Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, January 22, 2020

The Historical and Legal Significance of Virginia's Recent Ratification of the Equal Rights Amendment

In this interview, I offer my thoughts on the history and future of the ERA.

Wisconsin NPR, Central Time, Virginia Just Ratified The Equal Rights Amendment: What Does That Mean?nt-what-does-mean

Virginia’s General Assembly passed the Equal Rights Amendment recently, becoming the 38th state to do so, nearly four decades after a controversial deadline passed. A legal scholar shares the history of the ERA, what the Virginia vote means and where the effort goes from here.

Download

January 22, 2020 in Constitutional, Gender, Legal History, Legislation | Permalink | Comments (0)

The Arguments as to Why the ERA Can Still be Ratified Now–After the Deadline

History of ERA Passage

The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979.  Congress extended the deadline to 1982.  President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote.  See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977). 

Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states.  Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment.  Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states.  Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.

Current Challenges to ERA Ratification

In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted.  Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019).  They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.

The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA.  Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020)  The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.

Arguments in Support of Ratification Today

So what do proponents of ERA say?  There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.  

1.  The original deadline is not mandatory.

        a.      Deadlines are not required for constitutional amendments.  The first 17 amendments did not have a deadline.

        b.      The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore   is not binding as part of the ratification.

        c.    The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect.  In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.

                i.  The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect.  Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention. 

                ii.  Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years.  The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect.  It was originally proposed in 1789 as the Second Amendment.  While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.

2.  Congress has the power to modify the deadline

        a.     The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify.  As a procedural matter, only a majority of the congressional houses is required.

        b.      The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.

        c.      The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed.  In Coleman, the Child Labor Amendment was pending for thirteen years.  It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states. 

        d.     Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.

Rescinded Ratifications

If the deadline does not apply, then the question is whether states can rescind their past ratification.  The precedent of the Fourteenth Amendment suggests no.  Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable. 

In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes.  Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided).  The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.

January 22, 2020 in Constitutional, Gender, Legal History, Legislation, SCOTUS | Permalink | Comments (0)

Friday, January 17, 2020

Virginia Passes Equal Rights Amendment in Historic Vote Making it the Pivotal 38th State to Ratify

Virginia Passes Equal Rights Amendment in Historic Vote

Both chambers of Virginia’s General Assembly passed the Equal Rights Amendment Wednesday, fulfilling a promise that helped Democrats seize control of the legislature and marking a watershed moment in the nearly century-long effort to add protections for women to the U.S. Constitution.

 

The lopsided votes capped an emotional week in which Democrats — particularly female lawmakers, who now hold unprecedented positions of power in Richmond — celebrated history in the making.

 

The House gallery was packed beyond its 102-seat capacity, with Virginia first lady Pam Northam and her daughter, Aubrey Northam, making a rare appearance to bear witness. ERA supporters attended from around the country, many wearing sashes from long-ago marches for women’s equality.

 
“What happens in Virginia impacts the entire country and will reverberate across the globe,” said Betty Folliard, the founder of ERA Minnesota, who traveled to Richmond to watch the votes.

 

Numerous legal hurdles still have to be cleared before the ERA, which prohibits discrimination based on sex, would become part of the Constitution. Critics say various deadlines for ratification have long since passed.

 

But supporters were jubilant that Virginia, after years of failure, is poised to become the 38th state to approve the amendment. They pledged to mount a massive national campaign to enact it.

January 17, 2020 in Constitutional, Gender, Legislation | Permalink | Comments (0)

CFP Taxation and Gender Equality

Announcement of Conference and Call for Contributions

 Taxation and Gender Equality Conference:

Research Roundtable and Policy Program

 

As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.

The Conference will begin on Monday, September 14, 2020 at the Washington, DC, offices of Pillsbury Winthrop Shaw Pittman with a research roundtable featuring principally academic papers. The research roundtable will follow the format typical of academic conferences, providing ample time for conversation among participants. 

The second day of the Conference, Tuesday, September 15, 2020, will be held at the Urban-Brookings Tax Policy Center, also in Washington, DC. It will consist of a policy-oriented program of panel discussions bringing together academics, practicing attorneys, economists, policy makers, legislators and others to consider issues related to gender and taxation and to consider strategies for incorporation of gender-related concerns into everyday tax policy discourse. At least one panel will feature the recent work undertaken by the National Women’s Law Center exploring the relationship between taxation and gender (see https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/11/NWLC-Tax-Executive-Summary-Accessible.pdf).

We are now seeking participants interested in contributing either to the research roundtable or to the policy program (or to both). Participants can be legal academics, economists, legal practitioners, government officials, policy researchers, or others with an interest and expertise in tax law and its administration. Contributors from the United States as well as other countries are welcome.

