Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, October 23, 2020

Book Review, Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress

Book Review: Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress 

In Injustice and the Reproduction of History: Structural Inequalities, Gender and RedressAlasia Nuti explores the relationship between history and the provision of justice by focusing on women as a historical-structural group subject to historical injustices that continue to impact the present. This is a very welcome contribution to the literature, writes Ebru Demir, providing both deep and rigorous analyses of its case studies and proposing thought-provoking new terminology. 

 

Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress. Alasia Nuti. Cambridge University Press. 2019.

 

Why should an unjust history matter for egalitarians seeking justice in the present? How and why does history relate to the provision of justice both theoretically and practically? Alasia Nuti’s Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress not only engages with such longstanding questions but also makes an important contribution to the existing literature as it centres on the argument that women as a historical-structural group (HSG) are the subjects of historical injustices.

 

One of the main arguments of the book is that ‘unjust history that should normatively matter in justice-based considerations is present because it has been reproduced over time through different means’ (4). In the first half of the book, Nuti builds this argument on very solid ground by engaging with the relevant literature and by providing examples to validate this very point. ‘De-temporalising injustice’, borrowed from Reinhart Koselleck’s terminology, is significant and necessary in order to capture the relation between past and present injustices (13). The book contributes to the de-temporalising of injustice by suggesting that past and present injustices have possible connections and all backward-looking approaches to injustice consider only past injustices as significant enough to address (15). According to Nuti, past and present cannot be separated if one seeks to provide justice for historical-structural injustices (HSIs) that have been committed. For this very reason, the division between past and present becomes deceptive. The present reproduces the unjust past ‘over time and through changes’ (8). Thus, change also becomes a suspect in perpetuating unjust history.

 

The second half of the book forms a study of women as a group and as the subjects of The second half of the book forms a study of women as a group and as the subjects of historical injustices. Although previously Catherine Lu has argued that women are a group suffering from enduring injustice, by carrying this argument one step further, this book provides a thorough analysis of how such a group is defined. Nuti, being aware of intersectional identities and differences, argues that to be categorised as a woman, one is not obliged to have been through systematic oppression: it is sufficient for one to be more likely to be exposed to unjust constraints and abuses (90). Therefore, possibility and potentiality become the requirements for being categorised as a group undergoing historical injustices.

October 23, 2020 in Books, Legal History, Theory | Permalink | Comments (0)

Wednesday, October 21, 2020

Recalling the First Comprehensive History of Women's Rights, Eleanor Flexner's 1959, Century of Struggle

NY Times, Overlooked no More: Eleanor Flexner, Pioneering Feminist in an Anti-Feminist Age

In the 1950s, Eleanor Flexner, a left-wing activist and writer, decided to compile a comprehensive history of the women’s rights movement in the United States, exploring a span of more than 300 years. Her timing could not have been less auspicious. Feminism was virtually a dirty word, described in Ferdinand Lundberg and Marynia F. Farnham’s celebrated book “Modern Woman: The Lost Sex” (1947) as “at its core, a deep illness.”

 

Moreover, the House Un-American Activities Committee, or HUAC, was engaged in a ruthless investigation of Communist influence in the United States, attacking left-wing artists and intellectuals. Flexner had been a member of the Communist Party from 1936 through 1956, and although she was not hauled before HUAC, the careers of some of her closest friends and associates had been ruined.

 

Nonetheless, Flexner, with no formal training as a professional historian, began what became a pathbreaking, wide-ranging account of activism for women’s rights in America.

 

Century of Struggle: The Women’s Rights Movement in the United States” (1959) was the first authoritative narrative of one of the great dimensions of American democratic history. The book, based largely on her original research in the Library of Congress, the Sophia Smith Collection of Women’s History at Smith College and elsewhere, covered an immense amount of material, from Anne Hutchinson, the 17th-century rebel against Puritan clerical authority in Massachusetts, to the dramatic final years of the ratification of the 19th Amendment, by which women won the right to vote. It remained the pre-eminent text on the topic for more than half a century, and is still taught in schools and consulted widely by historians today.

October 21, 2020 in Books, Legal History | Permalink | Comments (0)

Wednesday, October 7, 2020

Book Review Reproductive Rights and Justice Stories

Leah Litman, Redefining Reproductive Rights and Justice, reviewing Reproductive Rights and Justice Stories (Melissa Murray, Katherine Shaw, & Reva Siegel, eds. 2019),  118 Mich. L. Rev. 1095 (2020).

Against this backdrop comes Melissa Murray, Katherine Shaw, and Reva Siegel’s edited collection of essays, Reproductive Rights and Justice Stories. The collection could not be timelier. Their volume contains a series of essays that “bring[] together important cases involving the state regulation of sex, childbearing, and parenting.” 

