Gender and the Law Blog

Finding a Constructive and Fair Way to Frame the Rhetoric of Rape

Kathryn Stanchi, The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz, International Journal for the Semiotics of Law (Forthcoming)

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change.

This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

An Analysis of the Heightened Procedural Protections for Title IX Campus Sexual Misconduct Cases

Kelly Behre, The Irony of Title IX: Exploring How Colleges Implement Credibility Discounts Against Student Victims of Gender-Based Violence In Campus Misconduct Case," 103 Boston U. L. Rev. Online 109 (2023)

On May 6, 2020, the U.S. Department of Education released new Title IX regulations requiring colleges to provide expanded due process rights for student respondents in campus misconduct cases involving sexual assault, dating violence, and stalking. A little over a year earlier, a California appellate court also expanded rights to student respondents in sexual misconduct cases, indicating that the trend is not limited to one particular presidential administration.2 To those unfamiliar with typical campus adjudication procedures, many of the new rights federal and state law afford respondents in campus misconduct cases involving gender-based violence might seem intuitive. The right to retained counsel, the right to a live hearing following an investigation, the right to cross-examine all witnesses, and the right to appeal are all common in U.S. criminal and civil law systems. But when placed within the context of campus misconduct procedures, the normalization of these protections for only one class of student respondents requires interrogation. The expanded due process rights do not apply to all students responding to campus misconduct violations; they do not even apply to all students responding to violations that could also constitute crimes or result in expulsion or suspension from college. The new rights only protect students responding to campus misconduct violations that involve gender-based violence, and the resulting harms of the additional procedures only burden student victims of gender-based violence.

This article provides specific examples of campus misconduct procedures demonstrating how colleges may provide heightened procedural protections to student respondents and heightened burdens to student complainants in gender-based violence cases that diverge from their adjudication procedures for other forms of misconduct on the same campus. Part I provides a brief overview of the current legal landscape for campus adjudications involving gender-based violence. Part II employs two hypothetical fact patterns to identify specific differences between the procedural protections campuses provide students responding to a complaint of physical assault against another student generally and the protections provided to students responding to a complaint of physical assault against a current or former dating partner. Part III addresses how heightened procedural protections for student respondents cause additional harms for student complainants in campus cases involving gender-based violence. Part IV explores the role that credibility discounting of victims of gender-based violence plays in the creation of heightened procedural protections for respondents in campus misconduct cases involving gender-based violence. It further suggests that any future changes to Title IX policy involving campus misconduct procedures should include an analysis comparing the rights and protections colleges afford respondents in gender-based violence adjudications to all other respondents in campus misconduct adjudications.

Ninth Circuit Says Law Banning Transgender Students is Likely Unconstitutional

ABA J, Law Banning Transgender Students from Female Sports Likely Unconstitutional, Ninth Circuit Says

A federal appeals court on Thursday ruled for a transgender college student who challenged an Idaho law that bars transgender athletes from participating in women’s and girls' student sports in public schools.

The 9th U.S. Circuit Court of Appeals at San Francisco upheld a finding that the law likely violates the equal protection clause, according to an Aug. 17 press release by the American Civil Liberties Union.

Bloomberg Law has coverage.

The appeals court ruled for Lindsay Hecox, a student at Boise State University who wanted to try out for the cross-country team and play club soccer.

The 9th Circuit upheld an injunction banning enforcement of the Idaho law, the Fairness in Women’s Sports Act. The law bars all transgender women and girls from participating in or trying out for public school female sports teams at every age—from intramural to elite teams.

The law provides for a verification process that can be invoked by a person who wants to dispute another person’s sex. The process requires “intrusive medical procedures,” the appeals court said in an Aug. 17 opinion by Judge Kim McLane Wardlaw.

The American Civil Liberties Union had filed the lawsuit, along with the ACLU of Idaho, Legal Voice and Cooley.

The case is Hecox v. Little.

