Monday, May 20, 2024

Chan Tov McNamarah on "Cis-Woman-Protective Arguments"

Chan Tov McNamarah has published "Cis-Woman-Protective Arguments" in Volume 123 of the Columbia Law Review.  Here is a summary excerpt: 

It has become common to oppose the equal citizenship of transgender persons by appealing to the welfare of cisgender women and girls. Such Cis-Woman-Protective (CWP) arguments have driven exclusionary efforts in an array of contexts, including restrooms, sports, college admissions, and antidiscrimination law coverage. Remarkably, however, this unique brand of anti-trans contentions has largely escaped being historicized, linked together, or subjected to extended analytical scrutiny as a group.

Tallied up, these problems make a strong case that, strategically, CWP arguments are ineffective and deeply flawed—even counterproductive—assuming that protecting cis women and girls is truly the goal. Building on that assessment, the Essay concludes with reasons for healthy skepticism that it actually is. Stripping away the veneer of protectionism begins to expose some less-palatable intentions and effects possibly driving the use of CWP arguments.

This Essay provides those missing pieces.

First, it situates CWP arguments within the longer history of woman-protective justifications in American law. Taking their well-known harms to women, alongside their use in lending legitimacy to discrimination against racial and religious minorities, forcefully demonstrates that the rationales’ current use against transgender persons warrants closer inspection.

Second, the Essay canvasses recent CWP arguments to document the line of thought. Reading the heretofore-uncollected allegations reveals a far-reaching cluster of contentions, whose members bear striking family resemblances to, and inherit the disfigurements of, their historical priors.

Third, casting unsparing light on the claims, the Essay demonstrates that CWP arguments overwhelmingly fail to deliver. Structurally, the arguments’ moves are questionable, at best. Substantively, most fall wide of their mark. And, instrumentally, the arguments backfire completely, since their operationalization harms the very persons they supposedly protect.

May 20, 2024 in Constitutional, Gender, Theory | Permalink | Comments (0)

Tuesday, May 14, 2024

Symposium Advancing Pregnant Persons' Right to Life

Boston University School of Law, Advancing Pregnant Persons' Right to Life

On February 8, 2024, scholars of law, medicine, and religion from across the world came together at Boston University School of Law to discuss the potential of promoting and protecting reproductive justice through advancing pregnant persons’ right to life. Stemming from that event are six articles and an annotated bibliography from leading legal scholars. This historic and important symposium is captured in its entirety in the video below.

The Free Exercise Right to Life
David A. CarrilloAllison G. Macbeth, & Daniel Bogard
104 B.U. Law Review Online 19 (2024)

Religion Clause Challenges to Early Abortion Bans 
Caroline Mala Corbin
104 B.U. Law Review Online 37 (2024)

Medical Authority and the Right to Life
Jessie Hill
104 B.U. Law Review Online 67 (2024)

The Right to Life as a Source of Abortion Rights: Lessons from Kansas
Richard E. Levy
104 B.U. Law Review Online 87 (2024)

Turning Away from Criminal Abortion Laws and Towards Support for Pregnant People and Families
Cynthia Soohoo
104 B.U. Law Review Online 109 (2024)

Reproductive Justice and the Thirteenth Amendment
Rebecca E. Zietlow
104 B.U. Law Review Online 143 (2024)

Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life
Martha F. Davis
104 B.U. Law Review Online 161 (2024)

May 14, 2024 in Abortion, Conferences, Constitutional, Pregnancy, Religion, Reproductive Rights | Permalink | Comments (0)

CFP 150th Anniversary of Minor v Happersett and Women's Second Class Citizenship

The 150th Anniversary of Minor v. Happersett: The Past and Future of Women's Rights

Washington University School of Law

September 27, 2024

Call for Papers

Abstract Submission Deadline: June 14

The Washington University School of Law and the Washington University Law Review will host a Symposium centered on the 150th anniversary of the historic St. Louis case, Minor v. Happersett, on September 27, 2024. (The 150th anniversary will align with the subsequent publishing of the Law Review's Symposium edition as Volume 6 of Issue 102 the following spring.)

