Agriculture,” and then spent her life helping the Chinese community in New York City through her work with as director of the First Chinese Baptist Church of New York City. 

Joining me to help us learn more about Mabel Lee is Dr. Cathleen Cahill, Associate Professor of History at Pennsylvania State University and author of the 2020 book Recasting the Vote: How Women of Color Transformed the Suffrage Movement.

December 15, 2021 in Books, Legal History, Race | Permalink | Comments (0)

AALS Women in Legal Education Section Programming at 2022 Annual Meeting

From the WILE Newsletter h/t Susan Bisom-Rapp and Victoria Haneman.

WILE ANNUAL MEETING SCHEDULE AT A GLANCE (virtual conference)

◆ Wednesday, January 5, 12:35 - 1:50 pm Eastern: AALS Awards Ceremony (the inaugural Deborah L. Rhode Award will be presented to Professors Stacy Butler and Wendy Greene)

◆ Wednesday, January 5, 2:00 - 3:00 pm Eastern: WILE Networking Session

◆ Wednesday, January 5, 3:10 - 4:25 pm Eastern: Open Source Program on the Impact of Deborah Rhode (planned by Section on WILE, the Section on Professional Responsibility, Section on Pro Bono, Section on Leadership)

◆ Wednesday, January 5, 4:45 pm - 6:00 pm Eastern: WILE Works-in-Progress: Other Voices in Feminist Legal Theory

◆ Thursday, January 6, 12:35 - 1:50 pm Eastern: WILE Primary Program - Equality, Intersectionality, and Status in the Legal Academy

◆ Thursday, January 6, 2:00 - 3:00 pm Eastern: WILE Award Ceremony (the Ruth Bader Ginsburg Lifetime Achievement Award will be presented to LSAC Deputy for Legal and Global Higher Education Camille deJorna)

◆ Friday, January 7, 4:45 - 6:00 pm Eastern: Introducing and Supporting Intersectionality in Pedagogy

 

WILE kicks off the 2022 Annual Meeting at the AALS Awards Ceremony (Wednesday, January 5, 12:35 – 1:50 pm Eastern) during which the inaugural Deborah L. Rhode Award will be presented to Professors Stacy Butler (Arizona) and Wendy Greene (Drexel). The award, created by WILE and the Sections on Leadership, Professional Responsibility, and Pro Bono & Public Service, honors the contributions, service, and leadership of the late Deborah Rhode by recognizing new trailblazers in legal education and the legal profession. Professor Butler is being honored for founding and directing Innovation for Justice (i4J), a social justice-focused innovation lab. Professor Greene is being recognized for her scholarship, activism, and law reform work aimed at prohibiting race-based natural hair discrimination. I am grateful for the hard work of the award selection committee: Interim Dean Douglas Blaze (Tennessee), Professor Renee Knake Jefferson (Houston), Assistant Director Nadine Mompremier (Columbia), and Associate Dean Adrien Wing (Iowa).

Our second event is the WILE Section Networking Session (Wednesday, January 5, 2:00 – 3:00 pm Eastern), which will afford our members a chance to meet and learn in a more informal format. Thanks to WILE Secretary Victoria Haneman (Creighton) and Executive Committee member Milena Sterio (Cleveland-Marshall) for moderating that session. I encourage you all to attend this valuable session.

Following that session will be the Open Source Program – The Impact of Deborah Rhode (Wednesday, January 5, 3:10 – 4:25 pm Eastern) (Co-Sponsored by the Sections on Leadership, Professional Responsibility, Pro Bono & Public Service Opportunities, and WILE). A distinguished panel representing Deborah Rhode’s diverse interests has been assembled to reflect on her legacy and its impact on future projects and initiatives. The panelists are Professor Ben Barton (Tennessee), Dean Garry Jenkins (Minnesota), former Assistant Dean Tom Schoenherr (Fordham), and Associate Dean Adrien Wing (Iowa). Topics include Deborah Rhode’s impact on women and diversity in legal education, legal ethics, the imperative of pro bono within the legal academy and the profession, and leadership. Thanks to Lucy Ricca (Stanford), who is the Policy and Program Director at the Stanford Center on the Legal Profession, for expertly organizing and serving as moderator for the Open Source Program. Chair Elect Lisa Mazzie (Marquette) served on a multi-Section subcommittee, which selected the program’s speakers.

