Friday, October 16, 2020
Amelia Miazad, Sex, Power, and Corporate Governance, 54 U.C. Davis L. Rev. (2020)
For decades, social scientists have warned us that sexual harassment training and compliance programs are ineffective. To mitigate the risk of sexual harassment, they insist that we must cure its root cause — power imbalances between men and women.
Gender-based power imbalances pervade our corporate governance and plague start-ups and billion-dollar companies across sectors and industries. These power imbalances start at the top, with the composition of the board and the identity of CEOs and executive management. Pay inequity and boilerplate contractual terms in employment contracts further cement these imbalances.
In response to the #MeToo movement, key stakeholders are shifting their focus from compliance to corporate culture for the first time. This influential group of stakeholders, which includes investors, employees, regulators, D&O insurance carriers, and board advisors, are asking companies to uproot gender-based power imbalances. As a result of mounting pressure, seismic corporate governance reforms are underway. Boards are becoming more gender diverse, companies are beginning to address pay inequity and abandon mandatory arbitration and non-disclosure agreements, and boards are holding CEOs to account for sexual harassment and misconduct.
While the “old boys’ club” is still thriving in corporate America, this Article is the first comprehensive account of how the power imbalances on which it depends are shifting.
Tuesday, October 13, 2020
Study Documents Gender Pay Disparities Among Tenured Law Faculty, Particularly Acute for Women of Color
CJ Ryan & Meghan Dawe, Mind the Gap: Gender Pay Disparities in the Legal Academy, Georgetown J. Legal Ethics (forthcoming)
Differences in pay between women and men in the same jobs have captured the public’s attention in recent years. However, public interest in and press coverage of salary differences on the basis of gender—or any other ascriptive class—in the learned professions are wanting. Moreover, few studies have spoken directly on the gender pay disparities in the legal academy, despite emerging evidence of it at multiple law schools. In this Article, we use a unique dataset, drawn from the only nationally representative survey to date of tenured law professors in the United States, to track how gender and race are tied to salary outcomes. But we look beyond the raw differences in salary, probing the mechanisms that undergird gendered pay inequities.
Part I of this Article introduces the concepts of human capital and social capital as important factors underpinning inequalities in outcomes for the legal profession. We then provide an overview of how careers in law—and particularly in the legal academy—are stratified by access to social capital and returns to human capital. In Part II, we introduce the After Tenure survey, from which our data originate. Next, we describe our analytical approach, examining the demography of the legal academy and the legal profession more broadly to discuss the ways in which law professors experience their jobs differently along lines of gender and race. In Part III, we provide evidence of gendered earnings disparities among tenured law professors that is particularly acute for women of color. We conclude by demonstrating how these disparities stem from the differential valuation of human capital.,
Brooke Coleman, #SoWhiteMostlyMale Federal Procedural Rulemaking Committees, UCLA L. Rev. Disc. (Forthcoming)
Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That’s 94% of the committee membership. Of that same group, 513—or 81%—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while expert—are not disinterested actors. This essay examines racial and gender diversity across six different committees. The data tell a textured story of homogeneity, diversity, and power. Critically, the respective committees’ demographic compositions differ both historically and now. But there is one significant similarity across all committees: The Chief Justice can and should appoint a more diverse set of individuals to these committees, and the rulemaking committee members, the Judiciary, and the Bar should demand it.
Monday, October 12, 2020
Sarah Deer, (En)Gendering Indian Law: Indigenous Feminist Legal Theory in the United States, 31 Yale J. Law & Feminism 1 (2019)
In this Article, I argue that attorneys and legal scholars should intentionally think about gender in the context of Federal Indian law and tribal law to assess whether there are areas for closer consideration and attention. I am primarily interested in whether we can better address gender inequities in the lives of Native women, including gendered violence. As part of this analysis, I explore how attorneys and legal scholars can—and do—support the interests of Native women in their work.