Scholars, analysts and policymakers of all levels of seniority and from all disciplines are invited to submit proposals for consideration for inclusion in panel discussions.  We expect that for each day of the program, there will be approximately 5-10 speaking slots available. Contributions to be presented at the research roundtable should be works in progress, not published (or committed to publication) prior to the conference.  Contributions to be presented as part of the policy program may be works in progress or may be work published (or committed to publication) prior to the conference. A brief description of possible panel topics to be addressed in the policy program is provided below; please understand that this listing is intended to provide directional guidance on possible panel and research paper topics and should not be viewed as limiting the potential issues to be addressed.

Those interested in presenting at either the research roundtable or the policy program portion of the Conference should send an abstract of no more than 500 words describing their proposed presentation, an indication of whether the proposal is for the research roundtable or the policy program, and a copy of their CV to Alice Abreu at taxandgender@temple.edu. If the proposed panel presentation is based on a published or soon-to-be-published work, please also attach a copy or draft of the work. Expressions of interest are due by March 15, 2020. The Academic Advisory Committee expects to notify accepted participants by May 1, 2020. Accepted participants should submit circulation drafts of the work to be presented no later than August 14, 2020.  Selected participants may be invited to publish their completed papers in The Tax Lawyer or may choose to publish elsewhere. (The Tax Lawyer is the flagship scholarly journal published by the Tax Section of the American Bar Association and is published in cooperation with the Graduate Tax Program of the Northwestern University Pritzker School of Law; it has a robust circulation both in print and through electronic access).

Limited funding may be available for reasonable travel expenses of those selected to present their work; in your expression of interest please indicate whether you will need financial assistance to participate in this event.  There is no fee for attending the conference. The conference will be webcast and is open to members of the public.

We look forward to hearing from many interested potential contributors.

Organizers: Julie Divola (Pillsbury Winthrop Shaw Pittman and American Tax Policy Institute), Elaine Maag (Tax Policy Center), and Alice Abreu (Temple Center for Tax Law and Public Policy and American Tax Policy Institute)

Academic Advisory Committee:  Alice Abreu (Temple), Bridget Crawford, (Pace) Anthony Infanti (Pittsburgh), Ariel Kleinman (San Diego), and Stephen Shay (Harvard)

POSSIBLE DISCUSSION TOPICS

The following is a representative list of panel topics for the policy program.  Final panel topics will be determined based upon the abstracts received in response to this Call for Contributions.

  1. In general:  A review of the positive and negative (intentional and unintentional) impacts of tax laws on gender equality, including a broad discussion of the form such tax laws can take (e.g., the marriage penalty, deductions or exemptions for entrepreneurial efforts,  consumption vs. income taxes, wage withholding taxes, pink taxes, corporate tax expenditures). 
  1. Impacts of U.S. tax laws on gender equality.  Possible topics for separate panels include:
    1. Specific issues under the TCJA.
    2. A comparisons of gender equality issues as reflected in the tax reform proposals advanced by the current presidential candidates.
  1. One or more topics covered in three interrelated reports prepared by the National Women’s Law Center (NWLC) that examine the federal tax code with a focus on gender and racial equity and explore policies to make the tax code work for everyone.  (See (i) The Faulty Foundations of the Tax Code:  Gender and Racial Bias in Our Tax Laws, (ii) Reckoning with the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security and (iii) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws at https://nwlc.org/resources/gender-and-the-tax-code/.)  The papers were prepared by NWLC in collaboration with Groundwork Collaborative, the Roosevelt Institute, and the Georgetown Center on Poverty and Inequality. 
  1. Impact of U.S. tax administration (including collection and other enforcement efforts) on gender equality (e.g., innocent spouse relief).
  1. Discussion of the economic impact of tax laws that influence gender equality (e.g., distributional effect on how income is distributed between the sexes and allocative effect on how paid and unpaid labor is allocated between the sexes).  General discussion of the connection between gender equality and economic growth.
  1. Examination of tax systems in countries that have historically been more thoughtful than the United States on the question of taxation and gender equality, including measures such countries have taken to advance the issue.  For example, the German Technical Cooperative has a program to support OECD partner countries in their efforts to reform tax policy and tax administration to avoid or eliminate gender bias.
  1. Examination of the impact of tax laws on gender equality in developing countries.  For example, the International Centre for Tax and Development with support from the Bill and Melinda Gates Foundation has done research in this area.
  1. Use of gender-neutral language in the tax law and government publications and encouraging equivalent use of names that suggest male, female, and indeterminate genders and the accompanying pronouns.

