Gender and the Law Blog

New Book on the UK's Married Women's Association and Reform of Family Law in the Mid-20th Century

Sharon Thompson, Quiet Revolutionaries: The Married Women's Association and Family Law

This book tells the untold story of the Married Women's Association. Unlike more conventional histories of family law, which focus on legal actors, it highlights the little-known yet indispensable work of a dedicated group of life-long activists.

Formed in 1938, the Married Women's Association took reform of family property law as its chief focus. The name is deceptively innocuous, suggesting tea parties and charity fundraisers, but in fact the MWA was often involved in dramatic confrontations with politicians, civil servants, and Law Commissioners. The Association boasted powerful public figures, including MP Edith Summerskill, authors Vera Brittain and Dora Russell, and barrister Helena Normanton. They campaigned on matters that are still being debated in family law today.

Quiet Revolutionaries sheds new light upon legal reform then and now by challenging longstanding assumptions, showing that piecemeal legislation can be an effective stepping stone to comprehensive reform and highlighting how unsuccessful bills, though often now forgotten, can still be important triggers for change. Drawing upon interviews with members' friends and family, and thousands of archival documents, the book is compulsory reading for lawyers, legal historians, and anyone who wishes to explore histories of law reform from the ground up.

See also Sharon Thompson, The Untold Story of a Mid-20th Century Group of Women Fighting for Equality in Marriage and Why It Matters Today

In 1938, a group of feminist agitators came together in London to tackle what they saw as the most pressing issue of their time: inequality in marriage. For the Married Women’s Association, the right to vote – won for women over 30 in 1918 – was just the beginning of women’s emancipation. The legal status of housewives was next.

If you were a married woman in the early 20th century, you had no rights in your home, nor in the housekeeping money your husband gave you, nor even in the bed you slept in, unless you had used your own money to buy it.

You were also paid less than men, while all the work in the home was exclusively your domain and was unpaid. Your husband, by contrast, would be paid an inflated income to support his dependants, termed a “family wage”, to which, ironically, you had no rights to whatsoever. In the eyes of the law, you were essentially invisible.

These women’s story has long been overlooked. As I show in my new book, Quiet Revolutionaries (and accompanying podcast), what they were fighting for remains highly topical.

The Growing Gender Pay Gap from COVID Resignations and Suggestions for Reform

Amy Soled, Gender Pay Disparity, the COVID-19 Pandemic, and the Need for Reform, 87 Brooklyn L. Rev. 953 (2022) 

 The COVID-19 pandemic has exposed and deepened systemic inequities in the United States. One such inequity is gender discrimination in the labor market, evidenced by pay disparity—the difference between women’s and men’s wages. During the pandemic, women left the workforce at double the rate of men. This employment disruption will negatively affect women’s wages upon their return, as well as their lifetime earnings, further widening the pay gap. Pay disparity exploits more than half of the population, decreases gross national product, and stymies economic growth. This article addresses the reasons why existing legislation has failed to close the pay gap. Relying on the framework of successful Icelandic legislation, which has helped narrow gender pay disparities in Iceland, this article proposes federal legislative reform measures designed to shift the burden of proving wage discrimination from the employee to the employer. Instituting these changes would diminish the effect of implicit gender biases and, correspondingly, reduce pay disparity.

Study Shows Effects from French Law Reform Requiring 40 Percent Gender Quota on Corporate Boards

Francois-Xavier Ladant & Louise Paul-Delvaux, "Women on Boards: Evidence from a French Reform Imposing a 40 Percent Gender Board Quota" 

In 2010 the French government mandated a 40% gender quota on corporate boards to be met by January 2017. The policy raised the average female board share of publicly traded firms from 10.3% in 2009 to 43% in 2019. We examine the effects of this staggering increase, leveraging new data on 200 French publicly traded firms from 2006 to 2019. Newly appointed female board members are as qualified as their male counterparts and less likely to have any family connection with incumbent board members. Female board members are also accessing powerful positions within the boardroom (committee membership and chairmanship). We then assess how these changes in corporate board composition (i) impact the implementation of board prerogatives and (ii) influence gender imbalances within the firm. Using an IV strategy exploiting the fact that the 40% threshold was set exogenously by the government and a Difference-in-Differences strategy comparing firms differently exposed to the quota, we show that an increase in the share of female board members has impacts at the very top. Indeed, we observe changes in practices that are aligned with better governance, higher likelihood of having a female CEO, and increased female representation in the top management. Beyond the very top of the firms’ hierarchy, an increase in the female board share has no or even negative impact on gender wage or promotion gaps.