Analyzing the Glass Ceiling of the NCAA's Name, Image and Likeness Rule under Title IX

Tanyon Boston, The NIL Glass Ceiling, Richmond L. Rev. (forthcoming)  

On July 1, 2021, the National Collegiate Athletic Association (NCAA) adopted the most progressive reform in modern intercollegiate athletics history when it conceded the right of nearly 500,000 NCAA athletes to monetize their names, images and likenesses (NILs). This historic reform followed the enactment of dozens of state laws on the topic and a unanimous Supreme Court decision in NCAA v. Alston, which held that the national governing body violated antitrust laws with its restrictions on athletes’ educational, and perhaps other, benefits. Almost immediately, wealthy University of Texas donors established an unprecedented $10,000,000 collective to finance NIL opportunities for Longhorns athletes. Today, there are over one hundred collectives, whose NIL opportunities favor men’s sports by a ratio of over five-to-one. Such enormous disparities in privately financed NIL send women discouraging messages about the state of gender equity, not only in intercollegiate athletics, but also in the workplace – where women face similar glass ceilings.

Although legal scholars have written extensively on the antitrust, labor and tax law implications of NIL, very little scholarship exists on the Title IX implications. In seeking to fill the gap, this Article uses a hypothetical state university to illustrate how schools facilitate gender discrimination through NIL collectives, contrary to Title IX. After exploring the implications of Title IX’s regulatory gap with respect to NIL, this Article introduces three proposals to close the gap.

Fla College Moves to Dismantle Gender Studies Arguing it is Not an Area of Academic Study

Chronicle, New College of Florida's Board Starts to Dismantle Gender Studies

Earlier this year, the conservative activist and writer Christopher F. Rufo proclaimed that intolerant left-wingers had essentially captured New College of Florida, the state’s designated honors college. As a newly appointed trustee, Rufo employed the rhetoric of battle in describing his effort to right the ship:

“We will plunge into a period of inevitable conflict and controversy, with determination to advance the interests of the people of Florida ... to demonstrate that there is a way out of the institutional hostage crisis,” he wrote in City Journal.

During a board meeting Thursday, Rufo lobbed a grenade. He made a motion — which ultimately passed — to “direct the president and staff to take the necessary and proper steps to terminate the gender-studies program, beginning with the 2024 enrollees.”***

Rufo said that the gender-studies program was not compatible with the Board of Trustees’ mission of reviving a “classical liberal-arts education” at New College. During the 35-minute discussion of his motion, he argued that there is “great historical precedent” at other colleges for abolishing academic programs that “stray from their scholarly mission in favor of ideological activism.”***

Matthew Spalding, a trustee, echoed Rufo’s criticism of gender studies. “It’s not within the liberal arts, and it’s more of an ideological movement than an academic discipline,” said Spalding, dean of Hillsdale College’s Graduate School of Government, in Washington D.C., who was appointed to the board by DeSantis.

“It’s a mishmosh of things,” Spalding said at another point in the meeting. “Read the website — I have no idea what it’s about. It’s very confused.”

Mark Bauerlein, another DeSantis appointee and a professor emeritus of English at Emory University, in Georgia, said that while he’s not “against” gender studies, he does not think it should be an “independent disciplinary entity.”

During the meeting, Reid argued that gender studies is an established discipline at many higher-ed institutions. Some New College students take courses in gender studies because, for them, it is a “significant component of a liberal-arts degree,” she added

New Book Equality Unfulfilled: How Title IX's Policy Design Undermines Change to College Sports

New Book by Elizabeth Sharrow About Title IX "Equality Unfulfilled" is Published

Elizabeth Sharrow, associate professor of public policy and history, has published a new book, “Equality Unfulfilled: How Title IX’s Policy Design Undermines Change to College Sport” (Cambridge University Press, July 2023), examining the half-century legacy of the law’s passage.