In 1872, Virginia Minor challenged a St. Louis registrar's decision to block her from registering to vote. Minor argued the Fourteenth Amendment conferred upon her the right to vote as a "privilege" of American citizenship. In 1875, the Supreme Court unanimously rejected Minor's assertion, ruling that voting was not a right of national citizenship. Despite the rejection of Minor's claim, this case remains an important historical moment in both American women's suffrage and the feminist movement at large.

This Symposium will bring together scholars across many fields of law, including feminist studies, voting rights and election law, and related fields. Submissions having no direct relation to the Minor case are welcome. Papers might address topics including, but not limited to, the following:

  • The history and evolution of women's rights
  • Past or present voting rights and election law
  • Ballot initiatives post-Dobbs

The Symposium will consist of approximately 3-4 panels over the course of one day, with the panels being created by the Law Review based on relatedness of subject matters across selected pieces. Participants will attend and serve on the panels, and will be asked to read up to a dozen papers (with special attention paid to the papers of others on their panel). The papers circulated for the Symposium are drafts, and the discussion on September 27 will include feedback.

The Symposium will include a dinner the night before. There is no conference fee, and Washington University will host all of the meals on the conference date. Funding will be available to assist with travel expenses-each participant is eligible for up to $1,000 to reimburse hotel and economy-class airfare expenses.

To apply, please submit an abstract of no more than 500 words to [email protected] by June 14, 2024. Submissions will be vetted by a committee of students from the Law Review, supervised by faculty advisors (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with other papers in a collaborative dialogue.

Participants will also be invited to submit a paper for publication in the Washington University Law Review's Symposium edition (Issue 6 of Volume 102). The publication cycle for this edition will begin in February 2025, with publication estimated to be in the late summer of 2025. If you are interested in publishing a paper (10,000-15,000 words), please indicate your interest when you submit your abstract.

Participants will be notified of their selection by early July. Drafts for distribution at the Symposium will be due on September 6. We look forward to your submissions and participation. Questions can be directed to the organizing Law Review members and their faculty advisors via the [email protected] address.

Thank you!

Hannah Keidan

Chief Diversity Editor (Law Review lead on the Symposium)

Washington University Law Review

[email protected]

Kaitlyn Salyer


Washington University Law Review

[email protected]

Susan Frelich Appleton

Lemma Barkeloo & Phoebe Couzins Professor of Law

Washington University School of Law

[email protected]

Travis Crum

Associate Professor of Law

Washington University School of Law

[email protected]

May 14, 2024 in Call for Papers, Constitutional, Scholarship | Permalink | Comments (0)

Wednesday, May 1, 2024

Fourth Circuit Rules that State Health Care Insurance Plans Must Cover Gender-Affirming Care

Washington Post, Court Says State Health-Care Plans Can't Exclude Gender-Affirming Surgery

A federal appellate court in Richmond became the first in the country to rule that state health-care plans must pay for gender-affirming surgeries, a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation.

The decision came from a set of cases out of North Carolina and West Virginia, where state officials argued that their policies were based on cost concerns rather than bias. The U.S. Court of Appeals for the 4th Circuit rejected that argument, saying the plans were discriminating against trans people in need of treatment.

Judge Roger L. Gregory, an appointee of President Bill Clinton, wrote for the majority that the restrictions were “obviously discriminatory” based on both sex and gender.

“In this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex,” Gregory wrote, because “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it.”

The majority ruled that West Virginia’s policy also violated the Affordable Care Act’s anti-discrimination provision, a finding that has broad implications for other states’ Medicaid programs.

It’s the second ruling in favor of trans rights this month from the 4th Circuit, a once-conservative court that has become a trailblazer in the realm of transgender rights. The court was the first to say trans students had a right to use the bathrooms that align with their gender identity and the first to recognize gender dysphoria as a protected disability. Earlier this month, the court said a federally funded middle school could not ban a trans 13-year-old from playing on the girls’ track and field team.

May 1, 2024 in Constitutional, Healthcare, LGBT | Permalink | Comments (0)

Thursday, April 11, 2024

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.