Scottish Bill Would Pardon Thousands of Women Convicted and Executed as Witches

Thousands of Witches Could be Posthumously Pardoned in Scotland

Thousands of people were convicted of practicing witchcraft in Scotland in a hunt that spanned nearly two centuries — and the majority of those sentenced to death and executed were women. Many were also tortured.

 

Now, a bill proposed in the Scottish Parliament is trying to set the record straight, said Natalie Don, a Scottish lawmaker who introduced the proposal. It could allow for posthumous pardons to thousands of women who faced convictions hundreds of years ago.

 

The pardons would ensure they are “recognized as victims of a miscarriage of justice and are no longer recorded in history as criminals,” Don said Thursday in a video.

 

Calls for legal pardons for “witches” or “necromancers” have gathered pace in Scotland, where the country’s most senior politician, First Minister Nicola Sturgeon, issued a formal apology in March to those vilified under the Witchcraft Act. The act, which was in effect from 1563 to 1736, made practicing witchcraft punishable by death.

 

“It was injustice on a colossal scale, driven at least in part by misogyny,” Sturgeon said on International Women’s Day. “They were accused and killed because they were poor, different, vulnerable or in many cases just because they were women.”

California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws

Ms., Gender Diversity on on California's Corporate Boards was Too Good to Law

In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more.  We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”

 

Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.

 

It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.

 

Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.

 

The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***

 

It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.

 

We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027

A Feminist Approach to Interpretation of World Trade Organization Agreements to Reveal the Lack of Neutrality

Anna Ventouratou, A Feminist Approach to the Interpretation of the WTO Agreements: Systemic Integration as a Gender Issue 

The normative content of international trade law is often depoliticised. The emphasis of trade lawyers and theorists on economics and the ‘technical’ nature of trade mechanics attempts to present the multilateral trade regime as ostensibly neutral. However, it is undeniable that the processes of trade liberalisation have a strong impact on the living conditions of people around the globe. This impact is asymmetrical: whilst trade liberalisation has created jobs for millions of workers, including millions of women, and has brought, at cases, on an individual level, greater economic independence, equality in the household, and personal empowerment, it seems that women are often negatively affected by the implementation of international trade law and policies. Moreover, despite their crucial role in increasing competitiveness and productivity, women rarely enjoy the benefits of trade liberalisation.

Although the need to re-evaluate established practices through a gender perspective is increasingly recognised in the international community, recent efforts by governments in the context of the WTO and other international institutions to engage in relevant discourse have been characterized by women’s rights groups as ‘pink herrings’: they seemingly address women’s rights but are essentially designed to mask the failures of the WTO and its role in deepening inequality and exploitation.

This paper asserts, firstly, that this is a fair criticism to the response of the WTO. It discusses how trade liberalisation has disproportionately affected women, especially women from lower incomes, rural areas and marginalised communities. It demonstrates that mere political declarations that call for inclusive economic growth and encourage the participation of women to economic activities ignore the realities of intersectional discrimination and the living conditions of millions of women that are employed precariously, under dangerous or unhealthy conditions and are denied access to public goods and basic social services. In other words, it demonstrates that trade liberalisation has a clear gendered impact.

Secondly, the paper suggests that a corrective step towards addressing the adverse impact of current trade regulations on women would be the adoption of an interpretative approach that is more deferential to international human rights law. This deference would require a paradigm shift in the approach of the WTO adjudicative bodies to the interaction of human rights law and trade law. The paper argues that the interpretation of the WTO Agreements in light of applicable human rights rules is not only analytically appropriate but also desirable from a feminist perspective.

Study of Gender-Based Judging on Swedish Supreme Court Shows Little Effect of Gender

Johan Lindholm, Mattias Derlen & Daniel Naurin, 'Nevertheless, She Persisted': Gender and Dissent on the Swedish Supreme Court 

From the abstract:

In line with gender-based stereotypes and ideals of female agreeability and cooperativeness, research has shown that women tend to cooperate more and compete less than men (the competitiveness theory). The article empirically studies whether Swedish Supreme Court Justices practice of writing dissenting opinions follows the gender-based patterns that can be expected from the competitiveness theory. Issuing dissenting opinions is a well-established practice on the Supreme Court, but it is also a public form of collegial disagreement that is potentially especially socially costly for female Justices. We therefore hypothesize that female Justices avoid writing dissenting opinions, particularly alone, and help foster agreement on panels compared to male Justices. These hypotheses are not supported by the data and the behavior of Swedish Supreme Court Justices thus does not follow the competitiveness theory. We propose some explanations for this result, which runs counter to previous research, and point to possible future research.

