Gender and the Law Blog

The Feminist-Neutrality Paradox of Women Judges

Alissa Rubin Gomez, The Feminist-Neutrality Paradox, 127 Dick. L. Rev. 101 (2023)

Female judges are vital to a well-functioning third branch of government given the long-documented link between diversity and judicial legitimacy. Beyond appearances, however, the article explores the reasons why so many empirical studies have shown that judges do not decide cases differently on account of their gender. This article describes how women must act like men to gain acceptance into the male-dominated judicial sphere and then are expected to apply precedent that has been overwhelmingly decided by men. In other words, the decisions of female (and feminist) judges are largely the same as those of their male counterparts because of systemic pressures on female judges to conform to the unstated male norm under the guise of neutrality and the rule of law. These observations are not new. But in the wake of Dobbs v. Jackson Women’s Health Organization – the case that erased the constitutional right to abortion with little concern for the appearance of judicial neutrality or stare decisis – this article asks whether feminists should stop playing by the rules as well.

School Book Removals May Create Hostile Environment Violating Student Civil Rights

Wash Post, Book Removals May Have Violated Student Civil Rights, Education Dept. Says

In a move that could affect how schools handle book challenges, the federal government has concluded that a Georgia school district’s removal of titles with Black and LGBTQ characters may have created a “hostile environment” for students, potentially violating their civil rights.

The Education Department’s Office for Civil Rights released its findings in a letter Friday wrapping up its investigation into Forsyth County Schools’ 2022 decision to pull nearly a dozen books from shelves after parents complained of titles’ sexual and LGBTQ content. To resolve the investigation, the district north of Atlanta agreed to offer “supportive measures” to students affected by the book removals and to administer a school climate survey, per the letter. ***

The Education Department’s investigation into the Forsyth district — which involved the examination of school documents, interviews with top school personnel and a review of public board meeting records — was based on a complaint alleging that the January 2022 removal of books created a “racially and sexually hostile environment for students,” according to the department.

The district ultimately removed eight books indefinitely and two temporarily, according to the letter, and it limited four titles to high schools. Superintendent Jeff Bearden told the school board that the books being yanked “were obviously sexually explicit or pornographic,” according to the letter.

Of the books listed for removal, three center on characters of color and one on an LGBTQ protagonist, according to a Washington Post analysis. The nixed titles include “The Bluest Eye” by Nobel Prize-winning author Toni Morrison, the Forsyth County News reported and Caracciolo confirmed.

A study by the Washington Post found that the majority of all school book bans are being filed by a small number of people. See Objection to sexual, LGBTQ content propels spike in book challenges

A small number of people were responsible for most of the book challenges, The Post found. Individuals who filed 10 or more complaints were responsible for two-thirds of all challenges. In some cases, these serial filers relied on a network of volunteers gathered together under the aegis of conservative parents’ groups such as Moms for Liberty.

And the types of claims:

The Post analyzed the complaints to determine who was challenging the books, what kinds of books drew objections and why. Nearly half of filings — 43 percent — targeted titles with LGBTQ characters or themes, while 36 percent targeted titles featuring characters of color or dealing with issues of race and racism. The top reason people challenged books was “sexual” content; 61 percent of challenges referenced this concern.

In nearly 20 percent of the challenges, petitioners wrote that they wanted texts pulled from shelves because the titles depict lesbian, gay, queer, bisexual, homosexual, transgender or nonbinary lives. Many challengers wrote that reading books about LGBTQ people could cause children to alter their sexuality or gender.

 

The Limited Effect of SCOTUS' Decision in Sessions v. Morales-Santana Five Years Later

John Vlahoplus, Sessions v. Morales-Santana, Five Years On, Charleston Law Review (Forthcoming)

The Supreme Court’s 2017 decision in Sessions v. Morales-Santana was a landmark victory for equality over congressional power. For the first time the Court invoked equal protection principles to invalidate a citizenship statute despite Congress’s near-plenary power over immigration and naturalization. The Court’s remedy disappointed Morales-Santana, however. Rather than level up by recognizing that he acquired derivative citizenship as of birth from his unwed citizen father, the Court leveled down by striking a more favorable rule granting derivative citizenship at birth to children of unwed citizen mothers. Commentators recognized that the Court’s brief opinion left many questions open and that only subsequent developments would reveal whether or how it might affect equal protection and plenary power doctrines.

