Monday, February 28, 2022

Sonia Rankin on "Would You Make it to the Future? Teaching Race in an Assisted Reproductive Technologies and the Law Classroom"

Sonia M. Gipson Rankin has posted a forthcoming work titled Would You Make It to the Future? Teaching Race in an Assisted Reproductive Technologies and the Law Classroom on SSRN. This work is forthcoming in the Family Law Quarterly. The abstract previews: 

Would you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would be the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing orthodontic headgear turn reflective when someone raises the question: would someone in the future select my race?

In this paper, Section I describes how race connects to family law. Section II explains cognitive dissonance theory, color blindness ideology, and the relationship of these theories to racial inequality in family law and how this connects to assisted reproductive technologies. Section III provides the framework for race-centered learning outcomes, a relevant rubric for reflection papers, and examples of case law and legislation that addresses race and ART. Section IV concludes by addressing how these skills and assessments in our family law curricula can impact systemic change in the practice of family law and the legal academy.

The article concludes: 

Legal education must be at the forefront of assisted reproductive technology. Our students will serve be crafters and litigators of ART contracts and decisions, policymakers and drafters of legislation, and will hold the hands of clients planning the biggest decisions of their futures. Showing students distinctions in family law shows the academy is responsive to realties in the practice of law. Race can serve as the first way to unpack cognitive dissonance. Professors must show the fallacies in the law so students can learn how to use their agency to critique the law and be excellent advocates for their clients. A racial cognitive dissonance lens allows students to review the impact of all the law, given the role of technology in the law that did not exist when the law was being formed. Understanding cognitive dissonance and cultural competency can help reduce legal issues in family law and ART.

A tagline for Gattaca [a "1997 science fiction film [depicting] a future society that uses reproductive technology and genetic engineering to produce genetically enhanced human beings"] states, “There is no gene for the human spirit.” There is a part of our lived journey that cannot be captured by DNA nor contract law but can only be bettered through our interactions with each other.

February 28, 2022 in Abortion, Conferences, Law schools, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Equal Protection Claim to Proceed After Law Enforcement Failed to Respond to Self-Harm Reports Involving Officer's Fiancé

In Hayes v. Town of Dalton, et. al., the District Court of Massachusetts denied defendants' motion to dismiss an equal protection claim arising from alleged police inaction following reports of self-harm involving the fiancé of an officer after their argument.  The complaint asserts: 

In the aftermath of her daughter Sherilyn’s tragic suicide, Plaintiff Patricia Hayes (“Plaintiff”) filed suit seeking damages from the Town of Dalton and members of its police department, as well as from Sherilyn’s fiancé, Kyle Nutting, who was employed as a police officer by the Town of Peru, and the Town of Peru (collectively, “Defendants”). Plaintiff alleges that Defendants were notified that Sherilyn intended to kill herself and their failure to intervene to try to prevent her death violated Sherilyn’s civil rights and various state laws.

The court considered a motion to dismiss requiring the court to consider all facts in favor of the plaintiff.  The court summarized the facts as follows (internal citations removed):  

Tyler Hamilton called the Dalton police department’s communications center on November 23, 2019, at approximately 6:16 P.M. to report that his “buddy [Nutting] and his girlfriend [Sherilyn] just got into an argument” concerning Nutting’s alleged infidelity. Hamilton notified Dalton police dispatcher Defendant Frank M. Speth, III, that Nutting was a Peru police officer who had left his North Street residence and was having dinner with the Peru police chief, but Sherilyn remained at the apartment that she shared with Nutting. Hamilton indicated that Nutting “had ‘... been calling [him] and texting [him] saying that he’s worried about [Sherilyn]’ ” who had threatened suicide during their argument. Hamilton requested a “wellness check” and urged the police to “hurry” because Sherilyn had failed to respond when Hamilton knocked at her door. After Hamilton reaffirmed that Sherilyn said she was going to harm herself, Speth told Hamilton that he would dispatch officers to her residence.

* * *  According to Marley, Nutting told him that during his and Sherilyn’s “verbal argument,” she made “a comment about wanting to hurt herself,” but Nutting did not “think she was going to hurt herself” and “there was no need for police to conduct a well-being check based on [her] statements”.  

Extensive back and forth ensued between the various officers regarding how to respond. One officer indicated that "he did not want to provide all of the information about a “domestic dispute” involving a police officer over an open radio channel." Another officer stated that he did not want to interfere with the career of his fellow officer. Policy policy required an immediate response to a threat of suicide. No response occurred "[b]ased on Nutting’s “opinion” that a well-being check was not necessary." The police closed out the call to service without entering the dwelling. Marley and Nutting later entered together and called for medical assistance reporting that Sherilyn had "just taken her life."

