Wednesday, January 12, 2022

Examining Intersections of Menopause and the Law of Anti-Discrimination

Bridget Crawford, Emily Gold Waldman, Naomi Cahn, Working Through Menopause, Washington U. L. Rev. (forthcoming)

There are over thirty million people ages 44 to 55 in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers inevitably will experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic, because of cultural stigmas and attitudes about aging and gender. Yet menopause raises critical issues at the intersections of gender equity, disability, aging, transgender rights, and reproductive justice. This Article imagines how the law would change if it accounted for menopause and the associated unequal burdens imposed.

This Article makes four contributions to legal scholarship. First, it identifies the intersections of menopause and the law in a way that counters the larger culture of silence, stigma, and shame. Second, it analyzes the uneasy fit between menopause and existing U.S. anti-discrimination doctrines. Third, the Article uses a comparative lens to explore how and why menopause is becoming a priority issue for the government, private employers, and workers in the United Kingdom. Finally, the Article situates menopause in U.S. equality jurisprudence broadly and suggests a place for menopause in employment law in particular. It sets out a normative vision for menopause equity in the workplace and suggests possible pathways for achieving it.

January 12, 2022 in Equal Employment, Family, Gender, Healthcare, Reproductive Rights, Science | Permalink | Comments (0)

Can Men Legally be Given a Priority in Receiving Covid Treatment?

Diane Hoffman & Katherine Goodman, Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?,
University of Maryland Legal Studies Research Paper No. 2021-13

Nearly two years into the pandemic, COVID-19 has touched all U.S. states and populations. However, severe outcomes and deaths have not been borne equally. As is now well recognized, there have been significant demographic disparities by age and race: nearly 80% of all U.S. COVID-19 deaths have been among persons aged 65 or older, and hospitalization and death rates for Black and Hispanic patients with COVID-19 are two to three times higher than the rate for White patients. What has received much less attention, however, is an additional demographic disparity evident in the COVID-19 pandemic — sex. Nationally there are 20% more COVID-19 deaths among men, and men have higher COVID-19 mortality rates in every U.S. state with publicly available data. Numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death, even when accounting for other risk factors, such as hypertension and obesity, that are more common among men.

While there has been a significant amount of discussion in the press and the academic literature regarding the role that race can or should play in decisions to allocate scarce medical resources such as vaccines, there has been much less attention paid to the role of sex in the allocation of early-intervention treatments, such as monoclonal antibodies (mAbs) and the soon-to-be-authorized oral antivirals. In this article, we seek to remedy this gap in the literature. We use a hypothetical but realistic scenario in which states have available to them a treatment that is very similar to currently available mAbs and in which therapeutic demand greatly exceeds the available supply. Even if limited to individuals over the age of 65 with one or more comorbidities, there is not enough of the therapy to treat these high-risk individuals and some sort of further triaging would be necessary. Given the strong data that male sex is an independent risk factor for poor COVID-19 outcomes, we speculate that states and/or hospital systems might wish to use sex as one risk factor, among many, in an algorithm to calculate a patient’s probability of experiencing hospitalization or death from COVID-19. These estimates, in turn, would be used to allocate this scarce medical resource to highest-risk individuals. We then ask two questions: (1) whether, as a legal matter, sex would be a permissible factor to incorporate into allocation criteria; and (2) whether, as a normative matter, sex should be considered in allocation of early-intervention therapies for COVID-19.

In answering the legal question, we first look at the possibility of successful challenges under the Equal Protection Clause of the 14th Amendment and then at possible challenges under Section 1557 (the antidiscrimination provision) of the Affordable Care Act. As to the former, we conclude that constitutionality could depend upon whether the federal courts view the basis for differential treatment as one based primarily upon biology, or upon a combination of biology and socio-cultural factors. Although we believe there is room for the courts to find that either basis is constitutionally valid, courts would be more likely to find it so if they analyzed it as a biological difference.