As Sharrow and co-author James Druckman of Northwestern University explain in the book, the year 1972 is often hailed as an inflection point in the evolution of women’s rights. Congress passed Title IX of the Education Amendments of 1972, a law that outlawed sex-based discrimination in education. Many Americans celebrate Title IX for having ushered in an era of expanded opportunity for women’s athletics, yet 50 years after its passage sex-based inequalities in college athletics remain the reality. “Equality Unfulfilled” explains why, identifying institutional roadblocks – including sex-based segregation, androcentric organizational cultures and overbearing market incentives – that undermine efforts to achieve systemic change.

Drawing on surveys with student-athletes, athletic administrators, college coaches, members of the public and fans of college sports, it highlights how institutions shape attitudes toward gender equity policy. It offers novel lessons not only for those interested in college sports but for everyone seeking to understand the barriers that any marginalized group faces in their quest for equality.

 

 

Gender Inequality and Representations of Women in the Contracts Curriculum

Deborah Zalesne, Gender Inequality in Contracts Casebooks: Representations of Women in the Contracts Curriculum, 17 FIU Law Rev. 139 (2023).

Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles. Typical casebooks provide ample offerings for discussions of the ways in which parties can be and have been disadvantaged because of their gender and gender identity. At the core, gender inequity often stems from long-held stereotypes about women in contracting, which are often on full display in the cases. The vast majority of cases in the typical Contracts casebook are drawn primarily from the commercial context; sales, franchise, employment, and transfer of property cases predominate most Contracts casebooks, with many fewer cases in the family context. In the commercial cases, women and other people who do not identify as men, rarely seen as the businessperson, seller, or landowner, are sorely underrepresented, and the “non-male” perspective tends to be obscured. Casebook offerings involving non-male parties still tend to be clustered in certain areas—namely contract defenses, promissory estoppel, and family cases. The result is a Contracts curriculum that typically confines women to certain traditional roles and relegates women’s issues to a secondary status, privileging rational, arms-length market promises at the expense of family-based promises. The overall gender allocation in cases may or may not be reflective of the actual presence of women in the universe of American contracts cases. But either way, it raises some issues regarding how the typical casebook presents women in the realm of contracts cases, and overall, the role of women in contracting. There is, of course, a diversity of viewpoints and a multiplicity of voices among women and feminists, who are divided by age, race, religion, sexual orientation, gender identity, ethnicity, and class, among other things. There are divisions among feminists over the nature and source of gender injustice, as well as over solutions.2 Feminists differ, for example, over the roles of men and women (such as biological differences and cultural frameworks that land women as the primary caretakers most of the time), and whether and how the law should account for those differences.3 When it comes to contract law, some feminists embrace contracting as a means of empowerment,4 while others express concern over whether most women have the bargaining power necessary to protect themselves in the bargaining process. 5 The goal of the Article is not to set out in any detail the contours and fine points of feminist legal theory. Rather, the Article will simply highlight gender-based deficiencies in the ways in which women are portrayed in traditional contracts cases and casebooks, often as either victims, overly-aggressive commercial actors, or in other specific gendered roles such as bride, princess, nurturer, mother, spouse, or mistress. In doing so, the Article will highlight feminist themes and conflicts in contract law and the ways in which reliance on gender-based stereotypes can negatively affect legal analysis in Contracts cases.

Conn Supreme Court Allows Defamation Suit by Defendant in Yale Sexual Assault Case to Go Forward Citing Lack of Procedures in Title IX Hearing

Aaron Keller, Conn. Justices Nix Absolute Immunity In Yale Hearings, Law360

In a stinging high court indictment of Yale University's internal sexual misconduct hearings, the Connecticut Supreme Court on Friday unanimously held that the elite college's proceedings are not quasi-judicial in nature and that absolute immunity does not immediately protect an accuser from an accused student's defamation and tortious interference claims.

