Gender and the Law Blog

Title IX in the Age of Textualism

Katie Eyer, Title IX in the Age of Textualism, 86 Ohio State L.J. (forthcoming 2025)

Title IX has long been thought of as a quintessentially administrative statute, i.e., a statute whose contours are defined primarily by its agency interpreters. Known as much for its administrative interpretations as for its statutory text, both the public image, and legal enforcement of Title IX have been profoundly shaped by the administrative state. This Article asks: what becomes of such an “administrative law” in the wake of the rise of textualism?

This question has gained new urgency, as the most recent Title IX regulations issued by the Department of Education are facing numerous legal challenges—and as the Supreme Court’s opinion in Loper Bright Industries v. Raimondo has led to a rapidly shifting administrative law landscape. This Article thus takes up the question of how Title IX may be understood in the changed interpretive environment. Does Title IX’s statutory text provide meaningful guidance in relation to contemporary Title IX disputes? And how might an examination of Title IX’s regulations help us to understand the space for administrative agencies to act in a post-Loper Bright world?

This Article contends that Title IX’s statutory text can and does provide clear guidance on many of the contemporary issues that have been raised in challenges to the Department of Education’s most recent regulations. Thus, simply taking Title IX’s statutory text seriously can answer the question of whether (as the DOE’s new regulations provide) anti-LGBT discrimination is proscribed (it is), whether regulatory exceptions that exceed the statutory text must be harmonized with the statute (they must), and whether the DOE’s recently adopted hostile environment standard is too broad (it is not).

But this Article also suggests that other, future, challenges to Title IX’s administrative infrastructure may prove more complex. Taking up the example of Title IX’s athletics regulations and guidance, the Article suggests a series of important questions that the courts will have to resolve as they consider the role for statutory text—and the role for administrative law—today. While the answers to such questions will necessarily be case-specific—and as the case of Title IX”s athletics regulations shows, may well be susceptible of conflicting answers—they will be central to understanding the role for administrative law in our modern textualist era.

Michael Green on "Expanding the Ban on Forced Arbitration"

Michael Green has published Expanding the Ban on Forced Arbitration to Race Claims in volume 72 of the Kansas Law Review. The abstract is excerpted below: 

 

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural and societal norms, as well as the text and legislative development of the statute, that warrants joining both race and sex discrimination claims in court. This overall prescription seeks to end the forced arbitration of race discrimination claims for employees and consumers.

This Article asserts that despite focusing on sex-based claims, the application of the EFASASHA statute in the courts will result in many race-based claims also being prohibited from being forced into arbitration. Many people of color pursue discrimination claims based on race that also intersect with claims of sex. As these claims arise from the same transaction or occurrence, employees and consumers must take the same steps to bring these claims together in federal court or face res judicata prohibitions leading to inconsistent results.

This Article also concludes that social movements and creative plaintiff efforts that led some businesses to abandon their mandatory arbitration practices before Congress passed EFASASHA should also influence companies to not force arbitration of race claims. These companies must recognize the double-dealing involved in identifying themselves as progressive businesses committed to non-discrimination if they still force arbitration of race discrimination claims when they may not subject similar sex discrimination claims to arbitration after EFASASHA. Although Congress may have political reasons for not listing racial claims explicitly in the EFASASHA legislation, this Article highlights how businesses should understand that the concerns and rationales justifying EFASASHA’s ban on forced arbitration of claims based on sex applies with equal force with respect to arbitration of claims based on race.

William Carter on "Trans Talk and the First Amendment"

William M. Carter has posted Trans Talk and the First Amendment on SSRN. The abstract is excerpted below: 

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care.

This Article breaks new ground in two respects. First, it focuses on an aspect of student speech regarding transgender issues that has not yet been addressed by courts or in the scholarly literature: namely, whether the Supreme Court's school speech cases would permit states or public school officials to restrict student speech advising a peer to obtain forms of gender-affirming care that are unlawful to minors in the state where the speech occurs. This Article is also the first to apply the history of the battles over free speech regarding slavery and of the Nation's Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.

Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court's post-Tinker school speech cases, however, have been significantly more solicitous toward school officials' efforts to restrict student speech. Opponents of gender-affirming care for minors are therefore likely to seek to rely upon the post-Tinker jurisprudence to justify restricting or punishing student speech advocating that a peer seek gender-affirming care. This Article argues that the Court's post-Tinker school speech cases cannot and should not be read to justify restrictions upon such speech. This Article further argues that extending the post-Tinker cases to allow the government to punish student speech advocating that a peer receive gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation's Second Founding. 