Under the Affordable Care Act, we conclude that it is much more difficult to predict how a federal court would rule. Section 1557 prohibits discrimination “on the basis of sex” in healthcare facilities and in the administration of healthcare. The statute permits the importation of Title IX jurisprudence in interpreting this provision. Courts, in interpreting Title IX, have also looked to Title VII case law. Each of these Titles have exceptions that permit distinctions “on the basis of sex” under certain circumstances. Whether courts would apply Title VII jurisprudence to Section 1557 is an unknown, even if it has been imported to Title IX. Additionally, whether courts would apply the exceptions provided in Title IX and Title VII to Sec. 1557, and how they would apply those exceptions, is difficult to predict. We argue that because of the flexibility the Court possesses in applying the relatively new Section 1557, as a normative matter, the Court should permit the use of sex as a factor in allocating early treatments that can prevent severe COVID-19 outcomes. We believe such a conclusion is justified by both a utilitarian framework of maximizing lives saved and stewarding scarce medical resources and by an egalitarian framework of providing individuals with the resources they need to achieve the same or similar outcomes.

January 12, 2022 in Constitutional, Gender, Healthcare, Science | Permalink | Comments (0)

Tuesday, January 11, 2022

At least 7 states propose bills limiting rights of trans and nonbinary youth

At least 7 states propose bills limiting rights of trans and nonbinary youth

Officials in at least seven states have already proposed laws that would limit the rights of transgender and nonbinary youth in the first week of the year.

Lawmakers in Arizona, Alabama, Indiana, Kentucky, Oklahoma, New Hampshire and South Dakota this week introduced at least nine bills that would curb trans and nonbinary youths’ access to things like school sports and restrooms, and gender-affirming care.

“It is January which means states will be starting legislative sessions soon and we will again see gratuitous attacks on trans people, particularly trans youth,” Chase Strangio, the Deputy Director for Transgender Justice at the ACLU, wrote this week on Twitter.

Other trans advocates say they are preparing for another year full of proposed anti-LGBTQ+ legislation. States in 2021 enacted a “record-shattering” number of anti-LGBTQ+ policies, making it the worst year in recent history for LGBTQ+ state legislative attacks, according to the Human Rights Campaign.

January 11, 2022 in Gender, Legislation | Permalink | Comments (0)

Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment in Spain

Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment

Joan-Josep Vallbé and Carmen Ramírez-Folch

The aim of this paper is to provide an explanation of the variation in lower pretrial court judicial decisions over gender-violence cases, under a civil-law system. Despite the typical anonymity of lower-court judges in such legal systems, we are able to exploit a natural experiment in Spain that allows us to estimate the effect of judges’ gender, career incentives, and policy preferences on decisions on restraining orders for victims of gender violence. Although the literature has found ample evidence of gender and ideology effects on judicial behavior when women’s rights are at stake, we argue that due to career and promotion dynamics, career incentives moderate the effect of gender and policy preferences on such decisions. We find that the probability to grant a restraining order to a victim is higher among female judges than male judges, and that left-leaning judges also tend to grant restraining orders at higher rates. However, we also observe that these mechanisms are moderated by career incentives, to the point of blurring their effects when career pressures are high. These findings are a relevant contribution to the understanding of the mechanisms behind judicial inequality under civil-law systems, where judges’ attributes tend to be unobservable by institutional design.

January 11, 2022 in Courts, Gender, International | Permalink | Comments (0)

Monday, January 10, 2022

Study Reveals Increased Rate of PTSD Among Transgender Military Veterans

Researchers have published a new study titled Identifying Posttraumatic Stress Disorder and Disparity Among Transgender Veterans Using Nationwide Veterans Health Administration.  It was published in LGBT Health by Nicholas A. Livingston, Kristine E. Lynch, Zig Hinds, Elise Gatsby, Scott L. DuVall, and Jillian C. Shipherd. The study is described as follows:   

The prevalence of posttraumatic stress disorder (PTSD) and other psychiatric disorders is high among military veterans and even higher among transgender veterans. Prior prevalence estimates have become outdated, and novel methods of estimation have since been developed but not used to estimate PTSD prevalence among transgender veterans. This study provides updated estimates of PTSD prevalence among transgender and cisgender veterans. 

The results revealed that: 

The prevalence of PTSD was 1.5–1.8 times higher among transgender veterans. Descriptive data suggest that the prevalence of depression, schizophrenia, bipolar disorder, alcohol and non-alcohol substance use disorders, current/former smoking status, and military sexual trauma was also elevated among transgender veterans.

