Gender and the Law Blog

Women Shortlisted for the US Supreme Court, A Conversation with Judge Diane Wood

Renee Knake Jefferson, Hanna Brenner Johnson & Diane Wood, "Shortlisted: A Conversation Between Judge Diane Wood, Renee Knake Jefferson, and Hannah Brenner Johnson" 106(3) Judicature 8 (2023)

This article includes an edited excerpt from the book Shortlisted: Women in the Shadows of the Supreme Court and a discussion with the authors led by Judge Diane Wood, a senior judge of the United States Court of Appeals for the Seventh Circuit. They discuss the book, the women who were passed over for seats on the Court, and the lessons their stories offer — for women judges and the legal profession as a whole.

Federal Court in TN Issues Preliminary Injunction Blocking Ban on Gender-Affirming Care

CNN, Federal Judge Blocks Part of TN Ban on Gender Affirming Care

A federal judge on Wednesday temporarily halted the enforcement of part of Tennessee’s ban on gender-affirming care for minors in the state.

Senate Bill 1, which was signed into law by Republican Gov. Bill Lee in March and set to take effect July 1, prohibited health care providers “from performing on a minor or administering to a minor a medical procedure if the performance or administration of the procedure is for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” ***

In Wednesday’s ruling, US District Judge Eli Richardson issued a preliminary injunction blocking the state’s enforcement of a ban on such gender-affirming treatments as hormone therapies and puberty blockers. The ruling, however, allowed Tennessee to ban gender transition surgical procedures.

“The Court realizes that today’s decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society on the one hand, and the countervailing power of states to control certain activities within their borders and to use that power to protect minors,” Richardson said in his ruling.

“If Tennessee wishes to regulate access to certain medical procedures, it must do so in a manner that does not infringe on the rights conferred by the United States Constitution, which is of course supreme to all other laws of the land,” the judge added. “With regard to SB1, Tennessee has likely failed to do just this.”

Conn Supreme Court Allows Defamation Suit by Defendant in Yale Sexual Assault Case to Go Forward Citing Lack of Procedures in Title IX Hearing

Aaron Keller, Conn. Justices Nix Absolute Immunity In Yale Hearings, Law360

In a stinging high court indictment of Yale University's internal sexual misconduct hearings, the Connecticut Supreme Court on Friday unanimously held that the elite college's proceedings are not quasi-judicial in nature and that absolute immunity does not immediately protect an accuser from an accused student's defamation and tortious interference claims.

Answering several certified questions from the Second Circuit, Connecticut's highest state court said a lower form of privilege, qualified immunity, does apply to the private college's internal hearings. However, the accused student who challenged those proceedings, Saifullah Khan, defeated that lower immunity and should have survived a federal district court judge's dismissal of his claims against his accuser, according to the opinion.***

The opinion reopens a path for Khan, who was acquitted of criminal sexual assault charges, to pursue claims against his accuser, the college and its administrators.

"We are mindful of these concerns and sensitive to the need to encourage alleged victims of sexual assault to report their abuse to the appropriate authority at any institution of higher education, free from fear of intimidation and retribution," [Judge] Mullins wrote.

But the court also said investigations without "adequate procedural safeguards" can lead to unfair outcomes, noting a "competing public policy that those accused of crimes, especially as serious a crime as sexual assault, are entitled to fundamental fairness before being labeled a sexual predator."

Aaron Keller, Conn Court Ruling May Force Colleges to Rethink Title IX Hearings, Law360

A Connecticut Supreme Court opinion critical of a Yale University sexual misconduct proceeding will likely cause colleges to scramble to examine whether criminal-law-style adversarial processes should be added to Title IX hearings where they typically don't appear and arguably don't belong, several experts told Law360.

