Friday, July 30, 2021
The author lets the research speak for itself as she explores the modern cultural manifestations of patriarchy, militant masculinity, and the church's role in sexism.
As journalists and academics tried to explain how evangelicals could bring themselves to vote for Trump, Du Mez argued that evangelical support was not a shocking aberration from their views but a culmination of evangelicals’ long-standing embrace of militant masculinity, presenting the man as protector and warrior.
“In 2016, many observers were stunned at evangelicals’ apparent betrayal of their own values,” Du Mez wrote. “In reality, evangelicals did not cast their vote despite their beliefs, but because of them.”***
Du Mez, who teaches at Calvin University in Grand Rapids, Mich., wrote that mainstream evangelical leaders such as John Piper, James Dobson and John Eldredge, preached a “mutually reinforcing vision of Christian masculinity — of patriarchy and submission, sex and power.”
“The militant Christian masculinity they practiced and preached did indelibly shape both family and nation,” Du Mez wrote.
Wednesday, July 21, 2021
This symposium addresses the relationship of diversity and pluralism to the judiciary. The phrase “Equal Treatment Under Law” was carved in the stone above the steps of the U.S. Supreme Court building, which opened in 1935. At the time, many schools were segregated by race, dozens of laws barred women from full participation in economic and political life, and discrimination based on gender identity was commonplace. The justices who sat on the Court and almost all the lawyers who argued before them were white.
Today, the Supreme Court’s stone inscription has become its motto. That phrase is read as if it always referenced an understanding of equality that has become central to the identity and the legitimacy of courts. Reducing the descriptive discrimination of prior eras, the judiciary now “looks” different than it did, and in that sense has come to be more “representative” by its partial reflection of the range of people appearing in courts.
Given judiciaries’ history of supporting legal discrimination, the sense that courts ought to belong to everyone is a major achievement. But to assess the impact of that shift requires analysis of three other major alterations in U.S. courts — the influx of a host of litigants newly entitled to pursue legal claims, the limited resources of many claimants, and the development of judiciaries’ institutional agenda, including supporting shifts away from public adjudication to more private forms of dispute resolution.
Research about diversification of judges has yet to look at the interaction among these changes. Much of the research has sought to tease out whether judges’ decisions in cases have changed in the wake of the entry of women judges. However, the “difference that difference makes” needs to be analyzed at institutional levels as well as by aggregating the decision-making of individuals. During the last century, judiciaries developed structural capacities to speak about the “administration of justice.” They gave meaning to this phrase through setting their own priorities, proposing new rules and legislation, developing education programs, and commissioning research and task forces on specific topics. Moreover, judiciaries honed their skills at lobbying for resources. As I detail, the entry of women and men of color into the legal profession affected these agendas. The affinity organizations they founded pressed courts to inquire into their own history and practices of bias and to respond through revising rules of ethics, doctrine, and practice.
Furthermore, a focus on a newly and partially diversified judiciary needs to be coupled with attending to other participants — disputants, lawyers, and the processes that courts use. That fuller picture makes plain that because so many people in courts have limited means, the aspiration that disputants have participatory participation remains illusive. The “justice gap” has become a shorthand for the point that courts and the social order in which they sit have yet to take steps sufficient to help under-resourced litigants.
Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed fines and fees as sources of income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions, levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality.
In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public, which has a place as of right in courts. Through doctrine and rules, U.S. courts have shifted their own practices and mandated enforcement of clauses imposed on consumers and employers that push them out of court and out of class or joint actions.
In sum, the new faces on the bench ought not obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice.
Tuesday, July 13, 2021
Menstruation Discrimination under the Pregnancy Discrimination Act and the Problem of Shadow Precedents
Deborah Widiss, Menstruation Discrimination and the Problem of Shadow Precedents"
Columbia Journal of Gender and the Law, Forthcoming
The movement calls attention to menstruation-related discrimination in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination could violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed to override a Supreme Court case that had held pregnancy discrimination was not sex discrimination.
