Monday, December 18, 2023

Legal Scholar Amicus Brief Argues to Sustain or Increase Scrutiny Level for Transgender Inmate

Kyle Velte, Ezra Young, Jeremiah Ho, M. Dru Levasseur, Nancy Marcus, Dara Purvis, Eliot Traez, Ann Tweedy, Brief Amici Curiae Legal Scholars of Sex and Gender In Support of Plaintiff-Appellant

This amicus brief was filed in Griffith v. El Paso County, Colorado, case no. 23-1135 (10th Circuit) in support of appellant Darlene Griffith. Amici curiae are legal scholars of sex and gender. They offer expertise in their personal capacities to assist the Court of Appeals for the Tenth Circuit in assessing whether the El Paso County Sheriff officials violated Ms. Griffith’s Fourteenth Amendment right to equal protection when they refused to house Ms. Griffith, a transgender woman, in the women's unit of the El Paso County Jail as a pretrial detainee.

December 18, 2023 in Constitutional, Courts, Gender, LGBT | Permalink | Comments (0)

Tuesday, December 12, 2023

Legal Experts Examine Controversial Forensic Test That Has Helped Convict Women of Murder for Stillbirth

Legal Experts to Examine a Controversial Forensic Test That Has Helped Convicted Women of Murder

Legal experts from two universities will convene a group to study a dubious forensic test that has helped send some women to prison for murder though the women insisted they had stillbirths.

Last month, ProPublica reported on what’s known as the lung float test, which some medical examiners use to help determine whether a child was stillborn or was born alive and took a breath.

In response to the investigation, Aziza Ahmed, a professor at Boston University School of Law, and Daniel Medwed, professor of law and criminal justice at Northeastern University, announced they will lead the Floating Lung Test Research Study Group. The group, which will consist of lawyers and medical professionals, will be sponsored by the Boston University Program on Reproductive Justice and the Center for Public Interest Advocacy and Collaboration at Northeastern University School of Law.

December 12, 2023 in Courts, Healthcare, Pregnancy | Permalink | Comments (0)

Frontier Airlines Settles Pregnancy and Breastfeeding Discrimination Lawsuit

Frontier Airlines Settles Pregnancy, Breastfeeding Discrimination Lawsuit

Frontier Airlines will settle a federal lawsuit filed by five pilots who accused the Denver-based airline of discriminating against them during pregnancy and while breastfeeding.

Through the settlement, Frontier will allow pilots to pump breastmilk in the cockpit during noncritical phases of a flight and will update or comply with existing policies that impact pregnant and lactating employees.

It is one of the first airlines to allow pilots to pump during flights, according to a Monday news release from the American Civil Liberties Union, ACLU of Colorado, Denver-based legal nonprofit Towards Justice and the firm Holwell Shuster & Goldberg.

Settling the lawsuit filed in December 2019 “does not admit any liability” by Frontier, according to the news release.

In a statement, ACLU Center for Liberty staff attorney Aditi Fruitwala said the organization is proud to come to an agreement that will benefit pregnant and lactating workers now and in the future.

December 12, 2023 in Business, Equal Employment, Family | Permalink | Comments (0)

Feminist Judgments: Immigration Opinions Rewritten

Kathleen Kim, Kevin Lapp & Jennifer Lee, Feminist Judgments: Immigration Opinions Rewritten (Introduction),  
Feminist Judgments: Immigration Law Opinions Rewritten , pp. 1 - 14, Cambridge University Press, 2023

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race, and intersectional insights to Supreme Court opinions. Feminist reason values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

December 12, 2023 in Books, International, Theory | Permalink | Comments (0)

Monday, December 11, 2023

Marcy Karin on "Dignified Menstruation at Work?"

The American Bar Association featured Marcy Karin's work The Right to Dignified Menstruation at Work? here. Karin's work recommends:   

Menstruation and menopause need not be dirty words at work. Existing U.S.-based legal supports already apply some support to workers addressing the menstrual cycle, but more comprehensive coverage is needed. Legislation like the proposed Menstrual Equity for All Act could clarify and expand existing accommodation and discrimination protections to destigmatize periods and afford real menstrual justice at work. Until explicit statutory or regulatory language is created, agencies could clarify coverage in guidance to help workers understand the scope of their rights related to dignified menstruation—and also to help employers know about potential legal liability. In the meantime, employers should look at their existing workplace structures and modify them to create a more supportive environment for workers who menstruate or are in menopause.

