Tuesday, October 19, 2021
By: Sania Islam
This research examines the reasons why and the circumstances in which Pakistani women began a common-law relationship against their will, and the role played by their families. A recent national survey shows that 4.1 percent of indigenous women were obliged to marry and 4.8 percent were sold. This practice is conceptualized as an expression of both family and partner violence against women, but it is not often labelled and recognized as such. Forced marriage is associated with women’s transgression of traditional gender roles and rape, as well as traditions and practices that consider women’s opinions and consent as unnecessary. Forced marriages are less common now than they were in the past because of the greater awareness of women’s rights. But the practice persists. The link between non-consensual marriages and intimate partner violence is discussed, and public policy implications are presented. Forced marriage is frequently portrayed as an issue which only affects South Asian women and girls, however, this is not correct. Forced marriage affects a wide range of communities, including Irish Traveller, Turkish, Roma, Afghan, South Asian, Kurdish, Iranian, Arab and African communities. There are no religions which support or advocate the practice of forced marriage. Forced marriage can happen to anyone from any background, regardless of social class, financial status and sexuality, which include people who identify as lesbian, bi-sexual, gay and transgender, or are perceived as such. In a UK context, the needs and experiences of some affected groups are often less visible, and only specific groups are highlighted. It is important to be aware that forced marriage disproportionately impacts women and girls and is therefore recognized as a form of violence against women and girls. When a forced marriage occurs, several human rights are breached. Women’s experience of abuse often does not end with the pressure to marry. Many women are also subjected to different forms of abuse within the context of their marriage. This can range from emotional, psychological and financial abuse to sexual and physical violence.
Friday, October 15, 2021
Ann C. McGinley, #MeToo Backlash or Simply Common Sense?: It’s Complicated, 50 Seton Hall L. Rev. 1397 (2020).
The #MeToo movement brought much needed awareness and momentum to societal and workplace culture change. Indeed, some perceive that the “movement has led to increased employer response, including updating of sexual harassment policies, providing guidance about appropriate work behavior, providing information about reporting harassment, and stopping or removing problematic employees.” Unfortunately, the movement has also led to unintended effects of decreasing sponsor and mentor opportunities for women by men in leadership who fear sexual harassment allegations. Such fears, as discussed in this article, arise from stereotypes prohibited by law and include an unsupported presumption of frequent false allegations, not to mention are predicated on a heterosexual worldview. These fears can lead to men in positions of leadership refusing to engage in common work activities such as “mentoring, socializing, one-on-one meetings,” and travel with a female colleague or subordinate, although they will engage in these activities with similarly situated male colleagues. While this article acknowledges that something needs to be done to address these fears, Professor McGinley is adamant that “refusing to mentor and sponsor female lawyers is not the way to go.”
In fact, it is detrimental to the advancement of women in the workplace. “Research demonstrates the importance of sponsorship, particularly for women and people of color” and “[i]n order for women to succeed [equivalent to their male counterparts], men must actively mentor and sponsor them.” This is because, as Professor McGinley points out, that with the “vast majority of manager and senior leaders” being men, they have a central role in whether women’s advancement is promoted or hindered at work, simply by their choice of whether to be a sponsor. The importance of sponsorship is summed up in this anecdote:
One tax attorney described how he supported his protégé all the way to partnership, having hired her in the first place. He was confident of her ability to deliver and when long-term clients demurred at liaising primarily with a junior person, this attorney vouched for her expertise. When she became the target of unfair criticism by another partner, he intervened, extorting from that partner an apology and a promise to look at the evidence and be less judgmental. In subtle and overt ways, he ensured that she was able to thrive which indeed she did, making partner in four years.
Professor McGinley takes the reader through the current status of sexual harassment law and its drawbacks in addressing this problem and others. The article also sets forth solutions for how the law and employers can move forward in advancing women in the workplace by addressing more effectively sexual harassment and its direct and indirect effects.
