Linda L. Berger, Kathryn M. Stanchi & Bridget J. Crawford, 94 Notre Dame L. Rev. Online 1 (2018)
Monday, November 19, 2018
Judges' Subject Matter Expertise and Personal Ideologies May be Linked to More Gender Bias in Rulings
Judges' subject-matter expertise—and personal ideologies—may be linked to more gender bias in their rulings, according to a recent study of jurists and laypeople. The study asked respondents to read and decide how to resolve hypothetical custody cases and workplace discrimination claims with similar fact patterns but different races and genders assigned to parties.
The study, conducted by Andrea Miller when she worked as a postdoctoral researcher at the American Bar Foundation, surveyed 619 state court trial judges and 504 laypeople. A state supreme court—Miller did not disclose which one—provided administrative and financial support for the survey. Miller will share the results of the survey with the judges and help them rely less on their personal biases, according to a news release about the study.
“Judges tend to believe that their vast amount of legal training and logical thinking skills make them immune to these mistakes. This research is showing that judges are not as immune as maybe they think they are,” Miller, a psychology professor at the University of Illinois at Urbana-Champaign, said in the news release about the study, which also examined race. The race-focused piece of her research will be published at a later date.
In the shared-custody hypothetical, judges were more likely than laypeople surveyed to give the mother more time with a child, the release said. The survey also asked the judges about their personal ideologies regarding gender roles after they made their rulings in the hypothetical cases. Those identified as supporting traditional gender roles, with women mostly confined to domestic caregiving roles and men in public, career-based ones, were more likely to give mothers more time in the custody hypotheticals, according to the study.
Friday, November 9, 2018
Her school, Charter Day School in Leland, North Carolina, prohibits female students from wearing pants or shorts — a policy that an ongoing lawsuit claims is illegal.
Charter Day is hardly the first school to come under fire for a controversial dress code policy, but their skirts-only rule is “definitely an outlier,” Galen Sherwin, an ACLU attorney who is involved in the case, told TODAY Style.
“This is definitely an extreme case,” she said. “Certainly none of the schools in the local area have a similar requirement, including the Catholic schools.”
Wednesday, November 7, 2018
Jessica Clarke, They, Them, and Theirs, 132 Harvard Law Rev. (2019)
Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts.
Sherry Colb, What Does #BelieveWomen Mean?, Verdict, Justia
As the #MeToo movement gathered steam, exposing many long-ignored instances of sexual misconduct, other hashtags followed in its wake. One of these is #BelieveWomen. In this column, I will analyze some ways of understanding #BelieveWomen and suggest that properly understood, it can provide us with a better way to approach not only women but anyone who brings disfavored messages to our doorstep.
What Does “Believe Women” Mean?
The #BelieveWomen hashtag responds to a very old and longstanding prejudice. The prejudice held (and, to some extent, still holds) that when women say that they were raped, there is a good chance that they are lying. Seventeenth century English jurist Lord Chief Justice Matthew Hale said “[rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Well into the second half of the twentieth century, Hale’s concern about women’s false rape accusations distorted the process of adjudicating rape claims in criminal courts.
Judges, for instance, gave juries special instructions cautioning them about the danger of lying rape victims and the need to be extra skeptical of their testimony. Courts often required corroborating evidence as well, even though witnesses who testified about other crimes required no similar corroboration. As Susan Estrich put it in her 1988 book, Real Rape, the law had difficulty believing women who came forward to complain of rape. The law accordingly placed stumbling blocks in the path of prosecution and conviction, including the special cautionary instruction and the need for corroboration.
. . .
So What Would It Mean to Believe All Women?
If we acknowledge that women sometimes bring false accusations, does that mean we should believe only some women but not all women? We can still believe all women, so long as we make sure to follow up with other potential evidence sources before convicting the defendant of rape.
Tuesday, November 6, 2018
Asked whether she was a feminist, Amy McGrath, the former Marine fighter pilot running for Congress in Kentucky, was emphatic: “Hell yeah, I’m a feminist.” Her opponent, Representative Andy Barr, turned her words into an attack ad.
