Wednesday, August 30, 2023

The Fetal Personhood Movement as Eradicating the Legal Personhood of Women

Meghan Boone & Benjamin McMichael, Reproductive Objectification, Minnesota L. Rev. (forthcoming)  

The American system of rights is individualized – premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate and autonomous.

This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person conceptually precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object – a reproductive vessel, merely the container for another individual rights’ holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the “maternal-fetal conflict” and undermine pregnant people’s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome – undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety.

August 30, 2023 in Abortion, Pregnancy, Theory | Permalink | Comments (0)

Judicial Dark Matter and the Continued Gender and Racial Inequalities on Federal Appellate Panels

Nina Varsava, Keith Carlson, Michael Livermore & Daniel Rockmore,  Judicial Dark Matter, 91 U. Chicago L. Rev. (forthcoming)  

Judicial reform efforts aimed at rectifying historical gender and racial inequalities understandably focus on increasing the number of women and people of color on the bench. While this is an important program, this Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments. This problem has to do with the understudied and largely covert practices of judicial administration. Through a large-scale empirical study of federal appellate decisions, we examine the distribution of judges along the lines of gender and race across decision panels and find systematic gender and racial biases in representation. We argue that these imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, which results in concerning distortions in reported cases. This is the first study of the representation and distribution of judges by gender and race across decision panels. Ultimately, our findings suggest that assessing the distribution of legal power and influence across gender and racial groups based on the numbers of judges from these groups serving on the bench may be misleading and may create an inflated sense of the influence of judges from historically underrepresented groups. The diversity reform agenda, then, as it is typically cast in the scholarly literature, the political sphere, and the popular media alike, is incomplete. One cannot hope to understand how representation translates into power nor to remedy demographic power imbalances in the judiciary without attending to the features of judicial administration examined here. We propose reforms to judicial administration aimed to protect against the kind of demographic biases in representation that we uncover.

August 30, 2023 in Courts, Gender, Judges, Race | Permalink | Comments (0)

Defining "Woman"

Camille Hebert, Defining Women, J. Gender, Race & Justice (forthcoming) 

The current debate about the meaning of the term “woman” has become a proxy for the culture wars over the rights of sexual and gender minorities, with social conservatives claiming that “sex” has traditionally meant “biological sex” and that the determination of one’s sex can easily be resolved by resort to biology. Progressives, on the other hand, argue for a broader definition of “sex,” to include gender identity. It has sometimes been assumed that the social conservatives have history on their side, but this article demonstrates that the courts, including the United States Supreme Court, have not traditionally defined “sex” in such a way as to protect only “biological sex”—better understood to mean sex assigned at birth. Instead, the courts have long interpreted statutory and constitutional prohibitions against sex discrimination to apply to a range of gender-related and sex-related characteristics, including compliance with traditional gender norms and gender roles. This article also demonstrates that the social conservatives do not have science on their side, because current understandings of biology do not support a strict male and female binary. In addition, gender identity itself is believed by scientists to have a biological basis, such that gender identity is a component of sex as defined by biology.

As state and federal legislators and some courts seek to define “sex” narrowly to mean sex assigned at birth, these efforts pose real and significant threats to the rights of transgender individuals to obtain appropriate identification documents, to use public spaces, to obtain healthcare, and to engage in other activities that cisgender individuals take for granted, including the right to participate in sports. And although these efforts are often said to be motivated by a desire to protect women, if “sex” is defined narrowly to mean sex assigned at birth, the protections that cisgender women and men are afforded by the anti-discrimination and other laws are likely to be narrowed as well. These efforts should be seen as what they are—an effort to impose a narrow and limiting definition of the meaning of “sex” in order to restrict protections for the sex-based and gender-based characteristics of all individuals and to impose their own notion of what it means to be “a woman.”