The Connecticut Supreme Court's opinion, issued Friday, held that a student accused of sexual assault, Saifullah Khan, could pursue a defamation lawsuit in Connecticut federal court because the underlying Yale proceeding was not quasi-judicial. The state Supreme Court, answering certified questions from the Second Circuit, said absolute immunity did not apply to Yale's proceeding due to its lack of procedural safeguards. ***

Anne M. Coughlin, a professor at the University of Virginia School of Law, said the Connecticut high court's opinion will "be studied and cited by every university in the country." "It was just astonishing to me," she said. "The very thing the court singles out as flaws … are the very reforms that people wanted to put in place in order to encourage women to report in the university setting."

Coughlin suggested that some colleges might even "panic" to check their Title IX procedures and send them "back to the drawing board" in light of the decision.

Stanford Law School professor Michele Dauber called the decision "terrible." "This court, comprised of five men and just two women, will chill reporting of campus sexual assault in Connecticut and perhaps beyond," she said. "Around the country, students alleging assault are being terrorized by the very real fear that they can be sued for defamation when they make a report of sexual assault to their colleges," Dauber said. "Title IX procedures are already humiliating and grueling for complainants. Now, thanks to this decision, reporting can result in a complainant being dragged through years of litigation by their accused perpetrator."***

Nancy Chi Cantalupo, an associate dean and professor at Wayne State University Law School who was the primary drafter of American Bar Association recommendations for improving student misconduct hearings, said social science research suggests the opposite of what the Connecticut Supreme Court found necessary.

"Adversarial proceedings do not result in better fact-finding in these cases," she said. "This assumption that adversarial proceedings are more fundamentally fair — I don't think those are borne out by the research. It's an indication that the court is relying on platitudes that have been unquestioned in the legal system for centuries." She said the presumption favoring cross-examination is rooted in "stereotypes about victims lying."***

Tracy A. Thomas, the Seiberling chair of constitutional law at the University of Akron School of Law, agreed that the opinion might spur colleges to treat sexual misconduct hearings like adjudications.

Some schools may struggle, she said, because many perceive their educational mission as one of guidance and mentorship, not of retribution and punishment. The opinion is "really going to hold the process to a higher standard, more like a judicial standard," she said.

Thomas said the Connecticut decision was "probably the right decision," but she, like many others, feared that it may open the door for unscrupulous defendants or their surrogates to abuse cross-examination techniques.

But getting the process right in the eyes of the courts will protect accusers, she noted. "It actually helps victims," she said. "A good process is good for everybody. It would have helped more facts come out." [And, according to the CT Supreme Court, a quasi-judicial proceeding would have immunized the victim against a defamation claim].

New Book The Patriarchs: How Men Came to Rule

Angela Saini, The Patriarchs: How Men Came to Rule

SHORTLISTED FOR THE ORWELL PRIZE FOR POLITICAL WRITING 2023

In this bold and radical book, award-winning science journalist Angela Saini goes in search of the true roots of gendered oppression, uncovering a complex history of how male domination became embedded in societies and spread across the globe from prehistory into the present.

Travelling to the world’s earliest known human settlements, analysing the latest research findings in science and archaeology, and tracing cultural and political histories from the Americas to Asia, she overturns simplistic universal theories to show that what patriarchy is and how far it goes back really depends on where you are.

Despite the push back against sexism and exploitation in our own time, even revolutionary efforts to bring about equality have often ended in failure and backlash. Saini ends by asking what part we all play – women included – in keeping patriarchal structures alive, and why we need to look beyond the old narratives to understand why it persists in the present.

 

Goldman Sachs to Pay $215 Million to Settle Gender Bias Suit of Hindering Women's Career Advancement and Paying Them Less Than Male Colleagues

Goldman Sachs to Pay $215M to Settle Gender Bias Suit

Goldman Sachs said on Monday that it would pay $215 million to settle a lawsuit that accused the bank of systematically discriminating against thousands of female employees. The money will be divided among about 2,800 women, and the bank agreed to change some of its practices.

