Gender and the Law Blog

CFP for Volume 33 of the American University Journal of Gender, Social Policy & the Law

Below is a call for papers from the American University Journal of Gender, Social Policy & the Law.

Dear Colleagues,

You are invited to submit articles for inclusion in Volume 33 of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of gender, race, sexuality, and other personal and political identities and the Law. As one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject areas of women, gender, sexuality, and the Law, the Journal is deeply committed to publishing high-quality pieces that explore legal issues relating to gender, race, sexuality, and social policy.

Requirements:

The Journal will consider articles that propose a novel argument or perspective on a timely legal issue relating to gender, race, sexuality, and other identities. To fulfill its interdisciplinary mission, the Journal will accept articles authored by legal, policy, and gender scholars, but at least one author on all submissions must hold a J.D. Articles selected for publication in the Journal must include an analysis of U.S. law.

Contact:

Please direct questions and final submissions to the Journal’s Senior Articles Editors: [email protected].

Thank you! We look forward to reviewing your pieces.

Best,

Hannah Seligman & Siena Roberts

Senior Articles Editors

American University, Washington College of Law

Journal of Gender, Social Policy & the Law, Vol. 33

New Book, The Sentimental State: How Women-Led Reform Built the American Welfare State

Interview with Elizabeth Garner Masarik on her Book, The Sentimental State: How Women-Led Reform Built the American Welfare State (Univ. Georgia Press 2024)

I got the chance to speak with historian Elizabeth Garner Masarik about her new book The Sentimental State: How Women-Led Reform Built the American Welfare State. An assistant professor of history at SUNY Brockport, Elizabeth is a scholar of American women’s history, the Gilded Age and Progressive Era, and the administrative state. Her new project is on American spiritualism, and she was also eager to discuss her findings on women and the history of welfare networks, charity, and maternalist sentiment. Dr. Masarik defines “sentimentalism,” or feelings surrounding motherhood and child-rearing, as one of the chief drivers behind the push for women-led public health and social initiatives in the nineteenth century.

Your new book is a fascinating examination of the intersection of women’s state-building and the politics of domesticity. Can you talk a little bit about the origins of the book? Was it part of your dissertation? What new directions did you go in as you wrote?

Yes, this book came out of my dissertation. I took a women’s history course with sexuality, gender and sports scholar Susan Cahn during the first semester of my MA program and was hooked. I really latched on to the U.S. maternalist movement of the late 19^th and early 20^th centuries and dove headfirst into learning about the early formation of the U.S. welfare state. Additionally, the primary sources I found where women were speaking about, and grieving over, the death of their infants and young children just hit me; after becoming a mother myself, I couldn’t fathom being able to go on with life if one of my children died. And so, in a way, examining child and infant mortality became a kind of masochistic way for me to study history while also feeling this immense empathy for my subjects. I didn’t set out to focus on infant and child death at the beginning, but the connections between emotions and state-building became so glaringly obvious that I couldn’t look away. It was a subject that spoke to me as a mother and as a recipient of welfare. It felt very personal. When I revised the dissertation into book form I focused more heavily on sentimentalism as a cultural phenomenon of the nineteenth century and how I found that bleeding into the twentieth century.

William Carter on "Trans Talk and the First Amendment"

William M. Carter has posted Trans Talk and the First Amendment on SSRN. The abstract is excerpted below: 

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care.

This Article breaks new ground in two respects. First, it focuses on an aspect of student speech regarding transgender issues that has not yet been addressed by courts or in the scholarly literature: namely, whether the Supreme Court's school speech cases would permit states or public school officials to restrict student speech advising a peer to obtain forms of gender-affirming care that are unlawful to minors in the state where the speech occurs. This Article is also the first to apply the history of the battles over free speech regarding slavery and of the Nation's Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.

Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court's post-Tinker school speech cases, however, have been significantly more solicitous toward school officials' efforts to restrict student speech. Opponents of gender-affirming care for minors are therefore likely to seek to rely upon the post-Tinker jurisprudence to justify restricting or punishing student speech advocating that a peer seek gender-affirming care. This Article argues that the Court's post-Tinker school speech cases cannot and should not be read to justify restrictions upon such speech. This Article further argues that extending the post-Tinker cases to allow the government to punish student speech advocating that a peer receive gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation's Second Founding. 