These results inform military culture, benefits, and policy: 

These disparities signal a need for ongoing monitoring, outreach, prevention, and treatment to offset risk and address potential unmet treatment need among transgender veterans. Extant literature highlights the role of minority stress in accounting for elevated rates of psychiatric disorder among transgender veterans. Although systems-level change to improve access to comprehensive treatment for gender dysphoria is underway, provider-level gender affirmation and gender-affirming care are essential. It is possible that transgender veterans would also benefit from evidence-based PTSD treatment that is tailored to the compounded effects of trauma and minority stress.

January 10, 2022 in Equal Employment, Gender, Healthcare | Permalink | Comments (0)

Tuesday, January 4, 2022

NYC law to mandate salary transparency. Will it bridge gender and racial inequities?

NYC law to mandate salary transparency. Will it bridge inequities?

NPR's Adrian Florido speaks with economist Teresa Ghilarducci about a bill passed by the New York City Council that would require most employers to post salary ranges for jobs.

ADRIAN FLORIDO, HOST:

The New York City Council last month passed a bill that requires private employers to post the salary range for all open jobs. The law is set to take effect in April. Similar laws already exist in a handful of places around the country. Their goal is to improve pay transparency and tackle inequities that often affect women, Black and brown people and other groups.

To learn more about these laws, we called someone who studies them. Professor Teresa Ghilarducci teaches economics and policy at the New School of Social Research in New York. Professor Ghilarducci, welcome.

January 4, 2022 in Business, Equal Employment, Gender, Workplace | Permalink | Comments (0)

Do Reason-Based Abortion Bans Prevent Eugenics?

Do Reason-Based Abortion Bans Prevent Eugenics?

By: Sital Kalantry

Published in: Cornell Law Review, Vol. 107, No. 1, 2021

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

January 4, 2022 in Abortion, Constitutional, Courts, Family, Gender, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

By: Amanda M. Fisher

Published in: Rutgers Journal of Law and Public Policy, Volume 19:1

The modern woman lawyer faces many of the same challenges that women in law faced during their earliest entry into the profession. While circumstances have certainly improved for women in law, gendered stigma is still prevalent in the profession. In this article, “gendered stigma” refers to circumstances resulting from one’s gender as a salient feature of their work, serving to discredit one’s abilities and accomplishments. Women began to enter the legal profession in large numbers in the 1970s, gaining attention as they did so. Although early research on women in the law focused on blatant discrimination, that type of discrimination is fortunately less common now. Much of the modern research addressing women’s status in the legal profession, however, focuses on the quantitative evidence, like the number of women in the profession and their salaries as compared to men. Numerical evidence does show progress, but qualitative evidence reveals that the gender-driven experiences of women new to the profession are eerily similar to those of women who have long retired from the profession. This belies the assumption that simply improving numbers, e.g., having more women in the profession, would solve the disparities between men and women who practice law. This article relies on identity theory and stigma to inform the cycle of gendered stigma prevalent in the legal profession to critically examine basic tenets of the profession that must change for progress to flourish. This theoretical foundation can then inform practical solutions for mitigating the negative effects of gendered stigma on the profession and the individuals serving within it.

January 4, 2022 in Gender, Law schools, Masculinities, Theory, Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Monday, December 27, 2021

Vulnerable Bodies and Invisible Work

Ellen Gordon-Bouvier has published an article titled Vulnerable bodies and invisible work: The Covid-19 pandemic and social reproduction in volume 21 of the International Journal of Discrimination and the Law. The introduction situates the project within Martha Fineman's influential Vulnerability Theory and reveals the urgency of new approaches involving the Responsive State (internal citations omitted): 

Seldom has an event so clearly illustrated the core tenets of Martha Fineman’s vulnerability theory as the global Covid-19 pandemic has – that, as embodied beings, we share a constant and inescapable vulnerability, our fragile bodies living with ‘the ever-present possibility of harm and injury’ . * * *  

In this paper, I critically analyse the UK’s response to the pandemic through a vulnerability lens. In particular, I examine how the pandemic has affected the visibility and status of socially reproductive work, as well as the impact on those who perform it. Social reproduction, defined as ‘the maintenance of life on a daily basis and intergenerationally’ , includes a wide range of labour, including supporting and nurturing those who undertake paid work, caring for infant, elderly, sick, and disabled populations (either paid or unpaid), food preparation, and domestic work in the home. * * * Yet, the state consistently devalues social reproduction, denying its essential nature and society’s reliance upon it. * * * Instead, the state organises its institutions, including law, around an artificial image of autonomous liberal personhood, whereby the individual is imagined as rational, self-interested, and economically self-sufficient.

