Friday, March 8, 2024

Exploring the Tension Between Culture or Religious Practice and Gender Equality

Rangita de Silva De Alwis, Customs, Culture, Courts, and Constitutions: Negotiating the Balance on Gender Equality 

The tension between culture or religious practice and gender equality is a globally pervasive challenge in human rights practice. The human rights of women and the right to culture are sometimes in opposition while at the same time, the binary distinction between women’s human rights and the right to culture are also contested. In this paper, I examine how constitutions and courts have negotiated the balance through the interpretation of women’s rights.

The goal of this paper is not to examine the exegesis of religious texts or the hermeneutics of canonical arguments which are subjects of plural interpretation, or the burgeoning social movements that are active in claiming a dynamic interpretation of religion and cultural practice. Rather it is to analyze how constitutions and national courts frame the human rights of women in light of culture, and customary traditions. The paper maps the religious and free speech clauses of each national constitution and a compendium of case law from national courts in relation to the judicial interpretation of culture, customary laws, and religion pertaining to questions on women’s rights and gender equality. Given the complex nature of the debate on culture and women’s rights, an analysis that examines the textual authority of constitutions and the jurisprudence in national case law provides insights in situations when rights may compete and gender equality hangs in the balance.

March 8, 2024 in Constitutional, Gender, International, Religion | Permalink | Comments (0)

Tuesday, March 5, 2024

Gender and Gaslighting in the Public Messaging of Covid

Jane Campbell Moriarty, Hysteria Redux: Gaslighting in the Age of Covid, in Symposium: Gender, Health & the Constitution, 15 ConLawNOW 65 (2024)

This article addresses the relationship among hysteria, gaslighting, and gender during the Covid pandemic in the political and public-health messaging about Covid. It analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the “feminization” of masking, and the “vax and relax” public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers how gaslighting occurs in the context of dismissing the potential long-term dangers of Covid infections and reinfections.

March 5, 2024 in Gender, Healthcare, Manliness, Science | Permalink | Comments (0)

Monday, February 26, 2024

Supreme Court Amicus Brief Argues Brenda Andrew's Capital Murder Case Used Prejudicial "Sexualized Evidence"

A coalition of amici, including a former federal judge, Fair and Just Prosecution, 17 law professors, and 4 domestic violence researchers, have filed an amicus brief in support of Brenda Andrew's petition for cert. in her capital murder case before the U.S. Supreme Court. The brief challenges the weaponizing of gender bias as a jury persuasion tool: "The noxious effects of gender bias pack a powerful punch in the courtroom—and prosecutors know it. Some prosecutors, including those that tried Ms. Andrew, deliberately invoke gender bias, strategically emphasizing a woman’s departure from feminine ideals “to turn jurors against female defendants,” rather than meeting their burden of proof with actual evidence." The brief argues: 

Brenda Andrew’s capital murder prosecution was tainted with irrelevant and prejudicial evidence that spoke not to her criminal culpability, but to her failure to comply with society’s gender-biased expectations about how women should and should not behave. Repeatedly, the prosecution elicited testimony designed to paint Ms. Andrew as a hypersexual seductress and an uncaring mother. The prosecution’s leitmotif of gender deviance was an implicit theme and an explicit exhortation at trial: because Ms. Andrew did not behave as a “virtuous” woman should, the jury should convict her and subject her to the harshest punishment possible. By the time the case was submitted to the jury, the prosecution had deflected the jury’s focus from an inquiry into Ms. Andrew’s guilt or innocence to a referendum on Ms. Andrew’s femininity and morality.

 

Ms. Andrew’s case is an exceptional example of the Oklahoma County District Attorney’s office weaponizing gender bias to poison proceedings against a female defendant who had no prior criminal record, in a case that involved no allegation of torture or exceptional cruelty. This brief includes a portion of the trove of sexualizing evidence in Ms. Andrew’s trial, and presents scholarship demonstrating how prejudicial that evidence was. Until these prosecutorial tactics are eradicated from American courtrooms, “[j]ustice is likely to remain a lottery while so much depends on the woman’s fulfillment of society’s expectations.” [citation omitted] Amici urge this Court to grant Ms. Andrew’s petition for a writ of certiorari.