This essay examines the first five years of developments. It shows that Morales-Santana has had a significant but limited impact. Courts have relied on it to level up in citizenship litigation, to adjudicate claims of post-natal citizenship, and to secure some rights of non-traditional families and family members. Nevertheless, the majority’s insistence that contemporary evaluation governs equal protection analysis has not informed the development of gender-based equal protection more broadly. Courts continue to accept older precedents and rationalizations of gender discrimination at face value. An equal protection principle strong enough to defeat congressional power in an area as important as citizenship has failed to eliminate gender discrimination in other important areas like parental rights.

The essay also analyzes constitutional issues relating to citizenship and plenary power that the majority opinion glosses over, outlines defenses against potential circumvention, and identifies areas for further development that remain despite—or perhaps because of—the majority opinion’s theoretical uncertainties. How courts will continue to apply the decision in citizenship, immigration, and other cases remains to be seen.

The Prevalence of Gender-Based Violence in the Lives of Women Sentenced to Death Row

Sandra Babcock & Nathalie Greenfield, Gender, Violence, and the Death Penalty, 53 California Western Int'l L.J. (2023)

 This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row. We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution. Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials. When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result. Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence. Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

Understanding Gender Through an Economic Frame and the Lens of Decertification of Legal Sex

Davina Cooper, De-producing Gender: The Politics of Sex, Decertification and the Figure of Economy,  
Forthcoming, Feminist Theory, https://journals.sagepub.com/doi/10.1177/14647001221148639

This article explores the contribution that the figure of economy can make to understanding gender in contemporary Britain, focusing on gender as a social quality and legal category that is produced, allocated and used. The article proceeds in two parts. The first part considers the politics of sex-based feminism and gender-as-diversity through an economic frame. The second part focuses, in detail, on one specific juncture where these diverging politics meet: decertification – a law reform proposal to dismantle the system for assigning, registering and regulating legal sex. Decertification is a controversial strategy. Advocates argue that self-expression and interpersonal communication, whether through gender or against it, is hindered by a state-based disciplinary certification system. Critics disagree. They argue that dismantling legal communication about a person's sex makes it harder to put categories of female and woman to remedial use. Drawing on other uses of certification, including commercial ones, this article suggests that certification not only communicates information about a process, quality or thing; it also contributes to their production. The impact of decertification on how gender is produced, what gets produced as gender and the uses to which gender is put are central to determining whether decertification is beneficial to a progressive transformative gender politics.

Gendered Barriers to Access for Legal Aid Programs in Canada

Gillian Petit & Lindsay Tedds, Systematic Barriers to Justice: Financial Eligibility for Legal Aid- A Gendered Analysis 

Provinces and territories across Canada offer legal aid programs to facilitate access to justice for those who are economically disadvantaged. While requirements differ by province/territory, eligibility for legal aid is dependent on having a case of merit and having income and assets below a certain threshold. In this paper, we focus on income thresholds for legal aid, and empirically measure their impact on gendered access to family legal aid. We find that legal aid income thresholds pose a higher access barrier to single women living in MBM poverty in BC, Alberta, and Ontario compared to single men living in MBM poverty, families with children living in MBM poverty, and residents of Quebec. We show this is due to different distributions of income and the placement of the legal aid income threshold. This analysis is an example of how GBA+ should be applied to examine systematic barriers to program access.

Dispute Resolution in a Feminist Voice

Andrea Kupfer Schneider, Carrie Menkel-Meadow: Dispute Resolution in a Feminist Voice, 10 Tex. A&M L. Rev. 151 (Fall 2022)

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman.

Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to the law: "To what extent are the legal institutions we deal with male-dominated, both in the values they reflect and the manner or means used to express those values? To what extent might the expression of feminine or female values, principles and qualities both in the ends desired and the means used to express those ends alter our legal institutions? How does the increased participation of women in these legal institutions move us toward or away from the realization of feminine values in the law?"

Over 40 years, Carrie elaborated on these questions to develop a thorough and wide-ranging feminist jurisprudence. This Essay attempts to do justice to her work. Part II recapitulates her account of the feminization of the law: the way that feminine values affect the substance of the law; the way that we practice and learn law; and the process of law, especially in the area of Carrie’s other love—dispute resolution. In particular, Carrie used a key narrative to illustrate competing approaches to problem-solving. Spurred by Carol Gilligan’s reanalysis of psychology studies, Carrie dove into the moral dilemmas used in psychology and recast the story of Amy and Jake (where they wrestle over the dilemma of whether to steal drugs to save a life) as a lesson in problem-solving. Throughout her writings, Carrie advocated for a feminine ethic of care to have equal footing with the more traditional (masculine) ethic of justice that has been hallowed in law.

