Gender and the Law Prof Blog

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

Wednesday, June 10, 2020

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.

June 10, 2020 in Family, Legal History, Poverty, Race | Permalink | Comments (0)

Monday, June 1, 2020

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.

June 1, 2020 in Abortion, Family, Healthcare, Pregnancy | Permalink | Comments (0)

Wednesday, May 20, 2020

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 

May 20, 2020 in Conferences, Constitutional, Equal Employment, Family, Masculinities, Reproductive Rights, Theory, Violence Against Women | Permalink | Comments (0)

Wednesday, May 6, 2020

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

May 6, 2020 in Equal Employment, Family, Gender, Scholarship | Permalink | Comments (0)

Thursday, April 30, 2020

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.

April 30, 2020 in Family, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Wednesday, April 29, 2020

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.

April 29, 2020 in Equal Employment, Family | Permalink | Comments (0)

Monday, April 27, 2020

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 Sciencewrote 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.”

April 27, 2020 in Family, Gender, Pop Culture, Scholarship, Workplace | Permalink | Comments (0)

Monday, April 6, 2020

Divorce as a Substantive Gender-Equality Right

Karin Carmit Yefet, Divorce as a Substantive Gender-Equality Right, 22 U. Penn J. Const'l L. 455 (2020)

This Article—the first half of a diptych that continues with Divorce as a Formal Gender-Equality Right,
22 U. PA. J. CONST. L. (forthcoming April 2020)—draws on the insight that the position of women in society
is nowhere better reflected and constituted than in a nation’s personal status laws. Contemporary feminist and
constitutional scholars have devoted much attention to how the laws of marriage affect women’s status in society,
but they have largely ignored the potential for divorce to vindicate gender equality norms—and many have
overlooked recent political and legal developments that threaten to substantially restrict dissolution rights.

This diptych seeks to fill in the academic void in feminist and constitutional scholarship by developing the
constitutional argument for divorce as a gender equality right. Recognizing that there are competing conceptions
of what constitutional gender equality means, the thesis is that every interpretation of equal protection must
guarantee a right of unilateral, no-fault exit from matrimonial chains. This Article establishes the status of
marital freedom as a gender-equality right under various substantive visions of constitutional equality. The
subsequent Article, Divorce as a Formal Gender-Equality Right, 22 U. PA. J. CONST. L. (forthcoming
April 2020), establishes the status of marital freedom as a gender-equality right under a formal understanding
of constitutional equality.

To expose the gender-equality implications of divorce law, this diptych unearths the lineage and function of divorce
restrictions as gender-status regulation and outlines the gender-specific burdens they impose on women. It further
unveils contemporary attempts to restrict divorce as reflecting impermissible status-based judgments about women’s
capacities, roles, and destinies. All in all, this diptych concludes that divorce restrictions coerce women to perform
the work of wifehood without altering the conditions that continue to make such work a principal cause of their
subordination. This makes unilateral no-fault divorce a fundamental right for women attempting to navigate the
world as equals and an imperative for a constitutional system committed to disestablishing gender hierarchy.

April 6, 2020 in Constitutional, Family | Permalink | Comments (0)

Friday, April 3, 2020

Gender Bias in Marital Division at Divorce Independent of Caretaking Roles

Jennifer Bennett Shinalll, Settling in the Shadow of Sex: Gender Bias in Marital Asset Division, 40 Cardozo L. Rev. (2019)  

Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital asset division laws to account adequately for this prevalence. In spite of the progress made by the women’s movement over the past half-century, married, heterosexual women endure as the primary caretaker in the majority of households, and married, heterosexual men endure as the primary breadwinners. Undoubtedly, women who have made career sacrifices during a marriage face a harsh economic reality when the marriage breaks down. But this Article is the first to question whether the persistence of traditional gender roles is solely responsible for the gender imbalances in economic security following a divorce.