The two goals of the collection are to expand the contours of the field of reproductive rights and justice and to decenter the role of courts in that field. The editors’ pathbreaking volume cements a definition of reproductive rights and justice that is both more coherent and more nuanced than many earlier definitions, which often limited discussions of reproductive rights
and justice to contraception and abortion. The volume makes significant headway in illustrating the many different ways that law affects reproductive rights and justice.

Broadening readers’ understandings about what constitutes reproductive rights and justice has several benefits. It illuminates the many different ways that law and society construct and constrain what parenthood—and particularly motherhood—entails. Unpacking how law and society have made motherhood carry certain roles and expectations clarifies the stakes of
traditional reproductive rights and justice issues. For example, if becoming a parent, and in particular becoming a mother, entails assuming a particular identity, then the autonomy and liberty interests at stake in parentage decisions are much greater than just bodily autonomy.

The collection of essays also offers a lens through which to understand myriad legal issues. The volume makes clear that many different topics— ranging from workplace protections, to labor law, to disability law, to criminal procedure, to insurance law—implicate reproductive rights and justice in addition to decisions about whether to criminalize abortion or contraception. That has the salutary benefit of unearthing the complex web of laws and social conventions that influence parentage decisions. Understanding all of the influences on parentage decisions would also make it easier to construct a system that is supportive of families.

By broadening the definition of reproductive rights and justice to include the many different ways that law and society shape individuals’ decisions about whether to have children, the volume also pushes its readers to think about additional ways in which law and society influence decisions about sex and parentage.

 

October 7, 2020 in Abortion, Books, Family, Reproductive Rights | Permalink | Comments (0)

Friday, October 2, 2020

New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood

Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)

Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.

October 2, 2020 in Books, Healthcare, Poverty, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Tuesday, September 29, 2020

Books: Sexual Citizens: A Landmark Study of the Social Roots of Campus Sexual Assault

Jennifer Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power and Assault on Campuses

A groundbreaking study that transforms how we see and address the most misunderstood problem on college campuses: widespread sexual assault.

The fear of campus sexual assault has become an inextricable part of the college experience. Research has shown that by the time they graduate, as many as one in three women and almost one in six men will have been sexually assaulted. But why is sexual assault such a common feature of college life? And what can be done to prevent it? Drawing on the Sexual Health Initiative to Foster Transformation (SHIFT) at Columbia University, the most comprehensive study of sexual assault on a campus to date, Jennifer S. Hirsch and Shamus Khan present an entirely new framework that emphasizes sexual assault’s social roots—transcending current debates about consent, predators in a “hunting ground,” and the dangers of hooking up.

Sexual Citizens is based on years of research interviewing and observing college life—with students of different races, genders, sexual orientations, and socioeconomic backgrounds. Hirsch and Khan’s landmark study reveals the social ecosystem that makes sexual assault so predictable, explaining how physical spaces, alcohol, peer groups, and cultural norms influence young people’s experiences and interpretations of both sex and sexual assault. Through the powerful concepts of “sexual projects,” “sexual citizenship,” and “sexual geographies,” the authors offer a new and widely-accessible language for understanding the forces that shape young people’s sexual relationships. Empathetic, insightful, and far-ranging, Sexual Citizens transforms our understanding of sexual assault and offers a roadmap for how to address it.

September 29, 2020 in Books, Education, Theory, Violence Against Women | Permalink | Comments (0)

Monday, September 28, 2020

Book Review: A Reckoning Over Law Faculty Inequality, Reviewing Meera Deo's Unequal Profession

Melanie Wilson, A Reckoning Over Law Faculty Inequality, 98 Denver L.Rev. (2020)  

In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.

Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body. If law schools are serious about changing, then they should read Unequal Profession. As this review demonstrates, Unequal Profession is a definitive resource for improving inequality in legal education.

September 28, 2020 in Books, Law schools, Race, Women lawyers | Permalink | Comments (0)

Friday, September 11, 2020

Book Review: Law and Non-Legal Entitlements, Reviewing How Male Privilege Hurts Women

Lesley Wexner, Law and Non-Legal Entitlements: Kate Manne's Entitled: How Male Privilege Hurts Women, Verdict

Philosopher Kate Manne’s first book Down Girl exploded into the popular consciousness just a few years ago. She rejected a simplistic view of misogyny as simply men who hate women and instead developed a broader view that misogyny serves “primarily a property of social environments in which women are liable to encounter hostility due to the enforcement and policing of patriarchal norms and expectations. . . . Misogyny functions to enforce and police women’s subordination and to uphold male dominance.” Given Manne’s sharp analytic approach, I eagerly awaited her follow-up, Entitled, just now published. This new work focuses on how “privileged men’s sense of entitlement. . . is a pervasive social problem with often devastating consequences.”