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)

Tuesday, April 2, 2024

SCOTUS to Consider Whether Gender Bias and Sex Shaming Contributed to Death Penalty Conviction

NY Times, Did Prosecutors' Sex Shaming Help Send Brenda Andrew to Death Row?


Later this month, the Supreme Court will consider whether to hear Ms. Andrew’s appeal, which said the display of her underwear was a representative part of an unrelenting strategy by prosecutors, as a dissenting judge put it, “of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother and a bad woman.”

Nathalie Greenfield, one of Ms. Andrew’s lawyers, said gender stereotypes infected the trial and poisoned the jury.

“Every single day the state was presenting gendered evidence about her appearance, about her clothing, about her sexual practices, about her skills as a mother,” she said. “We’ve got someone who is at risk of execution for not conforming to gender stereotypes.” ***

“Gender bias is normalized and tolerated to an extent that racial bias no longer is in the administration of the death penalty,” said Sandra Babcock, a law professor at Cornell who represents Ms. Andrew in a related case. “Women on trial for capital murder have been subjected to similar shaming tactics for hundreds of years.”

In urging the Supreme Court not to hear the case, Andrew v. White, No. 23-6573, prosecutors said almost nothing to justify using evidence about Ms. Andrew’s appearance and sexuality. They argued instead that it was “but a drop in the ocean” in the case against her. State and federal appeals courts have more or less agreed, suggesting that the prosecutors’ presentation was regrettable but that there was ample evidence of Ms. Andrew’s guilt

See Supreme Court Amicus Brief Argues Brenda Andrew's Capital Murder Case Used Prejudicial "Sexualized Evidence", Gender & the Law Blog.

April 2, 2024 in Constitutional, Courts, Gender, SCOTUS | Permalink | Comments (0)

Thursday, March 28, 2024

Symposium, Securing Reproductive Justice After Dobbs, in Journal of Law, Medicine & Ethics

Aziza Ahmed, Nicole Huberfeld & Linda McClain, Introduction: Securing Reproductive Justice After Dobbs, 51 Journal of Law, Medicine & Ethics 463 (Fall 2023)

By overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and throwing the question of how to regulate abortion to the “people and their elected representatives,” Dobbs v. Jackson Women’s Health Organization radically reset the legal, ethical, medical, public health, and political landscape. This introduction to a special multidisciplinary symposium, “Seeking Reproductive Justice in the Next 50 Years,” in the Journal of Law, Medicine, & Ethics, sets the stage for the twenty-five symposium articles that map and document the post-Dobbs landscape. Dobbs has already had dire and far-reaching effects on the legal regulation of pregnancy and reproduction. In this new landscape, questions arise about how to secure reproductive justice and about what strategies and approaches hold promise. This essay introduces the several organizing parts of the symposium, Beginnings, Social and Legal Dimensions of the Post-Dobbs Health Care Environment, Legal Regulation of Pregnancy and Reproduction, and New Strategies and Approaches. We explain how each article contributes a critical aspect of the bigger picture, demonstrating the need for working across disciplines.

I was glad to be a part of this symposium. See Tracy Thomas, Protecting Abortion with State Health Care Freedom of Choice, 51 J. Law, Medicine & Ethics 601 (2023).

March 28, 2024 in Abortion, Constitutional, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Critical Role of History After Dobbs

Serena Mayeri, The Critical Role of History After Dobbs, 2 Journal of American Constitutional History 171 (Winter 2024)

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality.

This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define differently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy.

March 28, 2024 in Abortion, Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Monday, March 25, 2024

Equal Rights Amendment Event on April 12th

On April 12th, the Columbia Law School ERA Project and Georgetown Law will host an event in-person (D.C.) and online titled The Present and Future of the Equal Rights Amendment. Speakers include Kirsten Gillibrand, Mazie Hirono, Ben Cardin, Cori Bush, Ayanna Pressley, and others. Here are panel summaries:  

The first panel at 10:15 is designed to clarify the remaining challenges to final ratification of the ERA as the 28th amendment to the US Constitution. Topics for discussion papers include: what are the impediments to final ratification, how have similar objections to earlier amendments been addressed/resolved, how we might overcome them, whether they are more legal or political in nature, etc. 