Instead, this Article posits that gender bias against women — bias that is completely separate from women’s caretaking or breadwinning status — also harms women in divorce proceedings. This gender bias may be harbored by judges, mediators, lawyers, and even litigants themselves. To test this theory, the Article utilizes an experimental vignette study, fielded on 3,022 subjects. Subjects were randomly assigned to view one of several highly similar scenarios where a couple is divorcing after a long-term marriage, and asked to divide marital assets between them. In half of the scenarios, the male spouse was the sole breadwinner and the female spouse was the principal caretaker, consistent with traditional gender roles. But in the other half of the scenarios, the situation was reversed, with the female as the sole breadwinner and the male as the primary caretaker. Comparing results across subjects reveals that subjects consistently favored the male spouse over the similarly situated female spouse. On average, both male and female subjects assigned a greater share of the marital assets to the male breadwinner than to the female breadwinner. Male and female subjects also assigned a greater share of the marital assets to the male caretaker than to the female caretaker. The results are consistent with gender bias, as subjects penalize the female spouse in both the stereotypic (male-breadwinner/female-caretaker) and the nonstereotypic (female-breadwinner/male-caretaker) scenarios. Given these sustained preferences for the male spouse in the divorce setting, the Article concludes by considering empathy induction, auditing, and legal presumption reforms to counter the effects of bias in divorce settlements and to assist women, at last, in gaining equivalent economic standing with men after a divorce.

April 3, 2020 in Family, Gender | Permalink | Comments (0)

Tuesday, March 17, 2020

Finland's Women-Led Government Equalizes Family Leave for Both Parents

Finland's Women-Led Government has Equalized Family Leave

People often ponder how the world might be different if more women were in political power. In Finland, where women lead the five parties in the coalition government, here's one change they're making: equal paid leave for both parents in a family.

 

Finland's government, led by 34-year-old Prime Minister Sanna Marin, has announced a new policy that will grant nearly seven months of paid leave to each parent, for a total of 14 months of paid leave. The pregnant parent also can receive one month of pregnancy allowance even before the parental leave starts.

 

The new policy is designed to be gender-neutral and will come into effect as soon as fall 2021. It will eliminate gender-based allowances that currently grant about four months of paid leave to mothers and about two months to fathers.

 

Parents will be permitted to transfer 69 days from their own quota to the other parent. A single parent will have access to the allowance for both parents.

 

The government estimates that the increased leave will cost 100 million euros (about $110 million). Reuters reports that Finland's previous center-right government explored parental leave reform in 2018 but decided it would be too expensive.

March 17, 2020 in Equal Employment, Family, Pregnancy | Permalink | Comments (0)

Wednesday, February 12, 2020

New Survey Shows Young Men Embrace Gender Equality, but Not Equal Housework

Young Men Embrace Gender Equality, but They Still Don't Vacuum

Young people today have become much more open-minded about gender roles — it shows up in their attitudes about pronouns, politics and sports. But in one area, change has been minimal. They are holding on to traditional views about who does what at home.

 

new survey from Gallup found that among opposite-sex couples, those ages 18 to 34 were no more likely than older couples to divide most household chores equitably. And a sociology study published last month found that when high school seniors were asked about their ideal family arrangement with young children, almost a quarter said it was for the man to work full time and the woman to stay home, a larger share than desired any other arrangement.

 

The fact that home life doesn’t look all that different from half a century ago surprises researchers, because in most other ways, attitudes about gender roles have changed a lot. There’s now almost universal support for women to pursue careers or political office. Women get more education than men. And young people are much more accepting of people not identifying as either a man or a woman.

 

Both new studies were based on surveys that have been repeated over time, and they show that women now do a little less housework and child care, and men do a little more. But a significant gap remains — women spend about an hour more a day than men on housework, and an hour more on child care, other research shows.

 

February 12, 2020 in Family, Gender, Pop Culture | Permalink | Comments (0)

Friday, January 17, 2020

New Book: Work, Parenting and Inequality--Workplace Laws and Policies from 1898 to 2018

Candace-Saari-Kovacic-Fleischer, Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018

Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018 considers whether laws in the United States make it difficult for people to be employees and parents at the same time. The book covers constitutional law, employment law, social security law, poverty law, discrimination law, disability law, and veterans law in historical context beginning with the 1890s. To do this, the book includes copies of primary sources—reports, bills, laws as originally passed, signing statements, amendments, and bills not passed—and court cases arranged chronologically by topic. Because the book focuses on policies and consequences of laws, it explains how to understand each law before introducing it in statutes and cases. Thus, it is intended that the book be a reference for people in a variety of disciplines.