 

I argue in this paper that the pandemic has shattered the illusion of autonomous individualism that underlies the liberal state’s actions. Socially reproductive labour and society’s undeniable reliance on it have come into public view after being concealed for so long. In this sense, an image of an embodied ‘vulnerable subject’  has been forced to the forefront of the public imagination, also revealing the state’s ultimate control (and the individual’s corresponding lack of control) over the production of resilience against vulnerability. * * *

 

* * *  Unfortunately, as I argue, the UK’s response has retained a commitment to the autonomous liberal ideal and has been inadequate and ineffective as a consequence. Despite this, I suggest that the atmosphere of exceptionality and crisis generated by the pandemic has provided a glimmer of hope that a different way forward is possible. In particular, the state’s new willingness to consider non-means tested basic income schemes could be used to improve the conditions of those who perform socially reproductive labour. However, such measures must take care to avoid further perpetuating gender inequalities.

December 27, 2021 in Family, Gender, International, Theory | Permalink | Comments (0)

Hair Rules: Race, Gender, and Stigmatization in Schools

Patricia A. Banks has published Hair Rules: Race, Gender, and Stigmatization in Schools in Volume 25 of the University of Pennsylvania Journal of Law and Social Change. The abstract summarizes: 

As laws banning racial hair discrimination in schools are proposed across the United States, it is increasingly important to understand how grooming policies can stigmatize students. This essay engages social science theory and research on stigmatization and the case of Arnold v. Barbers Hill Independent School District to investigate the cultural constructions of male students who wear long locs. Drawing on content analysis of court documents around this Texas lawsuit involving two black male cousins who were disciplined in school because of refusing to cut their locs, I examine how school officials justified the school district’s hair rules through associating the defendants’ hairstyle with a range of stigmatizing attributes. The conclusion considers the potential for this court case, as well as hair discrimination legislation, to mitigate the stigmatization of boys who wear long locs, long braids, and long twists. I argue that to fully address the stigmatization of boys who wear these styles, laws and policies must be attentive to race as well as gender.

December 27, 2021 in Constitutional, Education, Gender, Race | Permalink | Comments (0)

Improving State Data Collection About Sex and Gender

Ben Collier and Sharon Cowan of the University of Edinburgh have posted a recent article on SSRN titled Queer Conflicts, Concept Capture and Category Co-Option: The Importance of Context in the State Collection and Recording of Sex/Gender DataThe abstract summarizes: 

Queer, trans and non-binary lives, bodies, relationships, and communities often complicate the taken-for-granted processes through which the state manages those under its power. In this article, we explore the forms of power and harm at play in attempts to quantify people through administrative processes of state data collection about sex and gender, and, in the current UK and Scottish context, examine some of the sites for wider conflicts over constructions of sex and gender in public life. We emphasise the need to collect sex / gender data in way that reflects the intersectional lives of data ‘subjects’. We also suggest that governments and public bodies should not adopt a unitary definition of sex or gender in data collection exercises such as the census, or other administrative categories such as criminal justice records, and argue that those who lobby to record ‘sex not gender’ in data collection are engaging in a strategy of concept capture, i.e. replicating a binary, biological model of sex, that excludes trans and non-binary people, through the co-option of number of administrative and legal categories across a wide range of social and political life. We conclude by recommending that public bodies asking about sex and gender should: co-produce questions with the community that is being surveyed; ensure that the wording of each question, and its rubric, is sensitive to the context in which it is asked and the purpose for which it is intended; and avoid attempting to offer any overarching standard definition of sex or gender that would be applicable in all circumstances. To engage in meaningful sex / gender data collection and recording that does not cause harm, governments and public bodies should avoid relying on reductive, over-simplistic and generalistic categories that are designed to fit the standardised norm. In being attentive to individual contexts needs and interests when formulating categories and records, they can make space for more intersectional experiences rather than generalised category-type data to be made visible.