ABA Profile of Legal Profession and Women in Law

One of the best sources for statistics on women in the legal profession.

ABA, ABA Profile of the Legal Profession 2023, Women in Law

The percentage of female lawyers has slowly inched up in recent years, according to the ABA National Lawyer Population Survey, a tally of lawyers by licensing agencies in every state. In 2010, fewer than one-third of all lawyers (31%) were women. Thirteen years later, in 2023, 39% of all lawyers were women.

The long-term trend is easier to see when viewed over the course of decades. The biggest growth in female lawyers came in the 1980s and ’90s. From 1950 to 1970, only 3% of all lawyers were women. The percentage increased to 8% in 1980, 20% in 1991 and 29% in 2000.  

The trend is also apparent at law schools. The number of male students has declined every year for the past 12 years – from 78,516 in 2010 to 50,969 in 2022. Meanwhile, the number of female law school students has increased every year for the past six years – from 55,766 in 2016 to 65,073 in 2022. Women now significantly outnumber men in U.S. law schools, and the gap is widening. In 2022, there were 14,000 more female students than male students.

The number of female federal judges has increased dramatically. The first woman was appointed to the federal judiciary in 1928, when 217 men held that position. By 1950, there were still only three female federal judges. That rose to 46 in 1980. And by Oct. 1, 2023, there were 455 women on the federal bench – nearly one-third of all federal judges (32%).

The picture is somewhat different in state Supreme Courts, where 42% of all high-court justices are women, according to a 2023 survey by the Brennan Center for Justice at New York University. That’s nearly the same as the share of all lawyers who are women nationally: 39%. 

Montana Supreme Court Upholds Minors' Right to Abortion

Montana Supreme Court Rules Minors Don't Need Parental Permission for Abortion

Montana’s Supreme Court ruled Wednesday that minors don’t need their parents’ permission to get an abortion in the state – agreeing with a lower court ruling that found the parental consent law violates the privacy clause in the state constitution.

“We conclude that minors, like adults, have a fundamental right to privacy, which includes procreative autonomy and making medical decisions affecting his or her bodily integrity and health in partnership with a chosen health care provider free from governmental interest,” Justice Laurie McKinnon wrote in the unanimous opinion.

The ruling comes as an initiative to ask voters if they want to protect the right to a pre-viability abortion in the state constitution is expected to be on the Montana ballot in November. County officials have verified enough signatures to qualify the issue for the ballot, supporters have said. The Secretary of State’s Office has to certify the general election ballots by Aug. 22.

See also Montana Supreme Court Strikes Down Abortion Law Requiring Parental Consent

The unanimous decision is here,  Planned Parenthood of Montana v. State of Montana (Aug. 14, 2024), authored by Judge Laurie McKinnon. Of the seven justices, three are women.

Montana is a little different than other states. As I have written here, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023), Montana has an express right to health care in its state constitution. When combined with rights to privacy under due process, there is a synergism that strengthens reproductive rights. 

This broader meaning of the right to health care freedom was adopted by Montana in interpreting its constitution to protect abortion. In 1972, Montana adopted a health care freedom amendment guaranteeing the right to seek “safety, health and happiness.” In 1999, the Montana Supreme Court applied the amendment to abortion, defining this health freedom in Armstrong v. State as “the right to seek and obtain medical care from a chosen health care provider and to make personal judgments affecting one’s own health and bodily integrity without government interference.” The court emphasized: “Unless fundamental constitutional rights—procreative autonomy being the present example—are grounded in something more substantial than the prevailing political winds, Huxley’s Brave New World or Orwell’s 1984 will always be as close as the next election.” “Fortunately,” the court held, “the roots of Montana’s constitutional 
right of procreative autonomy go much deeper and are firmly embedded in the right of individual privacy.”

The Supreme Court has affirmed this holding three times: Armstrong v. State, 989 P.2d 364 (Mont. 1999); reaffirmed in Weems v. State, 440 P.3d 4 (Mont. 2019); declined to overrule in Planned Parenthood v. Knudsen, 515 P.3d 301, 307-08 (Mont. 2022). 

