Gender and the Law Prof Blog

Normalizing Menopause and Finding the Appropriate Legal Frameworks

Naomi Cahn, Justice for the Menopause: A Research Agenda,  Columbia Journal of Gender and Law, vol. 41 (forthcoming 2021)

This short essay, prepared for a symposium on menstruation, is an initial effort to catalogue various legal approaches to menopause and to set out areas for further analysis. It argues for consideration of menopause in the movement for menstrual and gender justice. It briefly explores cultural images of menopause and post-menopausal women, including the ubiquitous hot flashes and a sexuality, analyzes potential legal claims based on age, sex, and disability for menopausal justice, and suggests the interrelationship between such approaches and social attitudes towards menopause, menstruation, and gender. It suggests that “normalizing” menopause, acknowledging its realities, is one means for removing the associated stigma and disabilities and might result in reinterpreting existing laws and future legal reforms.

Working Mothers and the Postponement of Women's Rights from the Nineteenth Amendment to the Equal Rights Amendment

Julie Suk, Working Mothers and the Postponement of Women's Rights from the Nineteenth Amendment to the Equal Rights Amendment,   Forthcoming, University of Colorado Law Review, Vol. 92, No. 3, 2021

The Nineteenth Amendment’s ratification in 1920 spawned new initiatives to advance the status of women, including the proposal of another constitutional amendment that would guarantee women equality in all legal rights, beyond the right to vote. Both the Nineteenth Amendment and the Equal Rights Amendment (ERA) grew out of the long quest to enshrine women’s equal status under the law as citizens, which began in the nineteenth century. Nearly a century later, the ERA remains unfinished business with an uncertain future. Suffragists advanced different visions and strategies for women’s empowerment after they got the constitutional right to vote. They divided over the ERA. Their disagreements, this Essay argues, productively postponed the ERA, and reshaped its meaning over time to be more responsive to the challenges women faced in exercising economic and political power because they were mothers. An understanding of how and why the amendment stalled speaks directly to the current controversy in Congress and the courts about whether a congressional time limit should stop the ERA from achieving full constitutional status. Such an understanding recognizes that suffragists disagreed in the immediate aftermath of the Nineteenth Amendment’s ratification over the ERA, and that these divisions undermined the ERA’s prospects for at least a few decades. Ultimately, however, the ERA that earned congressional adoption and 38 ratifications over almost a century was stronger because of this postponement.

The Disparate Impact of COVID on Single Mother Families and the Argument for Human Rights Protections

Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison McNulty, "Shelter from the Storm: Human Rights Protections for Single Mother Families in the Time of COVID-19"  , 27 Wm. & Mary J. Race, Gender & Soc. Justice ___ (2021 Forthcoming)

This Article assesses the effects in the US of COVID-19, with particular attention to its impact on single mother families. It scrutinizes decades of deliberate legal and policy choices that have left them financially vulnerable and exposed to enormous risks to their health and well-being. To remedy this situation, this Article argues for adopting a human rights framework that can reverse this disastrous course.

This Article conveys the pandemic experiences of some single mothers and their place in larger demographic trends. It identifies the disparate impacts that the pandemic has had on single mother families and the laws and policies that have either supported these individuals and their families or left them adrift. The Article then examines the structure of employment and family assistance laws and policies. Inadequate employment discrimination protections contribute to the financial vulnerability of single mother households. These vulnerabilities force some single mothers into welfare and other assistance programs that are materially inadequate and purposefully humiliating. Government officials have used sexist and racist tropes to vilify single mothers as immoral, lazy and opportunistic to justify this denigration. After reviewing this statutory framework, the Article briefly explains why constitutional law has not provided an adequate remedy. It reviews the Supreme Court’s use of extremely deferential standards of review of government decisions that negatively and disparately affect single mothers, including BIPOC single mothers, regarding employment laws and social and welfare programs. Finally, to address these problems the Article proposes use of a human rights framework. Such a framework would bring the US in line with most other developed states that have embraced these principles. More importantly, it would help protect against multiple forms of discrimination that currently fall outside of constitutional protection and help ensure adequate provision of material resources to the most vulnerable among us.