As a self-identified Native feminist who is also an attorney, I am interested in asking hard questions about the shortcoming of the Indian Bar to adequately address the needs of Native women and Two-Spirit people. How do feminism and Indian law “meet”? What are the cross-sections of efforts to promote gender equity and the continued resilient existence of tribal nations? In order to answer these questions, I begin by defining the word “feminism” itself. There are multiple strands of schools of feminist thought—some entirely inconsistent with one another. Therefore, more scholars are now speaking of plural feminisms rather than a monolithic feminism. For the purposes of this Article, I consider feminisms to be legal and social responses to entrenched patriarchy. This simplified definition is, on the one hand, reductive, but on the other, a useful framework because it is broad enough to encompass different types and styles of patriarchy, along with different types and styles of responses. Patriarchy comes in different forms and can be modified to include terms like “hetero-patriarchy” and “settler colonial patriarchy,” which are both relevant for Native women. The thrust of most feminist movements is to
overturn sexist and misogynist laws and practices through legal and social action, which, again, can take many forms.
More specifically, in this Article, I approach Indian law using the lens of indigenous feminisms. I intentionally choose to use the fraught “f” word in this analysis, even though mainstream feminist movements and Native women have not always had an easy relationship. Indeed, mainstream feminism has historically failed Native women by ignoring or marginalizing issues like sovereignty and self-determination. Moreover, despite the fact that many early white American feminists were influenced by Native women, early American feminists were sometimes the instigators and supporters of horrific Federal Indian law policies, including the boarding school era and child removal. Thus, it makes sense that many indigenous women categorically reject the label of “feminist” because of its Western, colonial connotations, even while supporting Native women’s rights. Some Native women who reject the term “feminism” point out that patriarchy is a foreign concept to traditional tribal cultures. If feminism is a response to patriarchy, Native women have perhaps not needed it.
A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.
Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer
An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.
That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).
Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).
Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.
“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***
In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.
Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.
Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.
Friday, October 2, 2020
Chan Tov McNamarah, Misgendering, 109 California L. Rev. (forthcoming)
Pronouns are en vogue. Not long ago, introductions were limited exchanges of names. Today, however, they are increasingly enhanced with a recitation of the speaker’s appropriate gendered forms of address: he/him/his, she/her/hers, they/them/theirs, or perhaps even less common neopronouns like zie/zir/zirs, xe/xem/xir, or sie/hir/hirs. This development — like every other dimension of progress for LGBTQ+ people — has been met with fierce resistance. In particular, three prominent objections have surfaced:
(1) calls for pronoun respect are a fraught demand for “special rights” from a vocal queer minority;
(2) semantically, gendered pronouns, honorifics, and titles cannot constitute slurs or epithets; and
(3) that these gendered labels are “just words,” and the consequences of their misuse, if any, are trivial and legally in-cognizable.
This Article explains why these arguments fail without exception. The first two, it counters by placing mis-gendering in its historical context. Recovering the history of verbal practices meant to express social inferiority, exclusion, and caste, this Article demonstrates that mis-gendering is simply the latest link in a concatenation of disparaging modes of reference and address. From addressing Black persons by only their first names, the intentional omission of women’s professional titles, and the deliberate butchering of the ethnically-marked names of minorities, these verbal slights have long been used to symbolize the subordination of societally disfavored groups.
Next, the Article articulates the injuries of mis-gendering to the legal academy, the judiciary and, ultimately, to the law. Until now, scholarship has largely overlooked mis-gendering as a pernicious socio-linguistic practice. To fill this gap, the Article identifies and examines the injuries of mis-gendering by looking to the stories of those who experience it. Drawing on a range of sources, including first-hand accounts, the Article presents, for the first time, a layered account of the harms caused by the mis-attribution of gender. It then closes by exploring the implications of these harms for law and legal practice, and laying the groundwork for potential reforms.