 

 

Lambda Legal Publishes Report on LGBTQ+ Representation in the Judiciary

Lambda Legal has published a report on LGBTQ+ representation in the federal judiciary. The report concludes that there are 26 states with no openly LGBTQ+ district or circuit level judges. Twenty-one of those states have an open vacancy to which Biden could make an appointment. The report also states that 40% of the federal judges appointed by Trump had "demonstrated a history of hostility toward LGBTQ+ people." The report explains why representation matters: 

Federal courts are often the final authority on the civil rights of underrepresented groups, including LGBTQ+ people and people living with HIV. Right now, there are cases in our federal courts, challenging bans on gender affirming care for youth and bans on transgender youth playing sports with their peers, defending people living with HIV from discrimination in employment and protecting access to health care, challenging state laws that prohibit drag performances and those that seek to remove LGBTQ+ themed books from schools and libraries, among many others. The rights of everyone in the community are under attack. If we hope to defend our legal protections and build upon our victories, ensuring that fair judges, who don’t hold biases against LGBTQ+ people and people living with HIV, are the only judges that get a seat on the federal judiciary must be a priority.

 Read the full report here. 

Kansas Supreme Court Strikes Down Abortion Restrictions

Kansas Supreme Court Strikes Down Abortion Restrictions, Clinic Rules in Major Decisions, Kansas City Star

The Kansas Supreme Court struck down a series of abortion rules and restrictions on Friday in twin opinions affirming its landmark decision that the state constitution protects the right to end a pregnancy. The justices in two near-unanimous decisions tossed a ban on dilation and evacuation abortions, a common second-trimester surgical procedure, and a series of abortion-specific clinic regulations that providers have long fought. The opinions marked the end of two years-long legal battles over rules, which never took effect.

The rulings delivered a stinging but expected blow to anti-abortion activists and Republicans, who for years sought to steadily chip away at access. The opinion built upon the court’s key 2019 decision, which upheld the right to an abortion under a broader guarantee of bodily autonomy. “We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen, appointed by Democratic Gov. Kathleen Sebelius in 2005, wrote in the majority opinion striking down the dilation and evacuation ban.

Rosen wrote that the state “must show any infringement of that right withstands strict scrutiny.” The decision was 5-1 in both cases, with Justice Caleb Stegall, an appointee of Republican Gov. Sam Brownback, the sole dissenting vote. Justice K.J. Wall, an appointee of Democratic Gov. Laura Kelly, didn’t participate.

 

Velte on "The Supreme Court's Gaslight Docket"

Kyle Velte has published "The Supreme Court's Gaslight Docket" in Volume 96 of the Temple Law Review. Here is the article's abstract: 

The U.S. Supreme Court's new conservative supermajority is gaslighting the American public. This Article takes a systematic look at key cases from the Court's October 2021 Term through the lens of gaslighting. It describes these cases as being part of what it dubs the Court's “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court's recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has been the subject of academic and theoretical inquiry. This Article identifies gaslighting in both oral arguments and written decisions of the Court's civil rights cases. It reveals that this gaslighting is transsubstantive, spanning cases involving voting rights, race discrimination, affirmative action, reproductive rights, LGBTQ rights, and the First Amendment's religion clauses.

Because gaslighting has epistemic dimensions--knowledge production and gaslighting are connected--gaslighters instill epistemic doubt in their victims as a way to have the gaslighter's production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower”--indeed, it is given the position of ultimate “knower” of the meaning and application of the Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 Term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and antidemocratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalist movement, declaring that those interests are not coequal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the Article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalist ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

Abrams & Potts on "The Rhetoric of Abortion in Amicus Briefs"

I have published The Rhetoric of Abortion in Amicus Briefs with the University of Missouri Law Review. The work is in Volume 89 at page 399. Here is the abstract: 

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women's Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy.

Sweeny and Canon on "The Language of Love v. Beshear"

JoAnne Sweeny and Dan Canon have published The Language of Love v. Beshear: Telling a Client's Story While Creating a Civil Rights Case Narrative in volume 17 of the Journal of the Association of Legal Writing Directors. The article was shared on SSRN here. The Introduction is excerpted here: 

We tend to think of a good lawyer as being a vigorous, focused advocate, one who thinks first and foremost of the interests, needs, and desires of their clients. But what if the client’s case will affect an entire group of people; a group who may also seek to have its collective rights vindicated? This is the dilemma of the civil rights attorney—how does an effective advocate balance the specific needs of the client with the broader, long-term needs of the group the client represents? And who should have a say in what story is told on behalf of the client? In civil rights cases, it is not just the client, but activists, organizations, academics, and the media who have a stake in the outcome. How much of a say should they have in the creation of a litigation story that will most directly impact a single client? How are those stories crafted? With careless, blunt-force litigation, or with purposefulness? And does it matter who gets to tell the story?