Many politicians have considered the word “feminist” toxic. But that might be changing. In 11 battleground districts nationwide, including Kentucky’s Sixth, about half of voters said they supported electing feminists, compared with roughly a third who opposed it, according to Upshot/Siena House polls this fall. About a fifth said they didn’t know.
We don’t have past surveys asking the same question to compare with these results, and support of feminist candidates is still not a majority opinion — more Republicans opposed electing them than supported it. But the overall support our polls found would have been unthinkable in even recent elections, scholars say. Some compare this moment to the feminist political movements of the 1920s and 1970s.
The spark, people across the political spectrum said, was the MeToo movement, after the misogyny seen in the 2016 presidential campaign.
“An embrace of the term in political candidates? That’s news,” said Estelle Freedman, a professor at Stanford who specializes in women’s history. “We know that women have been really politicized by the perceived assault on women’s rights writ large. The kindling was there, and it got ignited by the misogyny.”
One reason that voters’ support for feminist candidates is surprising is that in a variety of surveys, only a fifth or fewer identify as feminists themselves. (The share goes up when the word is defined as equal rights for men and women, or when specific feminist policies are mentioned.) Our polling question, asked in 14 districts, was whether respondents supported or opposed electing more people who describe themselves as feminists. It did not define the term.
Wednesday, October 24, 2018
Margaret Johnson, Feminist Judgments & #MeToo
The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate gender justice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.
Narrative’s power is evidenced by the #MeToo movement, which resurged on October 16, 2017. People posted their personal stories of being subjected to sexual harassment or assault—often contradicting previously assumed or accepted narratives told by powerful people. Within twenty-four hours, there were more than twelve million #MeToo posts on Twitter, Facebook, and other social media platforms. And people listened to the en masse telling of how (generally) men had exercised the power and control of sexual assault, harassment or misconduct. The listening shifted power structures. In less than two months, these narratives led to the removal of influential men from their previously vaunted positions. ***
The Feminist Judgments Project questions the assumption that published court opinions are the only acceptable narrative of a judicially addressed conflict. In rewriting landmark opinions from a feminist perspective, the project brings to the surface untold, ignored, and suppressed alternative narratives of those conflicts. The project examines court opinions and rewrites them using the same facts and case precedent as the original opinion—but in a new light. That new light is feminist legal theory. With the new perspective, or what Professor Carolyn Grose calls “goggles,” in place, different facts and precedent may come into view.
Online Symposium on Feminist Judgments: Rewritten Opinions of the US Supreme Court, 94 Notre Dame Law Rev. Online (2018)
Rewriting Judicial Opinions and the Feminist Scholarly Project
Feminist Judgments and Women's Rights at Work
Feminist Judgments and the Rewritten Price Waterhouse
Revisiting Roe to Advance Reproductive Justice for Childbearing Women
How is Sex Harassment Discriminatory?
The Love in Loving: Overcoming Artificial Racial Barriers
Looking to the Litigant: Reaction Essay to Feminist Judgments: Rewritten Opinions of the United States Supreme Court
Extending the Critical Rereading Project
Feminist Judgments and the Future of Reproductive Justice
Feminist Judgments & #MeToo
Tuesday, October 9, 2018
Vikram Amar & Jason Mazzone, Is California's Mandate That Public Companies Include Women on their Boards of Directors Constitutional?
Earlier this week, California Governor Jerry Brown signed into law SB 826, a landmark measure that requires each publicly held corporation whose principal executive offices are located in California to have, by the end of 2019, at least one woman on its board of directors. By 2021, each such corporation is required to have at least two women board members if the corporation has five directors, and at least three women board members if the corporation has six or more directors.