The individual payout amount itself is less than it might appear: Subtracting legal fees, it comes to roughly $47,000 per plaintiff. Still, the settlement is the latest effort to make Wall Street address what critics say are years of unequal and unfair treatment of female workers.

The lawsuit accused Goldman of hindering women’s career advancement and paying them less than their male colleagues. It took particular aim at the firm’s performance review process, which they said favored men, setting them up for promotions and higher pay.

SCOTUS Won't Hear Case of Charter School Requiring Girls to Wear Skirts

Wash Post, Supreme Court Won't Hear Charter School's Bid to Force Girls to Wear Skirts

The Supreme Court on Monday declined to review the case of a North Carolina charter school that wanted to force female students to wear skirts in the name of “chivalry,” letting stand a lower-court ruling that deemed the policy unconstitutional.

The move is a victory for civil liberties advocates and a blow to social conservatives who hoped that — after allowing public vouchers to be used at religious schools last year — the top U.S. court would exempt charter schools from constitutional protections. The case could have had far-reaching implications for charter schools, which operate in a gray area, functioning as public schools that are run by private organizations.***

Only public institutions can be sued for violating constitutional rights — which protect students from discrimination, censorship and being thrown out of school without a hearing. The high court has ruled that students cannot be forced to recite the Pledge of Allegiance, that undocumented students have the right to attend school, and that all students, regardless of race, have the right to an equal education.

The appellate court looked at the particulars of North Carolina’s charter school system, noting that state law explicitly describes charters as public schools open to all students, holds them to state board of education standards and gives charter school employees government benefits. Ninety-five percent of Charter Day’s funding comes from public sources, the court noted.

Biden Issues Executive Order on Contraception Access on Anniversary of Dobbs Decision

President Joe Biden announced that he was issuing an "Executive Order on Strengthening Access to Contraception" on the one-year anniversary of the Dobbs decision.  The Executive Order acknowledges that "[m]illions of people continue to face barriers to obtaining the contraception they need even as access has become more critical in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), to overturn Roe v. Wade, 410 U.S. 113 (1973)." It explains that "[i]n States with laws that restrict access to abortion, health clinics that provide contraception and other essential health services have shuttered, eliminating critical points of care.  Some State officials have adopted policies interfering with access to emergency contraception, including for vulnerable populations." The Order emphasizes the work that the Administration states it has already begun and vows to continue. It further asks relevant agencies to take several steps, including to "promote increased access to affordable over-the-counter contraception, including emergency contraception."

Political Equality, Gender, and Democratic Legitimation in Dobbs

Olatunde C. Johnson and Aliza Forman Rabinovici have posted their forthcoming work on Political Equality, Gender, and Democratic Legitimation in Dobbs. The work is forthcoming in Volume 46 of the Harvard Journal of Law & Gender (2023). 

The abstract is provided here: 

This Article examines the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health, showing how the Court deploys new arguments about women’s political equality—alongside longstanding arguments about federalism and judicial minimalism—to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy—such as partisan politics and gerrymandering—as well the absence of women in the legislative process. Key to the Court’s ruling is its claim that women are “not without” electoral and political power, citing data on women's equal or higher rates of voting in Mississippi. The Court’s conceptual account of political equality centers on voting while ignoring other modes of political participation as well as structural inequalities and barriers to women’s equal participation as candidates and legislators. When considering political candidacy and representation as measures of participation, a significant dimension of inequality between men and women emerges. Our investigation of the full dimensions of political inequality and the effects of anti-democratic distortions has important implications for those who wish to bring equal protection and other legal challenges to reproductive restrictions at the state level, and for ensuring inclusive and legitimate policymaking on reproductive rights and beyond. As scholars and commentators debate the proper role of the Supreme Court in democracy and argue for shifting rights determination to the legislative arena, an examination of the structure of the political process and whether legislatures are inclusive is crucial.