Answering several certified questions from the Second Circuit, Connecticut's highest state court said a lower form of privilege, qualified immunity, does apply to the private college's internal hearings. However, the accused student who challenged those proceedings, Saifullah Khan, defeated that lower immunity and should have survived a federal district court judge's dismissal of his claims against his accuser, according to the opinion.***

The opinion reopens a path for Khan, who was acquitted of criminal sexual assault charges, to pursue claims against his accuser, the college and its administrators.

"We are mindful of these concerns and sensitive to the need to encourage alleged victims of sexual assault to report their abuse to the appropriate authority at any institution of higher education, free from fear of intimidation and retribution," [Judge] Mullins wrote.

But the court also said investigations without "adequate procedural safeguards" can lead to unfair outcomes, noting a "competing public policy that those accused of crimes, especially as serious a crime as sexual assault, are entitled to fundamental fairness before being labeled a sexual predator."

Aaron Keller, Conn Court Ruling May Force Colleges to Rethink Title IX Hearings, Law360

A Connecticut Supreme Court opinion critical of a Yale University sexual misconduct proceeding will likely cause colleges to scramble to examine whether criminal-law-style adversarial processes should be added to Title IX hearings where they typically don't appear and arguably don't belong, several experts told Law360.

The Connecticut Supreme Court's opinion, issued Friday, held that a student accused of sexual assault, Saifullah Khan, could pursue a defamation lawsuit in Connecticut federal court because the underlying Yale proceeding was not quasi-judicial. The state Supreme Court, answering certified questions from the Second Circuit, said absolute immunity did not apply to Yale's proceeding due to its lack of procedural safeguards. ***

Anne M. Coughlin, a professor at the University of Virginia School of Law, said the Connecticut high court's opinion will "be studied and cited by every university in the country." "It was just astonishing to me," she said. "The very thing the court singles out as flaws … are the very reforms that people wanted to put in place in order to encourage women to report in the university setting."

Coughlin suggested that some colleges might even "panic" to check their Title IX procedures and send them "back to the drawing board" in light of the decision.

Stanford Law School professor Michele Dauber called the decision "terrible." "This court, comprised of five men and just two women, will chill reporting of campus sexual assault in Connecticut and perhaps beyond," she said. "Around the country, students alleging assault are being terrorized by the very real fear that they can be sued for defamation when they make a report of sexual assault to their colleges," Dauber said. "Title IX procedures are already humiliating and grueling for complainants. Now, thanks to this decision, reporting can result in a complainant being dragged through years of litigation by their accused perpetrator."***

Nancy Chi Cantalupo, an associate dean and professor at Wayne State University Law School who was the primary drafter of American Bar Association recommendations for improving student misconduct hearings, said social science research suggests the opposite of what the Connecticut Supreme Court found necessary.

"Adversarial proceedings do not result in better fact-finding in these cases," she said. "This assumption that adversarial proceedings are more fundamentally fair — I don't think those are borne out by the research. It's an indication that the court is relying on platitudes that have been unquestioned in the legal system for centuries." She said the presumption favoring cross-examination is rooted in "stereotypes about victims lying."***

Tracy A. Thomas, the Seiberling chair of constitutional law at the University of Akron School of Law, agreed that the opinion might spur colleges to treat sexual misconduct hearings like adjudications.

Some schools may struggle, she said, because many perceive their educational mission as one of guidance and mentorship, not of retribution and punishment. The opinion is "really going to hold the process to a higher standard, more like a judicial standard," she said.

Thomas said the Connecticut decision was "probably the right decision," but she, like many others, feared that it may open the door for unscrupulous defendants or their surrogates to abuse cross-examination techniques.

But getting the process right in the eyes of the courts will protect accusers, she noted. "It actually helps victims," she said. "A good process is good for everybody. It would have helped more facts come out." [And, according to the CT Supreme Court, a quasi-judicial proceeding would have immunized the victim against a defamation claim].