In today’s column, Part One in a series, we begin to spot and analyze some of the cutting-edge constitutional questions SB 826 raises. More specifically, in the space below we address aspects of federal equal protection review, focusing on what it means under federal intermediate scrutiny to for a state to “substantially further” a government objective. In Part Two we ask which government objectives—both in enacting and implementing SB 826—are appropriate for a state to pursue consistent with equal protection law and constitutional principles more generally, and we also discuss a separate potential constitutional problem: the impact that SB 826 has on corporations chartered in other states. Throughout, we shall train our analysis on issues under the federal Constitution, even though we recognize (and in some instances note) that California constitutional limitations may pose additional problems for the measure.
For prior posts on the new California law, see Cal Becomes First State to Require Publicly Held Corporations to Include Women on Boards
Lawsuits Against Harvard and NYU Law Reviews Allege Illegal Racial and Gender Preferences for Editors and Articles Harm White Men
A Texas-based group called Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) sued the Harvard Law Review on Oct. 6 and the New York University Law Review on Sunday, claiming that their racial and gender preference policies violate federal anti-discrimination laws. The lawsuits come at a time when law reviews—the traditional bastion of white males—are celebrating the increased diversity of their membership ranks. Harvard Law School, for example, had its first black women editor-in-chief in 2017. The Columbia Law Review has its first black male editor-in-chief ever this year.***
The new suits allege that policies at both law reviews violate the rights of students by giving women and minorities an unlawful advantage in getting onto those sought-after organizations. Moreover, the suits allege policies that give a preference to articles written by women and minority scholars violate the rights of others hoping to place articles there.
“Harvard Law School and Harvard University are violating Title VI and Title IX by allowing the Harvard Law Review to use race and sex preferences when selecting its members, editors, and articles—in direct contravention of the Law School’s supposed non-discrimination policy,” read the Harvard Law Review suit.
Monday, October 1, 2018
California became the first state to require its publicly held corporations to include women on their boards after Gov. Jerry Brown signed a bill into law on Sunday.
The bill, which applies to companies “whose principal executive offices” are in California, requires them to have at least one woman on their boards by the end of 2019.
In 2021, the companies must have a minimum of two or three women, depending on the size of their boards.
Hundreds of companies will be affected by the law, according to The Los Angeles Times, and those that fail to comply can be fined $100,000 for a first violation and $300,000 for a second.
In signing the legislation, Mr. Brown acknowledged that critics have raised “serious legal concerns” about it, which he conceded “may prove fatal to its ultimate implementation.” ***
Hannah-Beth Jackson, a Democratic state senator who represents Santa Barbara and helped write the legislation, applauded its signing on Twitter.
She has said that a quarter of California’s publicly traded companies do not have a woman on their boards, despite studies showing that companies that do are more profitable and productive. (Some research, however, has suggested that the findings are less conclusive.) For instance, Stamps.com — which has its headquarters in El Segundo, Calif., but is incorporated in Delaware — has an all-male, five-member board, and told The Los Angeles Times on Sunday that it “is reviewing the law.”
For thoughts on the potential legal problems with the quota law, see:
Kimberly Krawic, Board Diversity in the News Again
I have detailed at some length, both here, in a series of papers (co-authored with Lissa Broome and John Conley), in a piece for the NY Times, and in a recent public radio debate, why these studies that simply confirm the well-known correlation between board gender diversity and firm performance cannot be taken as evidence that gender diversity causes superior performance. This is more than just a recitation of the old “correlation doesn’t equal causation” argument. In this case there are strong empirical and theoretical reasons to believe that such a conclusion is premature.
Opponents of the legislation are mainly focusing on equal protection arguments, claiming that neither the U.S. nor the California constitutions prohibit the sort of quotas contemplated by the bill. I think there’s another issue raised by the statute, however.
Virtually all U.S. corporations are formed (“incorporated”) under the laws of a single state by filing articles of incorporation with the appropriate state official.The state in which the articles of incorporation are filed is known as the “state of incorporation.” Selecting a state of incorporation has important consequences, because of the so-called “internal affairs doctrine”—a conflicts of law rule holding that corporate governance matters are controlled by the law of the state of incorporation.