Using Social Science to Understand Why Family Courts Discount Women's Testimony in Domestic Violence Cases

Amelia Mindthoff, Deborah Goldfarb, Kelly Alison Behre, How Social Science Can Help Us Understand Why Family Courts May Discount Women's Testimony in Intimate Partner Violence Cases, 53 Family Law Quarterly, No. 3, 2019.

Thirty years ago, legal scholars and social scientists began to note the legal systems’ skepticism of women in general and victims of gender-based violence in particular. Despite increased public awareness about domestic violence, female victims of intimate partner violence (IPV) continue to find their credibility discounted. Deborah Tuerkheimer coined the term “credibility discount” to describe how the criminal legal system responds to women’s reports of sexual violence by discounting their credibility at every step of the process, from initial reports to law enforcement and prosecutorial discretion through judicial and jury decisions. Deborah Epstein and Lisa Goodman expanded the dialogue on credibility discounting to include the experiences of female victims of IPV in legal and social service settings. IPV victims often access family courts for injunctive relief, child custody and visitation orders, and financial relief following separation from an abusive partner, a time period during which they are at a heightened lethality risk. Consequently, credibility discounting by family courts may prove particularly dangerous for victims of IPV.

This Article builds upon the work done thus far on the intersection of gender and credibility in the family courts by reviewing both psychological research and legal scholarship examining factors that may contribute to the perseverance of credibility discounting of IPV victims. As part of this discussion, we raise potential psychological misperceptions or assumptions that underlie the discounting of people’s credibility, including factors that may be particularly pertinent to women reporting IPV. We further consider the implications of these misperceptions in family court settings. We hope this advances the discussion on remedies for credibility discounting to ensure that victims receive just treatment as they navigate the legal system.

Part I of this Article reviews the family court’s role in IPV cases and how it can perpetuate credibility discounting. Part II discusses gender biases in the legal system that have the potential to propagate credibility discounting of IPV victims navigating the family court system. Part III explores general psychological theory and associated empirical evidence and considers how theory can shed light on why credibility discounting may persist in family courts. Part IV provides suggestions for ways to mitigate gender bias demonstrated in the credibility discounting of IPV victims in family courts.

Colorado Passes Paid Family and Medical Leave

Colorado Voters Say Yes to a Paid Family and Medical Leave Act Program

Colorado voters have approved a new paid family and medical leave law. The measure had the support of 57 percent of voters as of 9:30 p.m., with a sizable lead of nearly 400,000 votes.

 

Under Proposition 118, Colorado would require that employers provide 12 weeks of paid time off for childbirth and family emergencies. Eight other states and Washington, D.C., have created similar programs in the last two decades.

 

"I am happy for the workers of Colorado," said State Sen. Faith Winter, a paid leave proponent The new law will ensure that mothers don't have to return to work mere days after giving birth, she said, and that cancer patients can take time to heal.***

 

Labor reformers have been trying to pass a similar law in Colorado since 2014, but it has failed each time in the legislature. This year, after legislative efforts fell apart yet again, advocates instead decided to put the measure on the ballot. It’s the first time that voters in any state have been asked to decide on a paid leave law.

 

The supporting campaign had raised nearly $6.5 million as of mid-October, mostly from the North Fund and the Sixteen Thirty Fund, national liberal nonprofits that don’t disclose their donors.

 

Business interests have fought similar measures in Colorado for years — but they ultimately were outspent by a 10-to-1 ratio, said opposition campaign co-chair Dave Davia. It was difficult to raise money amid a bruising pandemic year and with 10 other statewide ballot measures competing for funding, he said.

 

See Lily, Paid Family Leave Has Never Been on a Ballot--Until this Year

This election season, paid leave is on the ballot in Colorado.