SCOTUS Won't Hear Case of Charter School Requiring Girls to Wear Skirts

Wash Post, Supreme Court Won't Hear Charter School's Bid to Force Girls to Wear Skirts

The Supreme Court on Monday declined to review the case of a North Carolina charter school that wanted to force female students to wear skirts in the name of “chivalry,” letting stand a lower-court ruling that deemed the policy unconstitutional.

The move is a victory for civil liberties advocates and a blow to social conservatives who hoped that — after allowing public vouchers to be used at religious schools last year — the top U.S. court would exempt charter schools from constitutional protections. The case could have had far-reaching implications for charter schools, which operate in a gray area, functioning as public schools that are run by private organizations.***

Only public institutions can be sued for violating constitutional rights — which protect students from discrimination, censorship and being thrown out of school without a hearing. The high court has ruled that students cannot be forced to recite the Pledge of Allegiance, that undocumented students have the right to attend school, and that all students, regardless of race, have the right to an equal education.

The appellate court looked at the particulars of North Carolina’s charter school system, noting that state law explicitly describes charters as public schools open to all students, holds them to state board of education standards and gives charter school employees government benefits. Ninety-five percent of Charter Day’s funding comes from public sources, the court noted.

University Fired Two Employees for Using Gender Pronouns in Emails

NYT, A University Fired Two Employees for Including Pronouns in Their Emails

When Raegan Zelaya and Shua Wilmot decided to include their pronouns at the end of their work emails, they thought they were doing a good thing: following what they viewed as an emerging professional standard, and also sending a message of inclusivity at the Christian university where they worked.

But their bosses at Houghton University, in upstate New York, saw the matter very differently.

Administrators at Houghton, which was founded and is now owned by a conservative denomination that branched off from the Methodist Church, asked Ms. Zelaya and Mr. Wilmot, two residence hall directors, to remove the words “she/her” and “he/him” from their email signatures, saying they violated a new policy. When they refused to do so, both employees were fired, just weeks before the end of the semester.

Houghton’s firing of the two staff members has dismayed some of its alumni, nearly 600 of whom signed a petition in protest. And it comes as gender and sexuality have become major fault lines in an increasingly divided nation, and after other faith-based organizations, including Yeshiva University in Manhattan, have argued that First Amendment protections of religious freedom allow them to treat gay and transgender people differently than others.

School Book Removals May Create Hostile Environment Violating Student Civil Rights

Wash Post, Book Removals May Have Violated Student Civil Rights, Education Dept. Says

In a move that could affect how schools handle book challenges, the federal government has concluded that a Georgia school district’s removal of titles with Black and LGBTQ characters may have created a “hostile environment” for students, potentially violating their civil rights.

The Education Department’s Office for Civil Rights released its findings in a letter Friday wrapping up its investigation into Forsyth County Schools’ 2022 decision to pull nearly a dozen books from shelves after parents complained of titles’ sexual and LGBTQ content. To resolve the investigation, the district north of Atlanta agreed to offer “supportive measures” to students affected by the book removals and to administer a school climate survey, per the letter. ***

The Education Department’s investigation into the Forsyth district — which involved the examination of school documents, interviews with top school personnel and a review of public board meeting records — was based on a complaint alleging that the January 2022 removal of books created a “racially and sexually hostile environment for students,” according to the department.

The district ultimately removed eight books indefinitely and two temporarily, according to the letter, and it limited four titles to high schools. Superintendent Jeff Bearden told the school board that the books being yanked “were obviously sexually explicit or pornographic,” according to the letter.

Of the books listed for removal, three center on characters of color and one on an LGBTQ protagonist, according to a Washington Post analysis. The nixed titles include “The Bluest Eye” by Nobel Prize-winning author Toni Morrison, the Forsyth County News reported and Caracciolo confirmed.