For thinking about gender quotas more broadly, including corporate board quotas in Europe and the remedial need for quotas, see my article Reconsidering the Remedy of Gender Quotas, Harvard J. Law &Gender (online)
Thursday, September 20, 2018
Darren Rosenblum, When Does Board Diversity Benefit Firms?
Firms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a “diversity dividend” depends on three key factors: (1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its governance; and (3) the jurisdiction(s) in which the firm operates. Only by further investigating the precise conditions under which diversity will have an effect can we estimate the potential instrumental benefits of sex diversity.
Wednesday, August 29, 2018
Every year, thousands of people are accused of witchcraft and face persecution, abuse, and even death. Now the United Nations is organizing to defend victims of witch hunts.
According to the UN, reports of witch hunts are on the rise, and cases are becoming more violent and prevalent across the globe. Experts and academics hope that the conference will raise awareness of the phenomenon so that it can be better understood as a human rights problem and integrated into the UN's approach to humanitarian issues.
"Witchcraft beliefs are encountered on virtually all continents," explains Dr. Charlotte Baker, who launched the upcoming meeting with funding from Lancaster University. "Globally, witchcraft accusations and persecution have resulted in serious violations of human rights including beatings, banishment, cutting of body parts, amputation of limbs, torture and murder."
The UN has identified women, children, the elderly, and people with disabilities as those most at risk of witch-related abuse. Foxcroft says that the violence can look different from country to country, from "elderly women being beaten, tortured, and killed in places like Kenya, Papua New Guinea, and India" to abuse in Nigeria and the Democratic Republic of Congo, where it is "mainly children who are targeted." According to the WHRN, those with albinism, autism and Down's syndrome have been targeted by such accusations, while a claim against an older woman is often used as an excuse to acquire her land and property.
What these cases share in common, however, is the startling lack of response from local judicial systems and the resulting impunity for the perpetrators. Branding someone a witch has historically been used to justify abuse, particularly by patriarchal religious leaders (see: the infamous Salem witch trials of the 1690s), and experts like Foxcroft believe that the spread of witchcraft-related human rights abuses is exacerbated once more by faith leaders who spread malevolent beliefs in witchcraft to exploit people or extract money from the fearful public.
Sara Dehm & Jenni Millbank, Witchcraft Accusations as Gendered Persecution in Refugee Law, Social & Legal Studies (2018)
Witchcraft-related violence (WRV), in particular directed towards women and children, has become a source of increasing concern for human rights organisations in the current century. Yet for those fleeing WRV this heightened attention has not translated across into refugee status. This research examines how claims of WRV were addressed in all available asylum decisions in English, drawn from five jurisdictions. We argue that WRV is a manifestation of gender-related harm; one which exposes major failings in the application of refugee jurisprudence. Inattention to the religious and organisational elements of witchcraft practices, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges, or family or community disputes, such that they were not cognisable harms within the terms of the Refugee Convention; or they were simply disbelieved as far-fetched. The success rate of claims was low, compared to available averages, and, when successful, claims were universally accepted on some basis other than the witchcraft element of the case. This article focuses in particular upon cases where the applicant feared harm as an accused witch, while a second related article addresses those fearing persecution from witches or through the medium of witchcraft
Jenni Milbank & Anthea Vogl, Adjudicating Fear of Witchcraft Claims in Refugee Law, J of Law & Society (2018)
This research examines claims of witchcraft related violence (WRV) in asylum decisions. In refugee applications involving WRV those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. We argue that WRV is a manifestation of gender-related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of Religion, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside of what is understood to be objective, verifiable, or Convention-related. Male applicants struggled to make their claims comprehensible as a result of the feminised and ‘irrational’ characterization of witchcraft fears and beliefs.
Friday, August 24, 2018
Luke Boso, Rural Resentment and LGBTQ Equality, 70 Florida L. Rev. (forthcoming)
In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills. Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide. Many rural Americans feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms. This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people. In several respects, the conflict is merely perceived and not real. It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces.