December 27, 2021 in Gender, International, LGBT | Permalink | Comments (0)

Thursday, December 16, 2021

A Reassessment of the Use and Gender Politics of the Singular "They"

A Little Word That Means a Lot: A Reassessment of Singular "They" in a New Era of Gender Politics, Gender & Society (Nov. 20, 2021)

In 2019, Merriam-Webster named they its Word of the Year in recognition of the “surprising fact” that lookups had risen a remarkable 313% over the previous year. This surge of interest in singular they attests to the rising visibility of genderqueer, nonbinary, and trans activism in the United States. A 2018 survey found that a majority of Americans have heard about gender-neutral pronouns and that nearly twenty percent of Americans know someone who uses nonbinary personal pronouns. In recent years, gender-inclusive pronoun practices—including pronoun “go-rounds” and adding pronouns to email signatures—have been widely adopted on campuses and in workplaces, and new legal protections have been created to prevent misgendering with pronouns.

 

Skeptics dismiss these practices as a fad, but English speakers have been using the singular they in situations when a person’s gender was nonspecific or unknown for at least 600 years. Esteemed authors including William Shakespeare and Jane Austen used it unapologetically as an indefinite pronoun. Today, it likely would go unnoticed to hear someone exclaim, “That car just cut me off! They should learn to drive.”

 

In fact, the idea that singular they is ungrammatical was produced by a political campaign that began in the late eighteenth century. At that time, scholarly authorities insisted that singular he be used instead of singular they on the grounds that “the Masculine gender is more worthy than the Feminine, and the Feminine more worthy than the Neuter.” In promoting usage of he as a generic pronoun, grammarians sought to discredit competing options. They dismissed the paired binary term he or she as cumbersome and argued that singular they creates ambiguity about whether we are discussing one person or many. Of course, the generic he creates a parallel ambiguity with respect to gender, but they pushed this concern aside.***

 

Meanwhile, since the early 2010s, a new generation of language reformers, led by lesbian, gay, bisexual, transgender, queer/questioning and more (LGBTQ+) activists, has taken up the cause of singular they. These activists promote language practices that recognize people with nonbinary gender identities, incuding singular they used as a nonbinary personal pronoun. Using singular they as a nonbinary personal pronoun resists biological essentialism and affirms everyone’s right to determine their own gender identity.

 

Concomitantly, some people have advocated that singular they be used for everyone as a universal pronoun on the grounds that it is “inclusive and flexible” and protects people’s privacy, among other reasons. Yet, some transgender advocates  have objected to this proposal  arguing that denying gender recognition by avoiding gendering can be experienced as a form of violence. Finally, some people now use singular they as a default indefinite pronoun to refer to a person who is known but whose self-defined gender identity is not.

 

Our Gender & Society article, “A Little Word That Means A Lot: A Reassessment of Singular They in a New Era of Gender Politics,” considers how singular they can be used to resist and redo aspects of the prevailing gender structure. We identify three distinct usages of singular they: 1) as a nonbinary personal pronoun; 2) as a universal gender-neutral pronoun; and 3) as an indefinite pronoun when a person’s self-identified gender is unknown. While previous research has focused primarily on singular they as a nonbinary personal pronoun, our paper points to the importance of all three usages. We offer new insight into how nonbinary they challenges dominant gender norms and practices beyond incorporating additional gender categories. We propose further investigation of how using gender-neutral pronouns for everyone in specific contexts can advance progressive activists’ goals. Finally, we argue that the longstanding usage of singular they as an indefinite pronoun has new importance today in affirming gender as a self-determined identity.

 

Our analysis demonstrates that using singular they advances gender justice. Buying into the depoliticized grammar argument is not merely ahistorical but politically costly in the struggle for gender justice.

December 16, 2021 in Gender, Law schools, LGBT, Pop Culture | Permalink | Comments (0)

Wednesday, December 15, 2021

Third Circuit Denies Asylum Claim on Grounds that Women are Not a Particular Social Group

Chavez-Chilel v. US (3d Cir. Dec. 6, 2021)

Finding substantial evidence supported the BIA’s conclusion that “Guatemalan women” is not a particular social group (“PSG”) for asylum or withholding purposes, we will deny the petition.***

 