This essay, written for a symposium at Columbia Law School, applies my earlier research on the statutory interpretation of Congressional overrides to highlight two potential challenges this nascent litigation campaign may face, and to suggest how to avoid them. The first risk is that courts will simply deny such claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second—which is more subtle, and also perhaps more likely—is that courts could find such discrimination to be actionable, but do so relying solely on the PDA’s explicit reference to “medical conditions” related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that do not include comparable language.
Theorists and advocates should instead seek to establish that menstruation discrimination is discrimination the basis of “sex” itself, in that it is a condition linked to female reproductive organs (although transmen and boys and non-binary persons may also menstruate) and associated with stereotypical assumptions about women’s proper role in society. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress’s disapproval with the Supreme Court’s unduly cramped understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.
Monday, July 12, 2021
Matthew Jennejohn, Samuel Nelson, D. Carolina Nunez, Hidden Bias in Empirical Textualism, 109 Georgetown L.J. 767 (2021)
A new interpretive technique called “corpus linguistics” has exploded in use over the past five years from state supreme courts and federal courts of appeals to the U.S. Supreme Court. Corpus linguistics involves searching a large database, or corpus, of text to identify patterns in the way in which a certain term is used in context. Proponents of the method argue that it is a more “empirical” approach than referencing dictionaries to determine a word’s public meaning, which is a touchstone in originalist approaches to legal interpretation.
This Article identifies an important concern about the use of corpus linguistics in legal interpretation that courts and scholarship have overlooked: bias. Using new machine learning techniques that analyze bias in text, this Article provides empirical evidence that the thousands of documents in the Corpus of Historical American English (COHA), the leading corpus currently used in judicial opinions, reflect gender bias. Courts and scholars have not considered that the COHA is sexist, raising the possibility that corpus linguistics methods could serve as a vehicle for infecting judicial opinions with longstanding prejudices in U.S. society.
In addition to raising this important new problem, this Article charts a course for dealing with it. It explains how hidden biases can be made transparent and introduces steps for “debiasing” corpora used in legal interpretation. More broadly, it shows how the methods introduced here can be used to study biases in all areas of the law, raising the prospect of a revolution in our understanding of how discriminatory biases affect legal decisionmaking.
Wednesday, June 30, 2021
Study Shows Benevolent Sexism in Judges in More Favorable Decisions for Women in Child Custody Relocation and Criminal Sentencing Cases
Jeffrey Rachlinski & Judge Andrew Wistrich, Benevolent Sexism in Judges, 58 San Diego L. Rev. 101 (2021)
Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We tested for benevolent sexism among 714 sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation by a mother than by an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings.
Tuesday, June 15, 2021
On June 6, 2021, Mexico implemented its constitutional mandate for “gender parity in everything” for the first time. All eyes were on the 15 governors’ seats up for grabs, with Mexico becoming the first country in the world to require that parties nominate women for governors’ races.
Women ultimately won five states: Baja California, Chihuahua, Colima, Guerrero and Tlaxcala. Votes are still being counted in Campeche, but the woman candidate has the edge, and her victory would mean Mexico elected six women governors—over one-third of the races in contention and more than ever elected at once in the United States.
True, women’s victories are concentrated in the states outside Mexico’s power centers, because that’s where parties mostly sent women candidates. Nonetheless, women will play leading roles in Mexico’s future.***
The idea of gender quotas for women candidates goes back nearly 50 years, to the United Nations’ First World Conference on Women, coincidentally held in Mexico City in 1975. At the time, the U.N. recommendations merely emphasized the importance of women’s political inclusion, but women activists and elected officials knew party leaders would need requirements, not pretty words. So in Latin America and elsewhere, women began pushing party leaders to set targets for nominating women.
In 1991, Argentina became the first country in Latin America and the world to adopt a 30 percent gender quota law for women candidates. Mexico followed, with a 1996 law recommending that parties nominate 30 percent women for the federal Congress, and a 2002 law requiring them to do so. Key to this shift was Mexico’s democratization.