All told, the Article makes at least four contributions. First, contextually, it places mis-gendering in its historical milieu; along a continuum of verbal practices designed and deployed to harm the socially subordinated. Second, descriptively, by consulting original interviews, collected accounts, case law, philosophical scholarship, medical literature, and social science research, the Article offers a sustained discussion of mis-gendering’s injuries to gender minorities’ autonomy, dignity, privacy, and self-identity. Even while making the latter two contributions, the Article makes a third, corrective one, as well: It takes up the necessary work of challenging and dispelling mistaken narratives on the wrongfulness and harmfulness of gender mis-attributions, and replaces them with ones that center the lived realities of gender diverse persons. Fourth, prescriptively, the Article ends by outlining concrete illustrations of how the law must adapt to respond to and recognize the discriminatory harms it identifies.
Catharine MacKinnon's Sexual Harassment Work as Invention of a New Form of Common Law Legal Reasoning
Charles Barzun, Catharine MacKinnon and the Common Law
Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.
This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.
Tuesday, September 29, 2020
Erika Bachiochi, Amy Coney Barrett: A New Feminist Icon, Politico
National Review, Why Left Wing Feminists Hate Amy Coney Barrett
Amy Coney Barrett is Not a Feminist Icon, Huff Post
My own view is the same as that I explained years ago when asked similarly whether then-VP candidate Sarah Palin was a feminist. No. Feminism is not just girl power, or women doing things traditionally reserved for men. Individual achievement in a field or profession (sometimes called "I-feminism") whether Vice Presidential candidate or Supreme Court Justice is not feminism. But it is a consequence of feminism and the work it has done to eradicate barriers to women's achievement. Feminism is the understanding of the gendered hierarchies and stereotypes of law and society, a commitment to reforming those gender injustices, with the goal of women's full and equal autonomy, agency, and opportunity. Under this definition, Barrett is not a feminist.
Monday, September 28, 2020
Executive Order Against Training Federal Employees, Contractors and Military on Racism Applies to Sexism Too
Executive Order on Combating Race and Sex Stereotyping, White House (Sept. 22, 2020)
This executive order is an expression not only of white fragility, but also of male fragility. It reads as a defense of the oppressors. It embodies defensiveness in the face of illustrations of racial and gender privilege, while it reacts to perceived affronts to white men's moral character. While titled as an order about "stereotyping," it is most concerned with what the order calls "race and sex scapegoating."
The prohibitions on addressing racism in federal employment training and contractors have been mentioned in the media and challenged by scholars.
Less discussed have been the provisions that also prevent teaching about sexism. The Order prohibits federal workplaces, unions, military, and federal contractors from teaching about such "divisive concepts" as sexism, male privilege, or systemic sexism.
It decries "sex scapegoating," defined as: "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."
The order provides an example of a training of concern: "Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other."
Tuesday, September 22, 2020
Naomi Cahn & Linda McClain, Gendered Complications of Covid-19: Towards a Feminist Recovery Plan, Georgetown Journal of Gender and the Law, 2020
Gendered inequalities are on the frontlines of Covid-19. The catalogue of Covid-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. The pandemic has exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly Black, Latina, and Native American, are at the intersection of the inequities in the emerging stay-at-home economy. This Article argues that Covid-19 is likely to have complex implications for gender equality and gender equity as state and local governments, the federal government, and private actors focus on recovery plans. The negative impact includes hundreds of thousands of deaths, lingering health complications for many among the several million people who have already contracted the virus, massive economic disruption and loss for individuals, families, and communities and the exacerbation of structural inequalities. The creative policy responses prompted by the devastating impact of Covid-19 provide promise for building a more transformative and equitable future. Indeed, any roadmap to resilience is incomplete without addressing the gender inequities in our social infrastructure. Proposing a feminist recovery plan, this Article focuses on a set of issues relating to gender inequities concerning work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly, women of color— in providing essential but undervalued care work.