February 26, 2024 in Constitutional, Courts, Gender | Permalink | Comments (0)

Wednesday, February 21, 2024

SCOTUS Denies Cert in Case About Whether Jurors Can Be Excluded for Religious Beliefs Against Lesbian Plaintiff

Lawrence Hurley, NBC News, Supreme Court Declines to Weigh Whether Jurors Can Be Excluded for Religious Beliefs in Case Involving Lesbian Plaintiff

The Supreme Court on Tuesday declined to consider whether potential jurors in an employment dispute involving a lesbian worker could be excluded because of their religious views on homosexuality.

The court rejected an appeal brought by Missouri Attorney General Andrew Bailey, a Republican, in a case involving allegations of employment discrimination against the state’s Department of Corrections.

Conservative Justice Samuel Alito wrote a statement saying he agreed with the decision not to take up the case for technical legal reasons, but said that it raises important issues.

Jean Finney, an employee, sued the department, saying she was retaliated against by a colleague after she began a same-sex relationship with his former spouse.

During the jury selection process, Finney's lawyer asked potential jurors if they had traditional religious beliefs or had been brought up to believe that "people that are homosexuals shouldn't have the same rights as everyone else."

Based on previous Supreme Court decisions, lawyers are allowed to exclude potential jurors without stating a reason but are barred from doing so on the basis of race and gender.

The case largely focuses on two jurors who said they believed that homosexual activity was a sin. But, the state argues, the jurors also said they believed that homosexuals should have the same rights as everyone else. The judge ultimately excluded three jurors who said they had conservative Christian beliefs.

February 21, 2024 in Constitutional, Gender, LGBT, Religion, SCOTUS | Permalink | Comments (0)

Wednesday, January 31, 2024

Campus Wars, Women Leaders, and the Glass Cliff

NYT, Campus Wars Aren't About Gender--Are They?

***

“Four women presidents, all new in their roles, far too new to have shaped the culture on their campuses, called before Congress? Of course there’s a pattern,” Dr. Andrews said. “The question is, What’s the agenda? Is it to take down women leaders? To attack elite universities through a perceived vulnerability? To further a political purpose?”

Privately if not always publicly, other women in the academy described a similar reaction to the spectacle around the hearing on Dec. 5 and the fallout since: Ms. Magill and Dr. Gay resigned, their critics made it clear they were coming for Dr. Kornbluth, and last week, prominent male donors demanded the ouster of Cornell president Martha Pollack, too.

***

Are women more likely to end up in vulnerable positions? Social psychologists have proposed the idea of the “glass cliff” to describe the phenomenon of women who become leaders in times of crisis. In institutions not used to female leaders, they are seen as weaker. Subject to greater scrutiny, they tend to fail sooner.

“It’s not clear whether they’re selected because it’s a difficult time and people think women can make it better when things are bad, or if women are really set up, inadvertently or advertently,” said Madeline Heilman, an emerita professor at New York University who has conducted decades of experiments on sex bias in the workplace. Whatever the case, she said, “if they both start well and a man does poorly, people offer excuses and other reasons before they see it as indicative of what he’s like. For a woman, it fits into the stereotype of not being qualified. What is seen as a mistake for men is a lethal error for a woman.”

Decades of experiments show other ways that stereotypes disadvantage women. Men and women alike are too stingy when evaluating women and too generous when evaluating men, whether what’s being judged is their height or the strength of their C.V. Studies of millions of scientific papers find that those with women as lead author are far less likely to be cited than those led by men. Reports on the status of women on individual campuses and from national organizations  document  marginalization and persistent disrespect. Taken in isolation, such episodes can seem small, but they add up, leaving female professors earning less and taking longer to be promoted, irrespective of productivity. Fed up, many “senior” women leave.

January 31, 2024 in Education, Equal Employment, Gender | Permalink | Comments (0)

Thursday, January 11, 2024

The Future of Constitutional Sex Equality Rights after Dobbs

Marc Spindelman, Dobbs' Sex Equality Troubles, 32 William & Mary Bill of Rgst J. 117 (2023)

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social rights that set the Court on a collision course with the Slaughter-House Cases. Dangers on the economic rights front include reviving Lochner and its political economic principles in new constitutional garb. Dangers on the social rights front, by contrast, include new constitutional family law rules written from the social-conservative right, overriding constitutional and positive law developments that, since the 1960s, have broadly managed family law from and toward the liberal to progressive left. In both these areas, the Court’s decisions would be capable of catching various sex equality protections in their snares. The future in relation to all these prospects may be set by Justice Brett Kavanaugh, the swing-vote justice in Dobbs. So, this article attends to the determinants of Kavanaugh’s Dobbs concurrence, and thus Dobbs’ meaning. While matters could obviously get much worse for sex equality rights after Dobbs, Kavanaugh’s concurrence also offers some reason to hope that they won’t. Struggles for sex equality rights may be intensifying and entering distinctively perilous times. Their future, however, has yet to be determined, including by the Supreme Court