January 17, 2020 in Call for Papers, Conferences, Gender | Permalink | Comments (0)

Tuesday, January 14, 2020

Justice Department OLC Issues Opinion Declaring Equal Rights Amendment Dead Due to Expired Ratification Deadline

Justice Department Says Equal Rights Amendment is Dead; Virginia Ratification Can't Revive It

The Equal Rights Amendment has been dead for more than four decades, the Justice Department ruled Wednesday, and neither ratification by Virginia nor an effort to revive it by Congress can bring it back to life.

 

The Office of Legal Counsel, which serves as the in-house lawyers for the Executive Branch, said the deadline Congress set in 1972 for ratification is still valid, and has long since expired. Attempts to circumvent the deadline are futile, the lawyers said.

 

“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the states,” wrote Assistant Attorney General Steven A. Engel.

 

The opinion is binding on the National Archives, which is the federal agency tasked with certifying new amendments.

 

But activists are still expected to press their case in court, asking judges to rule the deadline illegal and the ERA still viable.

The opinion is Office of Legal Counsel, Ratification of the Equal Rights Amendment (Jan. 6, 2020).  From the summary abstract:

Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.


Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.

January 14, 2020 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Attorney Generals File Preemptive Lawsuit to Stop Equal Rights Amendment

3 GOP Attorneys General Filed A Suit to Stop the Equal Rights Amendment

The Equal Rights Amendment, which would ban discrimination on the basis of sex, was first proposed in 1923. Since then, 37 states have passed the amendment, or added a version to their state constitutions, but 38 are needed to enshrine it in the U.S. Constitution. Nearly 100 years later, Virginia could become that final, 38th vote in a matter of weeks. But three GOP attorneys general have filed a lawsuit to stop the Equal Rights Amendment from being added to the constitution — a move that ERA supporters have called anti-equality.

 

Virginia Attorney General Mark Herring tells Bustle that the lawsuit is "ridiculous." "The ERA is something that should have been passed and ratified a long time ago," he says. "It is past time for women's equality to be constitutionally guaranteed."

 

Congress first passed the Equal Rights Amendment in 1972 with a seven-year deadline for states to approve it. That deadline was later extended to 1982, but by then only 35 states had ratified it, according to NPR. The House has since introduced legislation to eliminate the deadline, and in the last few years, Nevada and Illinois passed the ERA, bringing the total number of states to ratify it to 37. When Virginia Democrats took back control of the state legislature in November 2019, the incoming House speaker, Eileen Filler-Corn, told The Hill that passing the ERA would be a "top priority" when the legislature started its next session.

 

In December, three GOP attorneys general from Louisiana, Alabama, and South Dakota filed a preemptive lawsuit in Alabama, arguing that the original ratification deadline is still enforceable and that five states — Nebraska, Tennessee, Idaho, Kentucky, and South Dakota — rescinded their ratifications. Alabama Attorney General Steve Marshall, one of the three who filed the lawsuit, said in a statement that adding the ERA to the constitution 40 years later ignores those recissions and the deadline. “The people had seven years to consider the ERA, and they rejected it," Marshall said in the statement. "To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order."***

 

Herring also notes that the constitution isn't clear on whether states can rescind their ratification — the issue isn't specifically mentioned in Article V. But in the past, states that have revoked their support for amendments have still been included in official tallies by both the secretary of state and Congress, suggesting that you can't really take back that decision.

 

In Marshall's statement about the lawsuit, he also said that the policy impacts of ratifying the ERA would promote a "far-left" agenda. "Where states have passed their own state-law versions of the ERA, courts have interpreted them to invalidate reasonable restrictions on abortion, require states to fund abortions, and mandate that boys be allowed to compete in sports against girls," he said.

January 14, 2020 in Constitutional, Gender | Permalink | Comments (0)

Monday, January 13, 2020

Gender and Racial Bias in the US Tax Laws

Ariel Jurow Kleiman, Amy Matsui & Estelle Mitchell, The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws,  San Diego Legal Studies Paper No. 19-423

This report examines the outdated assumptions and gender and racial biases embedded in the U.S. tax code. It highlights tax code provisions that reflect and exacerbate gender disparities, with particular attention to those that disadvantage low-income women, women of color, members of the LGBTQ community, people with disabilities, and immigrants.