It concludes that: 

Given the importance of women’s representation in the political and policy-making process as a means of equally serving citizens, a keyway to ensure democratic inclusion is to increase the role of women, not just as voters but as legislators. However, currently women are underrepresented in almost every legislature in the world, with women in the United States having less representation than their counterparts in many democracies such as those in Europe.

 * * *

 

Dobbs’s contention that women participate equally as voters at the state legislative level ignores other important dimensions of political equality. In particular, women’s representation in politics as legislators also determines the extent to which women’s interests are granted substantive representation. So long as barriers exist to equal participation as representatives and women remain underrepresented in legislatures, women will be a politically disadvantaged group.

 

 

Illinois Legislature Limits Deceptive Practices of Pregnancy Centers

The Illinois legislature has passed a bill that amends its Consumer Fraud and Deception Act to limit pregnancy centers in the state from "interfer[ing] with or prevent[ing] an individual from seeking to gain entry or access to a provider of abortion or emergency contraception" or "induc[ing] an individual to enter or access to limited services pregnancy center."

The full text of the legislation is here: https://legiscan.com/IL/text/SB1909/id/2806523. 

For more on this legislative strategy, check out this coverage in NBC News. 

New Book A Queer History of the Woman's Suffrage Movement

Book Talk, The Hidden Queer History of Boston Suffragettes

Author Wendy Rouse unearthed the stories of queer suffragettes in her book, "Public Spaces, Secret Lives: A Queer History of the Suffrage Movement," including some who lived in Massachusetts.

She joined WBUR's Morning Edition host Rupa Shenoy to talk about the local examples of queer people in the struggle for women's voting rights.***

"People are trying to erase the existence of gay and trans people in our present. But I think it's important that history reminds us that there have always been LGBTQ people and they will always exist."

CFP AALS Feminism, The Development of Professional Identity, and Implementing ABA Standard 303(b)

The AALS Section on Women in Legal Education is pleased to announce a call for proposals for the 2024 Annual Meeting in Washington, D.C. (January 3-6, 2024).

The ABA Council on Legal Education has recently promulgated the revised accreditation Standard 303(b), focusing on the development of professional identity. The Section on Women in Legal Education invites proposals that explore the revised Standard by examining the relationship between professional identity formation and feminism, especially those which take an intersectional perspective and engage with the manner in which Standards 303(b) and 303(c) are in conversation with each other.

We encourage proposals that cover a range of issues related to this topic, including but not limited to the following: (1) the manner in which such concerns are infused through doctrinal and experiential curricula; (2) efforts to map key pedagogical goals across the entire curriculum; (3) the training that faculties are receiving (or should be receiving) to improve student learning as it relates to gender equity and professional identity formation; (4) how institutional choices regarding curricular delivery and the potential for cross-institutional collaboration can have an impact on the effectiveness of student learning; (5) the challenges presented by the effort to shape students' professional identities in the midst of controversial political settings; and crucially, (6) how "values, guiding principles, and well-being practices" – as referenced in Interpretation 303-5 – shape this conversation, especially as they relate to the commitment of the profession to gender equity and equality. What is the toolkit that institutions need during this moment of change? The ultimate goal of the Standard is to prepare students as well as possible to meet the challenges of the current and future moments, and this panel will use the lens provided by feminist concerns to engage the possibilities for achieving that objective.

Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. Visiting faculty (not full-time on a different faculty) and fellows are also eligible to apply to present at this session.

Proposals should be no more than 500 words in length.