January 11, 2024 in Abortion, Constitutional, Gender, SCOTUS | Permalink | Comments (0)

Tuesday, January 9, 2024

Interpreting the Undemocratic Constitution that Excludes Women and Racial Minorities

Joy Milligan & Bertrall Ross, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, Texas L. Rev. (forthcoming)  

How should we interpret a Constitution that was not written for us? For most of American history, “We the people” excluded women and racial minorities. The Constitution and all but a few amendments were adopted amidst profoundly undemocratic conditions in which majorities of the population did not participate or see their interests represented. The United States did not approach even minimally egalitarian democracy until 1965, when the Voting Rights Act finally assured the right to vote to people of color, implementing the Fifteenth and Nineteenth Amendments’ guarantees.

In this Article, we argue that the undemocratic nature of the Constitution must be addressed in interpreting the document. Interpreters can exacerbate or ameliorate the Constitution’s democratic flaws; the methods they select may entrench old forms of political exclusion or help equalize rights and status across the citizenry.

To illustrate, we offer a case study of the perils and possibilities of interpretation, focusing on unenumerated rights. Such rights may have been unwritten because they were liberties commonly exercised by white men as full citizens, and hence could be assumed. Or they may have been unwritten because they mattered primarily for politically excluded populations and therefore could be ignored. We show that the Supreme Court’s recent adoption of an approach to unenumerated rights resting on “history and tradition” unjustifiably reinforces prior undemocratic conditions. As a corrective, we advocate a set of interpretive steps designed to ameliorate the Constitution’s democratic flaws and advance equal citizenship. Such methods may move us closer to egalitarian democracy, a prerequisite if we are ever to reshape our constitutional framework under truly inclusive conditions.

January 9, 2024 in Constitutional, Gender, Legal History, Race | Permalink | Comments (0)

Monday, December 18, 2023

Legal Scholar Amicus Brief Argues to Sustain or Increase Scrutiny Level for Transgender Inmate

Kyle Velte, Ezra Young, Jeremiah Ho, M. Dru Levasseur, Nancy Marcus, Dara Purvis, Eliot Traez, Ann Tweedy, Brief Amici Curiae Legal Scholars of Sex and Gender In Support of Plaintiff-Appellant

This amicus brief was filed in Griffith v. El Paso County, Colorado, case no. 23-1135 (10th Circuit) in support of appellant Darlene Griffith. Amici curiae are legal scholars of sex and gender. They offer expertise in their personal capacities to assist the Court of Appeals for the Tenth Circuit in assessing whether the El Paso County Sheriff officials violated Ms. Griffith’s Fourteenth Amendment right to equal protection when they refused to house Ms. Griffith, a transgender woman, in the women's unit of the El Paso County Jail as a pretrial detainee.

December 18, 2023 in Constitutional, Courts, Gender, LGBT | Permalink | Comments (0)

Monday, December 11, 2023

Marcy Karin on "Dignified Menstruation at Work?"

The American Bar Association featured Marcy Karin's work The Right to Dignified Menstruation at Work? here. Karin's work recommends:   

Menstruation and menopause need not be dirty words at work. Existing U.S.-based legal supports already apply some support to workers addressing the menstrual cycle, but more comprehensive coverage is needed. Legislation like the proposed Menstrual Equity for All Act could clarify and expand existing accommodation and discrimination protections to destigmatize periods and afford real menstrual justice at work. Until explicit statutory or regulatory language is created, agencies could clarify coverage in guidance to help workers understand the scope of their rights related to dignified menstruation—and also to help employers know about potential legal liability. In the meantime, employers should look at their existing workplace structures and modify them to create a more supportive environment for workers who menstruate or are in menopause.

December 11, 2023 in Gender, Healthcare | Permalink | Comments (0)

Monday, December 4, 2023

Nina Kohn, et. al. on Fixing America's Nursing Home Crisis

Nina A. Kohn, Adrianna Duggan, Justin Cole, and Nada Aljassar have posted "Using What We Have: How Existing Legal Authorities Can Help Fix America's Nursing Home Crisis" on SSRN. This work-in-progress is forthcoming in the William and Mary Law Review (2023/2024). The nursing home crisis disproportionately affects women in several ways, according to BizWomen: "Women account for nearly 90 percent of nursing home and assisted living employees, including nurses, aides, technicians and housekeepers/custodians. They also make up the majority of nursing home residents at nearly 70 percent, in part because women tend to live longer than men." Kohn et. al.'s abstract is excerpted here:     

The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. It then explores how politics, administrative complexity, and ageism have come together to prevent this existing authority from being used to its full potential. It concludes by situating the current regulatory failure to hold nursing homes accountable in the context of a larger discussion about the costs of federalism in the health care arena.