Coming to Manne’s new work as a law professor, I thought about how Entitled might fit within the property literature. It reminded me, in a good way, of Robert Ellickson’s infamous article on Shasta County and the role of informal norms in managing property rights. Ellickson’s investigation of ranchers and farmers was seminal in challenging the Coasean intuition that in the absence of transaction costs, initial property entitlements are irrelevant since parties will simply bargain their way to the efficient outcome. He urged law and economics to think about and account for the development and the enforcement of informal norms and what those might tell us about the recourse to the law to enforce legal entitlements. Manne makes a similar move, but one step earlier. She suggests that to successfully challenge both the law and the informal norms, more of society needs to first clearly see and understand the original underlying entitlements. Her book identifies, names, and explores a whole universe of entitlements that often benefit men at the expense of women. While many of the entitlements Manne identifies are not legal entitlements provided for by the state, they are pervasive, they shape a great deal of human interaction, their use as the social default disfavors women, and society is having a difficult time bartering to what I see as the appropriate socially optimal egalitarian outcome. I found her entitlement framework illuminating and will spend the rest of this post explaining how the framework exposes different entitlements in American society.

September 11, 2020 in Books, Gender, Manliness, Theory | Permalink | Comments (0)

Wednesday, August 26, 2020

Book Review: Telling the Story of Justice Sandra Day O'Connor

Susan Frelich Appleton, Book Review, Telling the Story of Justice Sandra Day O'Connor, 62 Wash. U. J. Law & Policy 5 (2020)  

[T]his brief review critically examines First: Sandra Day O'Connor, a biography by Evan Thomas. The review follows two themes highlighted by the book, intimacy and gender, and finds the author's treatment of the latter especially problematic. ***

 

I detected elisions and oversimplifications that I suspect other authors, especially those more attuned to gender and feminist jurisprudence, might well have avoided. Two examples help make my point. First, although Justice O’Connor is certainly entitled to reject the label “feminist,” it would have been easy to note how her pragmatic and context-sensitive approach to deciding cases tracks a methodology that feminist legal theorists call “feminist practical reasoning.” Indeed, Thomas comes so close when he writes: “by judging in her one-case-at-a time fashion—by looking closely at the facts and broader social context—she did bring a uniquely female perspective: her own.” He could have enriched this analysis with a brief reference to feminist legal methodologies,
adding force and complexity to O’Connor’s supposed rejection of the idea that women decide cases differently and her clerks’ reported bewilderment “at her lack of self-awareness.”

 

Second, the biography includes only the skimpiest mention of O’Connor’s concurring opinion in J.E.B. v. Alabama,  when—again— situating it in feminist jurisprudence would have provided a deeper view of
the significance of gender to O’Connor. ***

 

By the end, the book left me puzzling over several questions about the author, diverting attention from the Justice herself: How reliable a narrator is Thomas in telling her story? How did Thomas’s own intimate relationship color his “intimate portrait”? How confident can readers feel that Thomas captured and presented a full picture of O’Connor, especially when it comes to how gender, and society’s construction of it, shaped her and her history making life?

 

August 26, 2020 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Recommended Reading on the 19th Amendment

My own work

Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civ. Rgts. & Civ. Liberties 349 (2020)

Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen:  Challenging the Myth that Women Judges Judge Differently, William & Mary J. Race, Gender & Social Justice (forthcoming) (on Ohio women’s suffrage story)

Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)

Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) (on vote as part of greater demand for gender equality in the family)

19th Amendment Symposium, University of Akron School of Law, in ConLawNOW and Akron Law Review

 

Reading List:

Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford 2020)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family 115 Harvard L. Rev. 945 (2002)

Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Norton 2020)

Ellen Carol DuBois, Feminism & Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Cornell 1999)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

Kimberly Hamlin, Free Thinker Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner (Norton 2020)

Doris Stevens, Jailed for Freedom: A First Person Account of the Militant Fight for Women’s Rights

Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2019)

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution, 27 Duke J. Gender Law & Policy 235 (2020)

Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)

Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)

Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev.  1456 (2001

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Say Her Name: Black Women Activists in the Women's Suffrage Movement

Angela Dodson, Why Women's Suffrage Matters for Black People

While our collective memory of the suffrage movement is often a vision of a small band of white women — fighting the establishment alone, marching and picketing in their flowy white dresses — the story of the women’s movement was more complicated and nuanced than that. It involved many women, but also men, of different races who had to find their voice, identify allies and build coalitions.

 

As the centennial of the 19th Amendment’s certification on Aug. 26, 1920, approaches, many African Americans have questioned whether the suffrage movement is relevant to them, because most Black people in the South were disenfranchised anyway. For many African Americans, the movement’s reputation for discriminating against or dismissing Black suffragists and the long history of discord between white and Black feminists do not inspire enthusiasm for the anniversary celebration.

 

As we approach the centennial and the first presidential election with a Black/Asian woman in the race, the first woman of color on a major political party’s ticket, we should examine how we got the vote and at what cost.

 

To dismiss the suffrage movement as irrelevant dishonors the many Black women and men who participated — lobbying, debating, lecturing, petitioning, editorializing, parading and picketing alongside white suffragists.

 

As women are gaining greater leverage in the political system, now is the time to study and credit the contributions of all suffragists and expand our knowledge of the entire movement.