 

As voters cast ballots for national, state and local candidates, they will also be asked to vote on Proposition 118, to create a paid family and medical leave program. If passed, it would be the ninth state, plus D.C., to do so.

 

This is the first time it has been directly on a state ballot. In the past, it has always originated from a state legislature or, in the case of D.C., the city council.

 

If passed, workers in Colorado could expect up to 12 weeks of paid leave, with an additional four weeks for qualifying childbirth or pregnancy complications.***

 

In Colorado, the new measure would include maternity, paternity, medical leave, or time off to care for a family member. The program would work like other social insurance programs with employees and employers contributing to a fund, equivalent to 0.45 percent of an employee’s wages. Employers have the option to pay up to 100 percent of the contributions.

 

Businesses with fewer than 10 employees would not have to contribute, but their employees still receive the time off. The average Colorado worker would contribute less than $4 a week, according to the Fairness Project.

 

The measure has received bipartisan support, including from advocates for small businesses, who say owners don’t want to compete with large corporations for benefits.

The Centrality of Marriage to the Meaning of the Nineteenth Amendment

Nan D. Hunter, Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument, 108 Georgetown L.J. 73  (2020)

The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote on behalf of all household members. On this understanding, coverture and the state functioned as interlocking systems of governance. The nineteenth century Women’s Rights Movement was a campaign to reshape American democracy; eliminating coverture and extending full citizenship rights to women were necessary to achieve that goal. To use a phrase that we now associate with same-sex couples, it was the nation’s first marriage equality movement.

Adoption of the Nineteenth Amendment marked a new social under-standing that constitutional principles and democratic norms must apply to women’s role in marriage as well as to women as citizens. The movement began by articulating a concept of collective liberty, which grew out of experiences in the anti-slavery movement and which expanded on the Founders’ more individualist concept of liberty in the Declaration of Independence. After the Civil War, the equality discourse of the Reconstruction Amendments and the rejection of women’s demands for the vote by both Congress and the Supreme Court reshaped the dominant theme of women’s rights efforts into a campaign for equality. The refusal by federal lawmakers to address women’s issues left them no recourse except to lobby state legislators, which women’s groups undertook on both suffrage and marriage law. But the diffuse, localized nature of family law presented insuperable barriers to ending coverture in one pre-emptive action.

The Nineteenth Amendment reflects these dual goals in its text and sub-text. The former prohibits denial of the vote based on sex, and the latter, by enabling women’s full participation in political life, rebuts the heart of the rationale for coverture: that women’s role in society lay solely in the domestic sphere of home and marriage.

Failure to understand the centrality of marriage-law reform to the social and political meaning of the Nineteenth Amendment has impoverished the constitutional grounding for contemporary challenges to the legal regulation of marriage, including the Supreme Court’s decision in Obergefell v. Hodges. In Obergefell, which prohibited the exclusion of same-sex couples from marriage, the Court missed an opportunity to draw on the history and meaning of the Amendment to frame the issue as implicating dual systems of governance, both of which must be bound by constitutional principles. Instead, the Court described marriage as a largely prepolitical realm of private, idealized relations. The opinion of the Court failed to comprehend the extent to which marriage today continues to function as an institution of the state and a zone of governance, no longer because of coverture but because it is foundational to the privatization of collective responsibility that is embedded in the nation’s primary systems of social insurance.

Revaluating Marital Norms in the Administrative Cases Brought by Deserted Wives Seeking Homesteading Rights in the 19th and early 20th Centuries

Hannah Haksgaard, The Homesteading Rights of Deserted Wives: A History, Nebraska Law Review (Forthcoming)

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.