A study by the Washington Post found that the majority of all school book bans are being filed by a small number of people. See Objection to sexual, LGBTQ content propels spike in book challenges

A small number of people were responsible for most of the book challenges, The Post found. Individuals who filed 10 or more complaints were responsible for two-thirds of all challenges. In some cases, these serial filers relied on a network of volunteers gathered together under the aegis of conservative parents’ groups such as Moms for Liberty.

And the types of claims:

The Post analyzed the complaints to determine who was challenging the books, what kinds of books drew objections and why. Nearly half of filings — 43 percent — targeted titles with LGBTQ characters or themes, while 36 percent targeted titles featuring characters of color or dealing with issues of race and racism. The top reason people challenged books was “sexual” content; 61 percent of challenges referenced this concern.

In nearly 20 percent of the challenges, petitioners wrote that they wanted texts pulled from shelves because the titles depict lesbian, gay, queer, bisexual, homosexual, transgender or nonbinary lives. Many challengers wrote that reading books about LGBTQ people could cause children to alter their sexuality or gender.

 

Reflections on Progress Without Equity, Title IX at Fifty in K-12 Athletics

Elizabeth Kristen, Reflections on Progress Without Equity: Title IX K-12 Athletics at Fifty, 30 American J. Law & Gender 227 (2022)

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only a small fraction of those cases (about 300) include the word “athletics,” and fewer still address gender inequity at the K-12 level. This Article provides a brief overview of the “state of play” concerning gender inequity in athletics and the basic structure of Title IX athletics equity law. It then considers the Ollier v. Sweetwater1 high school Title IX athletics case and lessons learned from that hard-fought litigation on behalf of a class of high school girls that sought to level the playing field at their school. It then makes nine recommendations for what changes should be made to our approach to Title IX athletics at the K-12 level to ensure more effective enforcement to achieve gender equity. Inequalities in athletics at the K-12 level require litigation and policy changes that will have substantial and positive impacts on the lives of girls and young women.

For the First Time, Court Holds That Female Student Athletes Can Sue Universities for Damages

Andy Zimbalist & Carrie Baker, Student-Athletes Can Now Sue Discriminatory Universities for Damages, a Victory for Title IX, Ms.

A first-in-the-nation court ruling says female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

U.S. District Court Judge Todd W. Robinson ruled on April 13 that the female student-athletes suing San Diego State University (SDSU) for violating Title IX can pursue claims for equal athletic financial aid, equal treatment and retaliation. The decision is the first in the nation to hold that female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

“This is a major step forward for women and against sex discrimination at SDSU and nationwide,” said lead counsel Arthur H. Bryant of Bailey & Glasser in Oakland. “SDSU has been cheating its female student-athletes out of hundreds of thousands of dollars in equal athletic financial aid each year. It is giving its male student-athletes far better treatment than its female student-athletes. And it blatantly retaliated against its female student-athletes for standing up for their rights. Now, it can be held accountable.”

The class-action lawsuit alleges female student-athletes were given less scholarship support than the male athletes, received inferior treatment and benefits and were retaliated against when they protested against discrimination. Judge Robinson agreed their suit could go forward and went a step further—awarding the students the right to seek monetary damages.***

The other avenue for redress of grievances is litigation. Here too, courts usually require non-compliant schools to enter into a program to improve the treatment of female athletes. Until the SDSU case, however, female athletes experiencing sex discrimination in athletics did not sue for damages but instead sued for injunctive relief—a court order directing a school to stop or reduce discriminatory practices. Now, we know they can sue for monetary damages

The Case For and Against Abolishing Title IX

Alexandra Brodsky, The Case Against and for "Abolishing Title IX," 103 Boston University Law Review Online 19 (2023).

