Monday, April 29, 2024

New York Court of Appeals Overturns Weinstein Conviction

The New York Court of Appeals has overturned Harvey Weinstein's rape conviction. The full decision is available here. Here is an excerpt of the court's holding: 

Defendant was convicted by a jury for various sexual crimes against three named complainants and, on appeal, claims that he was judged, not on the conduct for which he was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts. We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial. 

April 29, 2024 | Permalink | Comments (0)

HHS Publishes Reproductive Health Care Privacy Rules

The Biden Administration issued final rules governing reproductive health care privacy. The key points were summarized in a Press Release from the Department of Health and Human Services. The Final Rule: 

  • Prohibits the use or disclosure of [protected health information] PHI when it is sought to investigate or impose liability on individuals, health care providers, or others who seek, obtain, provide, or facilitate reproductive health care that is lawful under the circumstances in which such health care is provided, or to identify persons for such activities.
  • Requires a regulated health care provider, health plan, clearinghouse, or their business associates, to obtain a signed attestation that certain requests for PHI potentially related to reproductive health care are not for these prohibited purposes.
  • Requires regulated health care providers, health plans, and clearinghouses to modify their Notice of Privacy Practices to support reproductive health care privacy.

The Final Rule is published here

April 29, 2024 in Abortion, Healthcare, Pregnancy | Permalink | Comments (0)

Final Rule Published Implementing the Pregnant Workers Fairness Act

The EEOC published its Final Rule implementing the Pregnant Workers Fairness Act. The Final Rule and its interpretive guidance are available here. The EEOC's announcement highlighted the following key points of the Final Rule: 

  • Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.
  • Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.
  • Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.
  • Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.
  • Explanation of when an accommodation would impose an undue hardship on an employer and its business.
  • Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

The EEOC also provides the following guidance: What You Should Know about the Pregnant Workers Fairness Act.

 

April 29, 2024 in Abortion, Equal Employment, Family, Healthcare, Pregnancy, Workplace | Permalink | Comments (0)

Thursday, April 25, 2024

Ohio (Finally) Eliminates Archaic Common Law Marital Rape Exception

Ohio Senate Unanimously Passes Bill to Eliminate Loophole on Spousal Rape in State Law

After decades of efforts to change a provision of state law shielding people who rape their spouses from prosecution, the Ohio Senate has voted unanimously to remove that loophole.

House Bill 161 would eliminate exceptions in the law on rape, sexual battery and other sexual offenses that apply when the victim and the attacker are married.

Efforts to close the spousal rape loophole go back to 1985, with a minority of lawmakers over the years expressing concerns about rape allegations being used as wedges in divorce cases.

Sen. Stephanie Kunze (R-Hilliard) said the gap in the law has suggested that either spousal rape isn’t taken as seriously as other sexual violence or that it doesn’t ever happen.

“This is especially concerning, as a spouse should be the most trusted person in a marriage," Kunze said on the Senate floor. "And it is even more egregious to think that in our state in 2024, it is lawful to to rape your spouse.”

Senate Minority Leader Nickie Antonio (D-Lakewood), the bill's joint sponsor who’s introduced measures to close the spousal rape loophole twice before, said the state has taken "a step forward in eliminating this archaic loophole."

“I recall it first coming to my attention that Ohio needed a spousal rape bill and to address that actually in the early nineties. And while Ohio addressed parts of the law, then this loophole remained," Antonio said.

After passing the House in November with only one “no” vote – from Rep. Bill Dean (R-Xenia) – the bill now goes to Gov. Mike DeWine for his signature.