The Unconscionability of Requiring a Domestic Violence Survivor to Pay Alimony to her Abuser

Amanda Nannarone,  Comment, Adding Insult to Injury: The Unconscionability of Alimony Payments from Domestic Violence Survivors to their Abusers,  69 American U. L. Rev. 253 (2019)

In 2017, the #MeToo movement took social media by storm when individuals from all walks of life began openly sharing their experiences with sexual violence and gender-based harassment for the first time. Starting in the employment space and moving to other areas, the movement encouraged legal changes that improve gender equality. Alimony, which has received little scholarly attention in recent years, became of interest to #MeToo reformers who discovered current laws failed to adequately serve survivors’ interests by forcing them to pay spousal support to their abusive ex-spouse. Instead of a uniform system that removed the possibility of survivors being required to pay spousal support to their abusers, lawyers and clients face a patchwork of statutes that vary wildly from jurisdiction to jurisdiction. Some jurisdictions prohibit considering any evidence of marital misconduct, while others leave it solely to the court’s discretion. California is the only state that has affirmatively enacted legislation disqualifying alimony payments from survivors to abusers.

As state legislatures continually fail to implement proper laws, survivors’ only hope in having alimony provisions in divorce settlements invalidated lies in judges’ hands. Courts have used contract law for centuries to protect vulnerable people from being taken advantage of in their dealings with more powerful individuals. Particularly, the doctrine of unconscionability began as an equitable doctrine that courts invoked as a way to restrict enforcement of harsh, biting, and unreasonably one-sided agreements. Judges today can continue to use the doctrine of unconscionability as a way to deny enforcing divorce settlements that require survivors of domestic violence to pay spousal support to their convicted abusers because those payments represent a continuation of abuse and control. Survivors’ freedom from abuse should not be obtained at such an unreasonably steep price and judges have the power to end that once and for all. Allowing this practice to go on creates fresh wounds on top of barely healed flesh, adds insult to indescribable injury, and prevents survivors from ever truly being free. In the #MeToo era, that is not acceptable.

Book Review Reproductive Rights and Justice Stories

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

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

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

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

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

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

 

Gendered Complications of Covid-19: Towards a Feminist Recovery Plan

Naomi Cahn & Linda McClain, Gendered Complications of Covid-19: Towards a Feminist Recovery Plan, Georgetown Journal of Gender and the Law, 2020

Gendered inequalities are on the frontlines of Covid-19. The catalogue of Covid-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. The pandemic has exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly Black, Latina, and Native American, are at the intersection of the inequities in the emerging stay-at-home economy. This Article argues that Covid-19 is likely to have complex implications for gender equality and gender equity as state and local governments, the federal government, and private actors focus on recovery plans. The negative impact includes hundreds of thousands of deaths, lingering health complications for many among the several million people who have already contracted the virus, massive economic disruption and loss for individuals, families, and communities and the exacerbation of structural inequalities. The creative policy responses prompted by the devastating impact of Covid-19 provide promise for building a more transformative and equitable future. Indeed, any roadmap to resilience is incomplete without addressing the gender inequities in our social infrastructure. Proposing a feminist recovery plan, this Article focuses on a set of issues relating to gender inequities concerning work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly, women of color— in providing essential but undervalued care work.

Local Gender Norms by Geography as Significant Influences in Gender Equality

Local Gender Norms Across the US, Gender & Society blog

We wanted to learn more about whether gender norms varied across cities in the U.S. and if so, and what this means for gender equality. Although we often revel and delight at places’ unique cultural flair, does this local culture also contain  elements that convey different expectations for women and men? Our analysis and results are published in a recent Gender & Society article. We highlight our key findings below.

MAPPING LOCAL GENDER NORMS ACROSS THE U.S.