Our fourth program at the Annual Meeting is the WILE Works-in-Progress Session – Other Voices in Feminist Legal Theory (Wednesday, January 5, 4:45 – 6:00 pm Eastern). This program, based on a call for papers, focuses on the views of scholars whose work marks them as feminist legal theorists even if they have not traditionally been labeled as such. The scholars presenting work are: Noa Ben-Asher (Pace), Gender Identity, The New Legal Sex; Kim D. Ricardo (UIC), Comparative Study of Abortion Laws in Argentina and the United States; and Anna Offit (SMU), Benevolent Exclusion. Professor Bridget Crawford (Pace) is our discussant. The session moderator is Dean Lolita Buckner Inniss (Colorado). The session was organized by Dean Inniss (Colorado), Rachel Croskery-Roberts (UCI), Catherine Hardee (California Western), Fernanda Nicola (American), and Nancy Soonpaa (Texas Tech)

The following day, WILE hosts its primary program, Equality, Intersectionality, and Status in the Legal Academy (Thursday, January 6, 12:35 – 1:50 pm Eastern)(Co-Sponsored by the Section on Minority Groups, and the Section on Sexual Orientation and Gender Identity Issues). Based on a call for papers, this session will explore visible and invisible status distinctions in the legal academy, how people of color and women are affected by them, and whether various solutions can improve equality. Scholars presenting work are Angela Mae Kupenda (Mississippi College), Killing Me Softly with His Song, and Options toward Professing the Truth; Rachel Lopez (Drexel), Untitled: The Power of Designation in the Legal Academy; Shefali Milczarek-Desai & Sylvia Lett (Arizona), Flipping the Script: Two BIPOC Law Professors Embrace and Enunciate Difference to Further Equality in the Legal Academy; and Melissa Weresh (Drake), Hierarchy Maintained: Gender Inequity in the Legal Academy. As WILE Section Chair, Susan Bison-Rapp will moderate the session. The session was organized by WILE Chair Elect Lisa Mazzie (Marquette) along with Executive Committee members Naomi Cahn (Virginia), Rachel Croskery-Roberts (UCI), Rona Kaufman (Duquesne), Ashley London (Duquesne), Linda McClain (Boston), Nancy Soonpaa (Texas Tech), and Milena Sterio (Cleveland-Marshall).

Following immediately after the WILE primary program, the Section will host its Annual Ruth Bader Ginsburg Lifetime Achievement Award Ceremony (Thursday, January 6, 2:00 – 3:00 pm Eastern). Since 2013, WILE has given out a lifetime achievement award to an individual who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and providing opportunities to others. Our 2022 recipient is Camille deJorna, who serves as Deputy for Legal and Global Higher Education at the Law School Admissions Council (LSAC). Before that post, she served in a top role in the ABA’s Section of Legal Education and Admissions to the Bar and oversaw the admissions and student affairs offices at several law schools, including Columbia, Hofstra, and the University of Iowa. She was selected by the WILE Executive Committee for her pathbreaking work on diversity and inclusion in the legal academy and profession. Special thanks to Dean Lolita Buckner Inniss (Colorado) for managing the nomination process and to Dean Tamara Lawson (St. Thomas) for providing the beautiful plaque for the occasion.


The Section’s seventh and final program is a session on pedagogy titled Introducing and Supporting Intersectionality in Pedagogy (Friday, January 7, 4:45 – 6:00 pm Eastern). Discussions related to gender, race, class, sexual orientation, age, immigration, and/or disability visibly shape the law and richly impact classroom outcomes. The goal of this session is to consider new pedagogical tools and ideas both for incorporating intersectional feminism into the law school classroom, and for exploring these ideas with faculty colleagues who may be resistant. Speakers include Jamie Abrams (Louisville), Bridget
Crawford (Pace), Teri McMurtry-Chubb (John Marshall), and Kathryn Stanchi (UNLV). Serving as commentators are Dean Angela Onwuachi-Willig (Boston) and Dean Sean Scott (California Western). WILE Secretary Victoria Haneman (Creighton) will moderate. Assisting Victoria Haneman (Creighton) in organizing the session were Executive Committee members Jill Engle (Penn State Law), Catherine Hardee (California Western), Fernanda Nicola (American), and Kerri Stone (Florida International).

 

December 15, 2021 in Conferences, Education, Law schools, Scholarship | Permalink | Comments (0)

Tuesday, December 14, 2021

Gender Gap Among Arguing Attorneys at 7th Circuit Has Barely Improved in Last Decade, Study Says

Gender Gap Among Arguing Attorneys at 7th Circuit Has Barely Improved in Last Decade, Study Says

Find the original ABA Report here: How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys

The number of male attorneys arguing at the U.S. Court of Appeals for the Seventh Circuit continues to greatly surpass women, according to a study published by the American Bar Association this week.

The study’s authors, Seventh Circuit Judge Amy J. St. Eve and Munger, Tolles & Olson associate Jamie Luguri, found that women represented 24% of attorneys who argued before the Chicago, Illinois-based federal appeals court in 2009. In 2019, the percentage rose only slightly to 28%.