December 4, 2023 in Gender, Healthcare | Permalink | Comments (0)

ABA Program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns"

The ABA is hosting a program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns." The event is from 2 p.m. - 3:30 EST on December 8th. 

The Asian Pacific Institute on Gender-Based Violence and the American Bar Association Commission on Domestic & Sexual Violence cordially invite legal service providers and advocates supporting survivors and victims of domestic violence and sexual assault to join us for a panel discussion on Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns.

 

This panel discussion is designed for legal services providers to address the challenges and promising practices in providing language access to victims of domestic and sexual violence who are limited English proficient or use different modes of communication, including those who speak indigenous languages. The panel will explore the unique considerations and approaches required based on the geographic location of the providers, focusing on rural, urban, and border towns. By sharing experiences and expertise, participants will gain valuable insights to improve their language access services and support for these vulnerable populations.

Register here

December 4, 2023 in Courts, Gender, Healthcare, Violence Against Women | Permalink | Comments (0)

Monday, November 27, 2023

Aya Gruber Publishes "A Tale of Two Me Toos"

Aya Gruber has published A Tale of Two Me Toos in volume 2023 of the Illinois Law Review. The abstract is excerpted here: 

What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #MeToo’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.” Milano’s #MeToo, by contrast, incorporated popular narratives of criminality, bolstered the legitimacy of the penal state, and relied on traditional notions of sex and gender. And it was Milano’s that became the Me Too. This Article contrasts the two Me Toos to critique the individualistic and punitive #MeToo movement that is and mourn the intersectional and restorative Me Too movement that could have been. #MeToo’s emphasis on sensational stories and social media derived evidence of “epidemics” effectively cut off debate, enabling carceral reforms to pass at a dizzying pace. This Article is the first to catalogue, describe, and examine the actual criminal laws and policies erected in #MeToo’s name. Even a surface analysis of these reforms reveals that, contrary to advocates’ claims, they do not just close “loopholes.” Instead, each new or broadened criminal law raises troubling issues of civil liberties, defendants’ rights, and state power, and each portends to sweep in people—including women—who bear little resemblance to the unrepentant monstrous offenders featured in #MeToo discourse.

November 27, 2023 in Gender, Theory, Work/life, Workplace | Permalink | Comments (0)

Tuesday, November 21, 2023

Reviewing Clarke's Sex Discrimination Formalism

Leah Litman, Toggle Boggle, JOTWELL, reviewing Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023).

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).

Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.

These differences are not just academic. They help clarify some of what is happening in recent decisions

November 21, 2023 in Constitutional, Gender, LGBT, SCOTUS, Theory | Permalink | Comments (0)

Thursday, October 26, 2023

New Study Shows that Even With Tenure Women are More Likely to Leave Higher Ed

Chronicle, Even With Tenure, Women Are More Likely to Leave Higher Ed

Across academe, women are more likely to leave their faculty positions than men, and attrition is highest for women who have tenure or work in fields outside of science, technology, engineering, and math, according to a new study.

And even when men and women leave at the same rate, their reasons for doing so are gendered: Early-career women are more likely to leave due to issues with work-life balance, while women later in their careers are more likely to leave because of a hostile work environment. Men tend to cite professional reasons, such as a lack of resources or support.***

Women were more likely to leave their faculty roles than men at every career stage, and the gap grew wider at the top of the ladder. At the assistant-professor level, women were 6 percent more likely to leave than men. Among full professors, that figure was 19 percent.

Tenured faculty leaving at the highest rate is surprising, Raj said. But she speculated that women with tenure might be able to transition into other careers more easily than their less-experienced colleagues if the environment drives them out.

Women at less prestigious institutions were also more likely to quit.

Women most often cited issues with workplace climate as their reasons for leaving, such as harassment, dysfunctional department leadership, and feelings of not belonging. Men most often recounted professional reasons for leaving, such as difficulty obtaining funding or poor administrative support.

Previously, research has shown that one of the biggest drivers of inequity between women and men on the faculty is responsibilities at home. Additionally, Raj has observed gender gaps in sponsorship from more senior academics and in service work such as mentoring students.