We measured local gender norms by focusing on the way they’re reflected in personal attitudes about gender (e.g. beliefs that women are better caregivers than men and beliefs about women’s suitability for politics) as well as revealed preferences behavior (e.g. age of mothers’ first birth and the segregation of college majors). Focusing on differences in these indicators across commuting zones, we found that cities and their surrounding areas (commuting zones)  fall into four general categories of gender norms:

• Liberal-egalitarian areas have norms that convey values of gender equality. In these locations, women and men are expected to contribute equally to caregiving and are viewed as having similar skills and leadership qualities. Places with these norms include Burlington, VT, Honolulu, HI, San Francisco, CA, and Washington, DC.
• Egalitarian-essentialist places have local norms that support women’s labor force participation and leadership, but where people hold  gender essentialist beliefs that women and men are inherently suited for different types of work. Areas with egalitarian-essentialist norms include Charlotte, NC, Milwaukee, WI, and Orlando, FL.
• Traditional-breadwinner norms exist in places where people hold  beliefs that the ideal family is one where men work and women tend the home. In these areas, women and men are not viewed as essentially different, but instead expected to hold different responsibilities. Places with these norms include Knoxville, TN and Tulsa, OK.
• Traditional-essentialist locations are places where people believe in the essential difference between women and men with norms that women should focus primarily on family responsibilities. Places with these norms include Little Rock, AR, Charleston, WV, and Midland, TX.

***We found greater evidence that people are influenced by the gender norms where they reside rather than their personal characteristics, particularly if they live a city with traditional-breadwinner or traditional-essentialist norms. In those traditional places, even residents with a college degree, who tend to show more support for gender equality, were much more likely to oppose women’s leadership and feel that men should be earners and women caregivers than college graduates who lived in more egalitarian environments. Residing in a place with traditional norms appears to cause those who would otherwise support gender equality to, instead, endorse more conventional beliefs about women’s leadership and the gendered division of labor.

Book Talk: What Does a Feminist City Look Like

What Does a Feminist City Look Like?

Feminist geographer Leslie Kern has faith in cities.

 

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

 

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

 

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

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

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

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

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

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

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

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

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

 

 

 

Exploring the Toxic Racial Construct of the Black Welfare Queen

Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Geo.L.J., 19th Amendment, Special Edition (forthcoming)

As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

In service of these goals, we use this Article to explore a toxic racial construct often used to distract American women from our shared rights claims—the political trickster known as the “welfare queen.” This construct was born as a result of fiscal conservatives’ attacks on government anti-poverty subsidy programs in the 1980s. It relied on antipathy toward Black women—characterized as “welfare cheats” or frauds—and pathologized women of color to call for aggressive cuts to social-safety-net programs. This Article explores the remobilization of this construct in present-day electoral politics and the ways in which it compromises cross-racial coalitions and obscures the path to reform. We take as our object the 2016 presidential election and its aftermath, for in 2016, then-presidential candidate Donald Trump and his surrogates reanimated the welfare queen construct and alleged that she was stealing American democracy through voter fraud. The visceral power of this construct allowed this group of Republicans to transform Americans’ understanding of voting rights and American democracy. In so doing, their representations simultaneously sidetracked feminist efforts to build strong cross-racial coalitions. This Article explores the various paths out of our current discourse, dispelling thedistracting haze generated by the welfare queen construction. In the process, we also hope to advance our conceptual understanding of intersectional identities and their relationship to political change.

Contracting Pregnancy and the Laws of Regulating Surrogacy

Rachel Rebouche, Contracting Pregnancy, 105 Iowa L. Rev. (2020)

Several states recently have passed laws that permit and regulate gestational surrogacy, changing course from the prohibitions that characterized an earlier era. These statutes require mental health counseling before pregnancy and legal representation for all parties to the contract. Scholars and practitioners alike herald this legislation as the way forward in protecting the interests of both intended parents and surrogates. State law, however, may not resolve a recurrent tension over who controls prenatal decision making in gestational surrogacy agreements. Intended parents want authority to make decisions regarding the pregnancy. Contract provisions cater to that desire and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care.

Analyzing the most controversial terms of surrogacy contracts—those governing prenatal testing, prenatal behavior, and abortion—this Article demonstrates that neither statutory rights nor contractual remedies adequately address disputes over prenatal care. Rather, mental health professionals who provide pre-pregnancy counseling and lawyers who draft surrogacy contracts have greater effect on parties’ expectations and conduct. Lawyers, in implementing surrogacy contracts, help build trust between parties that induces compliance with otherwise unenforceable terms. When there is a conflict between the parties, lawyers diffuse it.