The second panel at 1pm is designed to develop a substantive framework for a new source of equality rights in the constitution. We hope that, as a new, free-standing amendment, the ERA can/should embrace an alternative and more modern approach to equality as an independent source of constitutional rights beyond the tiers of scrutiny under the 14th Amendment.  

Register here

March 25, 2024 in Constitutional, Legislation | Permalink | Comments (0)

Thursday, March 21, 2024

New Book, Social Movements and the Law--Talking About Black Lives Matter and #MeToo

Lolita Buckner Innis & Bridget Crawford, Social Movements and the Law: Talking About Black Lives Matter and #MeToo
University of California Press (forthcoming 2024)

Black Lives Matter and #MeToo are two of the most prominent social movements of the U.S. in the twenty-first century. On the ground and on social media, in reality and virtuality, more people have taken an active stance in support of either or both movements than almost any other in the country’s history. Social Movements and the Law brings together the voices of twelve scholars and public intellectuals to explore how Black Lives Matter and #MeToo unfolded—separately and together—and how they enrich, inform, and complicate each other. Structured in dialogues, this book shows—rather than tells—how people with different perspectives can engage with open minds and a generosity of spirit. Each chapter begins with an introduction from the editors and includes informative text boxes, illustrations, and discussion questions. This accessible guide to this increasingly influential area of the law centers a rich intersectional analysis of the two social movements and aids readers in further reflection and conversation. It is especially timely given the heightened public attention—both negative and positive—to the broader scholarly study of human social behavior and interaction.

The dialogue participants are Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, Bennett I. Capers, Linda S. Greene, Aya Gruber, Osamudia James, Keisha Lindsay, Ruthann Robson, Kathryn M. Stanchi, and Lua Kamál Yuille.

Included here are a short abstract, the table of contents for the book, and the editors’ introductory chapter. The book will be available for pre-order from the University of California Press in April, 2024.

March 21, 2024 in Books, Constitutional, Equal Employment, Race, Scholarship | Permalink | Comments (0)

Monday, March 18, 2024

Laura Portuondo on "Gendered Liberty"

Laura Portuondo has posted Gendered Liberty on SSRN. This article is forthcoming in the Georgetown Law Review in 2024. The abstract previews: 

Individual liberty is ascendant in constitutional law, but only for some. First Amendment doctrine has increasingly protected liberty interests in conduct linked to conscientious identity, as exemplified by newly successful claims to religious exemptions from antidiscrimination law. This contrasts with shrinking Fourteenth Amendment protections for liberty interests in conduct linked to gender identity, as exemplified by the recently eliminated right to abortion and imperiled rights to contraception, marriage, and sexual intimacy. More muscular protections for conscientious liberty have diminished even statutory protections for gender-related conduct. The result is a liberty jurisprudence that increasingly protects conservative religious objectors, even as it increasingly dismisses marginalized gender groups. This Article argues that this disparity is neither a requirement of constitutional doctrine nor an extension of a neutral theory of liberty. Instead, it emerges from a gendered theory of liberty: one that protects the freedom to enforce traditional ideas about gender and denies the freedom to challenge them.

By describing gendered liberty, this Article shows that the fall of liberty under the Fourteenth Amendment and its rise under the First Amendment are symbiotic. These doctrines work together to launder controversial judgments about the value of gender nonconformity into seemingly neutral stories about liberty. In doing so, they permit the Supreme Court to subordinate the autonomy and self-determination of those who would defy gender stereotypes to that of those who would enforce gender stereotypes. More importantly, they permit the Supreme Court to deny that it is engaged in a project of subordination at all. This Article resists these claims of neutrality and the stories about liberty they rely on by showing that liberty includes those who do not conform to gendered expectations.