This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism. Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel. Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige. They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them. Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity. It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.
Wednesday, June 27, 2018
On May 30, Illinois became the 37th state to pass the Equal Right Amendment (ERA), which says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Next, advocates aim to secure the final state needed to ratify the amendment. They will probably target Virginia, North Carolina or Georgia.
True, the deadline to ratify the ERA came and went in 1982. But that may not be a dealbreaker. Some legal strategists argue that since other amendments had no time limit for ratification, the ERA should not have had one, either. Others argue that Congress simply needs to extend the deadline.
Suddenly, almost a century after it was first proposed, the ERA might be within reach.
The law is overdue, culturally and legally. Many Americans assume that the United States already has gender-equality rules. After all, the Civil Rights Act, Title IX and the Equal Pay Act all offer protections against discrimination. But these are pieces of legislation. New laws and Supreme Court rulings can diminish their power.
For more on the legal and social history of the ERA as well as the current movement, see my book chapter with historian TJ Boiseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)
Gerald Magliocca, Buried Alive: The Reboot of the Equal Rights Amendment
This Article addresses the recent effort to revive the proposed Equal Rights Amendment (ERA) to the Constitution. Following ratifications by Nevada (2017) and Illinois (2018), the ERA stands close to the three-fourths vote in the states required for ratification under Article Five. But these recent ratifications are of uncertain validity, as Congress imposed a deadline for the ERA's ratification that expired in 1982.
The paper argues that Congress can waive the expired ratification deadline but should not do so until should not do so until there is no doubt that 38 states have voted for ratification.There is room for doubt on that score because five states rescinded their ratification votes in the 1970s. Congress is free to disregard these rescissions on the ground that a state may not repeal its ratification of a proposed constitutional amendment. Ignoring these state rescissions in addition to waiving the ratification deadline, though, would raise substantial concerns about the ERA’s legitimacy and may lead a future Congress to attempt the reversal of that recognition.
Thus, the wise course is for Congress to refrain from taking action on the ERA until 38 states can be counted as yes votes without the five rescinding states. If Congress decides to include these five states as part of the ratification total, then at least two-thirds of the Senate and the House of Representatives should be required to support that decision—in accord with a precedent established by Fourteenth Amendment--to quiet the doubts about the validity of the ERA’s ratification.
Sunday, June 17, 2018
The messaging isn’t subtle, either. Some cards are very clear about which parent is considered more important. “Happy Mother’s Day to a woman who does it all!,” read one card. “You work. You cook. You clean. You nurture … You crazy?!” But the woman on the inside of the card has a happy enough expression, even though each of her limbs is engaged in a different task. A month later I found a Father’s Day card that said: “Father’s Day is in June … Because about a month after Mother’s Day, somebody went ‘Hey, wait a minute!’” (In reality, it took much longer. President Woodrow Wilson declared Mother’s Day a national U.S. holiday in 1914; it wasn’t until 1972 that President Nixon made Father’s Day official.)
A more scientific study of the themes of Mother’s and Father’s Day cards looked at a batch in 2010. The researchers, Carol Auster and Lisa Auster-Gussman (who, fittingly, are mother and daughter) came to this conclusion: “Ritualized holidays tend to support the status quo, and traditional ideologies of motherhood and fatherhood,” of mothers as nurturers, and fathers as providing more utilitarian support. “The portrayal of motherhood and fatherhood on the greeting cards is important because these cards may act as agents of socialization, shaping individuals’ perceptions, regardless of whether the cards reflect the reality of parenting,” the study goes on to say....
In terms of content, Father’s Day cards emphasized supporting the family economically, imparting practical lessons, and being the best—far more “Number One Dad” or “Best Dad Ever” sort of cards than mothers had. “It was like they needed an award, but there wasn’t a lot of depth in what they were achieving,” says Auster-Gussman, a doctoral candidate in social psychology at the University of Minnesota.