I recently visited a college to give a talk about sexual harassment. Afterward, students told me that the campus had, recently, been the site of protests to “abolish Title IX.” One might have imagined 19-year-old men’s rights activists demanding that Congress repeal Title IX of the Education Amendments of 1972.1 But the protesters were advocates for survivors. I wondered: did they really want to legalize sex discrimination in education? The students reassured me that no, they did not. To campus protesters, the students told me, the call to “abolish Title IX” was a criticism of their campus “Title IX office,” tasked with receiving and investigating sexual harassment grievances. Survivors felt unsupported by that office, frustrated that the school could not provide them support and safety without forcing them through a retraumatizing fact-finding gauntlet. ***

To avoid any ambiguity, I should make explicit that, despite all this, I very much do not think we should abolish Title IX. By creating a floor for how schools must address sexual harassment, the law does more good than harm, even if it also creates a ceiling, and I am unwilling to abandon Title IX’s protections against other forms of discrimination. But it is entirely understandable why some students see Title IX as the problem, rather than the solution. That is a real shame because Title IX still can be a useful tool for students, and because Title IX’s ability to withstand waves of backlash depends on student organizing.15 If students do not see Title IX as something worth fighting for, its power will only continue to diminish.

So, what do we do? I have a very ambitious proposal, a moderately ambitious proposal, and a very modest one. The very ambitious proposal is that we need to make Title IX worthy of students’ trust. 

 

Deploying the Rhetoric of Parental Rights to Override Minors' Access to Abortion, Gender-Affirming Care and Education

Naomi Cahn, The Political Language of Parental Rights: Abortion, Gender-Affirming Care, and Critical Race Theory, Seton Hall L. Rev. (forthcoming)  

This Article explores how the rhetoric of parental rights has been deployed to override minors’ access to abortion, gender-affirming care, and education about critical race theory and gender identity.

The overruling of Roe v. Wade and controversies over gender-affirming care and “appropriate” material to be taught in schools have highlighted parent/child/state tensions. Long before Dobbs, states imposed restrictions on the abortion rights of minors, even when minors and their parents agreed.

The rhetoric of parental rights, however, has been weaponized to serve particular substantive ends, even though parents have differing rights and interests. Some parents, for example, support their children’s access to gender-affirming care, but rather than provide those services for their children, instead fear that they will be investigated for child abuse. Indeed, this paper suggests that the parent-child-state triad has another participant: political partisanship. The triad thus becomes a triangular pyramid, with partisanship at the top. The rhetoric of parental rights is used as a screen for restricting abortion rights, bans on gender affirming care, prevention of the teaching of critical race theory and even limitations on drag queen shows, so it’s not really about parental rights at all.

The first part of this Article reviews the research on the impact of access to contraception and abortion for teens. The second turns to the existing legal framework for such access, while the third surveys pre- and post-Dobbs conflicts that center on protecting parental rights over their children’s rights to reproductive care. The next section explores the reasons for increasing political partisanship in the country as a whole, framing the broader culture wars, and brings in related issues that allegedly implicate parental rights, such as gender-affirming care and school curricula that include critical race theory and gender identity. The final section concludes.

The Trans Threat Narrative in Title IX

Deborah L. Brake, Title IX's Trans Panic, 29 William & Mary Journal of Race, Gender, and Social Justice 41 (2023)

Sport is an agent of social change, but that change does not always track in a progressive direction. Sport can be a site for contesting and reversing the gains of progressive social movements as much as furthering the values of equality and justice for historically marginalized groups. This dynamic of contestation and reversal is now playing out in a new wave of anti-transgender backlash that has gained adherents among some proponents of equal athletic opportunities for girls and women. In this latest twist in the debate over who deserves the opportunity to compete, the sex-separate athletic programming permitted by Title IX has been the vehicle for depicting trans athletes – and especially trans girls – as unwelcome intruders poised to take away Title IX’s gains for female athletes. The trans threat narrative relies on and reinforces a dichotomy between trans girls and cisgender girls, with the latter positioned in this narrative as the “real” girls, and the former depicted as suspect subjects – and even, absurdly, as boys posing as girls for opportunistic reasons. Despite the lack of empirical evidence that trans athletes pose any threat to girls in sports, the threat narrative has been an effective strategy for reinscribing traditional understandings of sex and gender roles precisely because it trades on the popularity of Title IX across the political spectrum. The trans threat narrative has even gained adherents among some advocates for girls in sports who otherwise align with liberal supporters of transgender rights. The threat narrative has also succeeded in gaining support among state legislators, school boards, and parents, under the banner of protecting sports opportunities for “girls.” The issue has divided the women’s sports community, which has historically functioned as a unified front for advancing gender equality in athletics. This article examines the threat narrative in relation to the theories and justifications for Title IX’s baseline of sex-separation in school sports programs. It contends that the narrative embraces the most problematic of the justifications for sex-separation of sports, thereby reinforcing stereotypes of gender difference that have long thwarted girls’ and women’s efforts to achieve equal athletic opportunity. Equality for girls and women in sport is best achieved by embracing trans inclusion and rejecting efforts to exclude trans athletes from competition.