March 18, 2024 in Constitutional, Courts, Gender, Reproductive Rights, Same-sex marriage, Theory | Permalink | Comments (0)

Wednesday, March 13, 2024

Solidifying Students' Rights to Gender Expression, A Response to Dara Purvis, Transgender Students and the First Amendment

Scott Skinner-Thompson, Solidifying Students' Right to Gender Expression, 104 Boston U. L. Rev.  (2024)

The genders and sexualities of students are regulated, shaped, and oppressed by formal school policies and informal educational norms. Some of these policies are quite obvious; others subtler. Such regulation includes rigid binary-based dress codes, ad hoc policing of gender non-normative clothing, sex-segregated spaces and activities, regulation of student pronoun use, and literal gender identity committees for determining students’ eligibility for athletic participation. Against this backdrop of social control, students routinely seek freedom—the freedom to explore, understand, develop, and express their genders and sexualities. Indeed, expression of one’s gender and sexuality—through clothing, nomenclature, pronouns, association, use of sex-segregated spaces, and more—is at the heart of being and becoming one’s gender and sexuality. For those reasons, the First Amendment’s protections for free speech—for free expression—have served as a cornerstone of queer liberation for over a half-century, protecting queer people’s ability to gather together, develop their identities, and share their experiences. And to the extent the First Amendment provides special solicitude to speech that runs against cultural grains, renewed emphasis on the expressive components of gender identity could provide significant protection for beautifully nonconforming gender identities. Notwithstanding the First Amendment’s queer pedigree and emancipatory potential, the operationalization of free speech rights for transgender and gender-nonconforming students remains underdeveloped. That lack of precise development leaves queer students’ right to expression (and right to their identities) vulnerable to erosion or, worse still, weaponization against them.Thankfully, Dara Purvis’s new article, Transgender Students and the First Amendment, provides a great service by refining the governing tests for determining whether schools are impermissibly infringing students’ gender expression. Building on her tremendous prior scholarship in this area, Professor Purvis underscores how students’ gender expression is potentially vulnerable to regulation pursuant to two principal doctrinal arguments that may help such regulation elide the First Amendment. The first riposte Purvis addresses is that students’ non-normative expression is “disruptive” to the educational environment and therefore permissibly silenced pursuant to the governing test first articulated in Tinker v. Des Moines. The second is that students’ gender expression might be characterized as lewd and therefore subject to constitutionally tolerable restriction pursuant to Bethel v. Fraser. With regard to each, Purvis confronts these potential doctrinal vulnerabilities by taking account of the broader social ecosystem of both the school house and the state house. In other words, she flips the scripts and explains how the schools and legislatures themselves are disrupting transgender students’ expression and sexualizing nonnormative gender identities.

March 13, 2024 in Constitutional, Education, LGBT | Permalink | Comments (0)

Monday, March 11, 2024

Neoshia Roemer on "Equity for American Indian Families"

Neoshia Roemer has posted her work-in-progress, Equity for American Indian Familieson SSRN. The abstract previews: 

Recently, the Supreme Court opined on the Indian Child Welfare Act’s (“ICWA”) constitutionality in Haaland v. Brackeen. Despite its opponents’ penchant for creating well curated and financially resourced cases before the Roberts court, which has shown its hand at being the “post-racial” court and friend of the conservative legal movement, ICWA survived.

While Brackeen was an invigorating win for ICWA, it declined to answer an important question: whether ICWA would survive a challenge under the equal protection doctrine. Although equal protection is always a topic that gains the attention of the legal academy because of its purported social justice potential, equal protection as to Indian law creates a more complex conversation as an adverse ruling on equal protection could essentially dismantle federal Indian law—the body of law that governs the self-determination of American Indian Tribes—piece by piece.

Brackeen epitomized American equality. By using equal protection claims to demand a uniformity that has never existed for anyone except America’s rights holders, ICWA’s opponents attempted to further the colonial extraction of Tribes’ most important resources: their children. Like the American mythos that proudly boasts we are all created equal, opponents of ICWA further colonial assimilation by projecting a specific brand of American identity that prioritizes the “good parent” or “right kind of families” vis a vis the rights of white parents with means over others. Equality—the kind best (mis)understood to mean that everyone is operating on the same level playing field—is neither conducive nor responsive to ICWA’s goals.