August 30, 2023 in LGBT, Science, Theory | Permalink | Comments (0)

Monday, August 28, 2023

Kashyap on "A Critical Race Feminism Critique of Immigration Laws that Exclude Sex Workers: Moving from Theory to Praxis"

Monika Batra Kashyap has published A Critical Race Feminism Critique of Immigration Laws that Exclude Sex Workers: Moving from Theory to Praxis in volume 38 of the Berkeley Journal of Gender, Law & Justice (2023). The abstract is here: 

This Article is the first to apply a critical race feminism (CRF) critique to the current immigration law in the United States, Immigration and Nationality Act (INA) § 212(a)(2)(D)(i), which excludes immigrants for engaging in sex work. This Article will use critical historical methodology to center the role of women of color as the primary targets of not only the first federal law to criminalize sex workers, but also the first explicitly racist immigration law in United States history. The Article will also employ theories of anti-essentialism and intersectionality to show how INA § 212(a)(2)(D)(i) both silences the voices and experiences of women of color sex workers and refuses to recognize the impacts of multiple intersecting systems of oppression. Finally, the Article will connect the critique of INA § 212(a)(2)(D)(i) to the anti-carceral feminist movement to decriminalize sex work in order to move from theory to praxis, and to inspire advocacy strategies and law reform efforts that point to a broader project of transformation. The ultimate goal of this Article is to strengthen links between critical race and immigration law scholarship so that scholars can continue to use CRF as an exploratory analytical tool to examine the intersections of race, class, and gender within immigration law.

August 28, 2023 in International, Race | Permalink | Comments (0)

Thursday, August 24, 2023

Sologamy, The Increasingly Important Social Identity of Singlehood


Naomi Cahn, Singlehood, Wash. U. J. Law & Policy (forthcoming 2024)

Singlehood is becoming an increasingly important social identity category. Thousands of people are members of Facebook groups such as I am my Own Soulmate or Community of Single People. Sologamy, marrying oneself is on the rise. The growing social movement to bring attention to voluntarily single people is creating pressure on the law.

Single people are also highly visible when it comes to categories for the allocation of government benefits: eligibility requirements may well differ based on whether an applicant is single or married. This occurs, for example, in the qualifications for long-term care under Medicaid or various public welfare benefits, the availability of portability in utilizing the estate and gift tax, or even in the choices for filing income tax returns. This categorization reflects core assumptions about the privatization of dependency during marriage rather than taking singlehood seriously.

Nonetheless, this legal treatment and the growing number of voluntarily single people lead to questions about whether singlehood should be a distinct legal category, a basis for analyzing legal distinctions. Indeed, single people are still not yet adequately explored in legal scholarship. This may be a reflection of cultural (and legal) images of single people that are often negative: single people are lonely, have not yet met the right person, are reluctantly un-partnered, singlehood status is seen as something that is temporary and subject to control—or a reflection that singlehood is such an indeterminate legal category, difficult to define, that it would be too difficult to establish it as a distinct category.

August 24, 2023 in Family, Pop Culture, Theory | Permalink | Comments (0)

Wednesday, August 23, 2023

Sexual Violence and Gender-Based Harm in Women's Prisons

Jenny-Brooke Condon, #MeToo in Prison, 98 Wash. L. Rev. (forthcoming 2023)  

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment. For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison. Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.

PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice. And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis. Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic. This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm. As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States. At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades. New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake.

Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group. The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff. It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons. This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm.

August 23, 2023 in Violence Against Women | Permalink | Comments (0)

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

Monday, August 21, 2023

Lawsuit Challenges U.S. Dept. of Veteran's Affairs' Policy Limiting Access to IVF

The National Organization for Women is suing the United States Department of Veteran's Affairs over its policy limiting access to in vitro fertilization to only opposite-sex and married couples. For news coverage of the lawsuit, check out 19th News here.  The complaint alleges that the existing policy requires as follows:

6. Veterans and service members seeking coverage of IVF treatments must, together with a spouse, be able to provide their own sperm and eggs and are prohibited from using gametes from third parties (“Member Gamete Requirements”). Defendants’ policy also limits the benefit to service members and veterans who are lawfully married (“Marriage Requirements”).


7. Additionally, no matter how much an active-duty service member struggles with fertility, only active-duty service members with a “serious or severe” illness or injury from service can access IVF. Similarly, only veterans with infertility diagnosed as “service-connected” can receive IVF from VHA (“Service-Connection Requirements”).