Wednesday, October 13, 2021
The press is under a growing and dangerous form of attack through identity-based online harassment of journalists. Armies of online abusers are strategically targeting non-white and non-male journalists to intimidate and silence their voices using a variety of rhetorical tools (including references to lynching, the Holocaust, rape and dismemberment). Such expressive violence is matched by the mounting physical dangers faced by reporters, both in the United States, as evidenced during Black Lives Matter protests in summer 2020, and around the world. Unsurprisingly, identity-based online harassment of reporters has increased at the very moment that news organizations attempt to enhance the diversity of the professional press.
The ‘double whammy’ of online harassment and physical danger goes far beyond harming individual journalists, although those damages ought not be understated. The scale and intensity of these online identity-based attacks collectively undermine all journalists and the press as a whole. While prior accounts, especially by media studies scholars, have recognized the threat to the press writ large, this Article is the first to identify these attacks as one of three reinforcing tactics designed to hobble journalism at critical inflection points in its lifecycle. The refrain of ‘fake news’ is designed to undermine public faith in press output, critiques of libel law seek to roll back press-protective judicial outcomes, and identity-based verbal violence works to undercut and paralyze the journalistic process. Thus, racial and misogynistic vitriol, while generated ‘bottom up’ by members of the audience, is also an element of elite press-delegitimating strategies that presidential change has not derailed.
The Article analyzes the factors that most contribute to growing peril for our democracy, including the professional self-monitoring and self-censorship inevitable in conditions of harassment; the likely effects of reporter intimidation on news organization diversity; and the particularly ‘sticky’ character of identity-based vitriol for the audiences exposed to it.
Finding realistic ways to stem and counteract online identity-based abuse is an imperative next step if the press is to perform its constitutionally-recognized role under current conditions of existential threat. Traditional legal responses are insufficient for such non-traditional devices. The Article develops and advocates a variety of ameliorative moves directed to a spectrum of actors: news organizations, journalism schools, press-protective organizations, social media platforms, and social science researchers. Collective, rather than individual, solutions across a range of constituencies offer the only realistic hope of stemming this tide.
Tuesday, October 12, 2021
By: Meera Deo
Published in: Rutgers Law Review, Vol. 73, No. 3, 2021
This Essay initiates the Rutgers Law Review symposium, "Taking Our Space: Women of Color and Antiracism in Legal Academia," a collection of essays inspired by my book, Unequal Profession: Race and Gender in Legal Academia (Stanford University Press, 2019). After briefly tracing the origins of the book project, I focus on five themes that outline responses as well as updates to Unequal Profession: (1) claiming my worth; (2) jumping on the bandwagon; (3) centering structural solutions; (4) being part of the solution—not the solution; and (5) understanding pandemic effects on legal academia. Together, these themes reveal the depth and difficulty of the work that the legal academy must take on in order to move our profession closer to equity.
The five themes presented here are insights I have gleaned along the way since Unequal Profession was published. Just as a qualitative researcher draws out patterns and observations from the data, I have performed some preliminary analyses on two-plus years’ worth of responses to Unequal Profession, as well as crafted a brief update on how various events of this past unfathomable year exacerbate raceXgender biases in legal academia. I share these observations so that aspiring authors, current academics, allies in practice, and administrative leaders can work together with me to craft a more equal profession. As the five themes outlined here demonstrate, achieving a more equal profession involves working not only to address naysayers, whose implicit and explicit biases may reinforce inequities, but also for each one of us to critically reflect on our own individual prejudices and opportunities for improvement.
Transgender lawyer sues for declaration that bias based on gender identity violates attorney ethics rules
Transgender lawyer Sheryl Ring has filed a lawsuit seeking a declaration that attorney ethics rules in Illinois do not allow discrimination based on gender identity.
Ring contends the ban on sex discrimination in Illinois ethics rules should encompass a ban on discrimination due to gender identity, gender expression, nonbinary status and transgender status, Law360 reports. She sued the administrator of the Illinois Attorney Registration and Disciplinary Commission in an Oct. 4 complaint filed in Cook County, Illinois. CBS 2 Chicago also has coverage.
Ring, a lawyer in McHenry, Illinois, cites the U.S. Supreme Court’s June 2020 decision, Bostock v. Clayton County, which held the ban on sex discrimination in Title VII of the Civil Rights Act protects gay and transgender workers.