The court considered a motion to dismiss an equal protection claim on these facts, arguing that the officers selectively denied protective services in bad faith or malice. The court concluded that the plaintiff:   

has adequately alleged that Marley acted with discriminatory intent by withholding assistance from Sherilyn when he would have responded appropriately to a call for assistance for a similarly situated individual who was not involved in a domestic confrontation with a police officer. * * * Marley’s failure to comply with a Dalton police department regulation requiring an immediate response to a suicide threat and his knowledge of Nutting’s status as a police officer coupled with his apparent reluctance to provide police assistance to Sherilyn raise a reasonable inference that Marley treated Sherilyn differently from others who were similarly situated. * * * Plaintiff has adequately alleged that Marley withheld assistance from Sherilyn to avoid negatively impacting the career of a fellow police officer. Such a motive has been found sufficient to support a viable equal protection claim. * * *  Marley’s assertion that he had no such improper motive would require reading the allegations in the complaint in the light most favorable to him and is unavailing at this stage.  

February 28, 2022 in Violence Against Women | Permalink | Comments (0)

Yvonne Lindgren on "The Fathers' Veto and Fatherhood as Property"

Yvonne Lindgren has posted her forthcoming article The Fathers' Veto and Fatherhood as Property  on SSRN. This article will be published in the North Carolina Law Review. The abstract states: 

Over the last twenty-five years, state legislators have been quietly adding civil remedy provisions to antiabortion legislation to supplement, and in the case of Texas’ SB8, to completely replace the traditional criminal and administrative enforcement mechanisms of restrictive abortion legislation. Laws currently in effect in at least seven states permit putative fathers, regardless of their relationship to the pregnant woman, to sue abortion providers for civil damages for wrongful death and emotional distress for alleged harms that result from the abortion procedure. Several state legislatures have introduced laws—although to date all have been enjoined or are in the process of being challenged—that require women seeking an abortion to get signed consent of the father. As these laws gain traction, abortion opponents have advanced a new narrative of abortion: regret for lost fatherhood.


While civil remedy antiabortion provisions are an attempt to establish fetal personhood, what may be less obvious is their potential to shift the regulation of women’s reproductive autonomy from the state to private actors, specifically to fathers. This Article explores these previously unexamined civil remedy provisions to reveal the ways that they function as a veto over women’s reproductive decision-making and place women’s constitutional rights in the hands of private actors through the pretextual vehicle of parentage. Granting a putative father the right to sue in wrongful death recognizes him as having a parental interest that is compensable when lost, even when a pregnancy has been terminated through a consensual abortion procedure. While the nominal purpose of these laws is to compensate putative fathers in tort, these laws in fact have a much broader sweep: to recast abortion as an issue of parentage and to extend the power of fathers over their genetic offspring and, by extension, their pregnant sexual partners, both through monetary compensation and veto power over abortion. In short, antiabortion civil remedy laws forge a property interest in genetic fatherhood. 

February 28, 2022 in Abortion, Legislation, Masculinities, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, February 23, 2022

Webinar From the 19th to the ERA: Leser v. Garnett and the Validity of Constitutional Amendments

Webinar, University of Maryland Law, From the 19th to the ERA: Leser v. Garnett and the Validity of Constitutional

Monday, Feb. 28, 2022

Please join Paula A. MonopoliSol & Carlyn Hubert Professor of Law, to mark the centennial of the U.S. Supreme Court’s decision in Leser v. Garnett on February 27, 1922, validating the Nineteenth Amendment to the U.S. Constitution. In Leser, a local judge had challenged the voter registration of two Baltimore City women, one Black and one white, on the theory that the woman suffrage amendment was “an unconstitutional constitutional amendment.” Hear two distinguished constitutional scholars discuss the connections between the Supreme Court’s analysis of the Nineteenth Amendment’s constitutional validity and today’s debates about the validity of the Equal Rights Amendment.

• Julie Chi-hye SukProfessor of Law, Fordham University School of Law, and Florence Rogatz Visiting Professor of Law & Senior Research Scholar, Yale Law School

• Tracy A. ThomasSeiberling Chair of Constitutional Law and Director, Center for Constitutional Law, University of Akron School of Law

February 23, 2022 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Feminist Legal History and Legal Pedagogy

Paula Monopoli, Feminist Legal History and Legal Pedagogy, 108 Va. L. Rev. Online 91 (Feb. 17, 2022)

Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the implications of feminist legal theory. It offers several examples to illustrate how centering women and correcting their erasure from our constitutional memory is essential to educating future judges and advocates.