African American Women Leaders in the Suffrage Movement

Including Soujourner Truth, Angelina Weld Grimke, Sarah Redmond, Mary Ann Shadd Cary, Frances Harper, Josephine Ruffin, Mary Church Terrell, Ida B. Wells-Barnett, and many more.

 

Taken from Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

 

 

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Monday, August 17, 2020

New Book: Entitled--How Male Privilege Hurts Women

 

Book Review, Kate Manne: "Entitled" Takes a Scalpel to What Men Feel they are Automatically Deserve

“This book shows that an illegitimate sense of male entitlement gives rise to a wide range of misogynistic behavior,” she writes in “Entitled.” “When a woman fails to give a man what he’s supposedly owed, she will often face punishment and reprisal.”***

 

The book goes on to parse the various “goods” that men, in Manne’s reckoning, have been conditioned to feel entitled to — admiration, sex and consent; a home where someone else uncomplainingly does most of the child care and housekeeping. Some of these things are “feminine-coded,” she writes; others, like power and knowledge, are typically reserved as a masculine prerogative.

 

Some forms of discrimination are subtle, operating below the level of our conscious thoughts, but they still exert meaningful effects, Manne says. The reflexive distaste or suspicion that greets any woman who asserts her ambition is in some ways just as indicative of how the social order gets preserved as the violence meted out by the most vicious misogynists.***

 

One of the qualities that makes Manne’s writing bracing and even thrilling to read is her refusal to ingratiate herself by softening the edges of her resolve. She was trained as a logician, and in “Down Girl” she systematically laid out her premises and evidence to show how misogyny operated according to its own peculiar logic.

 

“Entitled” doesn’t feel as surprising or as tightly coiled as that book. In “Down Girl,” she offered a brilliantly original understanding of misogyny, a term that can sound too extreme to use, by showing the routine and banal forms that its hostility often took. The concepts of entitlement and privilege aren’t nearly as rare or mysterious; swaths of this new book are clarifying but also familiar.

 

Still, the subject of “Entitled” is trickier in many ways than the subject of “Down Girl.” Feelings of entitlement may be essential to misogyny — but Manne argues that they’re essential to defeating misogyny, too. She ends by writing about her newborn daughter, and the things that she wants her daughter to feel she deserves, which are necessarily connected to a set of moral obligations. This more reciprocal understanding of entitlement encourages us to think hard about what we owe, not just to ourselves but to one another.

 

August 17, 2020 in Books, Manliness, Masculinities, Theory | Permalink | Comments (0)

Thursday, August 6, 2020

Book Talk: What Does a Feminist City Look Like

What Does a Feminist City Look Like?

Feminist geographer Leslie Kern has faith in cities.

 

Kern, an associate professor of geography and environment and director of women’s and gender studies at Mount Allison University in Sackville, Canada, believes cities’ histories as bastions of social progress prove they can be transformative places for women and other people who have been, and remain, socially and politically oppressed.

 

But in her new book, “Feminist City: Claiming Space in a Man-Made World,” Kern argues that despite their potential, cities have also long failed — and continue to fail — women, and specifically women of color and women with disabilities. Kern spoke to The Lily about how she believes feminist cities could stymie domestic violence and better support parents, why urban planners should read feminist theory and what the coronavirus pandemic reveals about how cities need to change to be more equitable places for all their inhabitants

 

Julianne McShane: I first want to ask a question that’s probably on a lot of readers’ minds: What makes a city feminist?

Leslie Kern: A feminist city would be one that prioritizes care work — the work that we all do to take care of one another and to survive as human beings — rather than mostly prioritizing the economic work of the city. So there’s lots of ways that can play out, whether it’s in housing, transportation, food, child care, all of these realms, but to me that is one of the core principles that would underlie a feminist city.

Click the link above to read the rest of the interview.

August 6, 2020 in Books, Family, Theory | Permalink | Comments (0)

Monday, July 20, 2020

Giving Gender Discrimination a Meaningful Remedy: Rewriting Justice Ginsburg's Opinion in Morales-Santana

I have just published: Tracy Thomas, Rewriting Sessions v. Morales-Santana, in Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouche ed., July 2020)

In Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), the Supreme Court in an opinion by Justice Ginsburg struck down a citizenship law that discriminated against children born abroad to US citizens based on whether the citizen was their father or their mother.  The opinion was widely held to be a model of equal protection analysis, documenting the legal history of the Court's gender equal protection law and recognizing the masculinity side of gender discrimination against men.  

However, the opinion was problematic for its refusal to order a meaningful remedy for the petitioner.  The Court did not grant the discrimination victim relief, but instead ordered the government to adopt formally equal rules going forward, and that those rules should be the more stringent rule for fathers. The Court was focused on restraining the government rather than redressing the individual's harm.