December 11, 2023 in Gender, Healthcare | Permalink | Comments (0)

Caroline Davidson on "Femicide as Gender Persecution"

Caroline Davidson published Femicide as Gender Persecution in Volume 46 of the Harvard Journal of Law & Gender.  Excerpts of the Introduction are here: 

This Article argues that not only are femicide and other gendered killings grave, discriminatory human rights violations, but, in some cases, they may constitute crimes under international criminal law (“ICL”). Further, it contends that femicide is best approached in ICL, at least at the International Criminal Court (ICC), under existing international crimes. Further, it argues that, although the appropriate international charge will depend on the particular factual circumstances involved, the crime against humanity of gender persecution goes a long way in capturing the gendered dynamics at the heart of femicide.

* * *        

This Article endeavors to situate femicide within the rubric of ICL and argues that the ICC can best address femicide through existing international crimes, particularly the crime of gender persecution. * * *This Article argues that there is value—expressive and strategic—in the ICC taking up the issue of femicide through existing crimes, including the crime against humanity of gender persecution. The ICC is uniquely positioned to draw attention to the issue of femicide and other gendered killings and to communicate the gravity of the crimes. The ICC is also well-equipped to provide assistance to domestic jurisdictions struggling with the issue and to motivate state officials to take action on neglected crimes through the threat of an ICC prosecution.

December 11, 2023 in Violence Against Women | Permalink | Comments (0)

Friday, December 8, 2023

The Critical Mass Theory of Women in Leadership as a New Model of Empowerment

Rangita de Silva de Alwis, The Critical Mass Theory of Women in Leadership: What Next?" 

This paper looks at how at the national level, a shift from a primarily equal opportunity model to equal empowerment model creates a new shift in women’s leadership paradigm. This paper posits that the new General Recommendation 40 of the Convention on the Elimination of Discrimination against Women (CEDAW) brings us close to full gender parity in leadership in public and private as the next generation model on gender equality. Further, this Article analyzes critical mass theory, namely how a representative critical mass in the political, business, and public leadership spheres can lead to critical acts, furthering representation for women on the legislative arena. This reveals a move from descriptive to substantive representation of women in public life. Although critical mass is not the same as gender parity, it can lead towards parity and equality. When the number of women in a given field reaches a critical mass, it helps to shrink tokenism, and marginalization and elevates the role model effect of women’s leadership. In the final analysis, the paper argues that 25 years after the Beijing Platform of Action established the 30 percent critical mass for women’s leadership, full gender equality in leadership is the unfinished business of our time.

The CEDAW Concluding Observation 40 is built on the human rights framework of CEDAW's Article 4 on substantive equality that helps accelerate women’s participation in decision-making and addresses a historic legacy of gender discrimination. Premised on the model of equality of result, “Temporary Special Measures” as enshrined in Article 4 of the CEDAW move away from a formal sex equality model which treats women and men as similarly situated. Despite its intentions, the formal equality model often does not produce equal results. The effects of such a legacy of discrimination are manifest in the numerous gender stereotypes that subordinate women. It is therefore necessary that gender equality paradigms go further than gender neutrality concepts that reinforce structural barriers to women’s equality. A second model, the substantive equality model, takes a different stance in attempting to remedy the effects of past discrimination by demanding that policies and laws take into account such gender differences in order to avoid unequal results. Examples of the substantive equality model include CEDAW’s Temporary Special Measures for women which are often designed to boost women’s participation in historically male dominated fields. Toward the advancement of CEDAW’s goal of equality in decision making, General Recommendation 40 of the CEDAW, underscores what was argued by David Rothkopf former, editor of Foreign Policy, that “the underrepresentation of women in positions of power is proof not so much that men still dominate the top of the pyramid as it is of a system of the most egregious, widespread, pernicious, destructive pattern of human rights abuses in the history of civilization."

As a coda, while writing this article, in September of 2023, India passed historic legislation, mandating one-third of seats in the lower house and state legislative assemblies for female candidates. As the largest democracy in the world, this is indeed a significant milestone in ongoing efforts to enhance the representation of women in political systems. After 27 years since the Bill was introduced, the passage of the Bill provides momentum to the role of the critical mass theory in women’s leadership.

December 8, 2023 in International, Legislation | Permalink | Comments (0)

Ohio's Reproductive Freedom Amendment Takes Effect, but the Fight Over Access Continues

Ohio's Abortion Protections Take Effect, but the Fight Over Access Continues

One month after Ohioans voted to protect abortion access, the constitutional amendment goes into effect Thursday — and while Republican leaders have mostly backed off plans to undermine the amendment in the near term, proposed legislation and pending litigation could still determine the scope of access. 