February 23, 2022 in Gender, Law schools, Legal History, Theory | Permalink | Comments (0)

US Women's Soccer Settles Equal Pay Lawsuit

NYT, US Soccer and Women's Players Agree to Settle Equal Pay Lawsuit

For six years, the members of the World Cup-winning United States women’s soccer team and their bosses argued about equitable treatment of female players. They argued about whether they deserved the same charter flights as their male counterparts and about the definition of what constituted equal pay.


But the long fight that set key members of the women’s team against their bosses at U.S. Soccer ended on Tuesday just as abruptly as it had begun, with a settlement that included a multimillion-dollar payment to the players and a promise by their federation to equalize pay between the men’s and women’s national teams.


Under the terms of the agreement, the women — a group of several dozen current and former players that includes some of the world’s most popular and decorated athletes — will share $24 million in payments from U.S. Soccer. The bulk of that figure is back pay, a tacit admission that compensation for the men’s and women’s teams had been unequal for years.


Perhaps more notable is U.S. Soccer’s pledge to equalize pay between the men’s and women’s national teams in all competitions, including the World Cup, in the teams’ next collective bargaining agreements. That gap was once seen as an unbridgeable divide preventing any sort of equal pay settlement. If it is closed by the federation in negotiations with both teams, the change could funnel millions of dollars to a new generation of women’s national team players.

February 23, 2022 in Equal Employment, Sports | Permalink | Comments (0)

Leveling Up to a Reasonable Woman's Expectation of Privacy

Victoria Schwartz, Leveling Up to a Reasonable Woman's Expectation of Privacy, 93 Colo. L. Rev. 115 (2021)

Various privacy law doctrines involve a reasonable expectation of privacy or similar analyses that take into account social privacy norms. For the most part, however, neither courts nor scholars have explicitly grappled with whether courts descriptively do or normatively should consider gender in deciding what constitutes a reasonable expectation of privacy. This is despite the fact that, in various scenarios, a reasonable woman’s expectation of privacy might vary from a man’s in light of different lived experiences, biological differences, and existing societal gendered privacy norms.

This Article addresses how courts do and should take into account a reasonable woman’s expectation of privacy. The Article delves into the case study of monitored drug testing, a scenario in which the reasonable expectation of privacy may differ for women in light of gendered privacy norms surrounding restrooms. Within that case study, the Article identifies various approaches courts take to consider gender as part of the reasonableness analysis in privacy law: (1) an express approach, (2) a silent approach, and (3) a gender-irrelevant approach. Ultimately, the Article concludes that courts ought to adopt a new approach—a floor approach in which gendered privacy norms are expressly taken into account as part of the reasonableness analysis, but then that level of privacy becomes a minimum floor leveling up privacy protection for everyone, regardless of gender.

February 23, 2022 in Gender, Theory | Permalink | Comments (0)

Monday, February 21, 2022

Hannah Haksgaard on "Including Unmarried Women in the Homestead Act of 1862"

Hannah Haksgaard has posted her recent work titled Including Unmarried Women in the Homestead Act of 1862 on SSRN.  The work is forthcoming in the Wayne Law Review in 2022. The abstract states: 

When Congress passed the Homestead Act of 1862 it decided to distribute land to single, unmarried women. Most Congressional members who supported including unmarried women did so because women were a necessary part of empire building—women were expected to marry, bear children, and engage in building permanent communities. Few Congressional members cared about women’s equality or the progressive goals of the women’s rights movements, although some Congressional members thought women would be incapable of successfully homesteading. This article presents the fascinating history of including unmarried women in the Homestead Act of 1862 by conducting an intensive study of the act’s statutory history, beginning in 1843. Building on the work of historians, this article analyzes how the lived experiences of female homesteaders matched up with the expectations of the Congressional members who included them, on such topics as women’s willingness and ability to homestead, women’s equality, and women’s role in marriage and reproduction. Throughout, this article explores how this statutory history can influence our understanding of antebellum unmarried women’s rights.

February 21, 2022 in Legal History, Legislation | Permalink | Comments (0)

NAPW Issues Rinat Dray Call to Action Involving Obstetric Violence

The National Advocates for Pregnant Women, in partnership with other birthing justice advocacy organizations, has issued a call to action seeking justice for Rinat Dray. Here is their summary of the events:  

Rinat Dray was pregnant with her third child in 2011, and after two cesarean surgeries, she was committed to finding a provider who would be open to the possibility of, and respect her desire for, a Vaginal Birth After Cesarean (VBAC). She chose Northwell Health’s Staten Island University Hospital (SIUH). Despite advertising itself as a VBAC-friendly hospital, lMs. Dray’s birth experience at SIUH was even worse than her previous ones. She was literally wheeled into the operating room against her will and forced to undergo cesarean surgery after having clearly said “no'' many times. 