Tuesday, September 15, 2020
The United States Supreme Court's historic June 15 decision about LGBTQ workers' rights had its first impact on how courts define sex discrimination at colleges.
The U.S. Court of Appeals for the 11th Circuit concluded that Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions, also protects transgender students from discrimination based on their identity, said the court's Aug. 7 decision, written by Judge Beverly Martin.
"We conclude that Title IX … prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex," Martin wrote.
Martin drew upon the Supreme Court's new interpretation of "sex," which includes sexual orientation and gender identity, and decided a transgender high school student in Florida could sue his former school district for its bathroom policy. The policy blocked the student, who identifies as male, from using the boys' bathroom because he was not biologically male and required him to use a female or gender-neutral bathroom, court documents said.
The decision could impact how colleges in the 11th Circuit, which encompasses Alabama, Florida and Georgia, implement bathroom policies and could subject colleges within the states to Title IX lawsuits related to discrimination against transgender students more broadly
A new Pew Research study shows a clear majority of women, across all ages and education levels, identify as feminists. Overall, 61 percent of female respondents said “feminist” describes them “very” or “somewhat well.”
The group most likely to identify as feminist was among women ages 18-29, at 68 percent. The 50-64 cohort was least likely to, at 57 percent—nevertheless, still a healthy majority.
In terms of education, having a bachelor’s degree or higher drove higher feminist self-identification—72 percent, versus high school-educated at 54 percent.
Additionally, feminist identification plays a role in political party affiliation: Women who are Democrats or lean toward the Democratic party are significantly more likely to identify as feminists than their Republican or Republican-leaning counterparts—75 percent, compared to 42 percent.
In addition, a majority of Americans (64 percent) say feminism is empowering, and 42 percent see it as inclusive. Nevertheless, although a majority of both men and women consider feminism to be “empowering,” a majority of men (52 percent) consider it to also be “polarizing.”
Friday, September 11, 2020
Lesley Wexner, Law and Non-Legal Entitlements: Kate Manne's Entitled: How Male Privilege Hurts Women, Verdict
Philosopher Kate Manne’s first book Down Girl exploded into the popular consciousness just a few years ago. She rejected a simplistic view of misogyny as simply men who hate women and instead developed a broader view that misogyny serves “primarily a property of social environments in which women are liable to encounter hostility due to the enforcement and policing of patriarchal norms and expectations. . . . Misogyny functions to enforce and police women’s subordination and to uphold male dominance.” Given Manne’s sharp analytic approach, I eagerly awaited her follow-up, Entitled, just now published. This new work focuses on how “privileged men’s sense of entitlement. . . is a pervasive social problem with often devastating consequences.”
Coming to Manne’s new work as a law professor, I thought about how Entitled might fit within the property literature. It reminded me, in a good way, of Robert Ellickson’s infamous article on Shasta County and the role of informal norms in managing property rights. Ellickson’s investigation of ranchers and farmers was seminal in challenging the Coasean intuition that in the absence of transaction costs, initial property entitlements are irrelevant since parties will simply bargain their way to the efficient outcome. He urged law and economics to think about and account for the development and the enforcement of informal norms and what those might tell us about the recourse to the law to enforce legal entitlements. Manne makes a similar move, but one step earlier. She suggests that to successfully challenge both the law and the informal norms, more of society needs to first clearly see and understand the original underlying entitlements. Her book identifies, names, and explores a whole universe of entitlements that often benefit men at the expense of women. While many of the entitlements Manne identifies are not legal entitlements provided for by the state, they are pervasive, they shape a great deal of human interaction, their use as the social default disfavors women, and society is having a difficult time bartering to what I see as the appropriate socially optimal egalitarian outcome. I found her entitlement framework illuminating and will spend the rest of this post explaining how the framework exposes different entitlements in American society.