January 17, 2020 in Books, Equal Employment, Family | Permalink | Comments (0)

Monday, January 13, 2020

The Use of Agency Law for Married Women's Business Rights in Historic Nantucket

Mary L. Heen, Agency: Married Women Traders of Nantucket, 1765-1865, 21 Georgetown J. Gender & Law (2019)  


Before the enactment of separate property and contract rights for married women, generations of married women in seaport cities and towns conducted business as merchants, traders and shopkeepers. The first part of this article shows how private law facilitated their business activities through traditional agency law, the use of powers of attorney, trade accounts and family business networks. These arrangements, largely hidden from public view in family papers, letters, and diaries, permitted married women to enter into contracts, to buy and sell property, and to appear in court. Private law, like equity, thus provided a more flexible alternative to the common law of coverture under agreements made within the family itself. On the other hand, public law proved much more restrictive for wives who were not part of a viable or harmonious marriage. In post-revolutionary Massachusetts, for example, the feme sole trader statute and various judicially adopted exceptions to coverture applied only to certain wives abandoned by their husbands.

The second part of the article provides a case study of three generations of married women traders from Nantucket during the whaling era, the oil exploration business of its time. Their stories show how some married women, within the constraints of the law as it developed in Massachusetts without courts of equity, attained a form of autonomy in business or commercial activity at the same time that they fulfilled their family responsibilities. Their stories also uncover tensions underlying the first wave of women’s rights reform efforts in the mid-nineteenth century, including the developing separation between work and home that continues to pose challenges for family law and for men and women today. In a broader sense, this historical study also illuminates the interaction among private law, public law, and evolving social practice as the law both reinforced and shaped family roles during a period of increased commercialization and industrialization.

January 13, 2020 in Business, Family, Legal History | Permalink | Comments (0)

Tuesday, January 7, 2020

Dads as Allies for the Next Generation of Gender Equality

Michelle Travis (University of San Francisco School of Law) has just published a new book, Dads For Daughters: How Fathers Can Give Their Daughters a Better, Brighter, Fairer Future. It's available for pre-order on Amazon and is launching a the end of January from Mango Publishers. Here's the abstract:

 

For decades, women have been breaking down barriers, cracking the glass ceiling, and proving and re-proving themselves. Yet our next generation of girls is still growing up in a profoundly unequal world. It's time to expand our efforts and accelerate our progress toward equality. To do that, we need more men to get involved.

 

Dads For Daughters is an invitation for more to join the fight for women's rights. Inspired by their daughters, fathers are uniquely positioned to become powerful allies for girls and women. But in a post-#MeToo world, it can be difficult for men to step in and speak up. Despite these challenges, many men are still coming forward as ready, willing, and able supporters, who want to learn more about becoming part of the solution. That's where Dads For Daughters can help. This book arms fathers with the data they need to advocate for gender equality. It also provides role models by sharing inspiring stories of dads of daughters who have already had an impact. Most importantly, it offers concrete strategies and expert advice for how more men can get involved.

 

In this book, dads of daughters will find a wide range of options for where to focus their energy--from mentoring women to equalizing pay, from sports fields to science labs, from building empathy to combating gender bias, from boardrooms to ballot boxes. With every small step, dads have the power to make incredible change and support the progress of girls and women in their families, workplaces, and communities.

 

Dads For Daughters also offers women a practical guide for recruiting passionate men into action. It highlights successful strategies for working with men to support girls and women, along with resources for engaging men in gender equality initiatives. Women and men are stronger working together. Together, we can create a more successful future for all of our daughters to thrive.

 

 

January 7, 2020 in Books, Family, Gender | Permalink | Comments (0)

Monday, November 25, 2019

Woman Challenges UT Lewdness Statute as Unconstitutional, Stemming from Charge from Being Topless in her own Home in front of Step-Children

Utah Woman Charged with Lewdness After Being Topless in Her Own Home

A Utah woman has been charged with lewdness in her own home after her stepchildren walked into the room and saw her bare chest.

 

Attorneys for the American Civil Liberties Union of Utah argued this week that the statute under which Tilli Buchanan, 27, was charged is unconstitutional, and they have asked a judge to drop the charges against her and change the state law.

 

Buchanan and her husband had been installing drywall in the garage and had taken off their shirts that were itchy from the fibers, she told The Salt Lake Tribune.

 

When her stepchildren, aged 9, 10 and 13, walked in, she "explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing," her lawyers wrote in court documents, The Associated Press reports.

 

Now the state had charged Buchanan with three charges of lewdness involving a child. The charge is a Class A misdemeanor.

 

Though her husband was similarly clad, he was not charged with a crime.

 

The state's lewdness statute criminalizes exposure of "the female breast below the top of the areola" in the presence of a child in a private place "under circumstances the person should know will likely cause affront or alarm."