To be considered, proposals should be emailed to Professor Tiffany C. Graham at [email protected] no later than Friday, August 4, 2023. Selected presenters will be announced by Friday, September 8, 2023. The panelists who are chosen will be responsible for paying their own AALS registration fee, hotel, and travel expenses. For more information, please do not hesitate to contact Tiffany Graham at your convenience

Wyoming Court Blocks Abortion Pill Ban in Part Because it Violates State Constitutional Right to Freedom of Choice in Health Care

In the recent decision by a Wyoming Court blocking an abortion regulation banning abortion pills, one issue debated was whether abortion is "health care." I've been writing about this issue for an upcoming article in the Journal of Law, Medicine & Ethics (Fall 2023), Protecting Abortion with Health Care Freedom of Choice about how some states have "health care freedom acts" or amendments that guarantee the right to choose health care. States in Ohio, Montana, and Wyoming have used this health freedom to declare abortion regulations unconstitutional on state grounds. The Wyoming case is Johnson v. Wyoming, No. 18732 (Wy. Dist. Ct. Aug. 10, 2022).

Wyoming Judge Temporarily Blocks State's Ban on Abortion Pills

A Wyoming judge on Thursday temporarily blocked the first state law specifically banning the use of pills for abortion, the most common method in the country.

Just over a week before the ban was scheduled to take effect, Judge Melissa Owens of Teton County District Court granted a temporary restraining order, putting the law on hold pending further court proceedings.

Ruling from the bench after a hearing that lasted about two hours, Judge Owens said that the plaintiffs, who include four health care providers, “have clearly shown probable success on the merits and that at least some of the plaintiffs will suffer possible irreparable injury” if the ban were to take effect.***

The issue of whether abortion is health care was also a significant aspect of Thursday’s hearing on the medication abortion ban. Jay Jerde, a special assistant attorney general for Wyoming, argued that even though doctors and other health providers must be involved in abortions, there are many instances when “getting the abortion doesn’t implicate health care because it’s not restoring the woman’s body from pain, physical disease or sickness.”

Judge Owens questioned Mr. Jerde’s argument. “Essentially the government under this law is making the decision for a woman,” she said, “rather than the woman making her own health care choice, which is what the overwhelming majority in Wyoming decided that we should get to do.”

 

Balancing Private and Public Interests in the Disclosure of Sexual Harassment Information

Gregory Mitchell, Balancing Private and Public Interests in the Disclosure of Sexual Harassment Information, Georgetown J. Legal Ethics (forthcoming)

Legal ethicists, advocacy groups, and politicians have called for greater restrictions on the use of nondisclosure agreements (NDAs) when parties resolve sexual assault and sexual harassment claims, and recently broad bans on the use of NDAs have been put in place. However, as shown by the original empirical research reported here, most members of the public see nondisclosure as appropriate in some cases and do not oppose bargaining over privacy. A large-scale survey found that public concern about NDAs depended on a variety of factors, including the level of compensation paid to the claimant to settle a matter, whether both parties had counsel, and whether the NDA contained an exception allowing disclosure if the accused harasses again. Furthermore, most respondents believed that the disclosure of information should be determined on a case-by-case basis, even where the alleged behavior was quite serious. NDA reforms that preserve the right of parties to bargain over privacy but condition that privacy on the accused’s good behavior would better balance private and public interests in sexual harassment information than reforms that bar any use of NDAs

Update on Abortion in Ohio: Abortion Rights on the November Ballot But Legislature Sets Special Election for August to Change Threshold for Passage to a Supermajority

Abortion is currently legal in Ohio until 22 weeks. ORC § 2919.201(A) (prohibits abortion after twenty weeks post-fertilization (22 weeks), except to prevent death or serious physical impairment.) 

A state trial court enjoined Ohio's six-week abortion ban on grounds that it violates state constitutional rights of liberty, bodily autonomy, and right to healthcare.  Preterm-Cleveland v. Yost, No. A2203203, 2022 WL 4283155 (Ohio C.C.P. Sept. 14, 2022); Preterm-Cleveland v. Yost, 2022 WL 16137799 (Ohio C.C.P. Oct. 12, 2022).  The State's appeal of the preliminary injunction was denied as premature as the trial court proceedings were not completed. Preterm-Cleveland v. Yost, 2022 WL 17744345 (Ohio App. Dec. 16, 2022). A split Ohio Supreme Court (3-3 J) then granted the appeal on limited procedural grounds to decide whether the State's appeal would be allowed and whether the plaintiff clinics and doctors had standing. 204 N.E.3d 564 (Ohio Mar. 14, 2023); see OH Supreme Court to Review Procedural Issues Related to Abortion .