April 25, 2024 in Family, Violence Against Women | Permalink | Comments (0)

Misogyny at the Supreme Court in Debating Emergency Abortion

Dahlia Lithwick & Mark Joseph Stern, The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side, Slate

Justice Amy Coney Barrett famously provided the crucial fifth vote to overturn Roe v. Wade in 2022. So if you are arguing in favor of an abortion ban, you probably don’t want to alienate Barrett—by, say, condescendingly dismissing her concerns when she points out that your legal theory doesn’t make any sense. Yet that is what Joshua Turner did on Wednesday while defending Idaho’s draconian abortion restrictions, and much to Barrett’s evident irritation. Turner—who represented the Idaho solicitor general’s office in the second major abortion case to come before the high court after it promised us in its Dobbs opinion that the court was out of the abortion business in 2022—might just have lost his case by repeatedly mansplaining his self-contradictory position to Barrett and the other three women justices. In his toneless, dispassionate telling, his entirely incomprehensible position was just too complex for them to understand. And so he just kept repeating it, over and over. These justices, including Barrett, sounded increasingly fed up with his chin-stroking dissembling on an issue that’s literally life-or-death for pregnant women in red states. If the court’s male members noticed Turner’s dismissive attitude toward their colleagues, they didn’t care. The gender divide on the court has never been so revealing.

Perhaps because Dobbs was a threat to unknown future women, whereas real women are now being left to hemorrhage, lose the functioning of their reproductive organs, or be popped onto helicopters to receive out-of-state stabilizing care, none of the life-and-death harms being experienced in red states around the country feel very theoretical to anyone who has thought about pregnancy in a serious way. Yet, for male justices more worried about harms to the spending clause, nothing about potentially lethal pregnancies warranted even a moment’s pause.

Wednesday’s case, Moyle v. United States, revolves around a clash between Idaho law and a 1986 federal statute called the Emergency Medical Treatment and Labor Act (or EMTALA). Idaho’s abortion ban has no exception for the health of the patient; rather, it criminalizes abortion unless it’s “necessary to prevent the death of the pregnant woman.” ***

When Solicitor General Elizabeth Prelogar had her turn at the lectern, she faced a barrage of questions from Justices Clarence Thomas and Neil Gorsuch about whether Congress had run afoul of the spending clause when it passed EMTALA, an issue that was not briefed and should not be in the case. Samuel Alito, who brought all of his dictionary-wielding and woman-erasing skills from his star turn in Dobbs to bear, devoted his time to defending the “unborn child” who—in his view—was the real goal of EMTALA’s drafters, laying the groundwork for fetal personhood arguments that were too radioactive even for Turner to take on. Alito hectored Prelogar about her grasp of preemption, her reading of text, and her understanding of the term “unborn child,” casting her as some drunk lunatic who had staggered into court without any comprehension of the law.

Throughout the day doctors were referenced as “he” whereas every nurse was a “she.” Women were, as Alito conceded, “individuals,” but man, oh man, are they ever whiny and demanding. Alito also breathlessly cited Ronald Reagan as the deity who signed EMTALA and would never have wanted it to undermine the precious rights of “unborn children.” And a little “temporary” organ damage, he mused, might not be so bad if suffered for the benefit of a fetus. The task fell to Kagan to remind everyone that in the few months that Idaho has enforced its near-total ban, six women have already been airlifted to other states to receive emergency abortions that are criminal under Idaho law. Real women, flown out in great pain and at great expense, to get treatment that is objectively recognized as the standard of care

 

 

April 25, 2024 in Abortion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, April 24, 2024

Book Review, Kerri Stone's, Panes of the Glass Ceiling

Rona Kaufman Kitchen, Feminist Legal Theory and Stone's Panes of the Glass Ceiling, 17 FIU L. Rev. 771 (2023).

In her book, Panes of the Glass Ceiling: The Unspoken Beliefs Behind the Law’s Failure to Help Women Achieve Professional Parity, Professor Kerri Lynn Stone explores and deconstructs the many practical reasons why women have been unable to achieve equality in employment. Professor Stone painstakingly deconstructs the belief systems that underlie the American workplace and the path to professional success to reveal many of the nuanced reasons why women, despite their education, skill, and commitment to the workforce, continue to struggle to achieve professional success comparative to men. Stone insightfully explains why women continue to experience irremediable discrimination in employment almost sixty years after Congress outlawed sex discrimination in employment. Stone’s book is a long overdue deconstruction and indictment of the toxic masculinity and seemingly benign social norms that pervade workplace culture and its negative impact on women and equality. Her book is geared toward an audience that wants to understand the problems women face in employment today and solve those problems. While she provides historical context for many of the beliefs that ground the panes of the glass ceiling, her focus is not on theory or history. It is a book about the reality of 2022 and a map for how to shift that reality in 2023 and beyond.