The conclusion from the introduction:

Generally speaking, however, empirical evidence of an effect of gender on merit-based voting in previous research must be characterized as relatively weak. As observed by Leonard and Ross (2020, 278), “anyone hoping to find convincing evidence of consistent gender differences in decisions across a broad range of issues would be sorely disappointed by the extant literature”. The lack of more clear and strong empirical evidence of gender-based differences in judicial behavior is commonly explained by what is often characterized as the organizational theory. According to this theory, gender-based differences in judicial behavior are tempered by professional and organizational factors. While there is room for different legal reasoning, judges are restricted by the relatively narrow scope of what, in the mind of judges and other lawyers, constitutes acceptable legal reasoning and interpretations of the law, and individuals that fail to show an ability to act in accordance with and within these limits will have a difficult time becoming judges. In this way, the characteristics of the law in combination with the process involved in becoming a judge – a process that starts with an individual graduating from law school and ends with a judicial appointment – will both select individuals that behave in a particular way and shape those individuals’ behavior to conform with what the profession considers acceptable and appropriate behavior. Moreover, an argument can be made that the pressure to conform to existing (male-based) norms and to prove their competence is particularly strong on women who come in as ‘outsiders’ to judicial institutions that have traditionally been a male dominated environment (Davis, Haire, and Songer 1993, 133; see also Boyd, Epstein, and Martin 2010, 392; Boyd 2016, 790; Sisk, Heise, and Morriss 1998, 1453–1454). If
correct, the organizational theory could explain why previous research has not been able to show a strong and consistent effect of gender on merits voting.

Using Constitutional Courts to Advance Abortion Rights in Latin America

Alba Ruibal,  Using Constitutional Courts to Advance Abortion Rights in Latin America,
International Feminist Journal of Politics 2021

Over the past two decades, the abortion rights controversy has become the most prominent field of dispute between feminisms and religious conservatisms across Latin America. In this context, the political powers have generally been reluctant to change the region´s restrictive abortion legal frameworks, and since the mid-2000s, Latin American feminists turned to courts in search for long pursued reforms in this field. Through the analysis of the role of constitutional courts in the liberalization of abortion laws in Colombia, Brazil, Argentina, and Mexico, this study points out the diverse ways in which courts have contributed to the advancement of abortion rights, becoming an alternative venue for feminist advocacy in Latin America. It highlights how the use of courts has been a way to liberalize abortion laws, ensure the implementation of lawful abortions, and deter backlash processes. Furthermore, it details how courts have offered a platform for public deliberation on the abortion issue. These findings show how the judiciary can be a favourable venue for feminist activism in Latin America when other institutional sites are blocked. They also pose nuances to the critique of the use of courts for social change, which stresses the pernicious consequences of the judicialization of social movement causes.

Reimagining Gender Through British Equality Law Using Paths from Religion and Disability Law

Flora Renz & Davina Cooper, Reimagining Gender through Equality Law: What Legal Thoughtways do Religion and Disability Offer?, Feminist Legal Studies, 2022

British equality law protections for sex and gender reassignment have grown fraught as activists tussle over legal and social categories of gender, gender transitioning, and sex. This article considers the future of gender-related equality protections in relation to ‘decertification’ – an imagined reform that would detach sex and gender from legal personhood. One criticism of decertification is that de-formalising gender membership would undermine equality law protections. This article explores how gender-based equality law could operate in conditions of decertification, drawing on legal thoughtways developed for two other protected characteristics in equality law: religion and belief, and disability, to explore the legal responses and imaginaries that these two grounds make available. Religious equality law focuses on beliefs, communities, and practices, deemed to be stable, multivarious, and subject to deep personal commitment. Disability equality law focuses on embodied disadvantage, approached as social, relational, and fluctuating. While these two equality frameworks have considerable limitations, they offer legal thoughtways for gender oriented to both its hierarchies and its expression, including as disavowal.

Looking to Global Democracies and Abortion Law Norms for the Future of US Law Post-Roe

Julie Suk, A World Without Roe: The Constitutional Future of Unwanted Pregnancy, 64 William & Mary L. Rev. (2022)  

With the erosion and potential demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the moment that the law has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe.

Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the state, without properly valuing these contributions. This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings and 13th Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Such avenues for reestablishing abortion access as well as public support for pregnancy and parenting imagine a broader world of reproductive justice than the one defined by Roe.

Italy's Highest Court Rules Children to be Given Surnames of Both Mother and Father

NYT, Italy's Highest Court Rules Children to be Given Mother's and Father's Surnames

The ruling overturns decades of patriarchal family legacy, which largely left women out of the decision-making process.

Italy’s top court ruled on Wednesday that children born in the country will be given their mother’s and father’s surnames at birth, declaring the automatic practice of only giving children their father’s surname “constitutionally illegitimate.”

Parents will be able to choose the order of surnames or decide to use only one, a statement on the ruling from Italy’s Constitutional Court read, citing principles of equality and the children’s interest. Except in certain circumstances, Italian families have been unable to give their children their mother’s surname alone.

“Both parents should be able to share the choice of a surname, which is a fundamental element for one’s personal identity,” the court wrote.

Compared with other European countries where both surnames can be used for children, like France, Germany and Spain, Italy has been slow in embracing the recognition of the mother’s family name.

“The Constitutional Court canceled the last patriarchal legacy in family law,” Cecilia D’Elia, a member of Parliament and a leader on women’s issues in the Democratic Party, wrote on Twitter. “The mother’s name will have the same dignity as the father’s, a sign of civilization.”***

In Italy, wives used to take their husbands’ names and be solely responsible for children before the law. Though norms have since changed, the law automatically giving children their father’s surname has stayed, causing the European Court of Human Rights to rebuke Italy for discrimination.

Spain Outlaws Harassment of Women Accessing Abortion

Spain has passed a new law banning harassment of women accessing abortion care.  An article by Maureen Breslin published by The Hill provides a translation of the key language: 

[A]nyone trying “to impede [a woman] from exercising her right to voluntarily interrupt pregnancy” through “bothersome, offensive, intimidating or threatening acts” will face jail time of between three and 12 months, or community service.

 

It will ban anti-abortion activists from protesting outside of abortion service providers and clinics and extends to ban harassment of those performing abortions or working in the abortion providers as well, reports CBS.

New Book on French Feminism, the Legacy of the Witch Hunts, and the Continuation of Misogyny Today

Book Review, NYT, A French Feminist Tells Us to Embrace Our Inner Hag, reviewing, Mona Chollet, In Defense of Witches: The Legacy of the Witch Hunts and Why Women are Still on Trial 

Catalonia’s left-leaning Parliament recently passed a resolution pardoning the hundreds of women executed as witches between the 15th and 18th centuries. A similar bill is making its way through the Scottish Parliament. Both were inspired by growing outrage about historical — and contemporary — femicide and by a post-MeToo impulse to honor women who were burned, hanged or drowned as heretics.

This same spirit of exoneration runs through “In Defense of Witches,” a thought-provoking, discursive survey by Mona Chollet, a bright light of Francophone feminism. Chollet celebrates not only the witches of the past, but also the so-called “witches” of today: independent women who have chosen not to have children, aren’t always coupled, often defy traditional beauty norms (letting their hair go gray), and thus operate outside the established social order. That’s especially true in France, which may celebrate the femme libre, but which, from its tax laws to its robust public day care, is built to promote the family and motherhood. It is also, not incidentally, a country where a certain vision of femininity supports the economy through the biggest beauty industry in the world.

Clearly, Chollet has struck a nerve. “In Defense of Witches,” her first book to appear in English, was a best seller when it came out in France in 2018. A Swiss-born journalist and an editor at Le Monde Diplomatique, she has grown a following with work that calls attention to sexism, the gender gap in salaries and the societal pressures placed on French women in a culture with clear ideas about how women are expected to look and act — and of course to make it all look effortless. Anglo-American women have long been obsessed by clichés of French femininity. (Today that’s perhaps best exemplified by the series “Emily in Paris,” in which a naïve American is inducted into the worldly ways of the French.) But in today’s real France, Chollet has emerged as a quiet revolutionary, pushing back against the clichés and the patriarchy that shapes them.***

“In Defense of Witches” explores how women who assert their powers are too often seen as a threat to men and society, how those who don’t bear children are too often seen as a disturbing anomaly and how women at middle age too often disappear. These days they’re not burned at the stake but sidelined at work by the insidious invisible hand of midcareer misogyny, or by standards of beauty that place a higher premium on youth, with women’s “expiry date” tied to their fertility. Sometimes, by choice or by circumstance, a woman becomes what Chollet calls a “femme fondue,” or dissolving woman, who becomes overwhelmed by “the service reflex” and disappears into motherhood or child care, losing her grip on the first person.