SIUH had a discriminatory policy that explicitly provided hospital personnel with a process for “overriding maternal refusals,” ignoring pregnant patients’ rights to informed consent and bodily autonomy  “in the interest of the fetus.” This policy was kept secret from maternity patients; Ms. Dray did not even know about it until after she filed a lawsuit. 


In her medical record, her doctor wrote,“The woman has decisional capacity: I have decided to override her refusal to have a C-section.” In addition to forcing her to undergo major surgery for which she did not consent, her doctors also lacerated her bladder. Ms. Dray still suffers from the consequences of the surgery and the trauma of experiencing obstetric violence. Obstetric violence (in the form of forced surgery) of the type Ms. Dray experienced is often justified by the claim that women’s lives and bodies may be subordinated to the state’s (or in Rinat’s case, a private  hospital’s) interest in fetal or unborn life. This claim is the same argument used to justify banning abortion.

They provide a toolkit for advocacy here including concrete requests that Northwell Health do the following: 

1. Make all of its policies regarding pregnant patients easily accessible on its website in plain, understandable language.
2. Acknowledge the harms done to Rinat Dray and bring her case to resolution.
3. Train staff on why policies purporting to permit violations of pregnant patients’ rights are discriminatory and in violation of the law. 
4. Make good on its online claim: “We’ll partner with you to help you deliver the way you want, whether that means minimal interventions or a planned induction or C-section. If you previously had a C-section but would like to try for a vaginal delivery, we will support and guide you in that effort,” and transparently share the steps you will take to partner with patients to achieve their goals, including that you will never force a patient to undergo a procedure they do not want
5. Establish hospital and practice policies that affirm that all patients, including pregnant people at all stages of pregnancy, labor, and delivery are fully and equally entitled to the common law, civil rights, and human rights protections under New York City and New York State law, as well as the U.S. Constitution.


February 21, 2022 in Pregnancy, Reproductive Rights | Permalink | Comments (0)

"Against White Feminism" Book Symposium - Thursday at 5:00 EST

The ClassCrits community is hosting a book symposium event on Thursday, February 24th at 5:00 p.m. EST featuring Against White Feminism.  Here is a link to register and a summary of the program:

This discussion explores Rafia Zakaria's new book Against White Feminism, which serves as a counter-manifesto to white feminism's alignment with colonial, patriarchal, and white supremacist ideals to center women of color. The panel participants will consider the legacy of the British feminist imperialist savior complex and what Zakaria describes as "the colonial thesis that all reform comes from the West" to the condescension of the white feminist-led "aid industrial complex" and the conflation of sexual liberation as the "sum total of empowerment." The discussion will build on the work of intersectional feminists, Kimberlé Crenshaw, Adrienne Rich, and Audre Lorde.

February 21, 2022 in Race, Theory | Permalink | Comments (0)

Thursday, February 17, 2022

Decitizenizing Asian Pacific American Women

Shoba Sivaprasad Wadhia & Margaret Hu, Decitizenizing Asian Pacific American Women, U. Colorado L. Rev., forthcoming.

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws and enforcement policies that, though initially targeting Asian women, now result in discrimination more broadly against Asian Pacific American (APA) women. The marginalization of this community, and the degrading stereotypes integrated within this marginalization, are designed to decitizenize. This Article illustrates how decitizenizing processes that are uniquely aimed at APA women can lead to the justification and excusal of legal and social discrimination.

February 17, 2022 in Legal History, Race | Permalink | Comments (0)

Introduction to New Book, The Oxford Handbook of Feminism and Law in the U.S.

Deborah Brake, Martha Chamallas & Verna Williams, Introduction to Oxford Handbook of Feminism and Law in the U.S., OXFORD HANDBOOK OF FEMINISM AND LAW IN THE U.S. (Deborah L. Brake, Martha Chamallas, & Verna L. Williams, eds) (Oxford University Press, 2022 Forthcoming)

Combining analyses of feminist legal theory, legal doctrine and feminist social movements, this Handbook offers a comprehensive overview of U.S. legal feminism. Contributions by leading feminist thinkers trace the impacts of legal feminism on legal claims and defenses and demonstrate how feminism has altered and transformed understandings of basic legal concepts, from sexual harassment and gender equity in sports to new conceptions of consent and motherhood. It connects legal feminism to adjacent intellectual discourses, such as masculinities theory and queer theory, and scrutinizes criticisms and backlash to feminism from all sides of the political spectrum. Its examination of the prominent brands of feminist legal theory shows the links and divergences among feminist scholars, highlighting the continued relevance of established theories (liberal, dominance and relational feminism) and the increased importance of new intersectional, sex-positive, and postmodern approaches.