“If the rate of change remains constant, it will be another four decades before half of all attorneys arguing before the court are women,” the authors wrote.

Despite women and men entering the legal profession in equal numbers, the gender gap among arguing attorneys has been widely reported across the country, including the U.S. Supreme Court.

But St. Eve and Luguri looked at a number of other factors that influence the size of the gap, such as the nature of the case, the client represented and the attorney’s practice setting.

They found that women argued at lower rates in civil cases compared to cases involving the government. In 2019, women comprised 24% of all attorneys arguing in civil cases at the Seventh Circuit and 33% in criminal cases.

Even among civil litigation, the gender disparity was more pronounced in some areas than others. Complex civil matters—such as antitrust and insurance cases—had a lower percentage of women arguing, according to the study.

The authors attributed the slight increase in women taking the lead in oral arguments at the Seventh Circuit to the federal government’s improved pipeline of female attorneys over the past decade. In 2019, 40% of all attorneys who represented federal, state or local governments were women, compared to 32% in 2009. Meanwhile, only 22% of attorneys for non-governmental clients were women.

“While the number of women who argued appellate cases on behalf of federal and local governments increased significantly in the last decade, the number of women who had that role for non-government clients remained relatively stagnant,” the report says.

Possible solutions to closing the gap can start in law school, the authors wrote. They recommended that faculty encourage women to apply to federal appellate court clerkships and provide opportunities for students to join appellate advocacy clinics.

Law firms, for their part, should help associates—who are largely women—get oral argument experience by letting them argue cases where the firm was court-appointed. Law firms should also encourage female associates to take pro bono work, and senior attorneys should split their allotted argument time with associates, St. Eve and Luguri said. Holding leadership positions can help women attorneys gain credibility and experience too, they added.

“Across all these domains, a clear picture has emerged: the pipeline is leaking. Law schools, firms, corporate clients, and courts all have a role to play in fixing those leaks, and we have outlined concrete steps that each can take to increase the number of women arguing in front of appellate courts,” they wrote. “It is our hope that these suggestions for change mean that the next decade will bring more progress than the last.”

December 14, 2021 in Gender, Women lawyers | Permalink | Comments (0)

Monday, December 13, 2021

Pennsylvania's Abortion Case

Greer Donley wrote an Op. Ed on December 9 for the Pittsburgh Post Gazette stressing the importance of a pending Pennsylvania abortion case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. This case considers, among other issues, whether "the Pennsylvania Medicaid abortion coverage ban violate[s] the Pennsylvania Constitution’s explicit guarantee of equality on the basis of sex contained in Pa. Const. art. I, § 28 and its separate equal protection guarantee contained in Pa. Const. art. I, §§ 1, 26 & art. III, § 32?" Greer summarizes: 

The case challenges a Pennsylvania law that bans Medicaid funds from being used to cover abortion except in the case of rape, incest or to save the pregnant person’s life.

Importantly, the litigants are asking the court to recognize the right to abortion under the Pennsylvania Constitution. If the court recognizes this right — which it has not previously recognized — then even if Roe is overturned, the Pennsylvania Constitution will step up to protect the right to abortion in our state.

Moreover, this protection will survive even if voters elect a Republican governor who is willing to sign a strict abortion ban into law. Why? Because that theoretical ban would be unconstitutional under our Constitution even if it is no longer unconstitutional under the federal Constitution.* * *

[P]regnant people need more than the right to abortion; they need the ability to access it. If the Pennsylvania Supreme Court also invalidates the state law banning Medicaid funds from being used for abortion, it would help poor women access the abortion care they need.

The full Women's Law Project Brief is available here. This case is a powerful example of professors on the ground in Pennsylvania working actively with non-profits to seek law reform. 

December 13, 2021 in Abortion, Constitutional, Courts, Family, Gender, Healthcare, Pregnancy | Permalink | Comments (0)

Benin's New Abortion Law

Benin's parliament has voted to expand abortion access

Before this amendment, a woman could get her pregnancy terminated if the pregnancy would threaten her health or life, in case of foetal malformation, or when the pregnancy was a result of incest or rape. The new law expands this to protect a woman’s education or career.

The new law allows abortion "upon the request of the pregnant woman, voluntary termination of pregnancy can be allowed when the pregnancy is likely to aggravate or cause a situation of material, educational, professional or moral distress incompatible with the interest of the woman and/or the unborn child."

This is notable for several reasons. First, it allows abortion on the basis of socioeconomic status. Second, it is "somewhat groundbreaking"  in the geographic region: 

Benin goes beyond the Maputo Protocol, which has been the policy goal in the region for all the states, to "protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus."

December 13, 2021 in Abortion, International, Poverty, Pregnancy, Reproductive Rights | Permalink | Comments (0)