Making the Case for CEDAW Ratification by the United States

Rangita de Silva de Alwis and Ambassador Melanne Verveer have published their article, “Time Is A-Wasting”: Making the Case for CEDAW Ratification by the United States, in volume 60 of the Columbia Journal of Transnational Law. 

 

Since President Carter signed the Convention for the Elimination of All Forms of Discrimination Against Women (the “CEDAW” or the “Convention”) on July 17, 1980, the United States has failed to ratify the Convention time and again. As one of only a handful of countries that has not ratified the CEDAW, the United States is in the same company as Sudan, Somalia, Iran, Tonga, and Palau. When CEDAW ratification stalled yet again in 2002, then-Senator Joseph Biden lamented that “[t]ime is a-wasting.”

Writing in 2002, Harold Koh, former Assistant Secretary of State for Democracy, Human Rights, and Labor, bemoaned America’s abdication of its moral leadership: “From my direct experience as America’s chief human rights official, I can testify that our continuing failure to ratify CEDAW has reduced our global standing . . . hindered our ability to lead in the international human rights community . . . [and] challenge[d] our claim of moral leadership in international human rights . . . .” Today, ratifying the CEDAW would undoubtedly be an important foreign policy tool and would communicate to the global community that the United States considers dismantling all forms of discrimination to be an inalienable and universal obligation. However, we argue that the value of ratifying the CEDAW is not limited to its foreign policy implications: At a time of a mass public reckoning on equality, ratifying the Convention would also be a central vehicle for change for women in America, including minority women, to claim their rights in courts, in workplaces, and in the family.

 

Our study is a tour de force of the CEDAW’s impetus for progressive legal changes around the world and an exegesis of its intersections along the axes of security and minority status. The language of the Convention allows each State Party to use “all appropriate measures” to implement legislation to eliminate dis- crimination and take “all appropriate measures, including legislation” to promote de jure and de facto equality between men and women. Although a causal link cannot always be proven, the very language of the laws of surveyed countries reflects the CEDAW Committee’s Concluding Observations and General Recommendations.

 

Despite challenges to the CEDAW’s implementation and the imperfect commitments of the 189 ratifying states, the Convention stands as the central vehicle for the incorporation of women’s rights norms into national laws and practice. The Biden Administration should waste no more time in ratifying the CEDAW and joining the international community as it seeks to bring women and girls to the center of our current global recovery. As we write these words, the Taliban has taken control of Afghanistan. The United States must signal its renewed commitment to multilateralism and women’s equality by joining the global bill of rights for women.

"Fault Lines of Refugee Exclusion: Statelessness, Gender, and COVID-19 in South Asia" by Chakraborty & Bhabha

Roshni Chakraborty and Jacqueline Bhabha published their work, Fault Lines of Refugee Exclusion: Statelessness, Gender, and COVID-19 in South Asia, in volume 23 the Health and Human Rights Journal. The introduction to the article is excerpted here: 

Far from being “great equalizers,” diseases reflect and reinforce preexisting hierarchies. Structural inequalities in wealth, housing, health care, employment, and social capital place the poor and the socially vulnerable at a higher risk of infection and death. At the same time, the fear and suspicion engendered by epidemics exacerbate the vulnerabilities of those perceived as “other” or “outsiders,” populations whose survival and dignity are already compromised by social exclusion mechanisms such as legal invisibility, geographic ghettoization, and social ostracism. For refugees resettling in South Asia, our area of focus in this paper, these forms of marginalization are an everyday reality. The denial of a viable and effective legal identity precludes the ability to even claim rights in states that already fail in their obligations to provide them.

 

Citizenship, in both its legal and social sense, represents, we argue, an unearned form of social power and capital. Where, as is the case in India, Pakistan, and Bangladesh, prevailing international law protecting refugees has not been ratified, forced migrants are left without the secure legal status awarded to recognized refugees, a deficit that magnifies the challenge of accessing state protection and securing social capital within the host community. The status of these forced migrants is thus best captured by the notion of de facto statelessness, which signals their lack of access to the protective responsibility of any sovereign nation. De facto statelessness in South Asia is a perilous status at the best of times, given the central role of the state as a dispenser of fundamental services and protections. It is a particularly challenging status during a global pandemic such as COVID-19, when hostility toward outsiders is exacerbated, the availability of essential humanitarian services is compromised, and an informal labor market generating subsistence income is brought to a halt.