Unique in its triple focus on theory, doctrine, and social movements, the Handbook recounts the history of activist struggles to pass the Equal Right Amendment, the Anti-Rape and Battered Movements of the 1970s, the contemporary movements for reproductive justice and against campus sexual assault as well as the #MeToo movement. The emphasis on theory and feminist practice animates discussions of feminist legal pedagogy and feminist influences on judges and judicial decision making. Chapters on emerging areas of law ripe for feminist analysis explore foundational subjects like contracts, tax, and tort law and imagine feminist and social justice approaches to digital privacy and intellectual property law, environmental law, and immigration law.

February 17, 2022 in Books, Legal History, Theory | Permalink | Comments (0)

New Book: "Civil Rights Queen: Constance Baker Motley" -- the First Black Woman Appointed to the Federal Judiciary

New Book, Tomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

The first major biography of one of our most influential judges—an activist lawyer who became the first Black woman appointed to the federal judiciarythat provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century.

“A must read for anyone who dares to believe that equal justice under the law is possible and is in search of a model for how to make it a reality.” —Anita Hill

Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP's Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary.
Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions--how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.

February 17, 2022 in Books, Courts, Judges, Legal History | Permalink | Comments (0)

Monday, February 14, 2022

Intimate Partner Violence Through the Eyes of the Military "Dependent" Spouse

Xander Franklin and Tamara Kuennen have published Intimate Partner Violence Through the Eyes of the Military "Dependent" Spouse in volume 100 of the Oregon Law Review. The article's conclusion is excerpted here: 

Within this Article, we analyzed the military’s response to IPV through the lens of the civilian partners who experience it daily. Using their perspectives as a starting point, in which intimate abuse is not a discrete incident but rather a continuing process, the structural conditions contributing to abuse become salient. Isolation, economic coercion, and exploitation of gender and other privileges are not merely discrete tactics that one partner uses against another, but ongoing practices that are institutionalized within the structures of the military community. Thus, to get a full picture of IPV, we must assess not only the dynamics particular to the individual couple but also how structural conditions support those dynamics.


Shifting perspectives in addressing IPV is particularly challenging because the primary response to the problem of IPV is to use criminal law, which currently detaches context from IPV in order to prosecute it as discrete episodes of physical violence. Reframing the narrative of abuse to the person experiencing it, and not the perspective of law enforcement responders or the military aggressor, represents a necessary correction of this approach. Furthermore, structural conditions that facilitate IPV are so embedded in the fabric of everyday life that they often fade into the background of most analyses, complicating current reform efforts within the military and civilian communities. This is most apparent in the military’s typical approach to resolving social problems, which favors standardized solutions for unique problems. Thus comes the importance of intentionally, explicitly asking people who experience abuse to identify the institutional and cultural norms that support personalized abusive tactics, so as to create a reformist framework that properly addresses these structural conditions.


Because analysis of structural conditions has largely been lost in the movement to end IPV, we used the military setting to throw them into sharp relief. As a subculture of American society, the military, with its explicit insularity and rigidly codified norms, was an ideal point of reference to develop an analytical methodology for approaching IPV within discrete social subgroups. In analyzing and exposing fundamental faults within the military’s approach to domestic violence, as well as proposing some direct procedural solutions to shift this approach, we sought to create and then validate a newly contextualized framework for future reformative solutions. It is therefore our sincere belief that the ensuing analytical methodology--starting from the perspective of the person experiencing abuse, assessing both individual and structural conditions underpinning that abuse, then using that assessment to inform reformist efforts directed at resolving those specific underlying conditions--is broadly applicable to the global effort of combatting Intimate Partner Violence.

February 14, 2022 in Violence Against Women | Permalink | Comments (0)

"Fault Lines of Refugee Exclusion: Statelessness, Gender, and COVID-19 in South Asia" by Chakraborty & Bhabha

Roshni Chakraborty and Jacqueline Bhabha published their work, Fault Lines of Refugee Exclusion: Statelessness, Gender, and COVID-19 in South Asia, in volume 23 the Health and Human Rights Journal. The introduction to the article is excerpted here: 

Far from being “great equalizers,” diseases reflect and reinforce preexisting hierarchies. Structural inequalities in wealth, housing, health care, employment, and social capital place the poor and the socially vulnerable at a higher risk of infection and death. At the same time, the fear and suspicion engendered by epidemics exacerbate the vulnerabilities of those perceived as “other” or “outsiders,” populations whose survival and dignity are already compromised by social exclusion mechanisms such as legal invisibility, geographic ghettoization, and social ostracism. For refugees resettling in South Asia, our area of focus in this paper, these forms of marginalization are an everyday reality. The denial of a viable and effective legal identity precludes the ability to even claim rights in states that already fail in their obligations to provide them.