This book review seeks to provide deeper grounding for Stone’s panes of the glass ceiling by placing her work in the broader historical and theoretical context of feminism, the women’s movement, and the history of women in the American labor force. This discussion proceeds in three parts. Part I provides the historical context for discrimination against women in the American workplace and anti-discrimination law by tracing the evolution of the modern women’s movement and the history of women’s participation in the labor force. Part II discusses Professor Kerri Stone’s panes of the glass ceiling and places each pane in theoretical context. Part III concludes with a brief discussion of how Stone’s articulation of the panes or the glass ceiling and her suggestions for reform contribute to the ongoing feminist legal theory discourse.

April 24, 2024 in Books, Equal Employment, Theory | Permalink | Comments (0)

Study Finds that Effects of California's Paid Family Leave Act Did Not Help Women's Careers and Gender Pay Gap

Martha Bailey, Tanya Byker, Elena Patel, Shanthi Ramnath, The Long-Run Effects of California's Paid Family Leave Act on Women's Careers and Childbearing: New Evidence from a Regression Discontinuity Design and U.S. Tax Data" 


We use administrative tax data to analyze the cumulative, long-run effects of California's 2004 Paid Family Leave Act (CPFL) on women's employment, earnings, and childbearing.***

A growing body of evidence suggests that the gender gap in pay emerges abruptly at motherhood, as new mothers work less for pay in order to increase their caregiving at home. These differences are also evident in U.S. tax data, which show that the “child penalty” for women in annual wage earnings grows sharply after their first child is born.

Academics and policymakers have mobilized around this issue, citing the absence of paid family leave in the United States as a major obstacle to gender equity in the labor market. Paid family leave policies, they argue, could enable workers to take longer leaves to care for newborns instead of dropping out of the labor force. Remaining attached to employers could help workers retain job- and firm-specific human capital and decrease skill depreciation, minimizing wage losses due to caregiving. Because more women leave the labor force than men for caregiving reasons, formalizing paid leave policies could narrow the gender gap in pay.***

Our findings challenge the conventional wisdom that paid leave benefits improve women’s short- or long-term career outcomes. In fact, CPFL significantly decreased employment and earnings of first-time mothers in the short run. First-time mothers taking up paid leave under CPFL were 6 percent less likely to be employed and earned 13 percent less during the first three years after giving birth. Moreover, we find evidence that these earnings effects persisted, with wage earnings remaining 13 percent lower nine to 12 years later.

April 24, 2024 in Business, Equal Employment, Family, Legislation, Reproductive Rights, Work/life, Workplace | Permalink | Comments (0)

Tuesday, April 23, 2024

The Fair Representation Act Reintroduced in Congress to Increase Women's and Racial Minorities' Political Representation

Ms., Weekend Reading on Women's Representation

*** The FRA has the potential to create a more diverse government through the implementation of ranked-choice voting and the creation of multi-member U.S. House districts drawn by independent redistricting commissions.

This voting system also combats gerrymandering and amplifies voter power. 

Our friend at FairVote, the amazing Deb Otis, discussed the reintroduction of the FRA on a podcast on NPR this week. Alaska and Maine have already seen major results from implementing RCV and Otis explains why more states are considering the new system and reinforces why the FRA is a true model for a more representative democracy.

The Fulcrum featured a terrific piece from Drew Penrose and Dave Daley about the impact of this proportional voting system and how it holds the potential to transform the way we elect our public officials:

The most meaningful change would put an end to winner-take-all, single-member districts and create a proportional House with larger, multimember districts and proportional voting. This might sound like a big lift, but it’s fully constitutional, deeply aligned with our founding vision, and only requires Congress to pass a statute. For example, the Fair Representation Act, a bill to be reintroduced in Congress this week by Reps. Don Beyer (D-Va.) and Jamie Raskin (D-Md.), would do just that by requiring every state to replace its winner-take-all elections with proportional ranked-choice voting.