8. The IVF policies facially exclude service members who are a) single or in an unmarried couple; b) unable to use their own eggs or sperm because of illness or injury; c) in a same-sex couple or couple with the same reproductive organs; or d) lacking a service-connected disability or Category II or III illness causing infertility.


The complaint alleges that this policy is discriminatory and it seeks injunctive and declaratory relief: 

9. By excluding service members and veterans from IVF coverage on the basis of sex, sexual orientation, marital status, and/or the cause of their infertility, Defendants’ discriminatory policies violate Section 1557 of the Affordable Care Act, the due process and equal protection guarantees of the Fifth Amendment of the Constitution, and the Administrative Procedure Act.


* * *  


11. NOW-NYC seeks injunctive and declaratory relief on behalf of itself and its members enjoining Defendants from enforcing the discriminatory eligibility provisions of their IVF policies and declaring those provisions unlawful, so that no service member or veteran is denied the care they need to start a family solely because of who they love, their choice whether or not to marry, or the precise source of their fertility challenges. Specifically, NOW-NYC asks that this court declare unlawful and permanently enjoin Defendants from enforcing the Marriage Requirements, the Member Gamete Requirements, and the Service-Connection Requirements (collectively, the “Discriminatory Provisions”).


The full complaint is available here. 


August 21, 2023 in Courts, Equal Employment, Healthcare, Pregnancy, Reproductive Rights, Same-sex marriage, Science | Permalink | Comments (0)

Bridget Crawford on "Pink Taxes and Other Tropes"

Bridget J. Crawford has published new work titled Pink Taxes and Other Tropes in volume 34 of the Yale Journal of Law & Feminism (2023). Here is an excerpt from the article's abstract:

The “pink tax” is an overarching description of related manifestations of gender inequality: the gender wage gap, gender-based pricing differences in consumer goods or services, disproportionate expenses incurred by a large portion of the population for safe travel or to maintain stereotypically “feminine” appearances, and unequal time burdens experienced by those responsible for households or caregiving. Note at the outset that the majority of existing research in the field deploys a binary understanding of gender as cis male and cis female. In relying on that research, this Article builds a more nuanced account of the complex operation of discrimination on the basis of gender. Such discrimination limits all people, regardless of whether and how they do (or do not) fit within narrow categories. This Article builds to the argument that only one manifestation of the “pink tax,” as a description for the state sales tax on menstrual products, has been well-served by a tax shorthand phrase. “Tampon tax” talk has fueled litigation and advocacy efforts; it has led to law reform in at least eleven jurisdictions, with more states expected to follow. Indeed, generalized “pink tax” rhetoric describing figurative taxes likely will not, on its own, lead directly to legal change. For that reason, at least when arguing for law reform, gender equality advocates should not over-rely on “pink tax” talk or figurative tax tropes.

August 21, 2023 in Gender, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Jordi Goodman on "Ms. Attribution: How Authorship Credit Contributes to the Gender Gap"

Brian Frye's podcast, Ipse Dixit, featured Jordi Goodman talking about a recent article titled Ms. Attribution: How Authorship Credit Contributes to the Gender Gap.  The abstract on SSRN is excerpted here: 

Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers has been criticized in the literature as unethical. This practice presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.


This Article fills that space by offering a quantitative and theoretical analysis of gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior most legal team member signs on behalf of the team. This work illustrates that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. The gender gap in the legal profession is exacerbated through this practice by falsely implying that women do less work, are more junior, and do not deserve as much credit as their male colleagues.


Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy de facto and de jure discrimination.



August 21, 2023 in Scholarship | Permalink | Comments (0)

Friday, August 18, 2023

The Continued Invisibility of Cyber Gender Abuse

Danielle Keats Citron, The Continued (In)visibility of Cyber Gender Abuse, Yale Law Journal Forum, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2023-57