The Future of Sex Discrimination Law in Cases of Pregnancy and Sport

Katharine K. Baker, Gender (Discrimination) Trouble, South Carolina L. Rev. (forthcoming)  

The LGBTQ civil rights movement has upended traditional understandings of what it means to be male or female. Building on this movement’s achievements, a growing number of scholars have urged that the goal of sex discrimination law be to question when, if ever, the law can make distinctions between men and women. This article pushes back against these claims. Even though what it means to be male or female is now much more contested both socially and legally, sex discrimination law always has and always will have to grapple with the normative dilemmas posed by treating those who have traditionally female anatomy differently than those with traditionally male anatomy.

To illustrate this point, I examine two sex equality stories that have rarely been told together: pregnancy in the workplace and sport in educational institutions. Pregnancy discrimination law has often rejected different treatment for those with female anatomy; in contrast, the major federal law dealing with sex discrimination in sports, Title IX, is premised on recognizing female sports as different from male sports. For those who believe that sex equality efforts should challenge all legal distinctions between men and women, the history of pregnancy and sports offers a cautionary tale. The drive to diminish the significance of anatomical differences has produced a system of legal protections for pregnant workers in the United States that is conspicuously lacking. The substantial rise in female participation in sport under Title IX, on the other hand, has been a resounding success. The history of pregnancy and sport shows that the future of sex equality lies not in abandoning sex distinctions but in creating doctrine and laws that recognize their risks but also accept their benefits.

New Study of Children's Brains Shows How Sex and Gender are Different

CNN, A Detailed Look at Children's Brains Might Show How Sex and Gender are Different, New Study Says

Sex and gender are often conflated or equated in everyday conversations, and most American adults believe a person’s gender is determined by sex assigned at birth. But a new study of nearly 5,000 9- and 10-year-olds found that sex and gender map onto largely distinct parts of the brain.

The research gives a first insight into how sex and gender may have “measurable and unique influences” on the brain, study authors said, just as other experiences have been shown to shape the brain.

“Moving forward, we really need to consider both sexes and genders separately if we better want to understand the brain,” said Dr. Elvisha Dhamala, an assistant professor of psychiatry at the Feinstein Institutes for Medical Research and the Zucker Hillside Hospital in Glen Oaks, California, and a co-author of the study, published Friday in the journal Science Advances.

The researchers on the new study defined sex as what was assigned to the child at birth. In the US, clinicians make this assignment based on genitalia. Most people are assigned either female or male, according to the research; the rest are intersex, a person whose sexual or reproductive anatomy doesn’t fit this male/female binary.

The researchers defined gender as an individual’s attitude, feelings and behaviors, as well as socially constructed roles. They noted specifically that gender is not binary, meaning not all people identify as either female or male.

Both sex and gender are a core part of human experience. They’re key to how people perceive others and how they understand themselves. Both can influence behavior as well as health, the study authors say.***

The authors used a kind of artificial intelligence called machine learning that built a model that could predict a child’s sex and reported gender from their brain scan. When the researchers looked the children’s brain scans, the results seemed to show that sex influenced different regions of the brain that are involved in visual processing, sensory processing and motor control and some regions involved in executive function, which lets an individual organize and integrate information across time.

Gender seems to influence some of the more sensory-specific networks that are associated with sex, but it also seems to have a broader influence and can be detected on different brain networks involved in executive function, including things like attention, social cognition and emotional processing.

Harris Made Gender Visible in the 2024 Election, But It Was There All Along

Ms., Harris Just Made Gender Visible in the 2024 Election--But it was There All Along

Now that Joe Biden has announced his withdrawal from the 2024 presidential race and endorsed Vice President Kamala Harris, the salience of gender as a critical factor in the contest for the presidency will rise quickly to the surface. The surest way to make gender visible in presidential campaigns is to get a woman in the race.

But gender is always present in those campaigns—whether or not it’s visible. Even when two men run against each other, it’s not a “battle of the sexes” between a man and a woman: It’s a contest between two (usually white) men over competing versions of masculinity. That was the case up to the moment of Biden’s withdrawal. The 2024 campaign was gearing up to be a contest between two older white men who represent starkly divergent ideas about the very meaning of manhood.