Tuesday, June 8, 2021
Deborah Weissman, Gender Violence, the Carceral State, and the Politics of Solidarity, forthcoming, University of California, Davis
Legal epistemologies have tended to ignore issues of gender violence, in large measure because much of the law itself has been implicated in the normative arrangements through which such harms are sustained. State violence against women was practiced as a facet integral to colonial expansion. Gender violence has a long history of legal sanction and political “authorization,” including enslavement, subjugation, and rape of indigenous women. Chattel slavery and Jim Crow laws legalized all forms of abuse of Black women. Forced sterilization and the eugenics movement impacted all women, but especially poor women and almost always women without representation, including Black, brown, and immigrant women. Rape laws favored male propertied interests over women’s rights.
As the principal victims of gender violence, women obtained meager remedy of such harms until feminist mobilizations confronted the problem. Feminist demands to resituate gender violence from the margins of social concern into mainstream public debate found a receptive political environment in the law-and-order climate of the 1970s and 1980s. The criminal legal system thus expanded networks of carceral responses with little regard for safety or ending the problem of gender violence but rather produced pernicious outcomes that resulted in new forms of harms with devastating consequences.
The present re-evaluation of methods of policing and the practice of incarceration offers an occasion to examine prevailing approaches to gender violence. Anti-carceral advocates have urged a shift away from criminal system responses and have campaigned to curb police violence within newly imagined strategies for public safety. The criminal legal system has tended to produce and reproduce patterns of racism and poverty. That it functions in similar fashion to gender violence has received less attention.
These considerations provide the framework of this article: to examine the ways that crimes of gender violence can be accommodated within progressive criminal reform campaigns and included within the broader struggle for social justice, all at a time of a shifting cultural response to crime. It argues that anti-carceral proponents must consider whether the response to gender violence is to be included within other criminal legal reform movements, including recent initiatives to address abusive police practices, bail reform, and COVID-19 compassionate release campaigns. At this present “moment of agitation,” it is both timely and urgent that scholars and advocates contemplate strategies that incorporate gender violence issues within a progressive anti-carceral agenda and to acknowledge the connection between harmful acts within interpersonal relationships and the failure of the State.
The article proposes a “politics of solidarity,” that is, a broad lens through which to address gender-based violence as a social problem conditioned by the failures of a political economy that acts to perpetuate inequality and racism. It suggests that anti-carceral strategies that center gender violence may help to strengthen the broad demands for a more progressive political economy which then mitigates the determinants of transgressive behaviors.
Friday, May 28, 2021
Jonathan Adler, Volokh Conspiracy, Sixth Circuit Enjoins Use of Race and Sex Preferences for Coronavirus Relief Funding
Yesterday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted a temporary injunction barring the Small Business Administration from prioritizing applications for COVID-19 relief funding based upon the race or sex of the business owner applying for the relief. Judge Amul Thapar wrote for the court, joined by Senior Judge Alan Norris. Judge Bernice Donald dissented.
Judge Thapar's opinion in Vitolo v. Guzman begins with a simple and straightforward description of the case and holding: "This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants. We hold that it cannot."
The policy at issue prioritizes applications for relief funding from businesses owned by women and racial minorities. The American Rescue Plan Act of 2021–the most recently enacted coronavirus relief bill–authorized $29 billion for restaurant owners suffering economic hardship. The money is allocated to qualifying businesses on a first-come, first-served basis until the funding runs out. The catch, however, is that for the first 21 days of processing applications, the SBA will only consider applicants that are at least 51 percent owned and controlled by women, veterans or the "socially and economically disadvantaged." This latter category is defined to cover those who have been "subjected to racial and ethnic prejudice" or "cultural bias," and the SBA presumes that members of specific racial and ethnic groups satisfy this criterion. According to the plaintiffs in this case, this policy constitutes unconstitutional race and sex discrimination, as those who are not members of the relevant groups risk missing out on relief funding. In its defense, the government acknowledged the use of race and sex to prioritize relief applications, but argued that the limited use of race and sex here was nonetheless constitutional.***
Although the government argued the policy was justified to remedy past societal discrimination, the majority noted that the Supreme Court has held that the use of race to remedy past discrimination only when three criteria are met: 1) "the policy must target a specific episode of past discrimination," and not societal discrimination at large; 2) "there must be evidence of intentional discrimination in the past," not merely statistical disparities; and 3) "the government must have had a hand in the past discrimination it now seeks to remedy." The court further concluded that even if a compelling interest had been shown, the policy in question was not narrowly tailored to satisfy that interest.