The Evolving Right of Public School Teachers to Refuse to Use a Student's Preferred Name or Pronoun

Suzanne Eckes, Public School Teachers Who Refuse to Use Preferred Names and Pronouns: A Brief Exploration of the First Amendment Limitations in K-12 Classrooms,  14 ConLawNOW 159 (2023)

This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.

Transgender Students and the First Amendment

Dara Purvis, Transgender Students and the First Amendment, Boston U. Law Review (forthcoming)

Suppose that a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally consistent with the sex they were assigned at birth. The student’s parents protest, arguing that their child’s clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene.

This Article is the first analysis to map out and counter both obscenity and material disruption as justifications to limit gender identity speech. Although not all clothing choices by students are symbolic speech, gender presentation is the type of intentional and cognizable message that is protected under the First Amendment. Comprehensive examination of student speech cases demonstrates that current attempts to define gender identity as an inappropriately sexualized topic for children are inconsistent with existing law. Finally, the Article illustrates for the first time how schools can create a heckler’s veto by teaching students that the speech of transgender students is abnormal. The Article proposes an analytical revision that takes the schools’ role into account, reconciles the conflict between the heckler’s veto doctrine and Tinker’s material disruption test, and strengthens protection of all controversial student speech.

Etienne C. Toussaint on "The Purpose of Legal Education"

Etienne C. Toussaint has posted forthcoming work on SSRN titled The Purpose of Legal Education. This article is to be published in Volume 111 of the California Law Review (2023). The abstract previews:  

 

When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop antiracist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with so

 

This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.

 

 

UN Chief Warns Gender Equality is 300 Years Away

Wash Post, "Gender Equality is 300 Years Away", UN Chief Warns

Decades of advances on women’s rights are being wound back and the world is now hundreds of years away from achieving gender equality, according to the United Nations.

Speaking to the U.N. Commission on the Status of Women on Monday, ahead of International Women’s Day on Wednesday, Secretary General António Guterres said gender equality is “vanishing before our eyes.”

He drew special attention to Afghanistan, where Guterres said women and girls “have been erased from public life” following the return to Taliban rule. The regime has barred women and girls from universities and some schools. The Taliban has also blocked many female aid workers, imperiling key aid programs, including those overseen by the U.N.

In many places, women’s sexual and reproductive rights “are being rolled back,” he said. *** Maternal mortality is on the rise, he said, and the coronavirus pandemic has forced millions of girls out of school, and mothers and caregivers out of the global workforce.***

 

The U.N. chief also said gender equality is at risk from a technology industry heavily skewed toward a male workforce. Men outnumber women by 2 to 1 in the tech industry, and in the growing field of artificial intelligence, that gender gap rises to 5 to 1, according to Guterres, putting the world-changing industry at risk of “shaping our future” in a gender-biased way.

Guterres also trained a spotlight on the “misogynistic disinformation and misinformation” he said was flourishing on social media, and what is known as gender trolling aimed at “silencing women and forcing them out of public life.”