Part III of this Essay uses a different narrative from Carrie’s scholarship to illustrate the application of the feminization of the law. In the case of Ziba—a hypothetical mediation between an underage bride and her controlling husband, Ahmed—we see how Carrie’s own passions for feminism and dispute resolution collide in the mediation process she typically champions. Ultimately, Carrie’s treatment of the case puts into practice the ethic of care developed within her feminist jurisprudence.

Sabbeth and Steinberg on "The Gender of Gideon"

Kathryn Sabbeth and Jessica Steinberg have published The Gender of Gideon in volume 69 of the U.C.L.A L. Rev. in January 2023.  The abstract is provided here: 

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating racial and gender inequality.

 

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

 

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and, we argue, available data suggest that the largest categories of these cases--family law, eviction, and debt collection--disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, in the absence of government-appointed counsel, women’s individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised by lack of access to representation, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

Dismantling the Myths of Gender-Critical, Trans-Exclusionary Feminism

Henry Fradella, The Imperative of Rejecting "Gender-Critical" Feminism in the Law, William & Mary Journal of Race, Gender, & Social Justice, Vol. 30, Issue 2 (2023)

Roughly a half-century ago at the height of the second-wave feminist movement, some feminist scholars and activists found themselves arguing with transgender people about who is a woman. While much of contemporary feminist thought has moved past biological essentialism’s outdated embrace of a sex binary to embrace trans-equality, a relatively small but vocal group of self-proclaimed “gender-critical feminists” (who are sometimes called trans-exclusionary radical feminists or “TERFs,” for short) eschew transgender legal rights that they perceive as potentially threatening to the rights of cisgender women. Most gender-critical arguments in that regard are fallacious; they are based on myths and false narratives that misconstrue or ignore empirical data from both the natural and social sciences. Worse yet, the gender-critical position not only threatens to undermine equality under law, but also fosters narratives that contribute to the criminal victimization of transgender persons. In an attempt to minimize the potential for such harmful outcomes, this Article seeks to dismantle some of the more common arguments that gender-critical feminists routinely offer so that judges and lawyers have a source of legal literature that corrects the misinformation gender-critical authors are spreading in this emerging field, thereby providing them with the evidence needed to craft accurate legal arguments and rulings.

New Book, Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood

Jennifer Hendricks, Jennifer Hendricks, Essentially a Mother (University of California Press May 2023)

Jennifer Hendricks, Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood (chapter summaries), SSRN.

This excerpt from Essentially a Mother includes chapter-by-chapter summaries and the full text of the introduction and conclusion.

Essentially a Mother argues that the law of pregnancy and motherhood has been overrun by sexist ideology. Courts have held that a pregnant woman’s nine months of gestation hardly count in her claim to parent the child she bears and that a man’s brief moment of ejaculation matters more than a woman’s labor. Armed with such dubious arguments, courts have stripped women of the right to abortion, treated surrogate mothers as mere vessels, and handed biological fathers—even those who became fathers through rape—automatic rights over women and their children. In this incisive and groundbreaking book, Jennifer Hendricks argues that feminists must overthrow the skewed value system that subordinates women, devalues caregiving, and denies too many the right to parent.

The questions raised in Essentially a Mother about sex differences, reproduction, and sex equality are ideal entry points for young people starting to think about feminism in a rigorous way. The book argues for a functional, rather than essentialist or identity-based, use of the insights of relational feminism.

New Book, Gender Dynamics and Feminist Perspectives on Transboundary Water Conflict and Cooperation

Jenniver Sehring, Rozemarijn ter Horst, Margreet Zwarteveen    eds., Gender Dynamics in Transboundary Water Governance: Feminist Perspectives on Water Conflict and Cooperation (Routledge 2023)

This volume assesses the nexus of gender and transboundary water governance, containing empirical case studies, discourse analyses, practitioners’ accounts, and theoretical reflections.