The opinion is here: Vitolo v. Guzman (6th Cir. May 27, 2021)
Thursday, May 6, 2021
Katharine Baker, Equality and Family Autonomy, Forthcoming Univ. of Pa. J of Con. Law
Contemporary family law scholarship and a growing body of doctrine often assume that a functional approach to family law – treating those who have acted like family as family – is the best way to secure equal treatment for people who live in relationships that have not been recognized legally as familial. This article argues that these functional claims, made in the name of equality, inevitably disrupt the very protection they are asking for because they undermine principles of family privacy and autonomy. In unpacking the benefits of a robust family autonomy doctrine – benefits that are crucially important to communities of color and LGBTQ communities - this article challenges not only the functional turn in family law, but feminist scholarship that has been critical of family autonomy and privacy doctrine. Building on the consistent defense of privacy that emanates from women scholars of color, this article demonstrates how functional analyses demand interference and judgement that is likely to tear at the fabric of minority communities. Functional approaches vest judges with the power to define who a family is and what it should look like. This article shows how when judges do this in the parental area, they reify dyadic, heteronormative, usually white middle class notions of parenthood. When they do it in the context of cohabitation, they reify gender roles and a morality that assumes the ubiquity of long-term conjugal relationships. Thus, the functional turn, hailed as progressive, actually re-inscribes traditional understandings of family relationships.
Friday, April 23, 2021
My latest article on the history and meaning of the 19th Amendment.
Part of the symposium with many great scholars in law, history, and gender including Jessica Clarke, Jill Hasday, Martha Jones, Serena Mayeri, Kyle Velte, Barbara Welke, and Joan Williams.
Tracy Thomas, Reclaiming the Long History of the "Irrelevant" Nineteenth Amendment, 105 Minnesota L.Rev. 101 (2021)
The Nineteenth Amendment has been called an “irrelevant” amendment. The women’s suffrage amendment has been deemed insignificant as a constitutional authority, reduced to a historical footnote. In the Supreme Court canon, it has been diminished as a text that “merely gives the vote to women.” With the accomplishment of that simple task, the amendment has been assumed to offer little guidance to modern constitutional analysis or gender equality. The Nineteenth Amendment has become a “constitutional orphan,” disconnected from its historical origins and precedential place in constitutional jurisprudence.
This constricting view of the Nineteenth Amendment ignores the structural implications and significant history of this gendered amendment and women’s seventy-two-year fight for equal citizenship. Historical and legal narratives fail to capture a full understanding of the factual, legal, and normative steps and effects of the amendment. This article seeks to correct that conventional narrative by offering a more inclusive, yet concise, overview of the Nineteenth Amendment. The history demonstrates women’s longstanding demands for equal rights, the complexity of those demands, and the depths and racial tones of the opposition. The article then argues that this constitutional history is relevant to interpreting constitutional guarantees of gender equality today. Using historical justifications, it joins other legal scholars in arguing for a more robust reading and constitutional meaning of the Nineteenth Amendment.
Tuesday, April 6, 2021
I had always hated Hemingway. He was, after all, the classic misogynist.
It seemed I was forced to read Hemingway every year in school. Farewell to Arms, The Sun Also Rises, For Whom the Bell Tolls, The Snows of Kilimanjaro, The Old Man and the Sea. I read them all, against my will. To me they were boring stories about men. The words were short, cold, and devoid of beauty or lyricism. The topics were harsh and violent -- masculine topics of war, bullfighting, and big game hunting. Moreover, the works were filled with hateful depictions of women. Women were crazy harpies, tempting devils, or dead mothers. In Hemingway’s semi-autobiographical accounts, women were merely the women objects of antipathy, perhaps like the many wives that he continually traded in like cars.