January 13, 2020 in Gender, Legislation, Race | Permalink | Comments (0)

Tuesday, January 7, 2020

Dads as Allies for the Next Generation of Gender Equality

Michelle Travis (University of San Francisco School of Law) has just published a new book, Dads For Daughters: How Fathers Can Give Their Daughters a Better, Brighter, Fairer Future. It's available for pre-order on Amazon and is launching a the end of January from Mango Publishers. Here's the abstract:

 

For decades, women have been breaking down barriers, cracking the glass ceiling, and proving and re-proving themselves. Yet our next generation of girls is still growing up in a profoundly unequal world. It's time to expand our efforts and accelerate our progress toward equality. To do that, we need more men to get involved.

 

Dads For Daughters is an invitation for more to join the fight for women's rights. Inspired by their daughters, fathers are uniquely positioned to become powerful allies for girls and women. But in a post-#MeToo world, it can be difficult for men to step in and speak up. Despite these challenges, many men are still coming forward as ready, willing, and able supporters, who want to learn more about becoming part of the solution. That's where Dads For Daughters can help. This book arms fathers with the data they need to advocate for gender equality. It also provides role models by sharing inspiring stories of dads of daughters who have already had an impact. Most importantly, it offers concrete strategies and expert advice for how more men can get involved.

 

In this book, dads of daughters will find a wide range of options for where to focus their energy--from mentoring women to equalizing pay, from sports fields to science labs, from building empathy to combating gender bias, from boardrooms to ballot boxes. With every small step, dads have the power to make incredible change and support the progress of girls and women in their families, workplaces, and communities.

 

Dads For Daughters also offers women a practical guide for recruiting passionate men into action. It highlights successful strategies for working with men to support girls and women, along with resources for engaging men in gender equality initiatives. Women and men are stronger working together. Together, we can create a more successful future for all of our daughters to thrive.

 

 

January 7, 2020 in Books, Family, Gender | Permalink | Comments (0)

Friday, December 13, 2019

Improving Gender Diversity in Corporate Boards with Term Limits

Board Diversity by Term Limits?

Gender diversity in the U.S. corporate world is shockingly low. As The New York Times reported, fewer women run large corporations than CEOs named John. Boardrooms also lack diversity. While 86% of directors participating in PwC’s annual director survey stated they felt that women should comprise between 21% and 50% of the board, only 28% of Russell 3000 boards have more than one-fifth of their board comprised of women. Some U.S. boards do not even try to include women: 76 of the largest 1,500 Russell 3000 companies have not had any female directors in the past decade.

The investor community has made board diversity a recent point of emphasis. State Street, Vanguard, and Blackrock have all voiced their commitment to gender diversity, followed by recent support from proxy advisors. California has ventured even further, passing legislation that mandates specific quotas for women on Californian corporations. New Jersey and Illinois may soon follow suit. Diversity mandates, however, confront substantial legal, economic and societal challenges.

What if companies could advance gender diversity without explicitly regulating diversity at all? Our recent article, Board Diversity by Term Limits? forthcoming in the Alabama Law Review, explores how the use of director term limits can promote gender diversity in boardrooms, avoiding quota controversies altogether. While term limits have often been invoked as a tool to improve director independence and board oversight, they may be also effective in improving diversity. We demonstrate the negative correlation between incumbency and diversity to support our findings. Director turnover in the U.S. remains very low. Firms hesitate to force out incumbents, who typically believe they contribute to the firm in unique and essential ways. Furthermore, although perhaps not averse to the idea of hiring a woman, these leaders will eventually search among potential replacements for people whose skills mirror their own. The cycle self-perpetuates, locking women out of opportunities.

Our article explores this aforementioned connection between term limits and board diversity. Drawing upon quantitative data on director turnover in the S&P 1500 and qualitative data on S&P 500 firms with term limits, our research shows that firms experiencing higher board turnover have more gender diversity. A regression analysis of the S&P 1500 companies over the 2010-2016 period shown in Table 1 below depicts how a decrease in average board tenure correlates significantly with an increase in gender diversity. Conversely, a one-year increase in average board tenure results in a 0.24 percentage point decrease in female board percentage.

December 13, 2019 in Business, Gender | Permalink | Comments (0)

Wednesday, December 4, 2019

The Racialized and Sexually Exploitive US Citizenship Transmission Laws

Blanche Cook, Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (the 'WHP') or Johnny and the WHP, 31 Yale J. Law & Feminism (2019) 

Title 8, United States Code, Section 1409—one of this country’s citizenship transmission laws—creates a white hetero-patriarchal property right in philandering, sexual exploitation, and rape (the “WHP”). Section 1409 governs the transmission of citizenship from United States citizens to their children, where the child is born abroad, outside of marriage, and one parent is a citizen and the other is not. Section 1409, however, draws a distinct gender distinction between women and men: An unwed female American citizen who births a child outside the United States, fathered by a foreign man, automatically transmits citizenship to her child. An unwed male American citizen, by contrast, who fathers a child abroad with a foreign woman has the distinctly male prerogative to either grant or deny citizenship to his foreign-born non-marital child at his leisure.