Ring has also created a Change.org petition asking the IARDC “to join states like California, Pennsylvania, Washington, Maryland, Oregon, New York, Massachusetts, Florida [and] Oklahoma and the District of Columbia, and ban discrimination on the basis of gender identity and expression in the Illinois legal system.”
California is the first state to require large department stores to display products like toys and toothbrushes in gender-neutral ways.
The new law, signed by Democratic Gov. Gavin Newsom, does not outlaw traditional boys and girls sections at department stores. Instead, it says large stores must also have a gender neutral section to display “a reasonable selection" of items "regardless of whether they have been traditionally marketed for either girls or for boys.”
Wednesday, October 6, 2021
Michael Higdon, LGBTQ Youth and the Promise of the Kennedy Quartet, Cardozo Law Review (forthcoming)
The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to those sexual minorities who are still children. In so doing, they have passed laws that, among other things, punish adolescent sexual activity more harshly when it involves two people of the same sex, prohibit discussions in public schools that portray homosexuality in anything other than a negative light, and deny transgender youth the ability to compete in school athletics or use restrooms that correspond to their gender identity. These laws are harmful enough in their own right but are particularly pernicious in light of the harms those children already face simply by virtue of being a sexual minority in a homophobic society. Looking at the Kennedy Quartet in conjunction with the Supreme Court’s jurisprudence regarding the constitutional rights of children, this Article argues that such laws are unconstitutional. It does so by, first, challenging the argument that the Kennedy Quartet pertains only to adults. Second, and more importantly, this Article then distills from those cases three key protections applicable to the entire LGBTQ community—children included—that these current laws violate. The hope is that this analysis will assist judges, legislators, and policy makers alike as they look for ways to put an end to this wave of discriminatory laws and, in their place, lobby for more inclusive legislation.
Sally Kenney, Backlash Against Feminism: Rethinking a Loaded Concept, The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds., Forthcoming).
Backlash is a reaction to real or perceived change leaving progressives worse off by catalyzing conservatives to oppose change by, changing their opinions to be more negative, holding opposing views more deeply, or propelling them to act violently. The claim that progressive social change has been counterproductive is an empirical one but too often those diagnosing backlash fail to distinguish what is truly a measurable setback from the fierce countermobilization of pre-existing opponents who are losing ground. Progressives themselves have famously warned against using courts in particular to advance the causes of civil rights, gender equality, or gay rights, yet careful examination reveals no regression. Once we complicate a simple linear understanding of progress, think about gender inequality intersectionally, and add an analysis of discursive countermobilizations to simple empirical measures of progress, the implicit baggage the concept carries outweighs its usefulness.
Tuesday, October 5, 2021
By: Nausica Palazzo
Published in: Columbia Journal of Gender and Law, Forthcoming
Same-sex marriage is now recognized in several jurisdictions in the West. This result is ascribable to the untiring work of LGBTQ groups, that have utilized much of their energies to attain it. Pervasive forms of discrimination because of one’s sexual orientation are still in place, such as legislation restricting access to foster and adoption services. But there is little doubt that marriage equality constituted a watershed moment for LGBTQ politics. As Justice Roberts’ immortal words in Obergefell attest to, “[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union two people become something greater than once they were.” After the Supreme Court’s decision in Obergefell, gay and lesbian couples could also finally create the most profound of all unions, and cease being second-class citizens. Since marriage was seen by many as “the final stop for ‘full equality’ for lesbians and gay men,” a question lurked behind these events: “what now?” The question has various ramifications. “What now?” within the LGBTQ movement? Since the final objective has now been reached, the structure, financing, and strategies of the LGBTQ movement are inevitably changing. It will thus be interesting to see which battles the movement will prioritize in the next decades. A second, more crucial “what now?” bears upon the future of family law and policy. It concerns the fate of nonmarital statuses, that have been erased at the stroke of a pen after marriage equality.
. . .
Nonmarital statuses can promote a more pluralistic model of relationship recognition, and, as I will argue, offer legal protection to families that eschew the paradigm of the traditional marital family. The case of jurisdictions that have adopted nonmarital statuses as an alternative to marriage compellingly demonstrates this point. A nonmarital status is considered as an alternative to marriage when both opposite and same-sex partners can sign up. The rationale of alternative statuses is not that of offering a separate-but-equal regime for same-sex couples but a distinct regime that any couple can choose in lieu of marriage. Examples of jurisdictions adopting these laws are Illinois, Hawaii, and Colorado and, outside of the U.S., France, Belgium, The Netherlands, and Luxemburg. Interestingly, in these countries, not only are nonmarital statuses being preserved but they are also becoming increasingly popular amongst heterosexual couples.