Wednesday, September 9, 2020
Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)
The "#MeToo" Movement has forced corporations and the entertainment industry, as well as state and federal executive and legislative branch officials, to take a hard look at gender inequities and sexual harassment in the workplace. But, how does our judicial system fare? Is the one branch of government charged with being fair and impartial in the interpretation and application of our laws truly fair and impartial? Between 2010 and 2018, the Iowa Supreme Court was the only state supreme court in the country that did not include any women or people of color. Does it matter? Is there an institutional bias when only one gender reviews, decides and writes opinions? Is the lack of female perspective on the court detrimental to women?
This piece considers the real possibility of implicit gender bias in judicial opinion writing by deconstructing four recent Iowa Supreme Court ethics opinions written by an all-male Court wherein the survivors were female clients and/or intimate partners of the male attorney/abuser. Not only do the case results themselves raise questions but also the language those results are wrapped in may be even more revealing. This article examines both these results and language through the eyes of an Iowa woman who served as a trial court judge in Iowa's largest judicial district.
Tuesday, September 8, 2020
Local Gender Norms Across the US, Gender & Society blog
We wanted to learn more about whether gender norms varied across cities in the U.S. and if so, and what this means for gender equality. Although we often revel and delight at places’ unique cultural flair, does this local culture also contain elements that convey different expectations for women and men? Our analysis and results are published in a recent Gender & Society article. We highlight our key findings below.
MAPPING LOCAL GENDER NORMS ACROSS THE U.S.
We measured local gender norms by focusing on the way they’re reflected in personal attitudes about gender (e.g. beliefs that women are better caregivers than men and beliefs about women’s suitability for politics) as well as revealed preferences behavior (e.g. age of mothers’ first birth and the segregation of college majors). Focusing on differences in these indicators across commuting zones, we found that cities and their surrounding areas (commuting zones) fall into four general categories of gender norms:
- Liberal-egalitarian areas have norms that convey values of gender equality. In these locations, women and men are expected to contribute equally to caregiving and are viewed as having similar skills and leadership qualities. Places with these norms include Burlington, VT, Honolulu, HI, San Francisco, CA, and Washington, DC.
- Egalitarian-essentialist places have local norms that support women’s labor force participation and leadership, but where people hold gender essentialist beliefs that women and men are inherently suited for different types of work. Areas with egalitarian-essentialist norms include Charlotte, NC, Milwaukee, WI, and Orlando, FL.
- Traditional-breadwinner norms exist in places where people hold beliefs that the ideal family is one where men work and women tend the home. In these areas, women and men are not viewed as essentially different, but instead expected to hold different responsibilities. Places with these norms include Knoxville, TN and Tulsa, OK.
- Traditional-essentialist locations are places where people believe in the essential difference between women and men with norms that women should focus primarily on family responsibilities. Places with these norms include Little Rock, AR, Charleston, WV, and Midland, TX.
***We found greater evidence that people are influenced by the gender norms where they reside rather than their personal characteristics, particularly if they live a city with traditional-breadwinner or traditional-essentialist norms. In those traditional places, even residents with a college degree, who tend to show more support for gender equality, were much more likely to oppose women’s leadership and feel that men should be earners and women caregivers than college graduates who lived in more egalitarian environments. Residing in a place with traditional norms appears to cause those who would otherwise support gender equality to, instead, endorse more conventional beliefs about women’s leadership and the gendered division of labor.
Tuesday, August 4, 2020
“Hey, guys!” It’s the greeting that launched a thousand meetings and Zoom calls.
Etymologists trace the term “guys” to the historical figure Guy Fawkes. It’s evolved from the name of one man who attempted to assassinate King James I in 1605 to an informal address for a group of people in contemporary American English.
But when used to address your colleagues, it’s a gendered greeting that could be sending signals about who is ― and isn’t ― included in your workplace.