For too long, cyber abuse has been misunderstood and ignored. The prevailing view is that cyber abuse is not “really real,” though in rare cases authorities take it seriously. Justices of the U.S. Supreme Court, for instance, demanded and received extra protection for themselves after facing online threats, but, in oral argument, dismissed a woman as “overly sensitive” for reporting hundreds of threatening texts to law enforcement. In other words, protection for me (the powerful) but not for thee. For everyday women and minorities, cyber abuse is unseen and unredressed, due to invidious stereotypes and gender norms. Empirical proof now exists that makes non-recognition difficult to justify. Studies show that cyber abuse is widespread, the injuries profound, and disproportionately borne by women, who often have intersecting disadvantaged identities. (Hence, the moniker cyber gender abuse). After years of advocacy and scholarship, it pains me to acknowledge the continued invisibility of cyber gender abuse, but progress is possible if we recognize our failings and commit to structural reform. Internet exceptionalism must end for the businesses best situated to prevent destructive cyber gender abuse. Congress should condition the immunity afforded content platforms on a duty of care to address cyber gender abuse and eliminate the legal shield for platforms whose business is abuse. Companies must commit to safety by design as a core principle.

August 18, 2023 in Violence Against Women | Permalink | Comments (0)

New Systemic Approaches to Understanding Gender Violence

Deborah M. Weissman, Gender Violence as Legacy: To Imagine New Approaches, 20 UC Law SF J. Gender & Justice 55 (2023)  

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to social theories about harm. That is, to understand the political economy as the structural environment from which the social pathology of inequality originates--a factor inextricably related to IPV--as a legacy of colonialism and slavery and suggests that these matters are best considered in historical context and addressed through tools and approaches offered by restorative and transformative justice approaches (RJ/TJ). RJ/TJ.

It is useful to contextualize the origins of social ills as outcomes of historical relationships associated with colonialism. Colonial systems summoned into existence racial hierarches and patriarchal forms through which they exerted power and have shaped the current political economic landscape, including the character of the harms endured by communities, families, and individuals. The consequences of wealth extraction, labor exploitation, and the attending ideological rationale contributed to the immiseration of vast numbers of people as a matter of racial and gender categories. Stratification economics debunks the notion that subordination is a consequence of individual or group failings or self-defeating behaviors and demonstrates the durability of the harms of the theft of wealth and resources in its many forms. William Darity explains that the “existence--indeed persistence--of income, but especially wealth [] inequalities” is “the central problem” that affects social disorders.

An examination of the workings of colonialism has added a new understanding of oppressive gender hierarchies and the violence that may follow gender inequality. For instance, patriarchy derived from colonial invocations of the absolute authority of a monarchy created deep gender divisions manifested in the subordination of women. Colonialism shaped ideologies of masculinities to “produce[] a cultural consensus in which political and socio-economic dominance symbolizes the dominance of men and masculinity over women and femininity.” Colonialism also has resulted in “the enforcement of gendered and racial differences from the most intimate of circumstances--within households and families--to the most public.” Expansion of colonialism in the United States extended patriarchal norms on many indigenous communities through the imposition of “male dominance in societal arrangements” Settler colonialism often disenfranchised Native American women from previously established matriarchal systems and practices that were demonstrated to mitigate IPV.

The historical sources of inequality and the shaping of gender hierarchies traced to systems of colonialism suggest new ways for advocates to address the structural sources of these harms. RJ/TJ approaches are well-positioned to deploy historical analyses to address the systemic factors to which carceral responses ignore. RJ/TJ strategies can address the more immediate harms of IPV while seeking structural changes related to past harms.

August 18, 2023 in Theory, Violence Against Women | Permalink | Comments (0)

Ninth Circuit Says Law Banning Transgender Students is Likely Unconstitutional

ABA J, Law Banning Transgender Students from Female Sports Likely Unconstitutional, Ninth Circuit Says

A federal appeals court on Thursday ruled for a transgender college student who challenged an Idaho law that bars transgender athletes from participating in women’s and girls' student sports in public schools.

The 9th U.S. Circuit Court of Appeals at San Francisco upheld a finding that the law likely violates the equal protection clause, according to an Aug. 17 press release by the American Civil Liberties Union.

Bloomberg Law has coverage.

The appeals court ruled for Lindsay Hecox, a student at Boise State University who wanted to try out for the cross-country team and play club soccer.

The 9th Circuit upheld an injunction banning enforcement of the Idaho law, the Fairness in Women’s Sports Act. The law bars all transgender women and girls from participating in or trying out for public school female sports teams at every age—from intramural to elite teams.