This Article identifies the consequences of relational contracting for surrogacy, including shielding parties’ behavior from view and entrenching the power of fertility agencies and brokers. It concludes by suggesting how law might challenge the dominance of professionals and agencies by opening the fertility market to a broader population of participants.

Papers from the Feminist Legal Theory Research Network at Next Week's Law & Society Association Virtual Meeting

I am probably one of the few people in the world who is thrilled that the Law & Society Annual Conference is virtual -- since I will now be able to attend.  In general virtual conferences open up access to some barriers to participation due to finances,  travel, family, disability, and health issues.

You can register for the virtual conference here at the Law & Society Association website.  

Scheduled papers to be presented from the Feminist Legal Theory Research Network:

 

Time	Title	Type
Wed, 5/27 1:00 PM - 2:45 PM	#MeToo: The Narrative of Resistance Meets the Rule of Law	Plenary Session
Thu, 5/28 11:00 AM - 12:45 PM	Moving Rules: Struggles for Reproductive Justice on Uneven Terrain	Paper Session
Thu, 5/28 11:00 AM - 12:45 PM	Sexual Harassment: Victims and Survivors	Paper Session
Thu, 5/28 1:00 PM - 2:00 PM	CRN07: Feminist Legal Theory Business Meeting	Business Meeting
Thu, 5/28 2:15 PM - 4:00 PM	Families, Laws, and Institutions	Paper Session
Thu, 5/28 2:15 PM - 4:00 PM	The State and Violence: New Proposals for Stopping the Cycle	Paper Session
Fri, 5/29 11:00 AM - 12:45 PM	Normativity in Men, Women, and Bodies	Paper Session
Fri, 5/29 11:00 AM - 12:45 PM	The Politicization of Safety: Critical Perspectives on Domestic Violence Responses	Roundtable Session
Fri, 5/29 1:00 PM - 2:15 PM	Sexual Harassers, Sex Crimes, and Accountability	Paper Session
Fri, 5/29 4:00 PM - 5:45 PM	Women's Rights in the Shadow of the Constitution	Paper Session
Sat, 5/30 11:00 AM - 12:45 PM	Perspectives on Sex, Work and New Legal Orders	Paper Session
Sat, 5/30 1:00 PM - 2:45 PM	Trans and Queer Life in Private and Public	Paper Session
Sat, 5/30 4:00 PM - 5:45 PM	Human Rights in an Unequal World: Autonomy, Status, and Other Stories	Paper Session
Sun, 5/31 11:00 AM - 12:45 PM	Feminist Legal Theory in a Public/Private World	Paper Session
Sun, 5/31 11:00 AM - 12:45 PM	Laws of Social Reproduction	Paper Session
Sun, 5/31 1:00 PM - 2:00 PM	Intimate Lies and the Law	Author Meets Reader (AMR) Session
Sun, 5/31 2:15 PM - 4:00 PM	Feminist Judgments on Reproductive Justice and Family Law	Roundtable Session
Sun, 5/31 2:15 PM - 4:00 PM	Women and Gender in Private, Public, and Places in Between: Old Doctrines Meet New Realities in the Twenty-First Century	Paper Session

Women Submitting Less to Academic Journals Should Scare You

Ms., Women Submitting Less to Academic Journals Should Scare You

The New York Times recently published a report on the impacts of COVID-19 on working moms.

 

“I feel like I have five jobs: mom, teacher, C.C.O., house cleaner, chef,” Sarah Joyce Wiley—chief client officer at a Massachusetts health services company—told the New York Times. “My kids also call me ‘Principal mommy’ and the ‘lunch lady.’ It’s exhausting.”