Transboundary water governance exists at the intersection of two highly masculinised fields: diplomacy and water resources management. In both fields, positions are mainly held by men, and core ideas, norms, and guiding principles that are presented as neutral, are both shaped by men and based on male experiences. This book sheds light on the often hidden gender dynamics of water conflict and cooperation at the transboundary level and on the implicit assumptions that guide research and policies. The individual chapters of the book, based on case studies from around the world, reveal the gendered nature of water diplomacy, take stock of the number of women involved in organisations that govern shared waters, and analyse programmes that have been set up to promote women in water diplomacy and the obstacles that they face. They explore and contest leading narratives and knowledge that have been shaped mainly by privileged men, and assess how the participation of women concretely impacts the practices, routines, and processes of water negotiations.

Gender, Marketplace Deception, and Morality in Contracts

Hila Keren, Gender and Marketplace Morality, JOTWELL, reviewing Gregory Klass & Tess Wilkinson-Ryan,  Gender and Deception: Moral Perceptions and Legal Responses, Northwestern U. L. Rev. (forthcoming). 

Is caveat emptor indeed “a rule for he and not for she”? This is only one of the excellent questions raised by co-authors Gregory Klass and Tess Wilkinson-Ryan in their recent symposium contribution Gender and Deception. The question is induced by classical casebook entries that seem to reflect an increased judicial willingness to protect women from market deception. Recall, for example, the many “Arthur Murray cases” in which franchised dance studios around the country made exuberant profits from making elderly women with no dancing experience believe that they are only a few more lessons away from becoming professional dancers. However, to the extent such a gender-based approach exists (which is unclear at best), it often comes with a price not only for male buyers. Too often, as the co-authors importantly remind readers, intervention on behalf of deceived women seems to reflect and perpetuate gender biases regarding their capabilities—disrespectfully portraying them as gullible.

So, is caveat emptor indeed “a rule for he and not for she”? Not so much, according to the three original studies reported by Klass and Wilkinson-Ryan, which supported a narrow positive answer: when the buyer is a woman deceived by a man in the context of buying used furniture. Perhaps the modern retraction from caveat emptor is less influenced by the entry of vulnerable buyers into the market, as the authors at some point propose, and is more related to the increased diversity of market actors’ moral views. Might it be that the driving force behind less tolerance of market deception is women’s enhanced active participation in the market and growing role in business and legal decision-making? This alternative is tempting because it presents a less victimizing or paternalistic view of the evolution of legal rules—one that a feminist approach to contracts would more easily embrace.

While the authors do not suggest such an explanation, I was enthused to learn that their most significant finding might support the above feminist hypothesis. In their first study on moral judgments of deceptions, the authors found “robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong.”  It turns out that victims’ gender notwithstanding, male respondents ranked deceitful behaviors as more ethical than female and nonbinary respondents. Klass and Wilkinson-Ryan do not elaborate much about the broader meaning of their salient finding. Indeed, they are cautious enough to stress that, at this stage of their work, they have little to say about whether or not men are more predisposed than women to engage in deceptions. They do allude, however, to a correlation they describe as both probable and desirable between believing that conduct is wrongful and refraining from engaging in it. They also mention others who had claimed and provided evidence that women are less inclined to deceive. Additional works similarly demonstrate an over-representation of men in fraud, including in scientific research, fraud cases in 2020-2021, corporate crime, and white-collar crimes.

Examining Whether Sex-Based Disparities Still Exist in the Experience and Treatment of Pain

Diane E Hoffman, Roger Fillingim & Christin Veasley, The Woman Who Cried Pain: Do Sex-Based Disparities Still Exist in the Experience and Treatment of Pain?, 50 Journal of Law, Medicine & Ethics 519 - 541 (2022)

Over twenty years have passed since JLME published “The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain.” This article revisits the conclusions drawn in that piece and explores what we have learned in the last two decades regarding the experience of men and women who have chronic pain and whether women continue to be treated less aggressively for their pain than men.