The law provides for a verification process that can be invoked by a person who wants to dispute another person’s sex. The process requires “intrusive medical procedures,” the appeals court said in an Aug. 17 opinion by Judge Kim McLane Wardlaw.

The American Civil Liberties Union had filed the lawsuit, along with the ACLU of Idaho, Legal Voice and Cooley.

The case is Hecox v. Little.

August 18, 2023 in Constitutional, Education, LGBT, Sports | Permalink | Comments (0)

Thursday, August 17, 2023

Analyzing the Glass Ceiling of the NCAA's Name, Image and Likeness Rule under Title IX

Tanyon Boston, The NIL Glass Ceiling, Richmond L. Rev. (forthcoming)  

On July 1, 2021, the National Collegiate Athletic Association (NCAA) adopted the most progressive reform in modern intercollegiate athletics history when it conceded the right of nearly 500,000 NCAA athletes to monetize their names, images and likenesses (NILs). This historic reform followed the enactment of dozens of state laws on the topic and a unanimous Supreme Court decision in NCAA v. Alston, which held that the national governing body violated antitrust laws with its restrictions on athletes’ educational, and perhaps other, benefits. Almost immediately, wealthy University of Texas donors established an unprecedented $10,000,000 collective to finance NIL opportunities for Longhorns athletes. Today, there are over one hundred collectives, whose NIL opportunities favor men’s sports by a ratio of over five-to-one. Such enormous disparities in privately financed NIL send women discouraging messages about the state of gender equity, not only in intercollegiate athletics, but also in the workplace – where women face similar glass ceilings.

Although legal scholars have written extensively on the antitrust, labor and tax law implications of NIL, very little scholarship exists on the Title IX implications. In seeking to fill the gap, this Article uses a hypothetical state university to illustrate how schools facilitate gender discrimination through NIL collectives, contrary to Title IX. After exploring the implications of Title IX’s regulatory gap with respect to NIL, this Article introduces three proposals to close the gap.

August 17, 2023 in Education, Sports | Permalink | Comments (0)

Fla College Moves to Dismantle Gender Studies Arguing it is Not an Area of Academic Study

Chronicle, New College of Florida's Board Starts to Dismantle Gender Studies

Earlier this year, the conservative activist and writer Christopher F. Rufo proclaimed that intolerant left-wingers had essentially captured New College of Florida, the state’s designated honors college. As a newly appointed trustee, Rufo employed the rhetoric of battle in describing his effort to right the ship:

“We will plunge into a period of inevitable conflict and controversy, with determination to advance the interests of the people of Florida ... to demonstrate that there is a way out of the institutional hostage crisis,” he wrote in City Journal.

During a board meeting Thursday, Rufo lobbed a grenade. He made a motion — which ultimately passed — to “direct the president and staff to take the necessary and proper steps to terminate the gender-studies program, beginning with the 2024 enrollees.”***

Rufo said that the gender-studies program was not compatible with the Board of Trustees’ mission of reviving a “classical liberal-arts education” at New College. During the 35-minute discussion of his motion, he argued that there is “great historical precedent” at other colleges for abolishing academic programs that “stray from their scholarly mission in favor of ideological activism.”***

Matthew Spalding, a trustee, echoed Rufo’s criticism of gender studies. “It’s not within the liberal arts, and it’s more of an ideological movement than an academic discipline,” said Spalding, dean of Hillsdale College’s Graduate School of Government, in Washington D.C., who was appointed to the board by DeSantis.

“It’s a mishmosh of things,” Spalding said at another point in the meeting. “Read the website — I have no idea what it’s about. It’s very confused.”

Mark Bauerlein, another DeSantis appointee and a professor emeritus of English at Emory University, in Georgia, said that while he’s not “against” gender studies, he does not think it should be an “independent disciplinary entity.”