 

It’s not that men aren’t feeling stressed—but in heterosexual relationships, domestic responsibilities, more often than not, tend to fall on the mother.  As Andrea Flynn, director of health equity at the Roosevelt Institute, wrote in a viral op-ed for Ms.:

Three weeks ago, most of us—proud feminists and progressives—would have said we shared the burden of parenting relatively evenly. (I say relatively because research shows that, despite couples feeling they have egalitarian relationships, women still do the lion’s share of domestic labor.)

 

Why then, at times of crisis, do these imbalances emerge? 

 

Because structural sexism is always lurking just below the surface, ready to rear its ugly head and quickly upset any semblance of intra-household gender equity. 

 

The scary thing? The pressure of women to balance everything at home isn’t just going to go away once COVID-19 ends. Women’s careers are at sake. 

 

Recently, the Lily published a report on the impacts of COVID-19 on academia—specifically how it can impact tenure and future opportunities for women and men. 

 

[COVID-19] threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus? 

 

Prior to the pandemic, some studies showed that in recent years, the gender gap in academia—specifically related to tenure and doctorate degrees—was beginning to level out.

 

However, since the onset of coronavirus, editors have noticed a trend: Women academics are submitting fewer papers during coronavirus—with some fields like astrophysics reporting a 50 percent productivity loss among women. This could mean the gender gap in higher education is rearing its ugly head again. 

 

“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” Gonzales told the Lily. “We don’t want to make that our benchmark [of deciding tenure or not].”

See also No Room of One's Own: Data Suggests COVID Negatively Affecting Women's, but Not Men's, Research Productivity

Barriers to Reproduction and Family that Deny the Dignity of Black and Disabled Women

Mary Crossley, Reproducing Dignity: Race, Disability, and Reproductive Controls, UC Davis L. Rev. (forthcoming)  

Human rights treaties and American constitutional law recognize decisions about reproduction as central to human dignity. Historically and today, Black women and women with disabilities have endured numerous impairments of their freedom to form and maintain families. Other scholars have examined these barriers to motherhood. Unexplored, however, are parallels among the experiences of women in these two groups or the women for whom Blackness and disability are overlapping identities. This Article fills that void. The disturbing legacy of the Eugenics movement is manifest in many settings. Black and disabled women undergo sterilizations at disproportionately high rates. Public benefit programs discourage their childbearing. Their ability to pursue motherhood is diminished by disproportionately high rates of institutionalization (either treatment-related or carceral) and low rates of access to assisted reproduction. Becoming pregnant is riskier, with risks flowing from medical ignorance regarding maternity care (for disabled women) or high rates of maternal mortality and criminal prosecutions (for Black women). Finally, if they become mothers, Black and disabled women are more likely to lose custody of their children to the state.

This Article argues that barriers to bearing children and forming families debase the dignity of Black and disabled women in meaningfully similar ways. In so doing, it points to an opportunity. Recognizing similarities (while appreciating differences) may equip participants in social movements – whether racial justice advocates, disability justice proponents, or reproductive justice activists – to build stronger coalitions to advance the dignity of reproductive choices for all women.

Motherhood Penalty May Fuel Workplace Lawsuits From Pandemic

Motherhood Penalty May Fuel Workplace Lawsuits in Pandemic

Stephanie Jones struggled to balance her day job for Eastern Airlines with new responsibilities after her 11-year-old son’s school closed in March as part of her Pennsylvania town’s response to the coronavirus.

 

The single mother, who served as the airline’s director of revenue management, said her repeated requests to have two hours a day off were met with the blunt response that it “was not in the interest of the company or yourself.” She was fired soon after, allegedly because she had “conflict” with co-workers.

 

Earlier this month, Jones filed one of the first federal lawsuits under the Families First Coronavirus Response Act, which requires paid sick leave for parents when schools or daycare centers close because of the virus. Eastern Airlines and its attorney didn’t respond to a request for comment.

 

Jones’ lawsuit is an early indicator of potential lawsuits from parents and caregivers—especially women—as a result of Covid-19, employment law attorneys and academics warn.