 

* * *

Focusing on the Kentucky case, Love v. Beshear, this article shows how civil rights attorneys may be constrained by their dual roles—advisors to their clients and advocates for civil rights—and how they decide what story to tell to remain true to their clients’ needs while keeping engaged with the larger civil rights issues inherent in these impact litigation cases. Moreover, once the litigation has begun, the other players—organizations, media, even the judges themselves—can change the story, highlighting what they see fit. The ultimate story of who a lawyer’s clients are ultimately may not be up to the lawyer or the client.  

 

It concludes: 

 

Obergefell built a bridge to same-sex marriage, creating solid ground for the next group of civil rights lawyers
to again expand our understanding of what relationships and “equal dignity” really mean. As the country’s understanding of same-sex couples has evolved, so has the array of stories that lawyers can tell about groups that may be insular or unfamiliar to the broader public. For example, now that transgender, bisexual, nonbinary, and polyamorous people’s stories are becoming more mainstream, their stories can be used to champion a broader understanding (and legal recognition) of fundamental rights. This continuous opening of new chapters to familiar stories is the essence of civil rights advocacy.

The Ethical and Practical Significance of Narratives in Court Cases

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

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

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

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

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

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

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

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

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

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

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

 

 

Rachel Rebouché on "Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle over Mailed Medication Abortion"

Rachel Rebouché has published "Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle over Mailed Medication Abortion" in Volume 95 of the Colorado Law Review. The article concludes: 

The Alliance for Hippocratic Medicine litigation is a striking example of how evidence can be marshaled by a court to undermine a federal agency. But abortion advocates also have used evidence in contemporary cases to undermine agency decision-making. FDA v. American College of Obstetricians and Gynecologists, a 2020 case, similarly involved a challenge to the FDA’s mifepristone regulations. The district court suspended the FDA’s in-person dispensation restriction for the duration of the COVID-19 pandemic and because of the absence of safety justifications for the rule. It did not defer to the agency (which had a different position on the matter under the Trump Administration), and abortion advocates counted this as a victory for evidence. On appeal, however, the Supreme Court deferred to the FDA and supported the use of agency expertise to retain then-existing mifepristone restrictions.

 

This example matters because it tests the assumptions that evidence is apolitical, neutral, or settled; that evidence is separate from law; and that healthcare policy will be better if based only on evidence and not on politics, as if the two could be untangled. Neither side of the abortion debate should bank on having facts—or courts—to advance their agendas. Instead, as the uptake of mailed medication pills shows, what matters is real-time abortion access through telehealth and through organizations like Aid Access, which ship medication abortion to every state in the country. That is not to argue that all facts and evidence are equal; the Alliance litigation makes that point clear. But what that litigation also makes clear is that some courts may not care or may not believe that the evidence supports abortion’s safety. And rather than creating research agendas reactive to that reality, research needs to pioneer new pathways tethered to political and strategic goals. The last sentence is not a call for the dilution of evidentiary or scientific standards. Rather, this Essay offers an example of the contemporary will of some courts to undermine those standards and asks, what will abortion-supportive forces do about it?

NYT Coverage of Brenda Andrew's Case and Submitted Sex Stereotyping Amicus Brief

Adam Liptak of the New York Times wrote on April 1st covering Brenda Andrew's case before the Supreme Court. The article, titled Did Prosecutors’ Sex Shaming Help Send Brenda Andrew to Death Row?, included a cite to the amicus brief previously covered by this Blog and available here. The article cites one of Andrew's lawyers stating: 

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.

The Supreme Court is deciding whether to hear the case. The questions on certiorari are excerpted below from the full opinion. 

1. Whether clearly established federal law as determined by this Court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment.
   
2. Whether this Court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings Miranda v. Arizona, 384 U.S. 436 (1966) requires.

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.

New Report on Harms of Michigan's Forced Parental Consent Law for Abortion

A new report is available on the harms of Michigan's forced parental consent law. The report was authored by the ACLU of Michigan, Human Rights Watch, and the Michigan Organization on Adolescent Sexual Health after in-depth interviews, data analysis, and a survey of secondary sources. The full report is available here. 

Its findings are excerpted here: 

Young people who can, do involve a parent in an abortion decision and care. While most young people do talk to a parent when facing a pregnancy, every situation is different, and not every young person can.