I have written about the remedial problem of so-called leveling down unequal treatment to deny the benefit.  Tracy Thomas, Leveling Down Gender Equality,  Harvard J. Law & Gender (2019).

In this book chapter, I apply these criticisms to rewrite the Court's opinion to properly award a meaningful remedy as required by due process.  This book is part of the US Feminist Judgments Project rewriting key court decisions as if they had been informed by feminist theory. 

 

 

 

July 20, 2020 in Books, Constitutional, Family, Masculinities, SCOTUS | Permalink | Comments (0)

Tuesday, July 14, 2020

Guest Blogger Julie Suk on the ERA as a Political Question

Guest Blogger, Julie Suk is Professor of Sociology & Political Science, The Graduate Center - CUNY, and Visiting Professor at Yale Law School.  She is the author of the new book We the Women: The Unstoppable Mothers of the Equal Rights Amendment (forthcoming August 2020). You can follow her @JulieCSuk

 

Julie Suk, The Feminist ERA Worth Fighting For:: A Political Question

Virginia became the 38th state to ratify the Equal Rights Amendment earlier this year, one hundred years after the Nineteenth Amendment and nearly fifty years after the ERA was adopted by Congress. My forthcoming book, We the Women, chronicles women’s long battle for the ERA to argue that the 1972 Equal Rights Amendment should be added to the Constitution, despite the passage of roughly forty years after the ratification deadline.

But the procedural path by which the ERA gets saved will shape the ERA’s long-term legitimacy and feminist potential. That is why I filed an amicus brief in the litigation brought by Virginia in pursuit of a judicial declaration of the ERA’s validity, arguing that Congress, not the courts, should decide in the first instance what to do about the ERA ratification deadline. Joined by distinguished constitutional law professors Erwin Chemerinsky, Reva Siegel, and Noah Feldman, our brief applies the logic of Coleman v. Miller, which affirmed Congress’s power over time frames for ratification, and treated the reasonableness of ratification time frames as a nonjusticiable political question. In the lawsuit, the three states that ratified the ERA after the deadline are suing the National Archivist, who refuses to publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.  Virginia claims that Article V does not authorize Congress to impose ratification deadlines on sovereign states. The court has allowed an intervention by states that have not ratified the ERA, or voted to rescind their prior ratifications. In their motion for summary judgment, filed earlier this week, the intervenors urge the court to conclude that “the ERA that Congress proposed in 1972 failed of adoption in 1979 and can no longer be ratified,”and that they possess sovereign power as states to rescind their ratifications. If the court reaches the merits of the intervenor states’ arguments, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.

Our amicus brief supports no party, even though Virginia’s goal of a court declaring the ERA to be part of the Constitution now, after a century of struggle, is admittedly enticing for the ERA proponent. But here’s what ERA proponents can gain if Congress votes to removes the deadline first: feminist legislative history that guides its future meaning. This path could take longer, because congressional action to save the ERA might not be accomplished until after November’s election.

Pro-ERA groups like the ERA Coalition have already made incrementally successful efforts to persuade Congress to remove the deadline. In Congress, the House passed a resolution lifting the deadline on ratification in February 2020, and a similar resolution has been introduced in the Senate with 48 sponsors so far.  (Thirty-five Senate seats are on the ballot this November). The ERA’s long-term legitimacy depends on Congress taking action to remove the deadline before Trump-appointed federal judges take the opportunity to declare the ERA forever expired. 

More importantly, congressional action is more likely to produce the robust ERA that its proponents are fighting for.  As 8 amicus briefs filed by many women’s groups make clear, ERA proponents want the ERA to go farther than judicially-created sex equality under the Equal Protection Clause, to reach pregnancy discrimination, the problems brought to light by the #MeToo movement, and the gender inequities in caregiving and essential work laid bare by the Covid-19 crisis.  They want the U.S. Constitution to learn from gender equality provisions promoting real equality in other constitutional democracies around the world that were adopted after the ERA was proposed. That robust ERA, moving beyond what was intended or imagined in the 1970s, is already being made by lawmakers through legislative hearings and debates about removing the deadline. This overtly political debate will not be part of a judicial decision in a litigation about Article V.

The 116th Congress had record numbers of women and women of color elected. When the House voted in February 2020 to recognize the ERA as valid “whenever ratified” by three-fourths of the states – which occurred when Virginia became the 38th state to ratify the ERA in January, that vote came after two hearings and a floor debate. In April 2019, due largely to the persistent advocacy of the ERA Coalition, the House Judiciary Committee held a hearing on removing the deadline on the ERA.  In that hearing, constitutional law giant Kathleen Sullivan pointed to the gender equality provisions in constitutions around the world, and called the absence of such a provision in the United States a “national embarrassment.”  In November 2019, the House Judiciary Committee voted to report the ERA deadline removal favorably for a full vote by the House.  Unlike the all-male House Judiciary Committee that reported the ERA out in 1971, nearly one-third of the current committee consists of women. Several women of color on the committee, like Congresswoman Sheila Jackson Lee of Texas, explained why the ERA was still needed in the markup hearing.  Congresswoman Pramila Jayapal said that the ERA could reach discrimination based on pregnancy, childbirth, and caregiving responsibilities.  “A vote for the ERA is a vote for families,” she said, countering the 1970s STOP-ERA campaigns depicting the ERA as anti-family.