Proportional representation methods like rank-choice voting, along with other types of multiple-candidate voting from a group, were advocated by Progressive reformers from 1913 to 1932 to make political officials more representative of ordinary people and minorities, rather than concentrating power in corrupt party bosses and corporate interests. See Kathleen L. Barber, A Right to Representation: Proportional Election Systems for the Twenty-First Century (Ohio State U. Press. 2000).

April 23, 2024 in Legal History, Legislation | Permalink | Comments (0)

The Ethical and Practical Significance of Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

April 23, 2024 in Courts, Family, Gender, Reproductive Rights, Theory | Permalink | Comments (0)

The Ethical and Practical Significance of Using Feminist Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

April 23, 2024 in Courts, Family, Gender, Reproductive Rights, Theory | Permalink | Comments (0)

Monday, April 22, 2024

Priya Baskaran on Critical Legal Research in Law Clinics

Priya Baskaran has published "Searching for Justice: Incorporating Critical Legal Research into Clinic Seminar" in Volume 30 of the Clinical Law Review. The article concludes:   

The progenitors of CLR — Delgado and Stefancic — reiterate the importance of “reinventing, modifying, flipping, and radically transforming legal doctrines and theories imaginatively” to pursue justice and law reform. Law is a profession that recreates hierarchy and predictability; thus, law reform and justice require “mulling over what an ideal legal world would look like from the client’s perspective.”

 

This type of contextual critical thinking is exactly what clinical legal education seeks to develop. When lawyers focus on the rule and only the rule, they place a specific box around the problem. The problem and potential resolutions, when so narrowly categorized, are limited to the universe of “settled law” and stifle innovative solutions. Such restrictions are in direct opposition to the best interest of the client —who is expecting the lawyer to help engage in creative problem solving and advocacy, rather than simply upholding the status quo and perpetuating harm and injustice. From a metacognition perspective, restrictive and limited construction also harms the students’ intellectual development and capacity. Strict adherence to the rule prevents effective learning for transfer by reinforcing subject matter silos. Students make only surface level connections rather than understanding the underlying structural issues and engaging in applied critical thinking. In contrast, “a conceptual advance that sees old material in a new light” can lead to the type of creative lawyering that is necessary to champion justice. Our current moment desperately calls for wide-ranging, transformative social change. Communities face increasing economic precarity as decades of divestment continue to erode social infrastructure and safety nets. In the wake of this draconian and shameful legal regression that entrenches harmful hegemonies, we cannot train students to merely accept precedent or the myth of a neutral judiciary. Advocating for vulnerable clients will require far more creative and strategic attorneys who are able not only to conceptualize creative arguments, but also to work collaboratively with grassroots groups pushing for greater change through concerted organizing and political mobilization.

 

Training students in CLR equips them with the critical thinking skills and research strategies to navigate the deeply flawed legal systems and imperfect research resources. Despite the challenges, we should find a way to incorporate CLR into clinical pedagogy as an important step in the continued fight against injustice.

April 22, 2024 in Education, Law schools | Permalink | Comments (0)

Judy Stinson Lecture on "Reclaiming the Singular They"

Robert Anderson presented the Judy Stinson Lecture at Arizona State University on the topic of "Reclaiming the Singular They in Legal Writing." A recording of the presentation is available here.  It gives background on the grammatical prohibition on the singular they.  It describes a historic tension between grammar guides and dictionaries on this issue. The underlying article that was the basis for the lecture is available here

April 22, 2024 in Conferences, Gender, Law schools | Permalink | Comments (0)

Amended Title IX Regulations

The Department of Education published amended Title IX regulations. The agency summarized the key changes in the regulations as including: 

  • Define “sex-based harassment” * * *
  • Provide and clarify definitions of various terms related to a recipient’s obligations to address sex discrimination, including sex-based harassment;
  • Clarify a recipient’s required response to sex discrimination . . . in its education program or activity;
  • Strengthen a recipient’s obligations to provide prompt and equitable grievance procedures and to take other necessary steps when it receives a complaint * * *; and
  • Provide for additional requirements in grievance procedures at postsecondary institutions.
  • With regard to discrimination against individuals who are pregnant or parenting, the final
    regulations:
    • Define the terms “pregnancy or related conditions” and “parental status”;
    • Clarify the prohibition on discrimination against students and applicants for admission and employees or applicants for employment on the basis of current, potential, or past pregnancy or related conditions; and
    • Clarify a recipient’s obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.* *
  • Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and maintaining records;
  • Specify that a recipient must train a range of relevant persons on the recipient’s obligations under Title IX;
  • Clarify that, except as permitted by certain provisions of Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and
  • Clarify a recipient’s obligation to address retaliation.