On the surface, it might appear that § 1409 treats men and women differently because it is easy to determine a child’s mother, as opposed to a child’s father, at birth. In fact, a majority of the Supreme Court has deployed these “natural” differences between men and women to shield § 1409 from three separate gender-based equal protection challenges. Justice Ginsburg, however, has keenly observed, “History reveals what lurks behind § 1409.” What lurks behind § 1409 is a long legacy of white hetero-patriarchy deploying the legal category of citizenship to perfect sovereignty in itself and vulnerability in “foreign” women for the very purpose of sexual domination.

The historical model for this racialized regime of sexual domination is the classic case of Dred Scott, where the denial of citizenship to anyone of African descent further facilitated a white hetero-patriarchal property right in philandering, sexual exploitation, and rape. In Dred Scott, the exclusion of anyone of African descent from person-hood, through the legal mechanism of citizenship, perfected power in white men and vulnerability in racialized others. By excluding anyone of African descent from citizenship, enslaved owners continued to enjoy an unbridled property right in the use and enjoyment of the enslaved. The denial of citizenship to the enslaved facilitated their use as property. Following suit, § 1409 makes citizenship the property of men, through which they can exclude their non-marital foreign-born children from membership in the American polity. Section 1409 vests in these fathers not just a right to exclude their children, but to discard them, leaving them profoundly vulnerable to the sting of “illegitimacy,” ethnic and racial animus, and financial precarity — a form of destruction, while simultaneously empowering these fathers to sexually possess, control, use, and enjoy foreign women. Section 1409 understands all too well: in order to sexually exploit the mother, one must control the status of the child.

December 4, 2019 in Gender, International, Legal History, Race | Permalink | Comments (0)

AALS Programs on the History and Modern Implications of the 19th Amendment

Legal History Section, A Century of Women's Suffrage

2020 marks one hundred years since the Nineteenth Amendment was ratified, ushering in a century of women's suffrage in the United States. This program brings together scholars writing on the history of women's suffrage, including scholars who will explore the suffrage movement that culminated in the Nineteenth Amendment; address how the Nineteenth Amendment affected political parties in the subsequent century; and compare the women's suffrage movement to analogous social movements.

Speaker: Dr. Martha S. Jones, Johns Hopkins University

Speaker from a Call for Papers: Elizabeth D. Katz, Washington University in St. Louis School of Law

Speaker: Holly McCammon, Vanderbilt University Law School

Speaker from a Call for Papers: Kara W. Swanson, Northeastern University School of Law
 
Moderator: Evan C. Zoldan, University of Toledo College of Law
 
 
Women in Legal Education, A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?
This session will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, care taking, sexual freedom, and protection from violence. Despite significant success, much work remains. This session will consider the future of the women’s movement through a critical examination of our past.
Speaker from a Call for Papers: Lolita K. Buckner Inniss, SMU Dedman School of Law
Speaker from a Call for Papers: Nan D. Hunter, Georgetown University Law Center
Speaker from a Call for Papers: Leslie G. Jacobs, University of the Pacific, McGeorge School of Law
Moderator: Rona Kaufman, Duquesne University School of Law
Speaker from a Call for Papers: Diane J. Klein, University of La Verne College of Law
Speaker from a Call for Papers: Danaya C. Wright, University of Florida Fredric G. Levin College of Law
 
 
Constitutional Law Section:. The Constitution and the Modern Right to Vote

In honor of the 100th anniversary of the Nineteenth Amendment and the 150th anniversary of the Fifteenth, the Constitutional Law Section is putting on a joint program with the Section on Election Law (co-sponsored by the Section on Legal History). The program will run from 2 pm – 5 pm on Thursday, January 2nd in Virginia Suite C.

The overall program is described as follows:

While the constitutional amendments related to voting rights have suggested that all citizens ought to be included in the franchise, the modern right to vote has nonetheless been heavily contested. The efforts to meaningfully include all citizens in the franchise in the century after the Nineteenth Amendment (and the 150 years after the Fifteenth Amendment) have been complicated, fraught, and have often diverged from the underlying idea of inclusion. Tensions still exist in modern voting rights law regarding the meaning of the right to vote, as illustrated by the litigation and activism around issues such as partisan and racial gerrymandering, voter identification, and proof of citizenship requirements. These examples reveal the complexities of the project of democratic inclusion, and this panel will explore how those complexities have evolved and are manifest in today’s right-to-vote doctrine.