Study, Science Advances, Gender and Retention Patterns Among US Faculty

Women remain underrepresented among faculty in nearly all academic fields. Using a census of 245,270 tenure-track and tenured professors at United States–based PhD-granting departments, we show that women leave academia overall at higher rates than men at every career age, in large part because of strongly gendered attrition at lower-prestige institutions, in non-STEM fields, and among tenured faculty. A large-scale survey of the same faculty indicates that the reasons faculty leave are gendered, even for institutions, fields, and career ages in which retention rates are not. Women are more likely than men to feel pushed from their jobs and less likely to feel pulled toward better opportunities, and women leave or consider leaving because of workplace climate more often than work-life balance. These results quantify the systemic nature of gendered faculty retention; contextualize its relationship with career age, institutional prestige, and field; and highlight the importance of understanding the gendered reasons for attrition rather than focusing on rates alone.

October 26, 2023 in Education, Equal Employment, Gender, Workplace | Permalink | Comments (0)

Wednesday, October 25, 2023

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

ConLaw_10-13-23

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas GenetinMike GentithesDr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

October 25, 2023 in Abortion, Conferences, Constitutional, Family, Gender, Healthcare, Law schools, LGBT, Pregnancy, Race, Reproductive Rights, Science, SCOTUS, Sports | Permalink | Comments (0)

Thursday, October 19, 2023

Domestic Violence and the Functional Parent Doctrines

Courtney Joslin & Douglas NeJaime, Domestic Violence and Functional Parent Doctrines, 30 Virginia J. Soc. Pol'y & Law 67 (2023)  

Today, approximately two-thirds of the states have a functional parent doctrine. Under these doctrines, a court can extend parental rights based on the conduct of forming a parental relationship with a child, regardless of whether the person is the child’s biological or adoptive parent. In recent years, these functional parent doctrines have garnered significant attention. Some critics fear that perpetrators of domestic violence will misuse functional parent doctrines to abuse, harass, and coerce their victims. These critics often imagine a paradigmatic case — one involving a former nonmarital different-sex partner who has a limited relationship with the child and uses the doctrine in a post-dissolution custody action as a way to continue to harass and control his former partner, the child’s mother.

Drawing upon relevant findings from our empirical study of all electronically available decisions issued in the last forty years applying functional parent doctrines, this Article sheds light on these fears by reporting what we know about allegations of domestic violence in cases decided under these doctrines. Ultimately, our findings reveal that the paradigmatic case that critics envision is quite rare. Former nonmarital different-sex partners constitute only a small share of the functional parent claim-ants. Instead, the population of claimants is characterized by diversity. Indeed, our study includes more than twice as many relatives — a group routinely overlooked in conversations about functional parent doctrines — than different-sex nonmarital partners. Even as allegations of domestic violence are more common in cases involving intimate partners, they are hardly a common feature. Moreover, even the small share of cases that would seem to be of most concern — those involving allegations of domestic violence against only the functional parent — rarely present the straightforward facts that structure objections to functional parent doctrines.

Rather than finding that functional parent doctrines are routinely used in ways that disrupt children’s lives, we find that the doctrines often function to provide stability and security for children. Our account raises questions about opposing functional parent doctrines altogether based on fears that male ex-partners will use the doctrines for abusive ends. Instead, given the important benefits of functional parent doctrines for children, we conclude that concerns about domestic violence, which are in-disputably serious and must be taken into consideration, should be addressed within functional parent doctrines, as some states recently have done.

October 19, 2023 in Family, Gender, Violence Against Women | Permalink | Comments (0)

Deep Disagreements in the Last Five Years of Equality Jurisprudence at the Supreme Court of Canada

Jennifer Koshan & Jonnette Watson Hamilton, "'Clarifications' or 'Wholesale Revisions'? The Last Five Years of Equality Jurisprudence at the Supreme Court of Canada" (2023) Supreme Court Law Review (Forthcoming)
Presented at the Asper Centre's Litigating Equality Symposium at the University of Toronto in May 2023

Over the past five years, the Supreme Court of Canada’s equality jurisprudence under the Canadian Charter of Rights and Freedoms has revealed deep disagreements within the Court. This paper reviews the six decisions that comprise that jurisprudence, drawing out the major points of contention on the role of substantive equality, the test for section 15(1), adverse effects discrimination, causation, evidence, contextualization, and positive obligations. Our argument is that while the section 15 majorities in the first three decisions – Alliance, Centrale, and Fraser – attempted to respond to the critiques of equality-seeking groups, these decisions could not paper over the profoundly ideological disagreements embedded in equality rights jurisprudence, particularly in cases of systemic discrimination. In light of the recent push-back by a significant proportion of the Court in R v CP and a majority in Sharma, we also discuss the implications of the six decisions for equality-promoting litigation strategies going forward.