Young people who do not involve their parents have compelling reasons, rooted in their safety and well-being. They often fear abuse, alienation, or being forced to continue a pregnancy against their will.

Some young people are belittled, humiliated, or punished by their parents. Some parents even ask doctors to withhold pain medication for young people’s procedural abortions, against medical advice.

Judicial bypass is burdensome and difficult to navigate. For young people without resources or access to information, it can be impossible.

Judicial bypass is invasive, distressing, traumatizing, and often arbitrary. It feels punitive to young people, and may be especially harmful to young people of color.

Forced parental consent delays abortion care. Judicial bypass often delays care by a week or more, limiting patients’ already constrained and time-sensitive healthcare options and pushing them into more expensive and invasive procedures. In some cases, the delays caused by navigating forced parental consent and judicial bypass leave young people ineligible for medication abortion, a noninvasive and more common method of care, available only up to 11 weeks of pregnancy.

Young people are capable of making healthcare decisions. Michigan law allows young people to consent to all other forms of pregnancy-related health care — including those with significantly higher health risks than abortion — such as a C-section.

The Report recommends that "[a]ll young people should be safe and healthy. Michigan should invest in solutions that promote healthy families and strong healthcare networks and keep private family conversations free from intrusive laws and policies." It asks the Michigan legislature to "[r]epeal the Parental Rights Restoration Act 211 of 1990 as a matter of urgency and ensure that young people under 18 can access abortion care without being forced to involve a parent or legal guardian, or a judge, in their decision-making."

Hillel Bavli on "Stereotypes as Evidence"

Hillel Bavli has published a draft of Stereotypes as Evidence on SSRN. This article is forthcoming in volume 77 of the Stanford Law Review in 2025. It analyzes how the admission of profile evidence "involves substantial risks for the aims of fairness and equal treatment based on race, gender, economic status, and other personal characteristics."

Baserate evidence connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.

 

In this article, I show that although some forms of baserate evidence are desirable and even critical to achieving an accurate case outcome, a common form of baserate evidence called profile evidence constitutes unrecognized character evidence—evidence that a defendant acted in accordance with a certain character trait and that is prohibited by federal and state evidentiary rules. To show this, and to describe precisely the relationship between baserate evidence and character evidence, I draw on an area of statistics called Bayesian inference to define a new concept that I call population-propensity evidence. It describes a behavioral propensity of a population to suggest that an individual member of the population acted in accordance with this propensity. I show that this evidence—a form of baserate evidence that involves behavioral stereotyping—relies on impermissible character reasoning and therefore determines whether baserate evidence constitutes character evidence.

 

Finally, I discuss critical implications of my analysis. First, I show how an understanding of population-propensity evidence contributes descriptively to resolving longstanding confusion and inconsistency surrounding baserate evidence and profile evidence in particular. I then demonstrate that applying the rule against character evidence to determine the admissibility of profile evidence is essential to achieving correct and predictable evidentiary decisions, to minimizing the influence of implicit biases based on race and other personal characteristics of a defendant, and to reaching accurate verdicts.

 

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.

Maybell Romero on "Shamed"

Maybell Romero has posted a draft work-in-progress on SSRN titled "Shamed." The abstract previews: 

Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of using shaming sanctions and shaming criminal defendants, there has been precious little written about the shame that victims face, let alone a recognition that their interaction with shame as both a social force and emotion is multidimensional. In a previous piece titled “Ruined”, I examined the language judges use during sentencing hearings in sexual assault cases to describe victims, such as pronouncing them “broken,” “ruined,” or “destroyed.” This Article serves as a continuation of the inquiry I started in “Ruined” by expanding in focus. It seeks to differentiate between the related concepts of shame and stigma and explain why shaming of rape victims is so common. I propose a novel typology with which to examine a rape victim’s experience and separate the shame that victims are made to feel by the criminal adjudicative process, the shame victims are supposed to perform, and the shame victims are supposed to feel into discrete components to consider, revealing that shame in relation to such victims is multilayered and much more complex than legal scholarship has made it out to be.

I share my own experiences with each of these manifestations of shame to demonstrate the usefulness of my new typology, but I also relate how I have felt ashamed to come forward with my story as a practicing attorney as well as my experiences of being shamed in the legal academy. I conclude, however, with a note of optimism, reflecting on the positive things to have come with my very public self-disclosure of being a rape and sexual abuse victim and hoping to encourage others to employ personal narrative and autoethnographic methods in their own scholarship, as well.