So when I heard that PBS was featuring a new documentary series on Hemingway, I rolled my eyes and thought, “how tone deaf.” How misguided to hear yet again about a privileged white man, and one who had already received his acclaim. In this time of intense public debate of race and gender, in this time when so many women and people of color have not yet been recovered, why return to the same old story. For indeed, I had not encountered even famous writers like Zora Huston Neale or Daphne du Maurier until my own independent reading, long after school. But, like so many things that one dismisses, I discovered more complexity and nuance in Hemingway’s story, particular in the realm of gender.
The film reveals Hemingway not as a model of masculinity, but as a man battling with his own masculinity. Understanding this as toxic masculinity, changed the narrative for me. We learn of Hemingway’s Freudian early years with a mother who wrote him a rejection letter, and dressed him like a twin to his sister. We then understand his early attraction to two older woman, maternal figures, one of whom becomes his first wife. We see the author constrained by family demands--fighting for the time to write and feed his creative muse, diverted by screaming babies, marital demands, and unpaid bills until he can get alone, on the road or with his thoughts. This is all juxtaposed against the raucous pull of the popular writing crowd, with their carousing and attention-seeking affairs.
The film also shows us a broader range of topics that occupied Hemingway’s mind beyond bulls, bullets, and booze. One of his earliest stories, Up in Michigan, was about date rape. A shocking story that barely saw the publishing light, writer Edna O’Brien explains as actually told from the woman’s perspective, which is why it was so powerful. He wrote about abortion, suicide, STDs, childbirth, Caesarean sections, and death in childbirth – grim accounts of women (and men’s) reality. A later work, published posthumously, engages with transgender and same-sex attraction.
The short words took on new meaning for me as well. Rather than just a mimic of his journalism years, the short words were explained as a revolution in writing that left behind conventional indicators of writing prowess. I discovered the beauty of the short form, in the repetition of the same words that function as the action itself, as when repeating words form the march of the soldiers. Right, left, right, left, right, left. Like lawyers learning the impact of plain, unaffected writing, I could now appreciate the power of the staccato, and what the film describes as musical. The film reveals these words slowly on the screen, literally showing us the beauty of the typed word as Jeff Daniels' voice-over reads aloud.
This all came together for me in the discussion of the short story, Hills Like White Elephants. In this story, a man pressures his lover, “the girl,” to get an abortion. Most of the story is the man controlling the conversation, working through various points to win the argument, eventually gaslighting his partner, claiming, “I only want what you want.” He is dismissive of the way in which the young woman sees the world, whether its her vision of the looming white elephants overshadowing their lives or the personal and relational consequences of the abortion. Eventually, the young woman demands: "Would you please please please please please please please stop talking?"
PBS, Video, Hemingway, Gender and Identity
Friday, April 2, 2021
Sixth Circuit Allows Professor's First Amendment Suit to Proceed, Challenging Discipline for Refusal to use Transgender Student's Preferred Pronouns
The Cincinnati-based 6th U.S. Circuit Court of Appeals has reinstated a First Amendment lawsuit by a public college professor in Ohio who violated school policy by refusing to use a transgender student’s preferred pronouns.
The 6th Circuit ruled for Shawnee State University philosophy professor Nicholas Meriwether in a March 26 opinion by Judge Amul Thapar, an appeals court appointee of President Donald Trump. Thapar was viewed as a potential U.S. Supreme Court nominee during Trump’s presidency.
Meriwether, a devout Christian, believed God created humans as male or female, and said using preferred pronouns to refer to a student in his class violated his religious beliefs.
The student had protested after Meriwether referred to her as “sir.” University policy required professors to use students’ preferred pronouns, and Meriwether received a written warning.
Meriwether proposed a compromise where he would refer to the student only by her last name. At first it was accepted, but was later rejected. The university said Meriwether should either stop using all sex-based pronounds in his classroom, or he should refer to the transgender student as a female.