The Case Against Using “Hey, Guys”
The problem with “guys” is that it is a “masculine word,” according to Amy Jeffers, an organizational development specialist in diversity, equity and inclusion. There are better alternatives, such as “Hey, everyone” or “Hey, folks” that are not gender-assuming, Jeffers added.
Sociologist Sherryl Kleinman wrote an essay in the journal Qualitative Sociology against terms such as “you guys” in 2002, pointing out that they reinforce a language that already privileges men. Kleinman cited words such as chairman, postman and freshman as other examples.
”‘Get over it,’ some people say,” she wrote. “Those words are generic. They apply to everyone. But then how come so-called generics are always male?”
GLSEN, an education organization that advocates for policies designed to protect LGBTQ students and students of marginalized identities, advised defaulting to gender-neutral language such as “friends,” “folks,” “all” or “y’all” rather than “brothers and sisters” or “guys,” “ladies,” “ma’am” or “sir.”
Monday, July 27, 2020
Thin and Thick Interpretations of the Nineteenth Amendment -- A More Robust Understanding of Women's Constitutional Rights
Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)
This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.
This Article argues the Nineteenth Amendment does more. A “thick” understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting-rights plaintiffs to attack restrictive voting laws burdening women—especially those laws burdening young women of color, who are also guaranteed nondiscrimination in voting on the basis of age and race. A thick understanding of Congress’s power to enforce the Nineteenth Amendment would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. The thick understanding offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach. It also reinforces the democratic legitimacy of the Constitution. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.
Paula Monpoli similarly argues for a thick or more robust interpretation of the Nineteenth Amendment, tracing the historical development of the thin conception of the amendment post-ratification in her new book, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Aug. 2020). See Paula Monopoli, The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification, 11 ConLawNOW 61 (2019)
Reva Siegel argues for a more robust interpretation of the Nineteenth Amendment for gender equality more generally by a better understanding of the pre-ratification history, and a symbiotic reading of the Nineteenth with the Fourteenth Amendment Equal Protection Clause. Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J. Forum 450 (2020)
Monday, July 20, 2020
Melissa Weresh, Gauzy Allegory and the Construction of Gender, 25 Wm. & Mary J. Women & L. 7 (2018)
In August 2017, violence erupted in Charlottesville, Virginia when white nationalists arrived to protest the removal of a statue memorializing Confederacy General Robert E. Lee. Commenting on the controversy associated with the removal of Confederate monuments, the American Historical Association noted that the removal of a monument was intended "not to erase history, but rather to alter or call attention to a previous interpretation of history." In another effort to call attention to a silenced past, in April 20 18, The Legacy Museum: From Enslavement to Mass Incarceration opened in Montgomery, Alabama. Recognizing that "[t]he United States has done very little to acknowledge the legacy of slavery, lynching, and racial segregation," the Legacy Museum was a countermemorial effort designed to operate as "an engine for education about the legacy of racial inequality and for the truth and reconciliation that leads to real solutions to contemporary problems." More recently, the New York Times explored the issue of under· representation of women in American iconography in two articles titled, "Honor, at Last, for Ida B. Wells, 'a Sword Among Lions,' " and "These Women Deserve Statues in New York."
These changes to the landscape of American iconography underscore the powerful connection between history, commemoration, and public memory. This is true because "[a] monument is not history itself; a monument commemorates an aspect of history, representing a moment in the past when a public or private decision defined who would be honored in a community's public spaces."
Notwithstanding this recent attention, women remain underrepresented in all forms of American iconography, resulting in a deficiency in commemorative memory. When they are represented, they tend to be featured allegorically rather than historically, exacerbating the quantitative under-representation in a qualitative manner. Explanations for and implications of this quantitative and qualitative under-representation are largely unexplored in legal scholarship. This Article is therefore about the twofold erasure of women from the iconography that makes up our national memory: first, women are rarely represented at all, and second, when they are, they are represented as symbols, rather than as actual human beings. This is a troubling form of gender marginalization, or sidelining.