At her merits hearing, Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. She explained that she feared she would be sexually assaulted or killed if she was removed to Guatemala. The IJ denied Chavez-Chilel’s applications for asylum and withholding of removal, finding that, while she was credible and that her rape qualified as past persecution, her proposed PSG, “Guatemalan women,” did not constitute a PSG for asylum or withholding of removal purposes. The IJ concluded that this PSG was not “sufficiently particular” because there was no evidence that Guatemalan women share a “unifying characteristic” or present a “unified target” for persecution. ***

 

Substantial evidence supports the BIA’s and IJ’s finding that “Guatemalan women” is not a cognizable PSG. A PSG must be: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” S.E.R.L., 894 F.3d at 540 (quotation marks and citation omitted). Particularity “addresses the outer limits of a group’s boundaries and is definitional in nature, whereas social distinction focuses on whether the people of a given society would perceive a proposed group as sufficiently separate or distinct.” Id. (quotation marks omitted). To satisfy the particularity requirement, “an alleged social group [must] have discrete and . . . definable boundaries that are not amorphous, overbroad, diffuse, or subjective, so as to provide a clear standard for determining who is a member.” Id. at 553 (quotation marks and citation omitted).

 

Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad[] because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women). Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), ChavezChilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum. 

 H/t Brian Soucek

 

December 15, 2021 in Courts, Gender, International, Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, December 14, 2021

Gender Gap Among Arguing Attorneys at 7th Circuit Has Barely Improved in Last Decade, Study Says

Gender Gap Among Arguing Attorneys at 7th Circuit Has Barely Improved in Last Decade, Study Says

Find the original ABA Report here: How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys

The number of male attorneys arguing at the U.S. Court of Appeals for the Seventh Circuit continues to greatly surpass women, according to a study published by the American Bar Association this week.

The study’s authors, Seventh Circuit Judge Amy J. St. Eve and Munger, Tolles & Olson associate Jamie Luguri, found that women represented 24% of attorneys who argued before the Chicago, Illinois-based federal appeals court in 2009. In 2019, the percentage rose only slightly to 28%.

“If the rate of change remains constant, it will be another four decades before half of all attorneys arguing before the court are women,” the authors wrote.

Despite women and men entering the legal profession in equal numbers, the gender gap among arguing attorneys has been widely reported across the country, including the U.S. Supreme Court.

But St. Eve and Luguri looked at a number of other factors that influence the size of the gap, such as the nature of the case, the client represented and the attorney’s practice setting.

They found that women argued at lower rates in civil cases compared to cases involving the government. In 2019, women comprised 24% of all attorneys arguing in civil cases at the Seventh Circuit and 33% in criminal cases.

Even among civil litigation, the gender disparity was more pronounced in some areas than others. Complex civil matters—such as antitrust and insurance cases—had a lower percentage of women arguing, according to the study.

The authors attributed the slight increase in women taking the lead in oral arguments at the Seventh Circuit to the federal government’s improved pipeline of female attorneys over the past decade. In 2019, 40% of all attorneys who represented federal, state or local governments were women, compared to 32% in 2009. Meanwhile, only 22% of attorneys for non-governmental clients were women.

“While the number of women who argued appellate cases on behalf of federal and local governments increased significantly in the last decade, the number of women who had that role for non-government clients remained relatively stagnant,” the report says.

Possible solutions to closing the gap can start in law school, the authors wrote. They recommended that faculty encourage women to apply to federal appellate court clerkships and provide opportunities for students to join appellate advocacy clinics.

Law firms, for their part, should help associates—who are largely women—get oral argument experience by letting them argue cases where the firm was court-appointed. Law firms should also encourage female associates to take pro bono work, and senior attorneys should split their allotted argument time with associates, St. Eve and Luguri said. Holding leadership positions can help women attorneys gain credibility and experience too, they added.

“Across all these domains, a clear picture has emerged: the pipeline is leaking. Law schools, firms, corporate clients, and courts all have a role to play in fixing those leaks, and we have outlined concrete steps that each can take to increase the number of women arguing in front of appellate courts,” they wrote. “It is our hope that these suggestions for change mean that the next decade will bring more progress than the last.”