Based on a review of the literature, they found that women were more likely than men to experience (or at least report) a number of chronic pain conditions. These included migraines and chronic tension headaches, facial pain, musculoskeletal pain and pain from osteoarthritis, rheumatoid arthritis, and fibromyalgia. In addition, in experimental settings, women had lower pain thresholds (the least intense stimulus that produces pain), higher ratings of pain stimuli, and lower pain tolerance (the most intense pain stimulus one is willing to tolerate) than men. Hoffmann and Tarzian explored what might account for these differences including biological differences, e.g., hormones, genetics, and differences in the brain and central nervous system, and psychosocial and cultural factors, such as gender role expectations, behavioral coping, and socialization. Despite the differences in pain experience, and that women were more likely to seek treatment for their chronic pain than men, several studies indicated that women were more likely to be inadequately treated by health care providers (HCPs) for their pain. including a study that found that men were more likely to be given opioids, and women sedatives, after abdominal surgery. Hoffmann and Tarzian ascribed this finding and similar findings from other research to HCPs “who, at least initially, discount[ed] women's verbal pain reports and attribute[d] more import to biological pain contributors than emotional or psychological pain contributors.”3 Other studies hypothesized that it could be due to differences in the way men and women communicate with their physicians as well as how patients are perceived by their physicians. One study found that physicians’ treatment of female patients was related to their appearance and whether they presented with hostility, whereas these same characteristics were not related to how men were treated

In this article, we examine these questions again, twenty years later.

 

Benjamin Carpenter on "Reconsidering the Law’s Male-Centric Approach to Embryo Disputes"

Benjamin C. Carpenter has published "Sperm is Still Cheap: Reconsidering the Law’s Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence" in Volume 34 of the Yale Journal of Law & Feminism. The abstract is as follows: 

Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their exwives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground— one party’s interests must yield to the other. To date, appellate courts in over one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in twenty appellate cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 129 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.

 

Yiran Zhang on "The Care Bureaucracy"

Yiran Zhang has posted The Care Bureaucracy on SSRN. This article is forthcoming in the Indiana Law Journal. The article describes the bureaucratization of public home health care. These struggles, the article explains, are situated "in a highly gendered and class-specific workforce." Zhang concludes that "[t]he care bureaucracy, while serving certain benefits such as promoting standardization and preventing some types of fraud, burdens the users of public care programs—vulnerable elders and people with disabilities, their families, and their direct care workers, who are disproportionately low-income women of color and immigrant women."

The abstract provides: 

The state plays an increasingly crucial role in providing home care as an aging population leads to mounting care needs. The public care system in the United States delivers home care and compensation for care work through an increasingly bureaucratic mode of governance featuring documentation, quantification, and professional governance. The process adopts a functional, task-based approach to define, measure, and regulate care that does not reflect home care’s relational and spontaneous reality. Through the concept of the “care bureaucracy,” this Article describes the ongoing bureaucratization of public home care, analyzes its political economy context, including its origin in poverty law, and lays out its benefits and profound costs. The care bureaucracy not only burdens families needing care and care workers with unpaid, complicated, and sometimes privacy-invading bureaucratic work, but also threatens the state’s capacity to adequately deliver the promised care. The Article also proposes an alternative way to deliver public home care by drawing from the Department of Veterans Affairs’ caregiver programs for veterans with service-related disabilities.

This Article makes two contributions to legal scholarship on care and the state. First, this Article explores the co-constitution between care and a mundane form of family regulation — a meticulous bureaucracy — in the public home care system. While not involving carcerality, the care bureaucracy imposes a less punitive and yet more omnipresent regulation of the users’ family, workplace, and bodily autonomy by micro-managing their physical movements inside homes. Second, it establishes the political-economy connection between the bureaucratization and fragmentation of public home care. In analyzing the status quo political economy of the care bureaucracy, this Article provides a roadmap to reform the public care system into one more responsive to the growing care needs.

 

Meera Deo on "Better than BIPOC"

Meera Deo has published Better than BIPOC in volume 41 of Law and Inequality: A Journal of Theory and Practice (2023). The abstract is here: 

 

Race and racism evolve over time, as does the language of antiracism. Yet nascent terms of resistance are not always better than originals. Without the deep investment of community engagement and review, new labels—like BIPOC—run the risk of causing more harm than good. This Article argues that using BIPOC (which stands for “Black, Indigenous, and People of Color”) as a synonym for People of Color not only does a disservice to the People of Color history and legacy, but also is a dangerous example of virtue signaling that promises symbolic progress without meaningful change. Applying this thesis to the context of legal education using empirical data from law students and law faculty, it becomes evident that People of Color is the appropriate term to use when making comparisons to whites; similarly, Women of Color works best when considering raceXgender intersectionality. Furthermore, academics, advocates, and allies should recognize that while pursuing commonalities and drawing from shared experiences is often critical for political and strategic purposes, aggregating disparate groups under one umbrella, whatever term is used, risks obscuring marginalized populations. In these instances, we should be even more precise in naming each community individually, which serves the twin goals of promoting accuracy in reporting and furthering anti-subordination.