Many commentators in mainstream and progressive media seem not to understand—or want to discuss—the deeply gendered nature of presidential campaigns or the presidency itself. This glaring deficit in political analysis was on full display in coverage last week of the Republican National Convention (RNC). The GOP put on a four-day, fist-pumping celebration of the manly virtues, culminating yet again in the anointing of a bombastic former real estate mogul, reality TV star and notorious misogynist as the supposed embodiment of those virtues.

The unapologetic celebration of a crude and embarrassingly cartoonish hypermasculinity was so extreme—especially on the penultimate day four—that some TV commentators had trouble mustering anything more thoughtful to say than what CNN’s Chris Wallace said on-air in response to a question from Jake Tapper: When Tapper asked Wallace, “What theme are we seeing at the convention tonight?” Wallace replied, “Testosterone.”

Teneille R. Brown on "The Criminalization of Care: Health and the Home"

Teneille R. Brown has posted The Criminalization of Care: Health and the Home on SSRN. This article was a forward, published in 2024 Utah Law Review 761 (2024), to a Symposium issue. Brown summarizes the scope of the Symposium:

The lines between private care and criminal law are being deliberately obscured. In the last few years, states have criminalized life-saving forms of reproductive and trans health care, normalized police provision of sub-standard mental health “treatments” to people in crisis, and in general have allowed law enforcement to invade the private lives of vulnerable families. This is not entirely new. But perhaps emboldened by the Dobbs decision1 and to retaliate against those protesting police brutality, the pace of the criminalization of care is off-the-charts. This fall, we had the pleasure of welcoming scholars in health care law and policy, medical ethics, trans rights, and feminist legal theory, to discuss the legal issues that arise when doctors and other institutional actors are asked to serve the interests of law enforcement. The central question we asked is this: how are communities harmed when we criminalize care both in health care settings and the home? In this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities.

 The symposium volume is available here. It includes the following articles: 

Gender Regrets: Banning Abortion and Gender-Affirming Care, Noa Ben-Asher & Margot J. Pollans

We Cannot Police Systemic Racism and Systemic Poverty: Why Policing Is Not a Solution to Our Public Health Crisis, Semir Bulle, MD

Caught in the Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Wright Clayton, MD, JD & Luke A. Gatta, MD

Preempting Red State Restrictions on the Use of FDA-Approved Drugs in Gender-Affirming Care?, Lars Noah

Panel Presentation, The Criminalization of Trans Lives and Health Care: Provider and Patient Perspective, Dr. Dana N. Johns

Examining the Constitutionality of Legislative Medical Care Bans for Transgender Youth, John Mejia

 

Using the Language of Law and Gender in Speech Theory to Understand the Gender Identify Backlash

Susan Etta Keller, Doing Things With The Language of Law and Gender: Using Speech Theory to Understand the Meaning and Effect of the Gender Identity Backlash, 24 Nevada L. Rev. 413 (2024).

A significant legal backlash against transgender individuals is currently under way. This movement--which includes state legislation, state executive action, and federal cases--seeks to limit access and participation by transgender individuals in school sports, use of bathrooms, access to appropriate care, and even the right to be addressed appropriately in the classroom. Properly understood as a political backlash in response to previous political gains by transgender individuals, this movement is composed of a series of speech acts: language that makes change in the world and alters human relations.

This article identifies the features of the backlash and the power dynamics that fuel it. Applying Speech Act Theory, the article undertakes a close examination of the language of the legislation and cases to reveal the many cloaked performative speech acts that animate the backlash. Understanding the way that the language of law and the language of gender operate to promote and normalize this backlash is a key first step to undermining the deleterious effects of these speech acts.