In contrast, Mother’s Day cards focused a lot more on what the mothers were doing for their children. The cards in the study that mentioned “the little things you do” were, without exception, Mother’s Day cards, and cards that talked about making a child feel loved were much more likely to be for moms, too.
Friday, May 11, 2018
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
Thursday, May 10, 2018
Melissa Berger, Reforming by Re-Norming: How the Legal System has the Potential to Change a Toxic Culture of Domestic Violence, 44 Notre Dame J. of Legislation 171 (2018)
Regressive societal norms and gender-based biases, both explicit and implicit, have compounded over time to form a cultural realm of tolerance toward domestic violence. This Article examines how the law has contributed to the development of this culture, and more importantly, how the law can be utilized to transform a toxic culture of intimate partner violence. The law can be a positive agent of change, and its powers should be marshaled to effectuate change in attitudes and norms towards domestic violence. By importing the social norms theory of psychology and theories of re-norming and implicit biases, we may work to detoxify society’s treatment and tolerance of intimate partner violence.
Tuesday, May 1, 2018
The ACLU is intervening after [Lizzy] Martinez, a 17-year-old junior at Braden River, was disciplined for not wearing a bra under her shirt to school due to a painful sunburn. School administration removed her from class, told her she was distracting other students, and required her to put Band-Aids over her nipples for the rest of the day. The school maintained that it was doing this in Martinez’s best interest — but then proceeded to block her on Twitter when she complained that she felt sexualized, and it discouraged students from participating in a student protest against the stigmatization of female bodies.
The ACLU letter to the school district is here and it is well worth the read.
As described above, the justification proffered for the enforcement of the dress code against Ms. Martinez was rooted in sex stereotypes that male students were “distracted” by her nipples and a paternalistic desire to “protect” Ms. Martinez from the laughter and stares of her male classmates. The justification reflects overly broad and archaic generalizations about boys’ inability to control their sexual impulses and girls’ inability to make their own decisions about the clothing that makes them feel safe and comfortable. These stereotypes reinforce a culture of victim blaming in which schools convey the message to female students that they are at fault for experiencing sexual harassment if they make certain clothing choices. The Supreme Court has long struck down policies based on “‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”
The biased enforcement of the dress code against Ms. Martinez and other female students jeopardizes their equal access to education by forcing them to miss important class time. As described above, Ms. Martinez missed multiple days of school, including three tests. It also prioritizes male students’ freedom from “distraction” over female students’ physical comfort.
Tuesday, April 10, 2018
My latest article thinking about gender and remedies.
Tracy A. Thomas, Leveling Down Gender Equality
The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute. The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers. It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case.
This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of. It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants. In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools. In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men. And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.
Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality. This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors. When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off. But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.
The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination. This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision. It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end. Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy. It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional. The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.
This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality. But this is where the Court went wrong. The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection. Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board. Equality itself, as a constitutional right, dictates more than just empty formalism. And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised. For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court. Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.
This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers. Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course. It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy. Given these constitutional norms, the Article then argues that the remedial calculus should be changed. Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut. Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself. Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.
When Davi, a 17-year-old in Oakland, California, found out that their true gender identity — nonbinary, meaning neither male or female — was finally recognized by the state, they felt a sense of relief.
“I will feel like I don’t have to explain myself all of the time,” Davi said. “I will be so grateful, and less tired.”
Nonbinary gender identity is not recognized by most states. Last June, Oregon became the first to recognize a nonbinary gender option on driver’s licenses. Since the bill passed, Washington, DC, and three more states followed suit: Washington, New York, and California, which became the first state to allow nonbinary residents to change their gender on all relevant legal documents, including birth certificates, to a gender-neutral option.
For nonbinary youth like Davi, that means nothing less than a shift from nonexistence to existence in the eyes of the law. “Most people have the privilege of feeling that,” said Davi. “[They] probably do not even think about that concept.”