From Digital Platforms to Facial Recognition Technologies: Structural Challenges to Women’s Activism
By: Monika Zalnieriute
Submission to the Thematic Report on Girls’ and Young Women’s Activism for the 50th Session of the United Nations Human Rights Council
Girls and women face many challenges in engaging in activism across the globe. Both online and in public spaces in our cities, which are increasingly surveilled and monitored by government and law enforcement agencies, women face challenges. In this submission, I would like to draw attention to several issues in particular. First, many countries around the world do have discriminatory face-covering laws, which ban Muslim face coverings in public spaces and thus prevent young women and girl activists from Muslim cultural backgrounds from exercising their rights to freedom of assembly, expression and opinion, among other rights. Second, a lot of public places, including cities and airports, are increasingly equipped with facial recognition technology, which undermines women's activism in city streets and squares. Third, in the digital environment and on media platforms, women from marginalized groups, such as LGBTI communities, face new threats and challenges – their speech and expression are often suppressed and also weaponized against them. Furthermore, the rise of large-scale data collection and algorithm-driven analysis targeting sensitive information poses many threats for women activists, especially from LGBTI communities, who are especially vulnerable to privacy intrusion due to their often hostile social, political, and even legal environments. I invite the UN Working Group on Discrimination against Women and Girls to:
1) Call on the UN bodies to enhance their understanding of theory intersectionality. I have recently proposed a way to enhance judicial interpretation of reconceptualizing by reference to a modified concept of “harmful cultural practices”, (paper is freely available on SSRN).
2) Call for a ban on the use of facial recognition technology by governments in public city spaces.
3) Call for the development of binding international human rights law for private actors to remedy the violations of freedom of expression of women activists, especially from LGBTI communities in the digital environment.
Tuesday, September 28, 2021
Preface to: Accidental feminism: Gender parity and selective mobility among India's professional elite
By Swethaa Ballakrishnen
Princeton : Princeton University Press, 2021.
In India, elite law firms offer a surprising oasis for women within a hostile, predominantly male industry. Less than 10 percent of the country’s lawyers are female, but women in the most prestigious firms are significantly represented both at entry and partnership. Elite workspaces are notorious for being unfriendly to new actors, so what allows for aberration in certain workspaces?
Drawing from observations and interviews with more than 130 elite professionals, Accidental Feminism examines how a range of underlying mechanisms—gendered socialization and essentialism, family structures and dynamics, and firm and regulatory histories—afford certain professionals egalitarian outcomes that are not available to their local and global peers. Juxtaposing findings on the legal profession with those on elite consulting firms, Swethaa Ballakrishnen reveals that parity arises not from a commitment to create feminist organizations, but from structural factors that incidentally come together to do gender differently. Simultaneously, their research offers notes of caution: while conditional convergence may create equality in ways that more targeted endeavors fail to achieve, “accidental” developments are hard to replicate, and are, in this case, buttressed by embedded inequalities. Ballakrishnen examines whether gender parity produced without institutional sanction should still be considered feminist.
In offering new ways to think about equality movements and outcomes, Accidental Feminism forces readers to critically consider the work of intention in progress narratives.
Eighth Amendment Jurisprudence and Transgender Inmates: The “WPATH” to Evolving Standards of Decency
By: Bryce Daniels
Published in: Michigan State Law Review, Vol. 2021, No. 1, 2021
There has never been a greater opportunity in American history to address the challenges facing gender dysphoric inmates than now. Gender dysphoria is a mental illness characterized by severe distress at the incongruence between one’s sex and one’s internalized gender identity.
Federal courts have signaled a willingness to consider the unique mental health challenges facing gender dysphoric people incarcerated in state and federal prisons as covered under “cruel and unusual punishments” jurisprudence requiring “adequate medical care.” One such remedy federal courts have been called upon to require is “sex reassignment surgery” (“SRS”). Such surgery would change the petitioning inmate’s anatomy or secondary sex characteristics to more closely align with [their] internalized gender identity.