Meriwether sued for free speech and free exercise violations under the First Amendment, and due process and equal protection violations of the 14th Amendment. A federal judge tossed the claims, but the 6th Circuit reversed as to the First Amendment claims.
Friday, March 19, 2021
Honored to receive the 2021 Beyer Award for Best Faculty Publication for my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, XV Stanford J. Civil Rights & Civil Liberties 349 (2020).
The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.
This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.
This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.
Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)
From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.
A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.
Hat tip Lisa Tetrault
Friday, March 5, 2021
Adam Chilton & Mila Versteeg, The Effect of Constitutional Gender Equality Provisions,
During the second-half of the twentieth century, provisions guaranteeing gender equality became a common feature of national constitutions. In that same period, de facto gender equality noticeably improved around the world. It is not clear, however, whether these trends are related. We explore the relationship between constitutional gender equality provisions and de facto gender equality using three different research methods: (1) cross-country regressions using data on national constitutions and gender equality; (2) a natural experiment made possible by the forced inclusion of a gender equality provision in Japan’s constitution; and (3) a survey experiment conducted in Japan on the effect of information on Japan’s legal obligations and support for reforms that would improve gender equality. Across all three methods, we find no evidence that constitutionalizing the right to gender equality translates into improved de facto gender equality. We conclude by offering some suggestive evidence that provisions guaranteeing maternity leave and protecting motherhood may be associated with improved gender equality, but these findings need further investigation.
Wednesday, February 24, 2021
Beverley Baines, Federalism and Women's Equality Campaigns in Canada, final version available in Jill Vickers, Joan Grace and Cheryl Collier (eds) Handbook on Gender, Diversity and Federalism, Edward Elgar Publishing Ltd, 2020 http://dx.doi.org/10.4337/9781788119306.00022)
The three recent campaigns to constitutionalize women’s equality rights resulted in section 28 of the Canadian Charter of Rights and Freedoms, section 35(4) of the Constitution Act, 1982, and section 50.1 of the Quebec Charter of Human Rights and Freedom. The virtually identical wording of these laws belies significant differences among these campaigns. This chapter identifies these differences by applying Judith Resnik’s concept of federalism, Jill Vickers’ concept of gender, and Davina Cooper’s concept of diversity (GDiv) to the campaigns. The concepts reveal campaign narratives that submerged multicultural, indigenous, and intercultural identities. I borrow Vrinda Narain’s concept of intersectionality to argue that dialogues about the differences between women whose identities are submerged and mainstream women should inform feminist scholarship about the interpretation(s) of sections 28, 35(4) and 50.1.
Friday, February 19, 2021
Symposium: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment, Minnesota Law Review
Symposium “Glass Ceilings, Glass Walls: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment," Minnesota Law Review, April 1 & 2, 2021
The Nineteenth Amendment was a milestone for women’s rights but has often been criticized for being passed at the expense of people of color. Our 2020-21 Symposium will look back on the one hundred years since women were given the right to vote using a rough chronological approach. We will open the day with a historical overview of the Nineteenth Amendment, discussing who contributed to its ratification and who was left out after its passage. This background will create a basis for our subsequent gender equality conversations around the Equal Rights Amendment, Gender Identity and Sexual Orientation, and the #MeToo Movement, culminating in a panel discussing the current state of voting rights. Our Keynote speaker Desmond Meade will present about his role in fighting for legislative change in Florida to restore the right to vote to 1.4 million Floridians.
Registration for the Symposium is free and CLE credits are expected.
Symposium Speakers and Authors
Keynote Speaker: Desmond Meade, President and Executive Director of Florida Rights Restoration Coalition (FRRC)
As President and Executive Director of FRRC, which is recognized for its work on voting and criminal justice reform issues, Desmond led the FRRC to a historic victory in 2018 with the successful passage of Amendment 4, a grassroots citizen’s initiative which restored voting rights to over 1.4 million Floridians with past felony convictions. Amendment 4 represented the single largest expansion of voting rights in the United States in half a century and brought an end to 150 years of a Jim Crow-era law in Florida. Desmond is the author of the book “Let My People Vote” which shares the great journey of him crossing the finish line in restoring 1.8 million citizens’ right to vote.