The House Judiciary Committee’s written report, issued in January 2020, suggested that the ERA

could provide a basis for Congress to engage in affirmative efforts to support gender equality both at home and in the workplace. Additionally, under some theories, the ERA could provide a basis for plaintiffs to challenge laws or policies that have a disparate impact on women, or support efforts to create gender balance in certain contexts.  Additionally, the ERA's prohibition against discrimination “on account of sex” could be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.

In the floor debate leading to the House’s vote to lift the deadline, several Congresswomen from various states, ranging in age, race, and ethnic background, spoke to give the ERA meaning, including some who opposed it.  Speaker Nancy Pelosi said the ERA would help protect pregnant women and new mothers who were in the workforce.  Congresswoman Rashida Tlaib, the first Muslim woman ever elected to Congress, said that the ERA was “about women of color, women with disabilities, transgender women, immigrant women.” In both the Judiciary Committee report and the floor debate, ERA opponents expressed the fear that the ERA would expand abortion access, to which Judiciary Committee Chairman Nadler responded, “If people on the other side want to admit that equality of rights under the law means there must be a constitutional right to abortion, well, that is wonderful.“ Congress – the lawmaking body of democratically elected representatives from throughout the nation – is the only institution that can make the ERA address twenty-first century concerns, as new constitutional meanings emerge from dynamic dialogue with the political opposition.

In the Senate, Republican Lisa Murkowski has cosponsored S.J. 6, lifting the ERA deadline, along with Democrat Ben Cardin.  The Senate resolution now has 48 cosponsors.  On June 4, 2020, Senator Murkowski recognized the 101st anniversary of the Senate’s adoption of the women’s suffrage amendment. She pointed to Virginia’s ratification of the ERA and urged her Senate colleagues to remove the deadline. “I have asserted time and again . . . that you cannot put a time limit on women’s equality. . . Women’s equality is fundamental to the American way of life, and it is far past time to be expressly recognized in the Constitution.” In that same speech, she acknowledged the persistence of racial injustice and its connection to the struggle for women’s equality: “Today, June 4, is not only a recognition of women’s suffrage, but it is the funeral of George Floyd.”

Congressional efforts to remove the ratification deadline create opportunities for lawmakers to articulate why the ERA remains necessary and what its twenty-first century goals are. Congressional completion of ERA ratification will make the contributions of women lawmakers part of the twenty-first century ERA’s legislative history.  A judicial decision about the ratification deadline simply can’t do the feminist heavy lifting that the women in Congress are doing.  In 1978, women in Congress led the first extension of the ERA deadline, and clarified the ERA’s goals in those debates.  In the past year, as it debated the deadline removal, Congress has been at the center of updating the ERA to respond to the twenty-first century needs of all the nation’s people.  These meanings will become part of the ERA if Congress acts to remove the deadline.

July 14, 2020 in Books, Constitutional, Guest Bloggers | Permalink | Comments (0)

Wednesday, July 8, 2020

Gender Diversity and Diversity Fatigue: Shifting the Focus to Corporations and Systemic Solutions

Douglas Branson, Gender Diversity, Diversity Fatigue, and Shifting the Focus, 87 Geo. Wash. U. L. Rev. 1061 (2019)

The women’s movement has been with us for approximately 50 years. Women are airline pilots, police officers, engineers, fire fighters, physicians, and veterinarians. By contrast, the progress to corporate senior executive positions has been paltry, in fits and starts, at best in baby steps. Ascendant males would tell you that women have made no business case for increasing the number of female executives. In response, this Article contends that the focus, exclusively upon women themselves, is all wrong. The focus should be on corporations themselves, the employers, and not exclusively on aspiring women. Beyond lip service, corporations have done little, throwing a few dollars at STEM programs that may lead to a first or second position, but not to leadership roles. Information technology empirical studies show that of the measly 4.8% of executive positions women hold, only two are held by women with STEM degrees. All of the remaining 25 female executives have law or business degrees with MBAs predominating. The tech industry attempts to crowd out women completely, by hiring males from foreign countries who enter the United States with H1-B visas that allow them to stay for six years and often permanently. It is high time for corporations themselves to undertake concrete steps of the nature with which this Article concludes.

See also Douglas Branson, The Future of Tech is Female (2018)

The Future of Tech is Female considers the paradoxes involved in women’s ascent to leadership roles, suggesting industry-wide solutions to combat gender inequality. Drawing upon 15 years of experience in the field, Douglas M. Branson traces the history of women in the information technology industry in order to identify solutions for the issues facing women today. Branson explores a variety of solutions such as mandatory quota laws for female employment, pledge programs, and limitations on the H1-B VISA program, and grapples with the challenges facing women in IT from a range of perspectives.