The sister circuit split between the 1st Circuit, 5th Circuit, and 9th Circuit illuminates the diverse analytical methodologies that courts and petitioners have implemented to adjudicate and resolve challenged institutional “deliberate indifference” to gender dysphoric inmates’ medical necessities.
However, there is a notable commonality between all three circuits—the reliance on the World Professional Association for Transgender Health (“WPATH”) Standards of Care (“Standards”). The Standards are compared against existing jurisprudence for determining the scope of the Eighth Amendment, and the juxtaposition leaves much to be legally desired by petitioners seeking prison-provided SRS.
The reality of federal jurisprudential reliance on states’ actions, laws, and regulations to determine the scope of the Eighth Amendment, while damning petitioners’ claims, should be viewed as providing a clear path to constitutional respite and medical care for a deeply vulnerable population.
Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?
By: Linda C. McClain
Published in: Family Court Review (Forthcoming)
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.
. . .
This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.
Tuesday, September 14, 2021
By: Leslie Culver
Published in: Journal of Legal Education, Volume 69, Number 1 (Autumn 2019)
In this essay, I argue that viewing legal writing as a mode of gender sidelining uncovers the urgency for law schools to provide unitary tenure for legal writing programs across all law schools. I recognize that many legal writing faculty are employed under ABA Standard 405(c),4 a seemingly second-best option to traditional tenure tracks. As Professor Kathy Stanchi comments, however, while Standard 405(c) offers some respite from “job insecurity, intellectual disparagement, and pay inequity,” it ultimately serves as an “institutionalized bar to professional advancement divorced from any reasonable measure of merit.” This essay takes Stanchi’s framing of 405(c) as an irrational categorical exclusion of tenure despite meritorious performance, and extends her reasoning as further evidence of gender sidelining.
Well-established research, from both the ABA and legal scholars, demonstrates the longstanding marginalization and inequitable status of legal writing faculty within the academy. As evidence of this inequity, there has been a rise in conversion of legal writing programs to tenure-track positions. And this rise toward parity is the only systemic gesture that can combat the gendered barrier of white males who dominate the legal academy.
. . .
I recognize that the inequality facing legal writing faculty is not novel. However, as this essay suggests, a gender sidelining framework demonstrates the need for a creative resolve that is bigger than any single community. To start, the legal writing community can take steps toward elevating our discipline by providing fundamental training for practitioners and adjuncts seeking to become full-time legal writing faculty.14 For example, prospective faculty need training on how to effectively deliver job talks that both elevate the discipline of legal writing and inform the traditional podium faculty as to the pedagogy and the interdisciplinary and integral foundations of legal writing across other first-year courses. Further, junior faculty would benefit from education on the need for and the value of professional development by way of conference participation, scholarship, and organizational participation in the legal writing community and more.
By: Danielle Conway
Forthcoming in: 13.1 Ala. C.R. & C.L. L. Rev. 1 (forthcoming 2022)
America is at an unprecedented time with self-determination for Black women, and this phase of the movement is reverberating throughout this nation and around the world. There is no confusion for those who identify as Black women that this movement is perpetual, dating back to the enslavement of Black people in America by act and by law. One need only look to the intersecting crises of 2020 to discern the reality of Black women’s — and by extension the Black community and by further extension individuals and groups marginalized, subordinated, and oppressed by white patriarchy — perpetual struggle for civil and human rights.
To appreciate the genealogy of this perpetual struggle for civil and human rights, it is instructive to look back on the 100th Anniversary of the 19th Amendment and to be immersed in the stories and the legacies of Black women suffragists to gain insights about modern contestations against limiting the franchise. In the forming of this nation, Black women were intentionally excluded and erased from conceptions of humanity. This exclusion and erasure of Black women’s voices and contributions from the annals of social, political, and economic movements throughout history, such as abolitionist and women’s suffrage movements, tarnish the legitimacy of our democratic institutions, our laws, and our collective progress toward equality.