 

Gender Sidelining in Schools and the Scourge of Single Sex School Leadership

Jessica Fink & Dr. Kelley King, Gender Sidelining in Schools and the Scourge of Single Sex Leadership 

Concerns about unequal gender representation have plagued virtually every workplace in recent decades. In countless professions, even those in which women comprise a majority of the workforce, leadership positions are dominated by men. Often, the inability of women to rise within the professional hierarchy stems not only from overt acts of sex discrimination, but also from more subtle and nuanced bias in the workplace-bias referred to in other research as "gender sidelining." This sidelining seems particularly paradoxical when it arises in professions in which women already have been funneled due to their gender-including the education sphere. In this way, the K-12 education world represents a microcosm of the bias that female workers encounter more generally-workplaces rife not only with intentional bias, but also with more nuanced barriers, which culminate to create a work environment where women face dead ends, diversions and delays in ways not reached by traditional antidiscrimination laws. This article examines some of the barriers that have prevented women in the K-12 education world from achieving leadership roles, focusing, in particular, on obstacles that largely sit outside of the law-incidents of gender sidelining that would not on their own form the basis of a viable sex discrimination claim. Drawing on both legal principles and social science research, this article not only identifies the extent to which the careers of many women in education have been derailed by various forms of gender sidelining, but also provides suggestions for how to ameliorate these destructive impacts.

Abrams & Potts on "The Rhetoric of Abortion in Amicus Briefs"

I have published The Rhetoric of Abortion in Amicus Briefs with the University of Missouri Law Review. The work is in Volume 89 at page 399. Here is the abstract: 

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women's Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy.

Ari Ezra Waldman on "Gender Data in the Automated Administrative State"

Ari Ezra Waldman has published "Gender Data in the Automated Administrative State" in volume 123 of the Columbia Law Review. The abstract is here: 

In myriad areas of public life—from voting to professional licensure—the state collects, shares, and uses sex and gender data in complex algorithmic systems that mete out benefits, verify identity, and secure spaces. But in doing so, the state often erases transgender, nonbinary, and gender-nonconforming individuals, subjecting them to the harms of exclusion. These harms are not simply features of technology design, as others have ably written. This erasure and discrimination are the products of law.

This Article demonstrates how the law, both on the books and on the ground, mandates, incentivizes, and fosters a particular kind of automated administrative state that binarizes gender data and harms gender-nonconforming individuals as a result. It traces the law’s critical role in creating pathways for binary gender data, from legal mandates to official forms, through their sharing via intergovernmental agreements, and finally to their use in automated systems procured by agencies and legitimized by procedural privacy law compliance. At each point, the law mandates and fosters automated governance that prioritizes efficiency rather than inclusivity, thereby erasing gender-diverse populations and causing dignitary, expressive, and practical harms.

In making this argument, the Article challenges the conventional account in the legal literature of automated governance as devoid of discretion, as reliant on technical expertise, and as the result of law stepping out of the way. It concludes with principles for reforming the state’s approach to sex and gender data from the ground up, focusing on privacy law principles of necessity, inclusivity, and antisubordination.

20 Best Women in Law Blogs and Websites 2024

Check out the 20 Best Women in Law Blogs and Websites, 2024

Including us here at the Gender & the Law Prof Blog!

Chan Tov McNamarah on "Cis-Woman-Protective Arguments"

Chan Tov McNamarah has published "Cis-Woman-Protective Arguments" in Volume 123 of the Columbia Law Review.  Here is a summary excerpt: 

It has become common to oppose the equal citizenship of transgender persons by appealing to the welfare of cisgender women and girls. Such Cis-Woman-Protective (CWP) arguments have driven exclusionary efforts in an array of contexts, including restrooms, sports, college admissions, and antidiscrimination law coverage. Remarkably, however, this unique brand of anti-trans contentions has largely escaped being historicized, linked together, or subjected to extended analytical scrutiny as a group.

Tallied up, these problems make a strong case that, strategically, CWP arguments are ineffective and deeply flawed—even counterproductive—assuming that protecting cis women and girls is truly the goal. Building on that assessment, the Essay concludes with reasons for healthy skepticism that it actually is. Stripping away the veneer of protectionism begins to expose some less-palatable intentions and effects possibly driving the use of CWP arguments.

This Essay provides those missing pieces.

First, it situates CWP arguments within the longer history of woman-protective justifications in American law. Taking their well-known harms to women, alongside their use in lending legitimacy to discrimination against racial and religious minorities, forcefully demonstrates that the rationales’ current use against transgender persons warrants closer inspection.

Second, the Essay canvasses recent CWP arguments to document the line of thought. Reading the heretofore-uncollected allegations reveals a far-reaching cluster of contentions, whose members bear striking family resemblances to, and inherit the disfigurements of, their historical priors.