In the November elections, about 57 percent of Ohioans voted to approve Issue 1, which enshrined the right to abortion until the point of fetal viability, as well as access to contraception, miscarriage care and fertility treatment in Ohio’s Constitution. In Ohio, as of Thursday, abortion is legal up to 22 weeks, which has been the case since the state’s six-week ban was put on hold by the courts in September 2022.***

The GOP push to block Issue 1 started when Republicans put a separate measure onto August ballots that would have raised the threshold to pass citizen-offered constitutional amendments, including Issue 1; Ohioans soundly rejected that effort. Within hours of the November vote, Republican Senate President Matt Huffman told reporters it was the “beginning of a revolving door of ballot campaigns to repeal or replace” it,  perhaps with another amendment that would implement a 15-week abortion ban. Then, far-right state Rep. Jennifer Gross, who represents an exurban district outside Cincinnati, announced an effort to strip the judiciary of its jurisdiction over the abortion amendment as an end-run around courts inclined to uphold the state constitution.

Other Republicans in the state have rejected proposals that would ignore the will of Ohio’s voters — but some still expressed their openness to other ways to restrict abortion. Gov. Mike DeWine, for example, said that once Issue 1 took effect, voter sentiment may change and open the door to a different amendment or new abortion laws.***

Ohio still has many abortion laws on the books that weren’t automatically nullified by Issue 1. Some, like the six-week abortion ban that was already put on hold by courts before the amendment passed, are currently being litigated — the Ohio Supreme Court has asked both sides of the case to submit briefs Thursday on Issue 1’s impact on the so-called heartbeat ban. A 20-week ban passed in 2016 — interpreted as allowing abortion up to 21 weeks and 6 days — is still in place, as is a 2019 prohibition on dilation and extraction, an abortion method most commonly used in the second trimester of pregnancy. Another law prohibits doctors from performing abortions requested due to a Down syndrome diagnosis for the fetus. A 2013 law that led to multiple clinic closures requires all abortion clinics to have transfer agreements with private hospitals.

December 8, 2023 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, December 4, 2023

Nina Kohn, et. al. on Fixing America's Nursing Home Crisis

Nina A. Kohn, Adrianna Duggan, Justin Cole, and Nada Aljassar have posted "Using What We Have: How Existing Legal Authorities Can Help Fix America's Nursing Home Crisis" on SSRN. This work-in-progress is forthcoming in the William and Mary Law Review (2023/2024). The nursing home crisis disproportionately affects women in several ways, according to BizWomen: "Women account for nearly 90 percent of nursing home and assisted living employees, including nurses, aides, technicians and housekeepers/custodians. They also make up the majority of nursing home residents at nearly 70 percent, in part because women tend to live longer than men." Kohn et. al.'s abstract is excerpted here:     

The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. It then explores how politics, administrative complexity, and ageism have come together to prevent this existing authority from being used to its full potential. It concludes by situating the current regulatory failure to hold nursing homes accountable in the context of a larger discussion about the costs of federalism in the health care arena.

December 4, 2023 in Gender, Healthcare | Permalink | Comments (0)

ABA Program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns"

The ABA is hosting a program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns." The event is from 2 p.m. - 3:30 EST on December 8th. 

The Asian Pacific Institute on Gender-Based Violence and the American Bar Association Commission on Domestic & Sexual Violence cordially invite legal service providers and advocates supporting survivors and victims of domestic violence and sexual assault to join us for a panel discussion on Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns.


This panel discussion is designed for legal services providers to address the challenges and promising practices in providing language access to victims of domestic and sexual violence who are limited English proficient or use different modes of communication, including those who speak indigenous languages. The panel will explore the unique considerations and approaches required based on the geographic location of the providers, focusing on rural, urban, and border towns. By sharing experiences and expertise, participants will gain valuable insights to improve their language access services and support for these vulnerable populations.

Register here

December 4, 2023 in Courts, Gender, Healthcare, Violence Against Women | Permalink | Comments (0)

Afsharipour and Jennejohn on "Gender and the Social Structure of Exclusion in U.S. Corporate Law"

Afra Afsharipour and Matthew Jennejohn have published "Gender and the Social Structure of Exclusion in U.S. Corporate Law" in volume 90.7 of the University of Chicago Law Review. The article abstract is excerpted here: 

Prior qualitative research suggests that [professional] networks are an important source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “old boys’ networks.”

For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than fifteen thousand matters and two thousand seven hundred attorneys were collected as the basis for a massive network.

Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interact with gender—women’s positions within the network differ by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: from working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

December 4, 2023 in Courts, Equal Employment, Judges, Women lawyers | Permalink | Comments (0)