Using Recent Developments in LGBTQ Equality Law to Unsettle Sex Equality's Enduring Commitment to Biology as a Basis for Sex Discrimination

Courtney Megan Cahill, Sex Equality's Irreconcilable Differences, 132 Yale L.J. (2023)

This Feature uses recent developments in LGBTQ-equality law to unsettle sex equality’s enduring commitment to biology as a basis for sex discrimination. Sex equality rejects sex discrimination when it is based on sex stereotypes, defined as gross generalizations about women and men, but not when it is based on biological differences between the sexes, like pregnancy, anatomy, and strength. Biological justifications for race discrimination—once common—have been relegated to the trash heap of history. But biological justifications for sex discrimination persist. This is so because sex equality insists that biology alone is neither a stereotype nor an expression of bigotry. Biological rationales for sex discrimination remain attractive to lower federal and state courts, and have received the Supreme Court’s blessing, most recently in Dobbs v. Jackson Women’s Health Organization. The result is a broad swath of laws across substantive areas—including family law, tort, immigration law, criminal law, property, and abortion law—that sustain sex inequality courtesy of biology and despite a fairly robust anti-stereotyping principle.

This Feature argues that sex equality’s continued embrace of real differences should not survive what LGBTQ equality shows: that biologically rationalized sex discrimination is an illegal sex stereotype. It uses recent developments in LGBTQ equality surrounding sex, the body, procreation, and parenthood to unsettle sex equality’s beliefs in the reality of biological differences between the sexes and in the legality of laws based on those differences. It urges sex equality to grapple with what LGBTQ equality has to say about biology and its role in lawmaking and imagines what the American law of sex might look like when it does. Biologically rationalized sex distinctions have always been sex stereotypes. It is just that now, LGBTQ equality makes those stereotypes easier to see, harder to ignore, and impossible to justify.

The Evolving Right of Public School Teachers to Refuse to Use a Student's Preferred Name or Pronoun

Suzanne Eckes, Public School Teachers Who Refuse to Use Preferred Names and Pronouns: A Brief Exploration of the First Amendment Limitations in K-12 Classrooms,  14 ConLawNOW 159 (2023)

This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.

Exploring the Formal and Informal Definitions of Sex and Gender and the British Proposals to Reform How the Categories are Used in Law

Davina Cooper, What Does Gender Equality Need? Revisiting the Formal and Informal in Feminist Legal Politics,  Journal of Law and Society 2022, 49 (4) 800-823

This article explores the political conflict over reforming how sex and gender categories are used in British law, focusing on the speculative legal proposal to ‘decertify’ sex and gender. Three interconnected arguments are advanced. First, diverging views on decertification are both about and seek to marshal competing perspectives on the value and risks of formalization and its undoing. Second, understanding these views, and decertification more generally, benefits from an account of the formal and informal as interconnected movements of (un)settling, (un)acknowledgement, system (un)intelligibility, and (non-)deference which remains irreducible to the presence or absence of state and law. Third, while formalization can pin down responsibilities and entitlements, it can also fix unequal and exclusionary status relationships. Focusing on positive action in the final part of the article, I consider how movements of formalization and informalization interrelate and the choices available, in conditions of decertification, if positive action is to counter gender inequality.

New Book Gender, Sex and Tech

Jennifer Jill Fellows & Lisa Smith, Gender, Sex & Tech: An Intersectional Feminist Guide

In this timely collection, gender, sex, and technology are explored through an intersectional and interdisciplinary lens. Gender, Sex, and Tech! provides insight into the ways that technology affects, and is affected by, cultural perceptions of gender and sex. Through an examination of a range of past and present issues, the text highlights our relationships to technology and illustrates how gendered relations are shaped and transformed through social and technological innovations. Contributors bring to the fore feminist, decolonizing, and anti-racist methods to examine our everyday uses of technology, from the mundane to the surreal to the playful to the devastating. Original research and scholarship is skillfully grounded in real-world scenarios like revenge pornography, gender bias in artificial intelligence, menstrual tracking, online dating, and the COVID-19 pandemic, inviting students to take a closer look at technological transformations and their impact on gendered lived experience and to consider how the benefits of technology are inequitably shared within society. Centring Canadian scholars and Canadian perspectives without losing sight of the broader global connection, Gender, Sex, and Tech! is bursting with timely and of-the-moment content, making this collection a must-read for courses focused on gender and technology.