This article centers Black women’s lived experiences in the struggle for universal suffrage while also leading and supporting their communities in the fight against racial inequality and oppression. By making the sojourn through history using the lens of Black women, an opening is created to understand the perpetuation of racial injustice and oppression through the practices of withholding citizenship and the franchise. It also offers a window into the expertise and resilience of Black women in building and maintaining relationships, alliances, and coalitions to press for the larger vision of universal suffrage, even when their putative partners choose self-interest over the collective. The purpose of highlighting the duality of the movement is to contribute to the literature that seeks to reveal how Black women and their lived experiences with racism and oppression during the women’s suffrage movement up through and after the ratification of the 19th Amendment can inform today’s efforts at successful coalition building to support modern movements against injustice and inequality.
As Seen through the Eye of the Camera: A Portrayal of How Cultural Changes, Societal Shifts, and the Fight for Gender Equality Transformed the Law of Divorce
By: Taylor Simpson-Wood
Published in: 42 Women's Rts. L. Rep. 1 (2020).
This article explores how changing societal forces and cultural mores have configured to mold the law of divorce from the turn of the Twentieth Century though the rise of no-fault divorce in 1970. It highlights that, irrespective of the varying, contemporaneous views of divorce of different eras, there is one common theme which runs beneath and unites the six decades, gender inequality. To illustrate this premise, it employs representative films for each covered time period to paint a picture of the cultural influences and forces that gave rise to that era’s perspective about divorce as it strove to make a better society.
Specifically, the essay traces the key components of film censorship implemented via the Hays Code in the 1930s and explores how divorce was transformed post-Code from being an anathema to an accepted, if not expected, part of mainstream American life. It also confronts the continuing myth that the 1950s constituted the golden age of the American family. The “ideal” family portrayed each evening on the television was not a documentary and, despite cinematic representations of life during the 1950s, the era was a time of great stress for both spouses. Husbands faced the specter of becoming an “organization man,” while many homemakers were suffering from “the problem that has no name.” The rise of new social mores is often a counter-reaction to those of the immediately preceding time period. This was certainly the case in the 1960s, when the rejection of the values of the 1950s led to a psychological shift resulting in the birth of a new “divorce culture” premised on the idea that when a spouse is unfulfilled due to an unsatisfying the marital relationship, divorce is not only justified, but paves the road to self-realization.
Monday, September 13, 2021
Goldburn Maynard, Jr. has posted his recent work Black Queers in Everyday Life on SSRN. This publication is forthcoming in 30 Tulane J. Law & Sex 129 (2021). The abstract previews:
I am using my Black queer identity as a starting point to consider the weaknesses I see in everyday conceptions of intersectionality. Do those who have been educated in the principles of intersectionality and who mean well apply them in online and personal conversations? Recent experiences have shown me that there is a disconnect, wherein even those individuals who know better will double-down on reified, essentialist notions of blackness that exclude the concerns of Black women, queer individuals, and other Black intersectional identities. Zero-sum perspectives are valued over coalitional appeals.
Maynard urges readers to think more critically about applying authentic and holistic commitments to intersectionality.
To what extent are we pushing our students and ourselves to interrogate their own privileges? More work needs to be done to figure this out, since stakes are so high. A lot of the potential interventions and solutions depend on what the reasons are for the resistance to intersectionality principles. A place to start is to explore some possible explanations for the phenomenon: (1) gaps in our teaching of intersectionality (e.g., not providing enough or the most illustrative examples); (2) a mismatch between the theory and some perceived reality that at times you do have to choose between identities (3) some resistance to theory in general because of its association with intellectuals and academia; (4) an almost inevitable reproduction of hierarchy that should be expected; and/or (5) real fears about the loosening of the Black coalition and its implications. I hope we move forward on this because microaggressions within minority communities are that much more painful and traumatic for the individual to recover from.