The 19th News reported on LGBTQ+ advocates' call for President Biden to do more to protect transgender athletes. 

A coalition of equal rights supporters representing over 20 groups —  including LGBTQ+ advocacy groups the Human Rights Campaign, GLSEN and the Trevor Project — issued a joint statement on Friday arguing that the new regulations do too little to protect transgender athletes.

 

“This regulation does not go far enough in making the law’s protections clear for all student athletes,” the statement said. “Currently, 37 percent of transgender, nonbinary, and intersex youth live in states with laws that ban them from participating in sports consistent with their gender identity. As with all students, Title IX protects transgender, nonbinary and intersex student athletes from discriminatory policies, as the Biden administration has already argued in court and a federal appeals court upheld just this week.” 

 

The coalition called on the Biden administration to “finish the job” by leaving no doubt in the regulations that transgender, nonbinary and intersex student-athletes have protections under Title IX. 

 

April 22, 2024 in Education, Gender, LGBT | Permalink | Comments (0)

Monday, April 15, 2024

New Report on "Minor Abortion Access Research and Advocacy Project"

A valuable new report, published by J. Shoshanna Ehrlich and the ASPIRE Center at Planned Parenthood League of Massachusetts, documents the status of minor abortion access in the United States. The report, titled "Minor Abortion Access Research and Advocacy Project" is available online. There is a useful visual map depicting the status of the law and a useful grading system on pages 11-12 of the study. Its conclusion are excerpted below: 

As documented in this report, parental involvement laws discriminate against teens seeking to terminate a pregnancy when compared to those seeking to carry a pregnancy to term or obtain other kinds of reproductive and sexual health care. The only logical explanation for this discriminatory treatment is abortion exceptionalism, which as we have seen, is the hyper-regulation of abortion due to its disfavored and stigmatized status. A strong argument can be made in abortion-protective states which also have a parental involvement law that the time has come to afford teens equal access to abortion care, rather than leaving them by the wayside when it comes to the protection of abortion rights.

Of course, we recognize that launching this kind of major law reform effort is not currently feasible in abortion-restrictive states. Accordingly, we offer you a brief case study of the successful repeal campaign in Illinois, which took more than a decade of engaged public education about the harms of parental involvement laws. As was the case in Illinois, youth voices can be effectively harnessed to help make this case. As evidenced by the work of both Advocates for Youth and Planned Parenthood Generation Action, “Young people understand that reproductive and sexual health and rights are inextricably tied to social justice and the fight for liberation.”

The passage of abortion protective measures in the wake of Dobbs shows that lawmakers in many states are intent on strengthening their states’ abortion laws to expand and safeguard access within their borders, including for those coming from abortion-ban states. But teens have not been offered the same level of protection – or agency to make to make their own reproductive health decisions – as adults. We hope advocates will leverage the research and findings of this report to identify opportunities in their home state to enact change so that teens have equitable access to abortion. We further hope that advocates can leverage the research and findings to counter any age-specific restrictive measures introduced in their home state aimed at further restricting abortion access for teens.

April 15, 2024 in Abortion, Healthcare | Permalink | Comments (0)

Friday, April 12, 2024

Book Feminized Justice: The Story of the Toronto Women's Courts 1913-1934

I came across this book as part of my research on the history of Women's Courts, and thought it was worth a share. 

Amanda Glasbeek, Feminized Justice: The Toronto Women's Court, 1913-1914 

In 1913, Toronto launched Canada’s first woman’s police court. The court was run by and for women, but was it a great achievement? This multifaceted portrait of the cases, defendants, and officials that graced its halls reveals a fundamental contradiction at the experiment’s core: the Toronto Women’s Police Court was both a site for feminist adaptations of justice and a court empowered to punish women. Reconstructed from case files and newspaper accounts, this engrossing portrait of the trials and tribulations that accompanied an early experiment in feminized justice sheds new light on maternal feminist politics, women and crime, and the role of resistance, agency, and experience in the criminal justice system.