Third, casting unsparing light on the claims, the Essay demonstrates that CWP arguments overwhelmingly fail to deliver. Structurally, the arguments’ moves are questionable, at best. Substantively, most fall wide of their mark. And, instrumentally, the arguments backfire completely, since their operationalization harms the very persons they supposedly protect.

Sweeny and Canon on "The Language of Love v. Beshear"

JoAnne Sweeny and Dan Canon have published The Language of Love v. Beshear: Telling a Client's Story While Creating a Civil Rights Case Narrative in volume 17 of the Journal of the Association of Legal Writing Directors. The article was shared on SSRN here. The Introduction is excerpted here: 

We tend to think of a good lawyer as being a vigorous, focused advocate, one who thinks first and foremost of the interests, needs, and desires of their clients. But what if the client’s case will affect an entire group of people; a group who may also seek to have its collective rights vindicated? This is the dilemma of the civil rights attorney—how does an effective advocate balance the specific needs of the client with the broader, long-term needs of the group the client represents? And who should have a say in what story is told on behalf of the client? In civil rights cases, it is not just the client, but activists, organizations, academics, and the media who have a stake in the outcome. How much of a say should they have in the creation of a litigation story that will most directly impact a single client? How are those stories crafted? With careless, blunt-force litigation, or with purposefulness? And does it matter who gets to tell the story?

 

* * *

Focusing on the Kentucky case, Love v. Beshear, this article shows how civil rights attorneys may be constrained by their dual roles—advisors to their clients and advocates for civil rights—and how they decide what story to tell to remain true to their clients’ needs while keeping engaged with the larger civil rights issues inherent in these impact litigation cases. Moreover, once the litigation has begun, the other players—organizations, media, even the judges themselves—can change the story, highlighting what they see fit. The ultimate story of who a lawyer’s clients are ultimately may not be up to the lawyer or the client.  

 

It concludes: 

 

Obergefell built a bridge to same-sex marriage, creating solid ground for the next group of civil rights lawyers
to again expand our understanding of what relationships and “equal dignity” really mean. As the country’s understanding of same-sex couples has evolved, so has the array of stories that lawyers can tell about groups that may be insular or unfamiliar to the broader public. For example, now that transgender, bisexual, nonbinary, and polyamorous people’s stories are becoming more mainstream, their stories can be used to champion a broader understanding (and legal recognition) of fundamental rights. This continuous opening of new chapters to familiar stories is the essence of civil rights advocacy.

New Book, Father Time, How and Why Men are Biologically Transformed When They Care for Babies

Sarah Blaffer Hrdy, Father Time: A Natural History of Men and Babies

A sweeping account of male nurturing, explaining how and why men are biologically transformed when they care for babies

It has long seemed self-evident that women care for babies and men do other things. Hasn’t it always been so? When evolutionary science came along, it rubber-stamped this venerable division of labor: mammalian males evolved to compete for status and mates, while females were purpose-built to gestate, suckle, and otherwise nurture the victors’ offspring. But come the twenty-first century, increasing numbers of men are tending babies, sometimes right from birth. How can this be happening? Puzzled and dazzled by the tender expertise of new fathers around the world—several in her own family—celebrated evolutionary anthropologist and primatologist Sarah Blaffer Hrdy set out to trace the deep history of male nurturing and explain a surprising departure from everything she had assumed to be “normal.”

In Father Time, Hrdy draws on a wealth of research to argue that this ongoing transformation in men is not only cultural, but profoundly biological. Men in prolonged intimate contact with babies exhibit responses nearly identical to those in the bodies and brains of mothers. They develop caring potential few realized men possessed. In her quest to explain how men came to nurture babies, Hrdy travels back through millions of years of human, primate, and mammalian evolution, then back further still to the earliest vertebrates—all while taking into account recent economic and social trends and technological innovations and incorporating new findings from neuroscience, genetics, endocrinology, and more. The result is a masterful synthesis of evolutionary and historical perspectives that expands our understanding of what it means to be a man—and what the implications might be for society and our species.