Citizenship, in both its legal and social sense, represents, we argue, an unearned form of social power and capital. Where, as is the case in India, Pakistan, and Bangladesh, prevailing international law protecting refugees has not been ratified, forced migrants are left without the secure legal status awarded to recognized refugees, a deficit that magnifies the challenge of accessing state protection and securing social capital within the host community. The status of these forced migrants is thus best captured by the notion of de facto statelessness, which signals their lack of access to the protective responsibility of any sovereign nation. De facto statelessness in South Asia is a perilous status at the best of times, given the central role of the state as a dispenser of fundamental services and protections. It is a particularly challenging status during a global pandemic such as COVID-19, when hostility toward outsiders is exacerbated, the availability of essential humanitarian services is compromised, and an informal labor market generating subsistence income is brought to a halt.


To the impacts of de facto statelessness must be added those of other critical social determinants of health and well-being, including gender, which intersect to multiply the risks of stigmatization and exclusion. The entrenched exploitation and control of female sexuality, as a commodity to be exchanged or dominated, accelerates during times of distress, as it has during this pandemic. This paper explores the gendered impact of COVID-19 on forced female migrants in South Asia, who already face strong exclusionary pressures because of their status as noncitizens of the broader polity.



February 14, 2022 in Healthcare, International | Permalink | Comments (0)

Amicus Brief Filed by ERA Coalition and Advocates for Women's Rights

The ERA Coalition and dozens of other women's rights groups have filed an amicus brief supporting reversal of the D.C. District Court's decision in The Commonwealth of Virginia, State of Illinois, and State of Nevada v. Ferriero. The amicus brief supports a plain language reading of Article V of the U.S. Constitution, which has no time limits imposed on the process to amend the Constitution.  The appellants argue that the congressional joint resolution cannot stand in the way of amending the constitution if the process otherwise meets the requirements of Article V. The summary of the argument is excerpted below:  

The fight for constitutional equality is a long-term project, and progress has been painfully slow. For the first 144 years of our Nation’s history, women were denied the most basic right of citizens in a democracy: the right to vote. Women who otherwise met all criteria for voting found themselves barred from the polls, simply because of their sex. Their absence from the polls contributed to the development of laws and institutions that persistently discriminate against women. Today, women serve with distinction in the C-suite, on the floor of Congress, on the soccer field, in the White House, and in combat. Yet women still face persistent inequality in nearly every sphere. Women are consistently underrepresented in positions of power and overrepresented among those in poverty. Women are still paid only 82 cents for every dollar paid to men—and, for women of color, even less than that. Women also face an epidemic of domestic and sexual violence. These problems are particularly acute for Black women, Latinas, indigenous and Native American women, immigrants, lesbians, trans women, and single mothers.


In the face of this persistent inequality, the Equal Rights Amendment is as relevant today as it ever was. The ERA declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Drafted by Alice Paul and other suffragists in the 1920s, the ERA passed through Congress in 1972 with broad, bipartisan support. After the number of state ratifications stalled at thirty-five in the late 1970s, the fight for equality pressed forward, achieving steady progress on many fronts, including in public opinion. Today, Americans overwhelmingly support including an ERA in our Constitution. Three quarters of the States have now voted to ratify the ERA—satisfying the constitutional threshold—and there are active ratification efforts in every one of the unratified States. Yet the Archivist asks this Court to send the fight for constitutional equality back to square one.


This Court should reject that argument. The painfully slow progress toward equality makes it particularly important in this context to respect the plain text of Article V, which establishes a process for amendment that leaves no room for time limits. The ERA satisfied Article V’s amendment process in January 2020, when Virginia became the thirty-eighth State to ratify. Now that the ERA has been adopted, federal law requires the Archivist to publish it. See 1 U.S.C. § 106b. The seven-year time frame that Congress imposed in 1972 does not and cannot alter the process in Article V. The ERA’s time frame does not appear in the amendment itself; Congress placed it only in the resolving clause of its joint resolution. At a minimum, that choice means that Congress reserved for itself the power to change the time frame in a subsequent joint resolution—as it did in 1978. More fundamentally, however, a time frame imposed unilaterally by Congress cannot stand in the way of an amendment that has met all the requirements for ratification under Article V. The validity of an amendment depends on the plain text of Article V, which provides that an amendment becomes “valid to all intents and purposes . . . when ratified by the legislatures of three fourths of the several States.” Although the Framers did not recognize women as equal, they created a process for amending the Constitution that could reflect changes in our Nation’s understanding of equality, even when those changes evolve over many years. The ERA reflects such a change. Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process. One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference. 

February 14, 2022 in Constitutional, Legislation | Permalink | Comments (0)

Wednesday, February 9, 2022

Theorizing Beyond the Gender Binary in the Context of Menopause Capitalism

Naomi Cahn, Bridget Crawford & Emily Gold Waldman, Managing and Monitoring the Menopausal Body, Univ. Chicago Legal Forum (forthcoming).  