This Article begins with an empirical examination of the manner in which women have been commemorated in American iconography. It then turns to a framework of gender that incorporates features of gendered relationships and gendered significations of power, using that framework as a lens for evaluating the lack of female commemoration in American iconography. This lens also provides useful categories for evaluating the impact of allegorical as opposed to historical commemoration.
Against this backdrop, the Article explores potential explanations for both the lack of historical representation as well as the tendency to feature women allegorically in iconography, seeking interdisciplinary answers in fields such as classical history, art history, theology, linguistics, and commemoration studies. Noting possible explanations for both the quantitative and qualitative under-representation, the Article explores the implications of allegorical representation, emphasizing that it is important to consider not only the lack of historical representation, both quantitatively and, by virtue of allegorical representation, qualitatively, but also how that absence created and maintained hierarchies and contributed to the sidelining of women in commemorative spaces. Disconcerting consequences of allegorical representation include the objectification of the female form, and the irony of featuring idealized, allegorical images of women in areas of society and culture from which they have been historically excluded. Upon initiating this important conversation, it then turns to potential cultural, societal, and legal strategies to address this inequity.
h/t Ederlina Co
Feminism is sometimes referred to as the other "f" word, a term so loaded its meaning is often obscured by the intense emotions around it.
This was reflected in a Pew Research Center survey released this month, which found that although nearly 80% of Americans support gender equality – and feminism is defined as "the theory of the political, economic and social equality of the sexes" by Merriam-Webster – only 61% of women and 40% of men say "feminist" describes them very or somewhat well.
“I think ‘identify as feminist’ has morphed into ‘identify with a wide breadth of social, political issues that align with contemporary politics of equity and reparative justice,’ ” says Karla Holloway, who has taught African American studies, women's studies and law at Duke University. “Feminism is taken to mean a shared perspective on these issues, but because the issues divide constituencies, it turns into pushing aside the label rather than understanding it as a category that can, and does, contain complexity."
Three-quarters of self-identified feminists say the country hasn’t gone far enough in giving women equal rights with men, and only 39% of nonfeminists say the same, according to the survey, which found divisions along gender, racial and political lines, as well
Monday, July 6, 2020
Caroline Criedo Perez, Invisible Women: Data Bias in a World Designed for Men
Data is fundamental to the modern world. From economic development, to healthcare, to education and public policy, we rely on numbers to allocate resources and make crucial decisions. But because so much data fails to take into account gender, because it treats men as the default and women as atypical, bias and discrimination are baked into our systems. And women pay tremendous costs for this bias, in time, money, and often with their lives.
Celebrated feminist advocate Caroline Criado Perez investigates the shocking root cause of gender inequality and research in Invisible Women, diving into women’s lives at home, the workplace, the public square, the doctor’s office, and more. Built on hundreds of studies in the US, the UK, and around the world, and written with energy, wit, and sparkling intelligence, this is a groundbreaking, unforgettable exposé that will change the way you look at the world.
Imagine a world where your phone is too big for your hand, where your doctor prescribes a drug that is wrong for your body, where in a car accident you are 47% more likely to be seriously injured, where every week the countless hours of work you do are not recognised or valued. If any of this sounds familiar, chances are that you're a woman.
Invisible Women shows us how, in a world largely built for and by men, we are systematically ignoring half the population. It exposes the gender data gap – a gap in our knowledge that is at the root of perpetual, systemic discrimination against women, and that has created a pervasive but invisible bias with a profound effect on women’s lives.
Award-winning campaigner and writer Caroline Criado Perez brings together for the first time an impressive range of case studies, stories and new research from across the world that illustrate the hidden ways in which women are forgotten, and the impact this has on their health and well-being. From government policy and medical research, to technology, workplaces, urban planning and the media, Invisible Women reveals the biased data that excludes women. In making the case for change, this powerful and provocative book will make you see the world anew. (less)