Feminized Justice: The Toronto Women's Court, 1913-34 (Law and Society)

 

 

April 12, 2024 in Courts, Legal History | Permalink | Comments (0)

Thursday, April 11, 2024

Book Review, Not Everything is About Gender, Reviewing Judith Butler's New Book

Katha Pollitt, Books: Not Everything is About Gender, Atlantic

udith butler, for many years a professor of rhetoric and comparative literature at UC Berkeley, might be among the most influential intellectuals alive today. Even if you have never heard of them (Butler identifies as nonbinary and uses they/them pronouns), you are living in their world, in which babies are “assigned” male or female at birth, and performativity is, at least on campus, an ordinary English word. Butler’s breakout 1990 book, Gender Trouble, argued that biological sex, like gender, is socially constructed, with its physical manifestations mattering only to the degree society assigns them meaning. The book is required reading in just about every women’s-, gender-, or sexuality-studies department. Butler has won a raft of international honors and been burned in effigy as a witch in Brazil. How many thinkers can say as much? ***

The central idea of Who’s Afraid of Gender? is that fascism is gaining strength around the world, and that its weapon is what Butler calls the “phantasm of gender,” which they describe as a confused and irrational bundle of fears that displaces real dangers onto imaginary ones. Instead of facing up to the problems of, for example, war, declining living standards, environmental damage, and climate change, right-wing leaders whip up hysteria about threats to patriarchy, traditional families, and heterosexuality. And it works, Butler argues: “Circulating the phantasm of ‘gender’ is also one way for existing powers—states, churches, political movements—to frighten people to come back into their ranks, to accept censorship, and to externalize their fear and hatred onto vulnerable communities.” ***

In the United States, this politicized use of the word gender itself has not caught on as it has in much of the world, where, as an English word for which many languages have no equivalent, it is often used to attack feminism and LGBTQ rights as foreign imports. Still, as Butler notes, America’s Christian fundamentalists and far-right Republicans are fervently in the anti-gender vanguard, whether or not these groups actually use the word gender.

April 11, 2024 in Books, Gender, Scholarship, Theory | Permalink | Comments (0)

Book Review, Not Everything is About Gender, Reviewing Judith Butler's New Book

Katha Pollitt, Books: Not Everything is About Gender, Atlantic

udith butler, for many years a professor of rhetoric and comparative literature at UC Berkeley, might be among the most influential intellectuals alive today. Even if you have never heard of them (Butler identifies as nonbinary and uses they/them pronouns), you are living in their world, in which babies are “assigned” male or female at birth, and performativity is, at least on campus, an ordinary English word. Butler’s breakout 1990 book, Gender Trouble, argued that biological sex, like gender, is socially constructed, with its physical manifestations mattering only to the degree society assigns them meaning. The book is required reading in just about every women’s-, gender-, or sexuality-studies department. Butler has won a raft of international honors and been burned in effigy as a witch in Brazil. How many thinkers can say as much? ***

The central idea of Who’s Afraid of Gender? is that fascism is gaining strength around the world, and that its weapon is what Butler calls the “phantasm of gender,” which they describe as a confused and irrational bundle of fears that displaces real dangers onto imaginary ones. Instead of facing up to the problems of, for example, war, declining living standards, environmental damage, and climate change, right-wing leaders whip up hysteria about threats to patriarchy, traditional families, and heterosexuality. And it works, Butler argues: “Circulating the phantasm of ‘gender’ is also one way for existing powers—states, churches, political movements—to frighten people to come back into their ranks, to accept censorship, and to externalize their fear and hatred onto vulnerable communities.” ***

In the United States, this politicized use of the word gender itself has not caught on as it has in much of the world, where, as an English word for which many languages have no equivalent, it is often used to attack feminism and LGBTQ rights as foreign imports. Still, as Butler notes, America’s Christian fundamentalists and far-right Republicans are fervently in the anti-gender vanguard, whether or not these groups actually use the word gender.