This Essay explores how menopausal bodies are managed and monitored through both menopausal hormone therapy (MHT) and the burgeoning market for technology-driven menopause products and services. While each of these allegedly improves the menopause experience, a closer investigation reveals a more complex interaction of profit motives and traditional notions of gender identity. The Essay identifies problems with—and suggests some solutions for reforming—current practices of monitoring and managing the menopausal body.

Careful consideration of menopause brings this Essay into ongoing conversations about theorizing beyond the gender binary and stereotypical notions of femininity. Purveyors of both MHT and menopause-related digital products and services appeal to mostly cisgender women by emphasizing ideas of youthfulness, attractiveness, and sexual desirability. We locate these profit seekers within “menopause capitalism,” the marketing and selling of menopause-related products through messages that celebrate autonomy, community, or femininity from entities that are, at their core, commercial enterprises

February 9, 2022 in Business, Reproductive Rights, Theory | Permalink | Comments (0)

Vermont Moves Forward on Constitutional Amendment to Guarantee the Right to Abortion

Wash Post, Vermont Moves Forward on Becoming First State to Guarantee the Right to Abortion in its Constitution

Vermont lawmakers voted Tuesday to move forward on a constitutional amendment that would guarantee the right to abortion and contraception, the first amendment of its kind in the United States.


The Vermont House voted 107 to 41 for the proposed amendment, known as Proposition 5. It now heads to Gov. Phil Scott (R), who has signaled his support for the measure and is required to give public notice before it appears on the ballot in November. Voters in Vermont, where 70 percent of people say abortion should be legal in all or most cases, are expected to approve it.

The proposal is part of a wave of abortion rights legislation to emerge in Democratic states this year, ahead of a key Supreme Court ruling on abortion expected in the summer. The Supreme Court case, which involves a Mississippi law that bans abortion at 15 weeks, could overturn or significantly weaken Roe v.Wade, the landmark decision that has guaranteed a woman’s right to abortion for almost 50 years.

Fifteen states have passed laws protecting the right to abortion, including, most recently, New Jersey, where Gov. Phil Murphy (D) signed the Freedom of Reproductive Choice Act in January. Other states such as Florida have privacy laws in their state constitutions, which courts have interpreted to protect the right to abortion. But no other state has enshrined the right to abortion in its constitution.

February 9, 2022 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Understanding the Term "Terf" (Trans-Exclusionary Radical Feminist) and its Theoretical Origins

JK Rowling Comes Out as a Terf, Forbes

A tweet may be limited to only 280 characters, but it can convey so much more. In the case of celebrated author J.K. Rowling, who rose to fame with her best-selling Harry Potter series of wizardry and other fantastic tales, a single tweet she sent Thursday confirmed suspicions that she is a TERF.


“TERF” is an acronym for transgender exclusionary radical feminist, a term reportedly coined more than a decade ago by a cisgender heterosexual woman who works as a writer in Sydney, Australia. To some, TERF is a slur; to others, a descriptive. Viv Smythe wrote in The Guardian last year that the term she invented has “been weaponized at times by both those who advocate trans-inclusion in feminist/female spaces, and those who push for trans-exclusion from female-only spaces.”

How to Spot Terf Ideology

‘TERF’ stands for ‘trans-exclusionary radical feminism’. Terf ideology is a specific form of transphobia, and more specifically transmisogyny, as terfs mostly target trans women and transfeminine people. According to terf ideology, trans women are excluded from womanhood and should accordingly be excluded from women-only spaces. Womanhood is supposedly defined exclusively by “sex-based” oppression, aka oppression as a result of being what terf ideology terms “biologically female”. This idea weaponises a reductive understanding of "biology" to argue that 'women' - or those assigned female at birth - all experience gendered oppression in the same way, which erases our diverse experiences of gender as it intersects with race, class, sexuality, disability, and many other structural factors.

Terfs often dub themselves “gender critical”, which on the surface of it seems very reasonable - however, the problem arises in the failure of terf ideology to be similarly “sex critical”. While the gender binary is obviously a societal construction that is important to criticise and denaturalise, the same is equally true of the sex binary (the
assumption that everyone can be split into two discrete biological sexes, “male” and “female”).

Vox, TERFs: The Rise of "Trans Exclusionary Radical Feminists" Explained

Online roots of the term TERF originated in the late 2000s but grew out of 1970s radical feminist circles after it became apparent that there needed to be a term to separate radical feminists who support trans women and those who don’t. Many anti-trans feminists today claim it’s a slur, despite what many see as an accurate description of their beliefs. They now prefer to call themselves “gender critical,” a euphemism akin to white supremacists calling themselves “race realists.”