December 14, 2021 in Gender, Women lawyers | Permalink | Comments (0)

Monday, December 13, 2021

Pennsylvania's Abortion Case

Greer Donley wrote an Op. Ed on December 9 for the Pittsburgh Post Gazette stressing the importance of a pending Pennsylvania abortion case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. This case considers, among other issues, whether "the Pennsylvania Medicaid abortion coverage ban violate[s] the Pennsylvania Constitution’s explicit guarantee of equality on the basis of sex contained in Pa. Const. art. I, § 28 and its separate equal protection guarantee contained in Pa. Const. art. I, §§ 1, 26 & art. III, § 32?" Greer summarizes: 

The case challenges a Pennsylvania law that bans Medicaid funds from being used to cover abortion except in the case of rape, incest or to save the pregnant person’s life.

Importantly, the litigants are asking the court to recognize the right to abortion under the Pennsylvania Constitution. If the court recognizes this right — which it has not previously recognized — then even if Roe is overturned, the Pennsylvania Constitution will step up to protect the right to abortion in our state.

Moreover, this protection will survive even if voters elect a Republican governor who is willing to sign a strict abortion ban into law. Why? Because that theoretical ban would be unconstitutional under our Constitution even if it is no longer unconstitutional under the federal Constitution.* * *

[P]regnant people need more than the right to abortion; they need the ability to access it. If the Pennsylvania Supreme Court also invalidates the state law banning Medicaid funds from being used for abortion, it would help poor women access the abortion care they need.

The full Women's Law Project Brief is available here. This case is a powerful example of professors on the ground in Pennsylvania working actively with non-profits to seek law reform. 

December 13, 2021 in Abortion, Constitutional, Courts, Family, Gender, Healthcare, Pregnancy | Permalink | Comments (0)

Tuesday, December 7, 2021

Florida law school creates Ben Crump social justice center with goal of increasing racial and gender diversity in the profession

Florida law school creates Ben Crump social justice center

A South Florida law school on Thursday announced the creation of a social justice center named after Ben Crump, the Black civil rights attorney who has gained national prominence representing victims of police brutality and vigilante violence.

The Benjamin L. Crump Center for Social Justice, housed at the St. Thomas University College of Law in Miami Gardens, aims to nurture the next generation of civil rights lawyers while also pushing more racial and gender diversity in the legal profession, school officials told The Associated Press ahead of the announcement.

. . .

As a past president of the National Bar Association, the largest network of predominantly Black attorneys and judges, Crump said civil rights and social justice lawyering isn't seen as a lucrative area of practice for aspiring attorneys. He said he hopes that lending his name to the center inspires law school students to consider social justice as a worthy, career-long pursuit.

December 7, 2021 in Education, Gender, Law schools, Race | Permalink | Comments (0)

Women’s Law Project in Pennsylvania seeks a new leader at a key moment in the gender justice movement

Women’s Law Project seeks a new leader at a key moment in the gender justice movement

The Pennsylvania nonprofit that acted as co-counsel in the landmark Supreme Court case that affirmed a woman’s right to undergo an abortion before fetal “viability” is searching for a new leader.

After 31 years at the helm of the Women’s Law Project, Carol Tracy announced this week she will be stepping down as executive director in June.

“I’ve been an activist in the Philadelphia area for 50 years,” said Tracy, 75, who said she wants someone with “younger eyes” to take over. “I think it’s time for me to hand over the mantle to a different generation.”

. . .

Whoever becomes Tracy’s successor will be taking the reins at a critical moment in the gender justice movement.

On Wednesday, the U.S. Supreme Court’s conservative majority signaled it would uphold a Mississippi law that bans most abortions after 15 weeks. Critics of the Mississippi ban say such a decision would undermine the tenet guaranteed in Roe v. Wade, and affirmed in a case the Women’s Law Project helped argue before the Supreme Court in 1992 — Planned Parenthood v. Casey, which gave women the choice to have an abortion until the fetus can survive outside the womb, typically around 24 weeks.

Tracy said when she came to lead the Women’s Law Project, she thought abortion rights were secure. In Casey, the highest court struck down a Pennsylvania statute that required a woman to obtain her husband’s permission to get an abortion. The court determined no abortion law could place an “undue burden” on the women trying to undergo the procedure.

. . .

Tracy’s successor will also be dealing with an array of other policy issues, from fighting for women who have been fired because of a pregnancy, to athletics equity, to the continued advocacy of women who have suffered from sexual assault.

December 7, 2021 in Abortion, Constitutional, Gender, Healthcare, Reproductive Rights | Permalink | Comments (0)

Friday, December 3, 2021

Sexual Harassment in the Workplace - Intersectionality's Role

Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality & the Movement, 62 B.C. L. Rev. 1797 (2021).