Branson unpacks the plethora of reasons women should hold leadership roles, both in and out of this industry, concluding with a call to reform attitudes toward women in one particular IT branch, the video and computer gaming field, a gateway to many STEM futures. An invaluable resource for anyone invested in gender equality in corporate governance, The Future of Tech is Female lays out the first steps toward a more diverse future for women in tech leadership

July 8, 2020 in Books, Business, Technology, Workplace | Permalink | Comments (0)

Monday, July 6, 2020

Book Invisible Women: Data Bias in a Male World

  Caroline Criedo Perez, Invisible Women: Data Bias in a World Designed for Men

Data is fundamental to the modern world. From economic development, to healthcare, to education and public policy, we rely on numbers to allocate resources and make crucial decisions. But because so much data fails to take into account gender, because it treats men as the default and women as atypical, bias and discrimination are baked into our systems. And women pay tremendous costs for this bias, in time, money, and often with their lives.

Celebrated feminist advocate Caroline Criado Perez investigates the shocking root cause of gender inequality and research in Invisible Women​, diving into women’s lives at home, the workplace, the public square, the doctor’s office, and more. Built on hundreds of studies in the US, the UK, and around the world, and written with energy, wit, and sparkling intelligence, this is a groundbreaking, unforgettable exposé that will change the way you look at the world.

From Goodreads:

Imagine a world where your phone is too big for your hand, where your doctor prescribes a drug that is wrong for your body, where in a car accident you are 47% more likely to be seriously injured, where every week the countless hours of work you do are not recognised or valued. If any of this sounds familiar, chances are that you're a woman.

Invisible Women shows us how, in a world largely built for and by men, we are systematically ignoring half the population. It exposes the gender data gap – a gap in our knowledge that is at the root of perpetual, systemic discrimination against women, and that has created a pervasive but invisible bias with a profound effect on women’s lives.

Award-winning campaigner and writer Caroline Criado Perez brings together for the first time an impressive range of case studies, stories and new research from across the world that illustrate the hidden ways in which women are forgotten, and the impact this has on their health and well-being. From government policy and medical research, to technology, workplaces, urban planning and the media, Invisible Women reveals the biased data that excludes women. In making the case for change, this powerful and provocative book will make you see the world anew.
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July 6, 2020 in Books, Business, Gender, Healthcare, Science | Permalink | Comments (0)

Monday, June 1, 2020

New Book: Syndicate Women: Gender in Organized Crime

Chris Smith, Syndicate Women: Gender and Networks in Chicago Organized Crime

In Syndicate Women, sociologist Chris M. Smith uncovers a unique historical puzzle: women composed a substantial part of Chicago organized crime in the early 1900s, but during Prohibition (1920–1933), when criminal opportunities increased and crime was most profitable, women were largely excluded. During the Prohibition era, the markets for organized crime became less territorial and less specialized, and criminal organizations were restructured to require relationships with crime bosses. These processes began with, and reproduced, gender inequality. The book places organized crime within a gender-based theoretical framework while assessing patterns of relationships that have implications for non-criminal and more general societal issues around gender. As a work of criminology that draws on both historical methods and contemporary social network analysis, Syndicate Women centers the women who have been erased from analyses of gender and crime and breathes new life into our understanding of the gender gap.

June 1, 2020 in Books, Gender, Legal History | Permalink | Comments (0)

Tuesday, May 26, 2020

New Book: Presumed Incompetent II: Personal Narratives of Race, Class, Power, and Resistance of Women in Academia

Presumed Incompetent II:Race, Class, Power, and Resistance of Women in Academia

The courageous and inspiring personal narratives and empirical studies in Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia name formidable obstacles and systemic biases that all women faculty—from diverse intersectional and transnational identities and from tenure track, terminal contract, and administrative positions—encounter in their higher education careers. They provide practical, specific, and insightful guidance to fight back, prevail, and thrive in challenging work environments. This new volume comes at a crucial historical moment as the United States grapples with a resurgence of white supremacy and misogyny at the forefront of our social and political dialogues that continue to permeate the academic world.

Contributors: Marcia Allen Owens, Sarah Amira de la Garza, Sahar Aziz, Jacquelyn Bridgeman, Jamiella Brooks, Lolita Buckner Inniss, Kim Case, Donna Castaneda, Julia Chang, Meredith Clark, Meera Deo, Penelope Espinoza, Yvette Flores, Lynn Fujiwara, Jennifer Gomez, Angela Harris, Dorothy Hines, Rachelle Joplin, Jessica Lavariega Monforti, Cynthia Lee, Yessenia Manzo, Melissa Michelson, Susie E. Nam, Yolanda Flores Niemann, Jodi O’Brien, Amelia Ortega, Laura Padilla, Grace Park, Stacey Patton, Desdamona Rios, Melissa Michal Slocum, Nellie Tran, Rachel Tudor, Pamela Tywman Hoff, Adrien Wing, Jemimah Li Young

For the first volume, see Presumed Incompetent: The Intersections of Race and Class for Women in Academia

May 26, 2020 in Books, Education, Race, Workplace | Permalink | Comments (0)

Tuesday, May 5, 2020

Call for Authors Feminist Judgments -- Rewritten Criminal Law Opinions

Call for Authors

Feminist Judgments: Rewritten Criminal Law Opinions

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Criminal Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series have focused on different courts and different subjects. This call is for contributions to a volume of criminal law decisions rewritten from a feminist perspective.