Panel 1 (2:00 pm - 3:30 pm): This panel will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage.

Speakers:   

Steven Calabresi, Northwestern University Pritzker School of Law
Paula A. Monopoli, University of Maryland Francis King Carey School of Law (selected from a Call for Papers)
Reva B. Siegel, Yale Law School
Julie C. Suk, The Graduate Center, City University of New York

Moderator:  Louis J. Virelli III, Stetson University College of Law

 

December 4, 2019 in Conferences, Constitutional, Gender, Law schools, Legal History | Permalink | Comments (0)

Wednesday, November 27, 2019

How a Credit Card Can be Sexist

Can a Credit Card be Sexist?

The Apple Card controversy illustrates how a history of bias in credit lending, coupled with discriminatory AI algorithms, hurt women

{T]he New York Department of Financial Services, prompted by Hansson’s tweets, announced it would open an investigation into whether Goldman Sachs discriminates on the basis of sex in the way it sets its credit limits. “Any algorithm that intentionally or not results in discriminatory treatment of women or any other protected class violates New York law,” a spokeswoman for the agency said in a statement Saturday.

 

Apple has deferred to Goldman Sachs for requests for comment. Andrew Williams, a spokesperson for the bank, said in a statement that Apple Card applications are “evaluated independently.” The company evaluates an individual’s income and an individual’s creditworthiness, which “includes factors like personal credit scores, how much personal debt you have, and how that debt is managed.”

 

“We have not and will not make decisions based on factors like gender,” Williams said. He added that the company is looking to enable joint family accounts in the future.***

 

The story illustrates how potential biases in credit lending manifest: On the one hand, women have long lacked credit parity with men — women only received legal protection from credit discrimination in the 1970s. But today, with the rise of AI algorithms determining everything from credit lending to hiring to advertising, women face another potential source of discrimination.

 

“These algorithms are trained on data that are a reflection of the world we live in or the world we lived in in the past,” says Meredith Whittaker, a research scientist at New York University and co-founder of the university’s AI Now Institute. “This data irreducibly imprints these histories of discrimination, these patterns of bias.”

 

That discrimination is “intersectional,” Whittaker says, and disproportionately hurts women of color.

***

 

Well into the 20th century, women struggled to get approved for credit cards. As the Smithsonian reports, any woman looking to open a card was subject to discriminatory questions — whether she was married, if she planned to have children. Many banks required single, divorced or widowed women to bring a man along with them to cosign for a card.

 

It wasn’t until 1974 that the Equal Credit Opportunity Act made it illegal for any creditor to take gender, race, religion or national origin into account. But discrepancies still exist today. An analysis from the Federal Reserve found that single women under 40 had lower credit scores than comparable single men, which reflected that single women had “more intensive use of credit” — an outcome, the study author notes, that may reflect economic circumstances, employment and “men and women being potentially treated differently by the credit market and institutions.” As many note, women’s lower credit is also tied to the gender pay gap.

November 27, 2019 in Business, Gender, Pop Culture | Permalink | Comments (0)

Monday, November 25, 2019

Woman Challenges UT Lewdness Statute as Unconstitutional, Stemming from Charge from Being Topless in her own Home in front of Step-Children

Utah Woman Charged with Lewdness After Being Topless in Her Own Home

A Utah woman has been charged with lewdness in her own home after her stepchildren walked into the room and saw her bare chest.

 

Attorneys for the American Civil Liberties Union of Utah argued this week that the statute under which Tilli Buchanan, 27, was charged is unconstitutional, and they have asked a judge to drop the charges against her and change the state law.

 

Buchanan and her husband had been installing drywall in the garage and had taken off their shirts that were itchy from the fibers, she told The Salt Lake Tribune.

 

When her stepchildren, aged 9, 10 and 13, walked in, she "explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing," her lawyers wrote in court documents, The Associated Press reports.

 

Now the state had charged Buchanan with three charges of lewdness involving a child. The charge is a Class A misdemeanor.

 

Though her husband was similarly clad, he was not charged with a crime.

 

The state's lewdness statute criminalizes exposure of "the female breast below the top of the areola" in the presence of a child in a private place "under circumstances the person should know will likely cause affront or alarm."

 

If convicted, Buchanan faces imprisonment, fines and the requirement to register as a sex offender for 10 years.

 

The charges were filed after the children's mother told that authorities she was "alarmed" by the incident, according the AP.

 

Buchanan's case raises a number of constitutional concerns, says Leah Farrell, an attorney at the ACLU of Utah.