In the early ’70s, groups of what would now be called “gender critical” feminists threatened violence against many trans women who dared exist in women’s and lesbian spaces. For example, trans woman Beth Elliott, who was at the 1973 West Coast Lesbian Feminist Conference to perform with her lesbian band, was ridiculed onstage and had her existence protested. In 1979, radical feminist Janice Raymond, a professor at the University of Massachusetts, wrote the defining work of the TERF movement, “Transsexual Empire: The Making of the Shemale,” in which she argued that “transsexualism” should be “morally mandating it out of existence” mainly by restricting access to transition care (a political position shared by the Trump administration). Soon after she wrote another paper — this one published for the government-funded, Health and Human Services-linked National Center for Healthcare Technology — the Reagan administration cut off Medicare and private health insurance coverage for transition-related care.


After those early flashpoints, the dispute between trans people and gender-critical folks simmered for the next 20 years. One exception is the high-profile conflicts at the Michigan Womyn’s Folk Festival, or MichFest, which caught plenty of attention. In the 1990s and early aughts, pro-trans festival attendees organized “Camp Trans,” a space specifically welcoming to trans women who were otherwise banned from attending the event. The two groups clashed for a number of years, until more artists and organizations boycotted MichFest and organizers chose to end the event in 2015.


However, in the past several years, TERFism has found new life and fostered fertile recruiting ground in many online spaces. Though trans people experienced a dramatic increase in visibility with the rise of trans actress Laverne Cox and Caitlyn Jenner’s headline-grabbing transition, that visibility has resulted in a growing cultural backlash. While the majority of that backlash is simply a continuation of the conservative-driven culture war, some extremist “feminists” have decided that trans rights go too far.

From one of the original sources of the terf idea, Janice Redmond: The Transsexual Empire: The Making of the She-Male (1979)

From the publisher:  [W]hen it was first published, "The Transsexual Empire" challenged the medical psychiatric definition of transsexualism as a disease and sex conversion hormones and surgery as the cure. It exposed the antifeminist stereotyping that requires candidates for transsexual surgery to prove themselves by conforming to subjective, outdated and questionable feminine roles and "passing" as women. Then as now, defining and treating transsexualism as a medical problem prevents the person experiencing so-called gender dissatisfaction from seeing it in a gender-challenging or feminist framework. Transsexualism goes to the question of what gender is, how to challenge it, and what reinforces gender stereotyping in a role-defined society. In the new introduction to this feminist work, Raymond discusses how these same issues are now debated in the context of transgender. Transgenderism reduces gender resistance to wardrobes, hormones, surgery and posturing - anything but real sexual equality. It assimilates the roles and definitions of masculinity and femininity, often mixing and matching, but never really moving beyond both. In a similar way, transsexualism is thought to be a radical challenge to gender roles, breaking the boundaries of gender and transgressing its rigid lines. But if the transsexual merely exchanges one gender role for another, and if the outcome of such a sex reassignment is to endorse a femininity which, in many transsexuals, becomes a caricature of much that feminists have rejected about many-made femininity, then where is the challenge, the transgression, and the breaking of any real boundaries? 

February 9, 2022 in Gender, LGBT, Theory | Permalink | Comments (0)

Monday, February 7, 2022

Ayesha Rasheed on "Confronting Problematic Legal Fictions in Gestational Surrogacy"

Ayesha Rasheed has published Confronting Problematic Legal Fictions in Gestational Surrogacy, 24 J. Health Care L. & Pol'y 179 (2022). The abstract previews: 

Infertility is a hot topic for investors and entrepreneurs in the United States, and recent years have seen a sharp rise of interest in various assisted reproductive technologies. Gestational surrogacy, a form of assisted reproduction where the surrogate mother is not (as) genetically related to the child she is carrying, is now the most popular form of surrogacy in the United States. It costs between $75,000-150,000 per attempt, and results in the live births of hundreds of babies each year.


Alone amongst developed nations, the United States has left this vast industry largely unregulated. No federal laws address the practice or regulate the companies that facilitate it, while a patchwork of extant state laws run the gamut from criminalization and bans of commercial surrogacy to wholesale authorization of it. In the rare instances where courts have been asked to decide issues related to the same, they have been likewise brief and varied in their approaches.

Overall, when courts and lawmakers have addressed gestational surrogacy, they often oversimplify a complex biological phenomenon and cultural experience in favor of idealized fictions about reproductive biology and family life. As a result, policies surrounding gestational surrogacy do not align well with what actually happens to the mind and body during pregnancy, or how the surrogacy industry currently operates. A better understanding of the science of gestational pregnancy has the potential to animate legal policy that allocates rights amongst the parties involved more equitably, and in a way that reflects the reality of the physiological and psychological risks borne during the surrogacy process.

February 7, 2022 in Family, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)