Feminist Judgments: Rewritten Criminal Law Opinion editors Sarah Deer, Corey Rayburn Yung, and Bennett Capers seek prospective authors to rewrite criminal law opinions covering a range of topics. With the help of an Advisory Committee, the editors have chosen a list of cases to be rewritten (as noted below). Potential authors are welcome to suggest other cases, though certain constraints (including a preference for avoiding cases that have already been or soon will be rewritten for other volumes in this series) may preclude their addition to the volume. We also seek authors to provide brief commentary on the original and rewritten cases.

Rewritten opinions may be reimagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000-word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made going forward (4,000-word maximum for the commentary). The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique feminist ideas and advocacy. We are “big tent” and welcome all types of feminism, from liberal feminism to abolitionist feminism. We certainly welcome an intersectional analysis of cases where sex or gender played a role alongside racism, ableism, classism, and other concerns.

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten criminal law cases should email the volume editors (sarah.deer@ku.edu, coreyyung@ku.edu, and capers@fordham.edu) and put “Feminist Judgments: Rewritten Criminal Law Opinions” in the subject line. In the body of the email, please indicate whether you are interested in writing an opinion or providing a commentary, and specify one or more of the cases from the list below that you would like to rewrite or comment on. You are also free to suggest a case not listed.

Please note that the editors are committed to diversity in all of its forms, and committed to including a diverse group of authors in this volume. If you feel an aspect of your personal identity is important to your participation in this volume, please feel free to include that in your expression of interest.

Applications are due by June 1, 2020. The editors expect to notify accepted authors and commentators no later than July 1, 2020. First drafts of rewritten opinions will be due on October 1, 2020. First drafts of commentaries will be due on November 1, 2020.

List of cases:

  1. Oliphant v. Suquamish, 435 U.S. 191 (1978) (tribal criminal jurisdiction)
  2. Winnebago v. BigFire, 25 Indian L. Rptr 6229 (1998) (strict scrutiny for gender cases)
  3. Elonis v. United States, 575 U.S. 723 (2015) (threatening communications case)
  4. U.S. v. Nwoye, 824 F.3d 1129 (2016) (domestic violence/duress)
  5. Keeler v. Superior Ct of Amador Cnty, 470 P.2d 617 (Cal. 1970) (killing of fetus)
  6. Whitner v. State, 492 S.E.2d 777 (1977) (criminalizing prenatal activity)
  7. Coker v. Georgia, 433 US. 584 (1977) (death penalty and rape)
  8. McCleskey v. Kemp, 481 U.S. 279 (1987) (death penalty and race)
  9. People v. Berry, 556 P.2d 777 (1976) (provocation)
  10. Girouard v. State, 583 A.2d 718 (Md. 1991) (provocation)
  11. People v. Helen Wu, 286 Cal. Rptr. 868 (1991) (cultural defense)
  12. State v. Norman, 324 N.C. 253 (1989) (self-defense)
  13. State v. Rusk, 424 A.2d 720 (1981) (acquaintance rape)
  14. Massachusetts v. Blache, 880 N.E.2d 736 (Mass. 2008) (rape/intoxication)
  15. McQuirter v. State, 36 Ala. 707 (1953) (rape/race)
  16. State re M.T.S., 609 A.2d 1266 (N.J. 1992) (juveniles/rape)

May 5, 2020 in Books, Call for Papers, Constitutional | Permalink | Comments (0)

Wednesday, March 18, 2020

The Use of Sex as a Proxy for Interest in Predictive Algorithms

Deborah Hellman, Sex, Causation, and Algorithms: Equal Protection in the Age of Machine Learning,  98 Wash.U. L. Rev. (forthcoming 2020)

U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute [VMI] may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state – consistent with equal protection – rely on an algorithm that uses a sex-based classification?

This Article presents a new normative principle to guide the analysis. I argue that courts ought to ask why sex is a good proxy for the trait of interest. If prior injustice is likely the reason for the observed correlation, then the use of the sex classification should be presumptively prohibited. This Anti-Compounding Injustice principle both explains and justifies current doctrine better than the hodge-podge of existing rules and concepts and provides a useful lens through which to approach new cases.

March 18, 2020 in Books, Business, Constitutional, Gender, Theory | Permalink | Comments (0)