 

To begin with, "the criminalizing of behavior that many people don't consider criminal, and is normal."

 

Most people wouldn't consider, for instance, that they "might be brought into court because of their dealing with their dirty clothes within their house. Anything that really extends the criminal justice system into people's homes in this way is something that we're interested in looking at closer," Farrell says.

 

And then there's the gender issue.

 

"Simply because Miss Buchanan is a woman, she is facing this charge," Farrell says. "Therefore, women throughout Utah are at higher risk of facing a criminal charge simply because of their gender. There are different ideas around what morality is or is not. But the state's reach to criminalize morality based on gender and gender stereotyping is incredibly problematic."

 

Farrell notes that the statute's language requiring women to predict whether going topless is likely to cause "affront or alarm" imposes an additional burden that is not required of men.

November 25, 2019 in Constitutional, Family, Gender | Permalink | Comments (0)

The Best Law Schools for Women Law Students

The Best Law Schools for Women

Ever since the 2016 election and the legal turmoil that began shortly after President Donald Trump’s swearing in (and has continued to this day), thousands of college graduates — and women in particular — have been inspired to go to law school.

As our readers know, the latest Princeton Review law school rankings are out, and today, we’ll focus on yet another incredibly important ranking during the #MeToo #TimesUp era in America, an era where a woman who’s a law school graduate could become the Democratic nominee for president: The law schools with the greatest resources for women.***

According to Princeton Review, these are the law schools where women stand on equal footing with their male classmates:

  1. Stanford University School of Law
  2. Vermont Law School
  3. University of the District of Columbia David A. Clarke School of Law
  4. New England Law – Boston
  5. University of Toledo College of Law
  6. UC Davis School of Law
  7. Washington University School of Law – St. Louis
  8. Brooklyn Law School
  9. Temple University Beasley School of Law

Law school may be the perfect place for women in America to resist, persist, and prove that the future is female. The law is a powerful tool, and we hope that women who want change will wield it wisely. 

November 25, 2019 in Gender, Law schools | Permalink | Comments (0)

Wednesday, November 20, 2019

The History of Constitutional Amendments for Women's Equality, from the 16th to the 19th to ERA

Here is a short piece I wrote for the American Bar Association's public education online magazine:

Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)

The Nineteenth Amendment to the U.S. Constitution guaranteeing women’s right to vote was passed by Congress one hundred years ago on June 4, 1919. Many[JD1]  states quickly ratified the amendment, though it would be a close call when the final state, Tennessee, pushed the amendment into law in August 2020. When first proposed, the vote or “suffrage” was just one of many civil and social rights demanded by women. But it became the primary focus of the women’s rights movement in the late nineteenth and early twentieth centuries, fueled by political allegiances with conservative temperance women and supported by focus on the vote as the primary right of citizenship as embodied in the new Fourteenth and Fifteenth Amendments. 

One year after the passage of the Nineteenth Amendment, women’s rights leaders resurrected the demands for gender equality in aspects of society by proposing the first Equal Rights Amendment (ERA) in 1921. The ERA would have guaranteed that civil and legal rights cannot be denied “on the basis of sex.” From the beginning, however, the ERA was met with opposition including from women themselves, with conservative women concerned about impact on the family and progressive women concerned about impact on labor and union rights. It would take another fifty years before both national political parties would endorse the ERA, and Congress passed the ERA in 1972 guaranteeing that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The necessary two-thirds of the states, however, failed to ratify the ERA, even after an extension of the deadline. 

A modern movement has renewed efforts to pass the ERA, still believing in the necessity of a constitutional guarantee of the broad legal and social equality of women first advanced 171 years ago. This essay traces the history of the women’s constitutional demands for equality, from its origins in Seneca Falls, the adoption of the Nineteenth Amendment, the proposed ERA, and modern efforts for a new amendment to secure gender equality.

November 20, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)

Monday, November 18, 2019

Leveling Down Gender Equality by Denying Remedies for Equal Protection Violations

Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL   Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.

Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***

The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).

The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***

The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)

In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***

At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.) 

November 18, 2019 in Constitutional, Family, Gender, Scholarship, SCOTUS | Permalink | Comments (0)

Friday, November 1, 2019

The Elusive Goal of Gender Equity in Law School Enrollment

Deborah Jones Merritt & Kyle P. McEntee, Gender Equity in Law School Enrollment: An Elusive Goal, Journal of Legal Education (forthcoming)

Women finally make up more than half of law students nationwide, but that milestone masks significant gender inequities in law school enrollment. Women constitute an even larger percentage of the potential applicant pool: for almost two decades, they have earned more than 57% of all college degrees. As we show in this article, women are less likely than men to apply to law school — or to be admitted if they do apply. Equally troubling, women attend less prestigious law schools than men. The law schools that open the most employment doors for their graduates enroll significantly fewer women than schools with worse job outcomes and weaker access to the legal profession.