Moving beyond arguments over whether strict scrutiny or rational basis should define ICWA in an equal protection challenge, this Article encourages a new framework altogether: anti-colonial equity. ICWA is not a racial remedy or panacea. It represents the pursuit of equal justice. Amidst a history of removal policies, ICWA has been a vehicle for Tribes securing their futures; it is those futures that ICWA’s opponents seek to remove now in the light of a legal tradition that has increasingly perverted the concept of equality under the law. As such, this Article challenges the notion that equality is the appropriate framework for an ICWA challenge and proposes a reconsideration of ICWA as anti-colonial equity statute as it was created and executed through American legal history and tradition.

March 11, 2024 in Constitutional, Family, SCOTUS | Permalink | Comments (0)

Friday, March 8, 2024

Exploring the Tension Between Culture or Religious Practice and Gender Equality

Rangita de Silva De Alwis, Customs, Culture, Courts, and Constitutions: Negotiating the Balance on Gender Equality 

The tension between culture or religious practice and gender equality is a globally pervasive challenge in human rights practice. The human rights of women and the right to culture are sometimes in opposition while at the same time, the binary distinction between women’s human rights and the right to culture are also contested. In this paper, I examine how constitutions and courts have negotiated the balance through the interpretation of women’s rights.

The goal of this paper is not to examine the exegesis of religious texts or the hermeneutics of canonical arguments which are subjects of plural interpretation, or the burgeoning social movements that are active in claiming a dynamic interpretation of religion and cultural practice. Rather it is to analyze how constitutions and national courts frame the human rights of women in light of culture, and customary traditions. The paper maps the religious and free speech clauses of each national constitution and a compendium of case law from national courts in relation to the judicial interpretation of culture, customary laws, and religion pertaining to questions on women’s rights and gender equality. Given the complex nature of the debate on culture and women’s rights, an analysis that examines the textual authority of constitutions and the jurisprudence in national case law provides insights in situations when rights may compete and gender equality hangs in the balance.

March 8, 2024 in Constitutional, Gender, International, Religion | Permalink | Comments (0)

Thursday, March 7, 2024

Paula Monopoli to Speak on Women as Constitution Makers: Revisiting the 19th Amendment After Dobbs

Thursday, February 29, 2024

Judge Enjoins Pregnant Workers Fairness Act Finding it Violates Constitution's Quorum Clause

Pregnant Workers Fairness Act Blocked in Texas as Unconstitutional

A federal judge in Texas this week dealt a blow to a landmark piece of legislation protecting pregnant workers, ruling that there was no quorum in the U.S. House when the law passed, making it unenforceable.

The Pregnant Workers Fairness Act, which requires employers to make reasonable accommodations for pregnant workers, was part of a $1.7 trillion spending package that Congress passed in late 2022. U.S. Sen. Bob Casey (D-Pa.), first introduced the bill in 2012, and worked for more than a decade to get it passed.

“Texas: Won’t let you have an abortion but also won’t do anything to help you have a safe and healthy pregnancy,” Casey said in a statement to the Capital-Star on Wednesday. “This is Republican governance at its finest and downright insulting to women in Texas and beyond who want and need to continue working safely through pregnancy.”

Last February, Texas Attorney General Ken Paxton sued the Biden administration arguing that since members of Congress were allowed to vote by proxy for the spending package, there were not enough members physically present to form the quorum required in the Constitution. 

Then-Speaker of the House Nancy Pelosi regularly allowed House members to vote by proxy during the COVID-19 pandemic.


US Judge in Texas Rules Congressional Passage of 2022 Spending Bill Unconstitutional, Reuters

A federal judge in Texas on Tuesday ruled that a $1.7 trillion government funding bill was unconstitutionally passed in 2022 through a pandemic-era rule that allowed lawmakers in the U.S. House of Representatives to vote by proxy rather than in person.
U.S. District Judge James Wesley Hendrix in Lubbock reached that conclusion as he granted Republican Texas Attorney General Ken Paxton's request to block a provision of that bill that gave pregnant workers stronger legal protections.
The judge, an appointee of Republican former President Donald Trump, called the scope of his ruling "limited," and said it did not block all of the spending law. Texas had only sought to block two provisions ultimately.
Hendrix blocked one provision, the Pregnant Workers Fairness Act, from being enforced against the state after finding the bill was wrongly passed. That law requires employers to provide pregnant workers with reasonable accommodations.