 

“We are at risk for a whole new round and increased interest in family responsibilities discrimination,” said Joan Williams, a law professor at the University of California Hastings and director of the Center for WorkLife Law. “You have a recipe for discrimination. Inevitably, there will be assumptions about who is valuable and who is performing up to snuff. That’s where the lawsuits start.”

 

The “motherhood penalty” has been oft-used to describe persistent gender disparities that working mothers can encounter, as documented by a surge in discrimination lawsuits related to caregiving in recent decades as more women enter the workforce.

 

It’s exacerbated during the pandemic, lawyers and professors say, and could lead to more claims of sex discrimination in hiring, firing, pay, and promotions; pregnancy bias from mothers who must choose between their safety and getting paid; and family leave law violations.

No Room of One's Own: Data Suggest Covid-19 is Negatively Impacting Women's, but not Men's, Research Productivity

Early Journal Submission Data Suggest COVID-19 is Tanking Women's Research Productivity

It was easy to foresee: within academe, female professors would bear the professional brunt of social distancing during COVID-19, in the form of decreased research productivity.

 

Now the evidence is starting to emerge. Editors of two journals say that they’re observing unusual, gendered patterns in submissions. In each case, women are losing out.

 

Editors of a third journal have said that overall submissions by women are up right now, but that solo-authored articles by women are down substantially.

 

In the most obvious example of the effects of social distancing carving into women's research time, Elizabeth Hannon, deputy editor of the British Journal for the Philosophy of Science, wrote on Twitter that she’d received “negligible” submissions from women within the last month. “Never seen anything like it,” she added***

 

This doesn’t mean that COVID-19 "hasn’t taken a toll on female authors, though," Dolan and Lawless wrote, as women submitted just eight of the 46 solo-authored papers during this time. That’s 17 percent, compared to 22 percent of solo-authored papers in the larger data set.

 

"As a percentage change, that’s substantial," the editors said. "Even if women’s overall submission rates are up, they seem to have less time to submit their own work than men do amid the crisis.”

 

The revelations generated much chatter, including from gender studies scholars and women in all fields who are desperately trying to balance teaching and otherwise working from home with increased caregiving responsibilities. Those responsibilities include all-day minding of children due to school and daycare closures, homeschooling, and the cooking and cleaning associated with having one’s family at home all day, every day. Women are also spending time checking in with friends, relatives and neighbors.***

 

 It’s not that men don’t help with all this, or that they’re not also individually overwhelmed by work and family life. But women already juggled more domestic and affective, or emotional, labor with their actual work prior to the pandemic.

 

Female academics, as a group, also struggled more with work-work balance, as well: numerous studies show they take on more service work than men and are less protective of their research time, to their detriment.

 

The coronavirus has simply exacerbated these inequities by stripping away what supports women had in place to walk this tightrope, including childcare.*** “My husband is working full-time at home, as am I, and what I’m finding is for men, there is more of an expectation that he can be working all the time than there is for me.”***

 

“Silence and concentration are pivotal for my thinking and teaching,” she wrote. “This means I have less time for writing scientific articles.”

 

While she and her colleagues know they’re lucky to be employed and healthy at this time, it still feels “as if I am my own subject” in some work-life balance study.

 

Minello also expressed concern about when the crisis is over, both parents and nonparents “will participate together in open competition for promotion and positions, parents and nonparents alike.”

 

Just like academic fathers, nonparents don’t have it easy right now -- no one does. But, again, there are well-documented challenges that academic mothers, in particular, face. Those challenges, together, have been dubbed the motherhood penalty. And they’re laid bare right now.

Women Academics Submitting Fewer Papers to Journals During Coronavirus

Six weeks into widespread self-quarantine, editors of academic journals have started noticing a trend: Women — who inevitably shoulder a greater share of family responsibilities — seem to be submitting fewer papers. This threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus?

“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” says Gonzales. “We don’t want to make that our benchmark.”