During the meeting, Reid argued that gender studies is an established discipline at many higher-ed institutions. Some New College students take courses in gender studies because, for them, it is a “significant component of a liberal-arts degree,” she added

August 17, 2023 in Education | Permalink | Comments (0)

Conference The Jurisprudential Legacy of Justice Ruth Bader Ginsburg

Conference Announcement: The Jurisprudential Legacy of Justice Ruth Bader Ginsburg

Join us online or in-person on Sept. 22, 2023 for a discussion focusing on The Jurisprudential Legacy of Justice Ruth Bader Ginsburga new book examining Justice Ginsburg’s remarkable career, with a focus on the common themes and approaches underscoring her decisions across several subject matters. Contributing authors will discuss areas of the law in which Justice Ginsburg had an outsized interest or impact and which illustrate her long and celebrated judicial career.  More information, including speakers and topics, is available here.  The event is free, but registration is required.  Register here.

Speakers and Topics 

Deborah L. Brake, Gender and the Law

Melissa L. Breger, Criminal Procedure 

Elizabeth G. Porter and Heather Elliott, Civil Procedure 

Kirin Goff, Health Law 

Jill I. Gross, Arbitration 

Vinay Harpalani and Jeffrey D. Hoagland, Race and the Law

M. Isabel Medina, Citizenship and Immigration

Maria C. O’Brien, Employee Retirement Income Security Act 

W. Keith Robinson, Patent Law

JoAnne Sweeny, Freedom of Expression

Ryan Vacca, Copyright Law 

Mary Jo Wiggins, Bankruptcy


The Jurisprudential Legacy of Justice Ruth Bader Ginsburg

August 17, 2023 in Books, Conferences | Permalink | Comments (0)

Tuesday, August 15, 2023

The Empirical Evidence for a New Approach to Regulating Sexual Harassment

Jennifer Ann Drobac & Mark Russell, Unmasking Sexual Harassment: The Empirical Evidence for a New Approach, 17 N.Y.U. J.L. & BUS. 315-390 (2021)

If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power—key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.

August 15, 2023 in Equal Employment, Workplace | Permalink | Comments (0)

New Book Equality Unfulfilled: How Title IX's Policy Design Undermines Change to College Sports

New Book by Elizabeth Sharrow About Title IX "Equality Unfulfilled" is Published

Elizabeth Sharrow, associate professor of public policy and history, has published a new book, “Equality Unfulfilled: How Title IX’s Policy Design Undermines Change to College Sport” (Cambridge University Press, July 2023), examining the half-century legacy of the law’s passage.

As Sharrow and co-author James Druckman of Northwestern University explain in the book, the year 1972 is often hailed as an inflection point in the evolution of women’s rights. Congress passed Title IX of the Education Amendments of 1972, a law that outlawed sex-based discrimination in education. Many Americans celebrate Title IX for having ushered in an era of expanded opportunity for women’s athletics, yet 50 years after its passage sex-based inequalities in college athletics remain the reality. “Equality Unfulfilled” explains why, identifying institutional roadblocks – including sex-based segregation, androcentric organizational cultures and overbearing market incentives – that undermine efforts to achieve systemic change.

Drawing on surveys with student-athletes, athletic administrators, college coaches, members of the public and fans of college sports, it highlights how institutions shape attitudes toward gender equity policy. It offers novel lessons not only for those interested in college sports but for everyone seeking to understand the barriers that any marginalized group faces in their quest for equality.



The cover art for the book Equality Unfulfilled by Elizabeth Sharrow

August 15, 2023 in Books, Education, Legal History, Sports | Permalink | Comments (0)

Eight States Could Amend Constitutions in 2024 to Protect Abortion Rights

Carrie Baker, Ms., AZ Ballot Measure in 2024 Elections Could Protect Abortion

The proposed Arizona amendment was announced the same day Ohio voters resoundingly rejected Issue 1, which would have made it harder to amend the state constitution—including a ballot measure that seeks to ensure the constitutional right to abortion, which will now officially appear on the ballot for Ohio voters in November. “Republicans should be ashamed of their efforts to subvert the will of voters,” NARAL Pro-Choice America said in a statement on Tuesday night about the vote. “Seeing this measure defeated is a victory for our fundamental rights and our democracy.”

Seven other states could join Arizona in voting on abortion-rights ballot initiatives in 2024. Already, the 2022 election season saw six ballot measures on abortion across the U.S.—and in all of them, the pro-abortion rights position passed decisively. These citizen-led initiatives en masse show that American voters are making the connection between abortion access and principles of democracy, and voting accordingly.

August 15, 2023 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)