Proponents of abortion rights successfully placed an initiative for a constitutional amendment to guarantee the right to choose an abortion on the November 2023 ballot. Ohio Right to Make Reproductive Decisions Including Abortion Initiative (2023)

Opponents challenged the language of the initiative. The Ohio Supreme Court upheld that challenge and required a rewording of the ballot language. One Person One Vote et al. v. Ohio Ballot Bd, 2023 WL 3939006 (Ohio June 12, 2023). 

Meanwhile, the state legislature proposed a new constitutional amendment to change the one-hundred year old threshold for passing constitutional amendment initiatives from 50% plus one to 60%, thus requiring a supermajority. The Next Red State Abortion Fight is Unfolding in Ohio

The legislature then set a special election for August 8, 2023, to vote on the supermajority initiative, hoping to have the higher bar in place before the vote on abortion.  NPR, Ohio Constitution Question Aimed at Foiling Abortion Rights Push Heads to Vote

The Ohio Supreme Court upheld the calling of a special election. One Person One Vote v. LaRose, 2023 WL 4037602 (Ohio June 16, 2023) (upholding special election); Ohio Supreme Court Rules in Favor of August Election that could preserve abortion ban.

OH Court Overturns Conviction of Pregnant Woman for Drug Use

Michelle Onello, Ohio Court Overturns Conviction of Pregnant Woman for Drug Use

An Ohio court of appeals unanimously overturned a pregnant woman’s conviction under the state’s “Corrupting Another with Drugs” law earlier this month, in a rare post-Dobbs win for the rights of pregnant people.

Extensive evidence shows criminalizing pregnant women for substance abuse endangers them and jeopardizes their babies’ well-being. Even still, prosecutors in Ohio—and elsewhere—have increasingly sought to “protect” fetuses by prosecuting pregnant women for their actions, manipulating state laws initially passed to protect pregnant people themselves from harm.

The Ohio case involved Tara Hollingshead, who voluntarily admitted to using fentanyl while in labor at an Ohio hospital. Prosecutors took the aggressive step of charging Hollingshead under an Ohio law that dictates no person shall “by any means, furnish or administer a controlled substance to a pregnant woman or induce or cause a pregnant woman to use a controlled substance, when the offender knows that the woman is pregnant or is reckless in that regard.”

The move marks the first time that Ohio prosecutors used this law to prosecute a pregnant person for the personal use of controlled substances. Prosecutors made the novel argument that, even though the law is entitled “Corrupting Another with Drugs,” the law was applicable to pregnant people who administered the drugs to themselves. A jury had previously convicted Hollingshead of a first-degree felony in April 2022, sentencing her to a mandatory eight to 12 years in prison.

Hollingshead appealed her conviction, arguing that the law was misapplied to criminalize pregnant people who were never intended to be covered under the law. The three-judge panel agreed, holding that personal drug use was outside the scope of the law and that the prosecutor’s interpretation of the statute was unreasonable, as it requires “use of the terms administer, furnish, induce and cause in ways that are inconsistent with common usage.” Further, the prosecutor’s interpretation would make Hollingshead both an offender and simultaneously a victim, thus entitled to restitution from herself, which the court acknowledged would be an “absurd result.”

Prosecutor Ron Welch vowed to appeal the ruling: “We were hoping that by use of this law we could be able to limit some of the mothers that continually have drug-addicted babies.” He also called on lawmakers to “untie” law enforcement’s hands, since the “laws that we have in place right now just are not good enough.”