October 19, 2023 in Constitutional, Courts, Gender, International, Theory | Permalink | Comments (0)

Monday, October 16, 2023

Publication of Gender & Law 2023-2024 Volume

Thomson Reuters has published the 2023-2024 volume of Gender & Law (previously titled Women & Law). The Table of Contents is here. This series is edited by Anibal Rosario Lebron, Daniela Kraiem, and Jamie R. Abrams. The articles were selected by an Editorial Board, including April G. Dawson, Elizabeth R. Kukura, Neoshia R. Roemer, and Laura Lane-Steele.

This series is described as: 

Gender and the Law is the new title for our long-running Women and the Law publication. Gender and the Law provides timely coverage highlighting the most pressing legal questions in the realm of gender and law. Assembled by a team of expert editors, this work collects the best research addressing legal issues affecting women, the law and masculinities, gender identity and expression, and sexuality published within the last year.

The Foreward states: 

Gender, in all its guises, is at the center of the United States conversation. As we move into the next presidential election cycle, legislation and litigation on these linked gender-based legal questions will come with relentless fury. The authors and advocates represented in this 2023 Gender and Law volume have been working on these questions for years, in some cases many decades. This volume presents them as a selection of the most interesting and important scholarship in what is now a deep tradition in legal scholarship that takes gender, along with race, class, and disability seriously. The questions that will come before courts and legislatures in the next few years will set the course for the next generation. These scholars are best situated to guide lawyers and advocates who want to engage in thoughtful legal analysis and not just superficial appeals to ideology.

October 16, 2023 in Gender, Theory | Permalink | Comments (0)

Thursday, October 12, 2023

A Linguistic Approach to Understanding Implicit Gender Bias in the Legal Profession

Emily Kline, Stolen Voices: A Linguistic Approach to Understanding Implicit Gender Bias in the Legal Profession, 30 UCLA Women's L.J. (2023)  

Relying heavily on socio-linguistical (language and society) studies, this article makes the case that the legal profession’s obedience to stereotypical masculine language “practices” significantly contributes to implicit gender bias. A large body of socio-linguistic scholarship dating back to the 1970’s has found that men and women exhibit subtle but significant lexical differences in the way that they speak and write. Though these differences are arguably linked equally, if not more, to issues of power, socialization, and cultural expectations than to biology, the differences still operate to erect barriers to success for professional women – particularly in a male dominated profession such as the law. Further, socio-linguistic and management theory scholarship demonstrates that professional women regularly encounter bias based upon stereotypes of what their communication style should be – creating untenable situations where women must make strategic and often no-win decisions about how to “perform” language.

October 12, 2023 in Gender, Pop Culture, Women lawyers | Permalink | Comments (0)

Nobel Prize in Economics Awarded to Claudia Goldin for Work on the Gender Pay Gap

The Nobel Prize explains the relevance of her research:

Historically, much of the gender gap in earnings could be explained by differences in education and occupational choices. However, this year’s economic sciences laureate Claudia Goldin has shown that the bulk of this earnings difference is now between men and women in the same occupation, and that it largely arises with the birth of the first child. 

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By trawling through the archives and compiling and correcting historical data, this year’s economic sciences laureate Claudia Goldin has been able to present new and often surprising facts. She has also given us a deeper understanding of the factors that affect women’s opportunities in the labour market and how much their work has been in demand. The fact that women’s choices have often been, and remain, limited by marriage and responsibility for the home and family is at the heart of her analyses and explanatory models. Goldin’s studies have also taught us that change takes time, because choices that affect entire careers are based on expectations that may later prove to be false. Her insights reach far outside the borders of the US and similar patterns have been observed in many other countries. Her research brings us a better understanding of the labour markets of yesterday, today and tomorrow.

UChicago Alum Claudia Goldin Wins Nobel Prize for Research on Gender and Labor

        Detailing Goldin's work and books.

Podcast, Claudia Goldin: Why do Women Still Make Less Than Men?, Harvard Magazine.

 

October 12, 2023 in Business, Equal Employment, Family, Gender, Work/life | Permalink | Comments (0)