This article addresses the intersectionality of identities in the context of sexual harassment, and how the failure to recognize the impact of this intersection results in responses to sexual harassment in the workplace that do not adequately protect women of color.  “Given the high rate at which women of color experience harassment and assault, the unique types of racialized sex harassment they experience, and the compounded forms of structural disadvantage they face in a range of domains, it is particularly important for anti-discrimination law to address their concerns.”  This is because, “the intersectional experience is greater than the sum of racism and sexism” and thus legal and social frameworks to address sexual harassment must “acknowledge the complex and overlapping web of racism and sexism.”  For example, current Title VII forces plaintiffs to choose whether to bring their discrimination case “because of race” or “because of sex” but not both, and “[e]mpirical research has found that plaintiffs bringing intersectional claims are less than half as likely as plaintiffs bringing single claims to win their cases.” Social reform movements have similarly fallen short.

Given broad access to social media, lower barriers to participation, and increased demands for an intersectional approach to feminism, #MeToo had the potential to have very inclusive participation across demographics, strong alliances, and coalitions, but the movement has fallen short of this opportunity.  The experiences of white affluent, and educated women have dominated the narrative with a focus on bringing down high-profile assailants [ ].

In response, Professor Williams proposes legal reform, organizational reform, and cultural reform to address the failure to account for intersectionality in the current response to sexual harassment.  “This strategy will benefit all victims of harassment and is particularly critical for women of color.”  Professor Williams warns that absent these “significant organizational and cultural changes, proposed legal remedies will continue to fail.”

December 3, 2021 in Equal Employment, Gender, Race, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, November 30, 2021

California lawsuit: Law allowing transgender inmates to choose housing based on gender identity is unconstitutional

Suit takes aim at law that lets transgender inmates choose housing based on gender identity

A California law that gives transgender, nonbinary and intersex inmates at state prisons the right to be housed at either men’s or women’s facilities is under fire in a lawsuit filed last week.

The Women’s Liberation Front, which also opposes transgender female athletes’ participation in girls’ and women’s sports, filed the lawsuit in federal court alleging that Senate Bill 132, signed by Gov. Gavin Newsom in 2020, is unconstitutional and creates an unsafe environment for women in female facilities.

. . .

“The foundational basis of our lawsuit is that these are male offenders being housed in women’s prisons,” said Lauren Adams, legal director for the Women’s Liberation Front. “To pretend that they are female, in language or what we say about them or how we talk about them, goes against the whole basis of the lawsuit.”

Transgender and LGBTQ+ advocates slammed the suit as baseless and damaging.

. . .

A 2007 UC Irvine study found that the rate of sexual assault was 13% higher for transgender inmates.

Samuel Garrett-Pate, a spokesperson for LGBTQ+ advocacy group Equality California, said he expects Atty. Gen. Rob Bonta to defend SB 132.

November 30, 2021 in Gender | Permalink | Comments (0)

Dobbs v. Jackson Women’s Health Organization, regarding Mississippi abortion law, to be heard by SCOTUS on December 1

Explainer: Abortion At the Supreme Court

On Wednesday, the U.S. Supreme Court will hear a case out of Mississippi that could eliminate a pregnant person’s constitutional right to an abortion. The law in question bans abortion at 15 weeks gestation, significantly before viability. With this case as a vehicle, the Mississippi attorney general has explicitly called on the high court to strike down Roe v. Wade

The case, Dobbs v. Jackson Women’s Health Organization, turns on the issue of viability. Supreme Court precedent protects the right to abortion before a fetus can survive outside of the womb, usually around 24 weeks; states can’t pass laws that present an “undue burden” for someone seeking an abortion before that point. While a total ban before viability would undermine Roe, many experts think the Supreme Court might allow it anyway. Because the one clinic in Mississippi only performs abortions up to 16 weeks, lawyers may argue, a 15-week ban does not constitute an undue burden.

. . .

Between the Texas and Mississippi cases, this is an unprecedented term for abortion on the Supreme Court.

November 30, 2021 in Abortion, Constitutional, Family, Gender, Healthcare, Legislation, Reproductive Rights, SCOTUS | Permalink | Comments (0)