 

CFP 2024 AALS Annual Meeting The Challenges of Teaching in a Time of Rising LGBTQ Hostility

Call for Proposals for 2024 AALS Sexual Orientation and Gender Identity Issues Pedagogy Program:  "The Challenges of Teaching in a Time of Rising LGBTQ Hostility"

Over the past couple of years, states throughout the country have passed a series of increasingly extreme restrictions on LGBTQ people, from prohibiting gender-affirming care for transgender people to attempting to prohibit discussion of sexual orientation and gender identity in public schools. Institutions of higher education are also the subject of legislation claiming to eliminate critical race theory, queer theory, and other points of view demonized as "woke" or harmful.

Many AALS schools are located in states passing such laws, and professors at those schools are called upon to teach about issues relating to discrimination facing the LGBTQ community when that community is directly under attack. Professors may feel personally threatened or professionally threatened by limits on their academic freedom. The Section on Sexual Orientation and Gender Identity Issues of the Association of American Law Schools will hold a program on pedagogy, "The Challenges of Teaching in a Time of Rising LGBTQ Hostility," to provide space to discuss the challenges arising from these current political changes.

We welcome submissions from law faculty, staff, and administrators at all stages of their careers. Submissions of abstracts of not more than 500 words are due on or before Monday August 7, 2023, and should be sent to Michael Higdon at [email protected]. For more information, please do not hesitate to contact Michael Higdon

CFP 2024 AALS Annual Meeting Legislative Attacks on LGBTQ Equality

Call for Proposals for 2024 AALS Sexual Orientation and Gender Identity Issues Main Program:   "Legislative Attacks on LGBTQ Equality"

Throughout the United States, members of the LGBTQ community are increasingly threatened by legislation aimed at erasing their identity at best and denying them essential civil rights and protections at worst.  Accordingly, the Section on Sexual Orientation and Gender Identity Issues of the Association of American Law Schools is pleased to announce its main program, "Legislative Attacks on LGBTQ Equality" panel, which will be held in person in Washington D.C. in January 2024. We welcome presentations in any stage that examine and consider issues broadly related to these issues.  Topics may include bans of gender-affirming care for transgender children and adults, curriculum laws restricting coverage of LGBTQ issues in public schools, access to PrEP and other HIV prevention medications, criminalization of drag performances, etc.

We welcome submissions from law faculty, staff, and administrators at all stages of their careers. Submissions of abstracts of not more than 500 words are due on or before Monday August 7, 2023, and should be sent to Michael Higdon at [email protected]. For more information, please do not hesitate to contact Michael Higdon.

Gender Equality Provisions in Trade Agreements

Katrin Kuhlmann & Amrita Bahri, Gender Mainstreaming in Trade Agreements: ‘A Potemkin Façade’? in Making Trade Work for Women: Key Learnings from the World Trade Congress on Gender, Forthcoming (forthcoming September 2023)

The distributional outcomes of trade agreements have historically been uneven, creating both “losers” as well as “winners” and benefitting certain stakeholders while leaving others without benefits or even with negative repercussions. In particular, distributional outcomes can vary between women and men, since they play different roles in society, markets, and economies, and they enjoy different opportunities as well. At times, and sometimes by their very nature, trade agreements can restrict opportunities for women and further increase the gender divide. But in recent years, there has been a drastic upsurge in the number of countries that are incorporating commitments on gender equality in their trade agreements.

Currently, of all free trade agreements in force, around one-third have at least one explicit provision relating to gender equality. Yet almost no trade agreement so far contemplates how gender-related commitments could be implemented or enforced, and no trade agreement approaches gender on a holistic level that can meaningfully address distributional issues. Most legal provisions incorporated in trade agreements so far have been drafted in the spirit of best endeavor cooperation and are often blamed for being mere “Cinderella” provisions. In order to reverse the distributional inequities, a more comprehensive approach based on women’s roles and economic realities is needed, as is further research on what would improve distribution of opportunities for women. With more and more countries considering gender mainstreaming, this raises an important question: Is “gender mainstreaming” in trade agreements used as a “Potemkin Facade” to hide larger distributional issues? This paper will not fully answer this question, but it will expand upon possibilities and offer reflections to spark debate and discussions on this concern.