February 29, 2024 in Constitutional, Family, Legislation, Pregnancy | Permalink | Comments (0)

Monday, February 26, 2024

Supreme Court Amicus Brief Argues Brenda Andrew's Capital Murder Case Used Prejudicial "Sexualized Evidence"

A coalition of amici, including a former federal judge, Fair and Just Prosecution, 17 law professors, and 4 domestic violence researchers, have filed an amicus brief in support of Brenda Andrew's petition for cert. in her capital murder case before the U.S. Supreme Court. The brief challenges the weaponizing of gender bias as a jury persuasion tool: "The noxious effects of gender bias pack a powerful punch in the courtroom—and prosecutors know it. Some prosecutors, including those that tried Ms. Andrew, deliberately invoke gender bias, strategically emphasizing a woman’s departure from feminine ideals “to turn jurors against female defendants,” rather than meeting their burden of proof with actual evidence." The brief argues: 

Brenda Andrew’s capital murder prosecution was tainted with irrelevant and prejudicial evidence that spoke not to her criminal culpability, but to her failure to comply with society’s gender-biased expectations about how women should and should not behave. Repeatedly, the prosecution elicited testimony designed to paint Ms. Andrew as a hypersexual seductress and an uncaring mother. The prosecution’s leitmotif of gender deviance was an implicit theme and an explicit exhortation at trial: because Ms. Andrew did not behave as a “virtuous” woman should, the jury should convict her and subject her to the harshest punishment possible. By the time the case was submitted to the jury, the prosecution had deflected the jury’s focus from an inquiry into Ms. Andrew’s guilt or innocence to a referendum on Ms. Andrew’s femininity and morality.


Ms. Andrew’s case is an exceptional example of the Oklahoma County District Attorney’s office weaponizing gender bias to poison proceedings against a female defendant who had no prior criminal record, in a case that involved no allegation of torture or exceptional cruelty. This brief includes a portion of the trove of sexualizing evidence in Ms. Andrew’s trial, and presents scholarship demonstrating how prejudicial that evidence was. Until these prosecutorial tactics are eradicated from American courtrooms, “[j]ustice is likely to remain a lottery while so much depends on the woman’s fulfillment of society’s expectations.” [citation omitted] Amici urge this Court to grant Ms. Andrew’s petition for a writ of certiorari.

February 26, 2024 in Constitutional, Courts, Gender | Permalink | Comments (0)

Friday, February 23, 2024

Challenging the Misuse of Women’s Legal History to Support Anti-Abortion Regulation

It looks like it is time again to reup this article I wrote over a decade ago disputing the use of women’s legal history to claim that nineteenth-century feminist pioneers like Elizabeth Cady Stanton advocated against abortion. Tracy Thomas, Misappropriating Women's History in the Law & Politics of Abortion, 36 Seattle L. Rev. 1 (2012). I also discuss the issue further in my book, Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Post-Dobbs, anti-choice writers have once again resurrected the erroneous claim that Stanton, and other historical feminists like Victoria Woodhull, actively opposed abortion. Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights (Texas Review of Law & Politics, forthcoming).

My conclusion as to Stanton was to the contrary. I found that a close look at the historical record shows that Stanton supported—not opposed—women’s right to engage in voluntary, enlightened motherhood by choice. And she opposed state regulation of women’s private decisions and autonomy. Stanton actually said very little about abortion at all, a handful of comments over fifty years, in contrast to her thousands of speeches, writings, and interviews advocating many other demands for women’s rights for social, political, family, and economic citizenship. Instead, Stanton merely used the public debate swirling around abortion triggered by the new criminalization of abortion in the late 1860s as an avenue to voice her other demands for women’s equality, enfranchisement, autonomy, and opportunity.