We explore here the factors that may contribute to this ongoing gender gap in law school attendance. We also propose several strategies for closing the gap. Enrollment equity alone will not put women on an equal footing with men; a sizable literature probes gender biases that pervade the law school environment. Recognizing and addressing the enrollment gap in legal education, however, is an essential first step toward improving the representation of women throughout the legal profession.

November 1, 2019 in Education, Gender, Law schools | Permalink | Comments (0)

The Pink Tax: The Cost of Being a Female Consumer

The Pink Tax: The Cost of Being a Female Consumer

The pink tax refers to the extra amount women are charged for certain products or services. Things like dry cleaning, personal care products, and vehicle maintenance. So not only do women make less but they pay more. Women also live longer so they actually need more money for retirement. It’s a load of crap. 

There has been a lot of research on the pink tax that found that overall, women were paying more than men 42% of the time. How much more?  About $1,351 more a year in extra costs. Yup – that’s $1,351 that can’t go into her retirement fund. ***

 

Did you know, tampons and pads are charged sales tax because they are considered “luxury” items. Periods are certainly not a luxury and I’m sure every woman on the planet would agree.***

 

The New York City Department of Consumer Affairs released a study comparing the prices of over 800 products. The goal of the study was to estimate the price differences male and female shoppers face when buying the same types of items.

The results: Products for women or girls cost 7% more than comparable products for men and boys.

  • 7% more for toys and accessories
  • 4% more for children’s clothing
  • 8% more for adult clothing
  • 13% more for personal care products
  • 8% more for senior/home health care products

WBUR, Here and Now, Is Sales Tax on Tampons and Pad Unconstitutional?

Menstrual products like tampons and pads are subject to sales tax in 34 states.

On average, women and people who menstruate spend an estimated $150 million a year just on the sales tax for these items. One in four women struggle to afford period products, according to the nonprofit PERIOD.

Now, there’s a push to outlaw the so-called “tampon tax” across the country.

Jennifer Weiss-Wolf, an activist and co-founder of Period Equity, says she got together with a group of lawyers to make the case that taxing menstrual products is “sex-based discrimination and therefore unconstitutional and therefore illegal.”

“It's not really just a matter now of asking legislators to do the right thing,” she says, “but it's bringing the force of the law to let them know that they must cease this practice.”

In June, California put a pause on the taxation of menstrual products — but only for a two-year period. But Weiss-Wolf is arguing for a permanent solution by mobilizing to get all 50 states to permanently end sales tax on menstrual products.

 

November 1, 2019 in Gender, Pop Culture | Permalink | Comments (0)

Wednesday, October 23, 2019

An Equal Protection Analysis of Gender-Differentiated Indecent Exposure Laws

Nicholas Mignanelli, Equal Protection and the Male Gaze: Another Approach to State of New Hampshire v. Lilley, 22 Journal of Gender, Race & Justice (2019)

This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey’s concept of the “male gaze” to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so long as they apply equally to women and men.

October 23, 2019 in Constitutional, Gender | Permalink | Comments (0)

Friday, October 4, 2019

New CA Law Allows Campaign Funds to be Used for Childcare to Promote Gender Parity Among Elected Officials

Bill Promoting Gender Parity Among Elected Officials Signed into Law by Governor Newsom

A bill introduced by Assemblymember Rob Bonta (D-Oakland) that would allow campaign funds to be used for child care by those who choose to run for elected office in California was signed into law Monday by Governor Gavin Newsom.

 

“AB 220 will help create greater gender parity among elected officials in California and more broadly help all parents with young children seek and serve in public office by allowing the use of campaign funds for child care expenses,” said Bonta. “I’m excited and extremely grateful to Governor Newsom for signing AB 220 into law.” 

 

AB 220 amends the Political Reform Act of 1974 to expressly allow campaign funds to be used for child care by those who choose to run for elected offices in California. 

 

Currently, there is no statute in California or official ruling by the California Fair Political Practices Commission (FPPC) allowing candidates to use campaign funds for child care purposes. That meant any person who attempted to use campaign funds for child care expenses had no statutory protection and would have been relying on a 20-year-old, non-binding advice letter by the FPPC which does not carry the weight of law. AB 220 provides certainty for parents of young children seeking office by placing this allowance in statute. 

October 4, 2019 in Family, Gender, Legislation, Work/life | Permalink | Comments (0)