Ninth Circuit Says Playing Offensive Music of Gender Violence in the Workplace Can Constitute a Hostile Environment

Wash Post, Court Says Playing Offensive Music Can Constitute Workplace Harassment 

Inside a Nevada clothing warehouse, a song describing a woman’s murder blasted from commercial-strength speakers, as did other musical selections glorifying abuse and denigrating women, a lawsuit alleged.

The rap music would often overpower the 700,000-square-foot S&S Activewear facility in Reno — and helped foster an environment rife with discrimination and harassment, according to the suit, which was filed in 2020 by eight former employees, including seven women and one man.

That lawsuit was initially tossed out in December 2021 by a lower court, which argued that, since the music offended both men and women, it “did not constitute discrimination because of sex.” Last week, the U.S. Court of Appeals for the Ninth Circuit rejected that notion — ruling that “an employer cannot find safe haven by embracing intolerable, harassing conduct that pervades the workplace,” Judge M. Margaret McKeown wrote in a court opinion.***

According to the lawsuit, the blaring music was “inescapable” inside the Reno warehouse, where at least five speakers were often driven around on forklifts. The employees alleged that they were subjected to songs by Eminem and Too Short that they said glorified violence against women, for instance describing a young girl dying after a graphic instance of sexual violence.***

But it wasn’t just the music that was offensive, the suit alleged — it was also the behavior it inspired in male employees, who allegedly shared pornographic videos, made sexual remarks, yelled obscenities and pantomimed sexual intercourse while the songs played.

The Evolving Concept of Gender and Intersectional Stereotypes in International Norm Creation and AI

Rangita de Silva de Alwis, The Evolving Concept of Gender and Intersectional Stereotypes in International Norm Creation: Directions for a New CEDAW General Recommendation, U. Penn. J. Law & Public Affairs (forthcoming) 

A mapping of recent Concluding Observations issued to States parties by the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), the Committee on the Rights of Persons with Disabilities (CRPD), and the Committee on the Elimination of Racial Discrimination (CERD) provides an analysis of the evolving human right standard by which to examine gender and intersectional stereotypes. The mapping exercise focused on cultural practices and gender stereotypes in the Concluding Observations reveals the CEDAW Committee is more likely than any other above-mentioned treaty body to discuss stereotypes. This provides us with a textual understanding of how stereotypes, culture and traditional practices often overlap and intersect. While gender stereotypes have replaced more overt forms of gender discrimination, these subtle stereotypes constitute different challenges as they are less visible to the untrained eye. The second part of the paper examines how a new generation of stereotypes are being baked into Artificial Intelligence (AI) through AI training data. While writing this paper, Open AI released ChatGPT and other Generative AI and Large Language Models which demand critical examination for emerging forms of gender bias. Last summer, Satya Nadella, the CEO of Microsoft, known for his love of poetry, previewed Open AI’s newest model on Generative AI and asked the chatbot to translate the Persian poet Rumi into Urdu, and then English. He recalls that he exclaimed: “God, this thing.”

Despite the strides in AI innovation, the dangers of potential gender bias are real. Prometheus stole fire from the Greek Gods and was punished for his folly and hubris. He still provided humans with the fire of life and was pardoned by the great Zeus himself. As much as these new technologies have the potential for great good and can advance medicine, science, health care, food security and other forms of human endeavor, they also have great potential for harm and pose risks to human rights. The CEDAW’s new General Recommendation (GR) 40 and the GR 41 (in the pipeline) can create important new normative frameworks that propose a human right-based approach to mitigate the emerging gender stereotypes of new technologies.