Kat Calvin, Founder and Executive Director of Spread The Vote and Co-Founder and CEO of the Project ID Action Fund
Jessica Clarke, Professor of Law and FedEx Research Professor and Co-Director of the George Barrett Social Justice Program, Vanderbilt Law School
Jill Elaine Hasday, Distinguished McKnight University Professor and Centennial Professor in Law, University of Minnesota Law School
Phylicia H. Hill, Counsel, Economic Justice Project, Lawyers’ Committee for Civil Rights Under Law
Martha S. Jones, Society of Black Alumni Presidential Professor and Professor of History and the SNF Agora Institute, John Hopkins University
Serena Mayeri, Professor of Law and History, University of Pennsylvania Carey Law School
Terry Ao Minnis, Senior Director of Census and Voting Programs, Asian Americans Advancing Justice – AAJC, and Senior Fellow, Democracy Fund
Tracy A. Thomas, Seiberling Chair of Constitutional Law and Director of the Center for Constitutional Law, University of Akron School of Law
Kyle C Velte, Associate Professor of Law, University of Kansas School of Law
Joan C. Williams, Distinguished Professor of Law, Hastings Foundation Chair and Director of the Center for WorkLife Law at the University of California, Hastings Law
Thursday, February 18, 2021
The White House will soon have a Gender Policy Council.
The council — like many parts of the Biden administration — has its roots in eras past, but a new name, a new structure, a full-time leader and a larger staff will help keep gender issues — and yes, “women’s issues” (no eye-rolling, thank you) — at the center of almost everything the administration does.
Consider this: The council will not be relegated to some distant, dusty government building. It will find its home in the White House and it intends to have high-level representation in all offices, including the Council on Economic Advisers and the Defense Department. And it will directly collaborate with every agency across government, working on all of the issues that touch American lives, most notably women’s lives, such as national security, health care and economics. Amid two crises — a pandemic and an economic downturn — that have devastated women professionally and personally, the Gender Policy Council will play a critical role in pushing forward President Biden’s agenda.
All it’s waiting for is Mr. Biden’s signature.
Leading the effort will be two co-chairs: Julissa Reynoso, who served as ambassador to Uruguay, and Jennifer Klein, who served as senior adviser to Hillary Clinton, then the first lady.
“This is not just a council,” Ms. Klein said in the first interview that they have given since being appointed as co-chairs. “It’s a plan to take a government-wide approach to gender equity and equality.”
That way, Ms. Klein explained, the policy areas traditionally viewed as women’s issues — the pay gap, sexual harassment, reproductive health and child care — won’t be separated from the administration’s broader priorities like climate change or infrastructure.
Friday, February 12, 2021
Using Emerging Science of Women's Sex-Based Brain Differences of Emotional Harm to Support a Reasonable Woman Standard
Betsy Grey, Sex-Based Brain Differences and Emotional Harm, 70 Duke L.J. Online 29 (2020)
Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.
This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims.
Tuesday, February 9, 2021
Jennifer Hendricks, Disputed Conceptions of Motherhood, forthcoming, Oxford Handbook of Feminism and Law in the U.S. (Deborah Brake, Martha Chamallas & Verna Williams, eds.)
This chapter, which will appear in the Oxford Handbook of Feminism and Law in the U.S. (Deborah Brake, Martha Chamallas & Verna Williams, eds.), examines feminist efforts to disentangle womanhood, biological motherhood, and social motherhood in order to promote equality in the law. It argues that this approach has produced important feminist influence and results in some areas of law but has led to a lack of feminist influence in areas where biological and social motherhood overlap, such as parental rights, reproductive technology, and surrogacy. Just as the law needed a theoretical boost that went beyond gender neutrality to see the gendered harm of sexual harassment at work, it needs a feminist account of pregnancy and birth that recognizes that these biological processes have social, relational dimensions.