The Ethical and Practical Significance of Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

The Ethical and Practical Significance of Using Feminist Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

Judy Stinson Lecture on "Reclaiming the Singular They"

Robert Anderson presented the Judy Stinson Lecture at Arizona State University on the topic of "Reclaiming the Singular They in Legal Writing." A recording of the presentation is available here.  It gives background on the grammatical prohibition on the singular they.  It describes a historic tension between grammar guides and dictionaries on this issue. The underlying article that was the basis for the lecture is available here. 

Amended Title IX Regulations

The Department of Education published amended Title IX regulations. The agency summarized the key changes in the regulations as including: 

• Define “sex-based harassment” * * *
• Provide and clarify definitions of various terms related to a recipient’s obligations to address sex discrimination, including sex-based harassment;
• Clarify a recipient’s required response to sex discrimination . . . in its education program or activity;
• Strengthen a recipient’s obligations to provide prompt and equitable grievance procedures and to take other necessary steps when it receives a complaint * * *; and
• Provide for additional requirements in grievance procedures at postsecondary institutions.
• With regard to discrimination against individuals who are pregnant or parenting, the final
  regulations:
  • Define the terms “pregnancy or related conditions” and “parental status”;
  • Clarify the prohibition on discrimination against students and applicants for admission and employees or applicants for employment on the basis of current, potential, or past pregnancy or related conditions; and
  • Clarify a recipient’s obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.* *
• Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and maintaining records;
• Specify that a recipient must train a range of relevant persons on the recipient’s obligations under Title IX;
• Clarify that, except as permitted by certain provisions of Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and
• Clarify a recipient’s obligation to address retaliation.

The 19th News reported on LGBTQ+ advocates' call for President Biden to do more to protect transgender athletes. 

A coalition of equal rights supporters representing over 20 groups —  including LGBTQ+ advocacy groups the Human Rights Campaign, GLSEN and the Trevor Project — issued a joint statement on Friday arguing that the new regulations do too little to protect transgender athletes.

 

“This regulation does not go far enough in making the law’s protections clear for all student athletes,” the statement said. “Currently, 37 percent of transgender, nonbinary, and intersex youth live in states with laws that ban them from participating in sports consistent with their gender identity. As with all students, Title IX protects transgender, nonbinary and intersex student athletes from discriminatory policies, as the Biden administration has already argued in court and a federal appeals court upheld just this week.” 

 

The coalition called on the Biden administration to “finish the job” by leaving no doubt in the regulations that transgender, nonbinary and intersex student-athletes have protections under Title IX. 

 

Book Review, Not Everything is About Gender, Reviewing Judith Butler's New Book

Katha Pollitt, Books: Not Everything is About Gender, Atlantic

udith butler, for many years a professor of rhetoric and comparative literature at UC Berkeley, might be among the most influential intellectuals alive today. Even if you have never heard of them (Butler identifies as nonbinary and uses they/them pronouns), you are living in their world, in which babies are “assigned” male or female at birth, and performativity is, at least on campus, an ordinary English word. Butler’s breakout 1990 book, Gender Trouble, argued that biological sex, like gender, is socially constructed, with its physical manifestations mattering only to the degree society assigns them meaning. The book is required reading in just about every women’s-, gender-, or sexuality-studies department. Butler has won a raft of international honors and been burned in effigy as a witch in Brazil. How many thinkers can say as much? ***

The central idea of Who’s Afraid of Gender? is that fascism is gaining strength around the world, and that its weapon is what Butler calls the “phantasm of gender,” which they describe as a confused and irrational bundle of fears that displaces real dangers onto imaginary ones. Instead of facing up to the problems of, for example, war, declining living standards, environmental damage, and climate change, right-wing leaders whip up hysteria about threats to patriarchy, traditional families, and heterosexuality. And it works, Butler argues: “Circulating the phantasm of ‘gender’ is also one way for existing powers—states, churches, political movements—to frighten people to come back into their ranks, to accept censorship, and to externalize their fear and hatred onto vulnerable communities.” ***

In the United States, this politicized use of the word gender itself has not caught on as it has in much of the world, where, as an English word for which many languages have no equivalent, it is often used to attack feminism and LGBTQ rights as foreign imports. Still, as Butler notes, America’s Christian fundamentalists and far-right Republicans are fervently in the anti-gender vanguard, whether or not these groups actually use the word gender.