February 23, 2024 in Abortion, Constitutional, Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Wednesday, February 21, 2024

SCOTUS Denies Cert in Case About Whether Jurors Can Be Excluded for Religious Beliefs Against Lesbian Plaintiff

Lawrence Hurley, NBC News, Supreme Court Declines to Weigh Whether Jurors Can Be Excluded for Religious Beliefs in Case Involving Lesbian Plaintiff

The Supreme Court on Tuesday declined to consider whether potential jurors in an employment dispute involving a lesbian worker could be excluded because of their religious views on homosexuality.

The court rejected an appeal brought by Missouri Attorney General Andrew Bailey, a Republican, in a case involving allegations of employment discrimination against the state’s Department of Corrections.

Conservative Justice Samuel Alito wrote a statement saying he agreed with the decision not to take up the case for technical legal reasons, but said that it raises important issues.

Jean Finney, an employee, sued the department, saying she was retaliated against by a colleague after she began a same-sex relationship with his former spouse.

During the jury selection process, Finney's lawyer asked potential jurors if they had traditional religious beliefs or had been brought up to believe that "people that are homosexuals shouldn't have the same rights as everyone else."

Based on previous Supreme Court decisions, lawyers are allowed to exclude potential jurors without stating a reason but are barred from doing so on the basis of race and gender.

The case largely focuses on two jurors who said they believed that homosexual activity was a sin. But, the state argues, the jurors also said they believed that homosexuals should have the same rights as everyone else. The judge ultimately excluded three jurors who said they had conservative Christian beliefs.

February 21, 2024 in Constitutional, Gender, LGBT, Religion, SCOTUS | Permalink | Comments (0)

Thursday, January 18, 2024

Book Review, In Pursuit of Collective Liberation in Feminist Constitutionalism

Yvette Butler, In Pursuit of Collective Liberation in Feminist Constitutionalism, 122(6) Mich. Law Rev. ___ (April 2024, Forthcoming).

Julie Suk’s book, After Misogyny responds to the tension between present day misogyny and the overarching gains women have made in American society. She does this by explaining that misogyny is not merely about physical violence toward women or hatred of women. Instead, she reframes misogyny as societal over-entitlement to women’s labor and men’s over-empowerment in the eyes of the law. Over-entitlement stems from the substantial benefits individual men and society reap from women—including their reproductive labor—without just compensation. Over-empowerment is about the explicit legal enforcement of that entitlement. Suk explores over-entitlement through the legal claim of unjust enrichment to describe how men and society have benefitted from women’s labor. She then ends on a recommendation to use the Takings Clause to remedy use of women’s reproductive capacities without compensation.

Throughout the book, Suk uses a variety of stories to illustrate her concepts. As someone who writes about epistemology within the critical race theory tradition, in particular, I found this use of narrative particularly enjoyable. Narrative is a particularly important and powerful way to understand how constitutional theory and law are shaped. The goal of reframing narratives and reinterpreting a constitution is to transform the rights and duties between people and the state. According to Suk, such a transformation is necessary to remedy societal over-empowerment. The result of that transformation: misogyny collapses and becomes democracy. Only through this transformation do women become equal citizens.

While I enjoyed Suk’s book and these transformative goals, portions of it gave me pause. Suk’s suggestions fall short of the radical transformations required to truly advance Collective Liberatory goals. As discussed in Section III.B., Collective Liberation seeks to avoid viewing justice as a zero-sum game. Instead, Collective Liberation acknowledges the interconnectedness of struggles against subordination. In my view, it counsels striving for the best version of justice – one that is truly transformative and does not merely shift scraps of rights between groups through reformist reforms. This issue will be the focus of this Review. Suk’s work is helpful for articulating reforms, but her recommendations could go even further. She seems to fall into the same trap of proposing reformist reforms that have the potential to perpetuate, rather than help address, gender injustice.

Ultimately, I see Suk’s book as an important contribution because her concepts of over-entitlement and over-empowerment can easily be applied to other issues. I have already recommended her book to several people when I have noticed that an entitlement/empowerment framing may be useful to their analysis. While prospective readers should not glean too much hope from the title—misogyny and the patriarchy are still alive and well—Suk’s book provides important guidance as to what misogyny really is and how to address it more effectively.

January 18, 2024 in Books, Constitutional, Theory | Permalink | Comments (0)