Tuesday, September 7, 2021
By: Greer Donley and Jill Wieber Lens
Forthcoming in: Boston College Law Review, Vol. 62, Forthcoming
Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale — the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling in cases of life-limiting fetal conditions. This Article discusses the paternalism and traditional gender stereotypes underlying these newer abortion restrictions and uses empirical studies to discredit the woman-protective rationale justifying them. The Article also suggests a radical, new response to claims that women need protection from second-trimester abortion: the embrace of second-trimester abortion “danger-talk.” First introduced in medical literature by abortion providers, danger-talk refers to the uncomfortable truths about abortion that supporters often avoid. These topics include the nature of second-trimester abortion procedures and the emotional complexity that can especially accompany second-trimester abortion. This Article advocates for greater openness about these topics, arguing that silence only capitulates the narrative of second-trimester abortion to those opposing abortion rights. The Article envisions second-trimester abortion care that better recognizes these realities and provides women with more choices that might make second-trimester abortion easier, including alternative procedures and the option of memory-making to process difficult emotions, like grief. Finally, this Article argues that more transparency about these difficult subjects will help rebut the woman-protective rationale used to justify second-trimester abortion restrictions.
By: Alexandra Holmstrom-Smith
Published in: University of Pennsylvania Journal of Law and Social Change, Volume 24, Number 3 (2021)
The COVID-19 pandemic has thrown the global surrogacy industry into chaos, stranding surrogates,infants, and their caretakers across the world from the intended parents. As surrogates and staff are left caring for infants that are strangers to them by law, the emotional toll of commercial surrogacy is more visible than ever before. In this article, I argue that this moment is ripe for reconsidering our laissez faire approach to for-profit reproduction. When the Baby M case hit the news in 1988, it set off a chorus of alarm among feminists (and others). Many states subsequently passed laws banning commercial surrogacy. Yet in the years since then, the dominant feminist position has quietly shifted. Surrogacy is now seen as a choice, one that expands women’s possibilities both as workers and as mothers. Surrogacy is also seen as an LGBT rights issue, as it provides a way for gay men to have children that are genetically related to them. However, the issues of gender, race, and exploitation that inflamed feminists in the1980s and 1990s are no less relevant today. As renewed concern with economic justice has made a resurgence on the national stage, I argue that it is time for socialist-feminist perspectives on surrogacy to reemerge. Eschewing freedom of contract as an illusory freedom that serves the ruling class, such a politics would demand social policy that limits commodification and promotes reproductive justice and freedom for all, not just the wealthy few.
Friday, September 3, 2021
Liane Jackson, How Pandemic Practice Left Lawyer-moms Facing Burnout, ABA Journal, August/September Issue (2021).
This article explores the pandemic’s effect on the “participation gap in the labor market” between women and men, and posits that “hard-won gains are disappearing,” “the gap is widening,” and experts posit that the effects “will be felt in the legal industry for years to come.”
It will come as no surprise that “women are America’s default social safety net” and have therefore “taken on the lion’s share of pandemic parenting,” as numerous studies have already shown. This is due to a number of social pressures and norms, which this article addresses. Of particular note is the “idealized version of intensive motherhood” which sets a standard by which “women are expected to sacrifice their careers, their well-being, their sleep, [and] their mental health for the good of their children.” Competing with this social construct, is another equally pervasive standard to which female lawyers are held “of total commitment . . . this ideal worker norm that says you’re supposed to sacrifice everything for your job.” It is no wonder, in this zero sum game, that increased drinking, stress, desire to leave the profession, and mental health issues are being reported in higher percentages of women than men as a result of a pandemic which left parents with few childcare options and a lead role in their children’s education. “The pandemic has disproportionately affected women and minority attorneys, with female lawyers of color feeling increased isolation and stress.”
So what can we do to alleviate the disadvantage experienced by female attorneys as we begin to return from pandemic-induced remote work environments? Liane Jackson argues that flexible work options need to be accompanied by a genuine commitment to not allowing those options to come with a conscious or unconscious institutional/advancement penalty. This requires a “recognizing that family has a value, households have a value and people have a value outside the workplace.” To do otherwise will “continue to threaten retention rates.” We must be intentional as we begin to emerge from this pandemic to not penalize female attorneys whose "productivity" (as traditionally measured) may have fallen below that of male counterparts due to the unequal sharing of pandemic pressures discussed above. Employers should focus on retention and advancement standards that are equitable to female attorneys who continue to be marginalized by disparate and competing social pressures. “Women are still being marginalized, and they don’t always have the power base to fight back.” We must do better.