April 11, 2024 in Books, Gender, Scholarship, Theory | Permalink | Comments (0)

Analyzing the Women's Soccer Settlement for Gender Pay Equity

Joni Hersch & Delaney Beck, Gender Pay Equity: An Analysis of the USWNT's Soccer Settlement, Utah L. Rev. (2024)  

Even though the United States Women’s National Team (“USWNT”) has been far more successful than the United States Men’s National Team (“USMNT”), the team members have experienced unequal treatment from the United States Soccer Federation (“USSF”) since its inception. In March 2019, members of the USWNT filed suit against USSF, alleging that USSF had violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The complaint alleged that USSF had a policy of discriminating against the USWNT due to their players’ gender by paying them less than the USMNT and providing them with lesser employment conditions than those provided to the USMNT.

A final judgment on both the Equal Pay Act and Title VII claims would never be given, as both would eventually settle outside of court. We analyze the substantive legal and economic arguments made by both parties. We show that the USSF arguments in support of gender pay disparities were misguided and calculate what proper compensation by USSF to the USWNT and USMNT would have looked like from the 2015-2019 period of dispute. Although we frame our analysis in the context of the USWNT lawsuit, our analysis has far broader implications for pay equity. We illustrate how the outside market force argument in justification of lower pay for women may often be incorrect. We illustrate how the traditional Equal Pay Act requirement that an individual must work in the same physical location as their comparator to be considered similarly situated is faulty. This investigation is particularly timely and relevant in light of the substantial rise in remote work arising from the Covid-19 pandemic.

April 11, 2024 in Equal Employment, Sports | Permalink | Comments (0)

Law Scholars File Amicus Arguing to Overturn Dobbs in the Idaho Emergency Abortion Case

David Cohen, Greer Donley & Rachel Rebouche, Amicus Brief, Moley v. U.S.

INTRODUCTION AND SUMMARY OF ARGUMENT

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), should be overruled. This case presents the Court with an appropriate vehicle to correct its unworkable and calamitous ruling from two years ago. This case addresses whether the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd, preempts Idaho Code § 18-622’s prohibition of abortion when abortion is necessary to stabilize a pregnant patient in crisis at an EMTALA-covered hospital. Only a handful of states, including Idaho, lack a health exception in their abortion bans, prohibiting emergency care that federal law demands certain hospitals provide. This failure to assure minimal protections to pregnant women’s health has devastated reproductive health care in states with abortion bans and demonstrates a race to the bottom that is sowing enormous chaos and discord. ***

In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current case, and between and among states. These conflicts are proliferating because of the Pandora’s box of constitutional questions Dobbs opened,
implicating travel, federalism, extraterritorial jurisdiction, preemption, and federal executive power. Less than two years after it was decided, it is evident that Dobbs has proven unworkable and should be overruled.

April 11, 2024 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, April 8, 2024

Lewis Grossman on "Criminalizing Transgender Care"

Lewis Grossman has posted his forthcoming article, Criminalizing Transgender Care, on SSRN. This article is forthcoming in the Iowa Law Review in Fall 2024. Here is the abstract. 

Since 2021, twenty-one states, in extraordinarily quick succession, have enacted statutes banning physicians from prescribing puberty blockers and cross-sex hormones to minors for treatment of gender dysphoria. Although the Food and Drug Administration has not approved these drugs for this use, off-label prescribing is a common practice, and leading medical organizations all agree that this off-label use of puberty blockers and sex hormones is an essential component of transgender medical care. These state laws thus represent an extreme, and unprecedented, interference with the provision of standard-of-care medicine. This article, after exploring the ongoing litigation challenging these bans, argues that they violate a fundamental right under the Due Process Clause of the Fourteenth Amendment—namely, the right to obtain standard-of-care treatment from a physician. It demonstrates that this right is deeply rooted in America’s history and traditions by presenting the first-ever comprehensive review of state policies regarding off-label prescribing practices and showing that the states have virtually never interfered with physicians’ prescribing decisions in this manner. Finally, in light of relevant judicial precedents, this article shows why courts should strike down these unparalleled, oppressive state laws as unconstitutional.

April 8, 2024 in Gender, Healthcare, Legislation | Permalink | Comments (0)