 

If convicted, Buchanan faces imprisonment, fines and the requirement to register as a sex offender for 10 years.

 

The charges were filed after the children's mother told that authorities she was "alarmed" by the incident, according the AP.

 

Buchanan's case raises a number of constitutional concerns, says Leah Farrell, an attorney at the ACLU of Utah.

 

To begin with, "the criminalizing of behavior that many people don't consider criminal, and is normal."

 

Most people wouldn't consider, for instance, that they "might be brought into court because of their dealing with their dirty clothes within their house. Anything that really extends the criminal justice system into people's homes in this way is something that we're interested in looking at closer," Farrell says.

 

And then there's the gender issue.

 

"Simply because Miss Buchanan is a woman, she is facing this charge," Farrell says. "Therefore, women throughout Utah are at higher risk of facing a criminal charge simply because of their gender. There are different ideas around what morality is or is not. But the state's reach to criminalize morality based on gender and gender stereotyping is incredibly problematic."

 

Farrell notes that the statute's language requiring women to predict whether going topless is likely to cause "affront or alarm" imposes an additional burden that is not required of men.

November 25, 2019 in Constitutional, Family, Gender | Permalink | Comments (0)

Monday, November 18, 2019

Leveling Down Gender Equality by Denying Remedies for Equal Protection Violations

Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL   Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.

Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***

The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).

The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***

The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)

In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***

At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.) 

November 18, 2019 in Constitutional, Family, Gender, Scholarship, SCOTUS | Permalink | Comments (0)

Wednesday, October 23, 2019

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical ContextVerdict

Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***

 

Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***

 

In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***

 

At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.

 

October 23, 2019 in Constitutional, Education, Equal Employment, Family, Legal History, Pregnancy, SCOTUS | Permalink | Comments (0)

Friday, October 4, 2019

New CA Law Allows Campaign Funds to be Used for Childcare to Promote Gender Parity Among Elected Officials

Bill Promoting Gender Parity Among Elected Officials Signed into Law by Governor Newsom

A bill introduced by Assemblymember Rob Bonta (D-Oakland) that would allow campaign funds to be used for child care by those who choose to run for elected office in California was signed into law Monday by Governor Gavin Newsom.

 

“AB 220 will help create greater gender parity among elected officials in California and more broadly help all parents with young children seek and serve in public office by allowing the use of campaign funds for child care expenses,” said Bonta. “I’m excited and extremely grateful to Governor Newsom for signing AB 220 into law.” 

 

AB 220 amends the Political Reform Act of 1974 to expressly allow campaign funds to be used for child care by those who choose to run for elected offices in California. 

 

Currently, there is no statute in California or official ruling by the California Fair Political Practices Commission (FPPC) allowing candidates to use campaign funds for child care purposes. That meant any person who attempted to use campaign funds for child care expenses had no statutory protection and would have been relying on a 20-year-old, non-binding advice letter by the FPPC which does not carry the weight of law. AB 220 provides certainty for parents of young children seeking office by placing this allowance in statute. 

October 4, 2019 in Family, Gender, Legislation, Work/life | Permalink | Comments (0)

Wednesday, October 2, 2019

Reading the 19th Amendment into Constitutional Jurisprudence

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution

Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.

Abstract:

This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.

Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.

October 2, 2019 in Constitutional, Family, Legal History, SCOTUS | Permalink | Comments (0)

New Books: The Preacher's Wife on Women's Search for Spiritual Authority

Kate Bowler, The Preacher's Wife: The Precarious Power of Evangelical Women Celebrities

Whether standing alone or next to their husbands, the leading women of megaministry play many parts: the preacher, the homemaker, the talent, the counselor, and the beauty. Boxed in by the high expectations of modern Christian womanhood, they follow and occasionally subvert the visible and invisible rules that govern the lives of evangelical women, earning handsome rewards or incurring harsh penalties. They must be pretty, but not immodest; exemplary, but not fake; vulnerable to sin, but not deviant. And black celebrity preachers' wives carry a special burden of respectability. But despite their influence and wealth, these women are denied the most important symbol of spiritual power―the pulpit.

The story of women who most often started off as somebody's wife and ended up as everyone's almost-pastor, The Preacher's Wife is a compelling account of women's search for spiritual authority in the age of celebrity. 

October 2, 2019 in Books, Family, Gender, Media, Pop Culture, Religion | Permalink | Comments (0)