 

To the impacts of de facto statelessness must be added those of other critical social determinants of health and well-being, including gender, which intersect to multiply the risks of stigmatization and exclusion. The entrenched exploitation and control of female sexuality, as a commodity to be exchanged or dominated, accelerates during times of distress, as it has during this pandemic. This paper explores the gendered impact of COVID-19 on forced female migrants in South Asia, who already face strong exclusionary pressures because of their status as noncitizens of the broader polity.

 

 

Using Litigation to Advance Sexual and Reproductive Health and Rights Worldwide

Join the Center for Reproductive Rights this Wednesday at 9:00 a.m. EST for a virtual panel discussion on the impact of litigation in advancing sexual and reproductive health and rights (SRHR) worldwide.

 

Although SRHR are essential to gender equality, millions of women and girls still lack legal protections for these fundamental rights. Strategic litigation before international and regional bodies has proven to be a powerful tool for creating accountability for SRHR violations and generating progress at the national-level.

In a new report, the Center studied landmark cases and how they’ve transformed the legal landscape on SRHR, reverberating across borders and strengthening legal guarantees for millions of people around the world. The report, titled “Across Borders: How International and Regional Reproductive Rights Cases Influence Jurisprudence Worldwide,” will be launched at the webinar.

Panelists from the Center and leading organizations will discuss how the cases at the heart of the study – some in countries and regions with the most restrictive reproductive rights laws in the world – have advanced access to abortion services, maternal health care, assisted reproduction and other reproductive and human rights. In addition, they will share insights on the future role of litigation to advance SRHR and how advocates and other stakeholders can leverage this critical tool to accelerate progress.

How Judges Should Apply the Exceptions to the Hague Abduction Convention to Protect Victims of Domestic Violence

Merle Hope Weiner, You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence, 28 UCLA Women's L. J. 223 (forthcoming)

This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return. The trial judge decides whether a child is returned to the place from which the domestic violence victim fled or whether a child is allowed to remain in the United States pursuant to an exception to the Hague Convention’s remedy of return. This Article canvases the arguments that attorneys make to defeat the application of article 13(b), and refutes them by drawing upon social science, the Guide to Good Practice, its sanctioned Australian Bench Book, case law, and common sense. The Article also argues that if a trial judge cannot grant the article 13(b) exception solely because of unwarranted legal obstacles, the judge should disregard the law. This part of the Article builds upon Jeffrey Brand-Ballard’s book, Limits of Legality: The Ethics of Lawless Judging

Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment in Spain

Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment

Joan-Josep Vallbé and Carmen Ramírez-Folch

The aim of this paper is to provide an explanation of the variation in lower pretrial court judicial decisions over gender-violence cases, under a civil-law system. Despite the typical anonymity of lower-court judges in such legal systems, we are able to exploit a natural experiment in Spain that allows us to estimate the effect of judges’ gender, career incentives, and policy preferences on decisions on restraining orders for victims of gender violence. Although the literature has found ample evidence of gender and ideology effects on judicial behavior when women’s rights are at stake, we argue that due to career and promotion dynamics, career incentives moderate the effect of gender and policy preferences on such decisions. We find that the probability to grant a restraining order to a victim is higher among female judges than male judges, and that left-leaning judges also tend to grant restraining orders at higher rates. However, we also observe that these mechanisms are moderated by career incentives, to the point of blurring their effects when career pressures are high. These findings are a relevant contribution to the understanding of the mechanisms behind judicial inequality under civil-law systems, where judges’ attributes tend to be unobservable by institutional design.

Banning the Full-Face Veil: Freedom of Religion and Non-Discrimination in the Human Rights Committee and the ECHR

Sarah H. Cleveland has published her article Banning the Full-Face Veil: Freedom of Religion and Non-Discrimination in the Human Rights Committee and the European Court of Human Rights in volume 34 of the Harvard Human Rights Journal. The excerpt summarizes that:  

The international human rights to freedom of religion and protection from discrimination on grounds of religion are two such closely related rights. In Yaker v. France and its companion case Hebbadj v. France, before the UN Human Rights Committee, and in S.A.S. v. France, before the European Court of Human Rights, the two bodies reached inconsistent conclusions regarding the compatibility of France’s ban on wearing the fullface veil (the niqab or burqa) in any public space with France’s obligations under the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights, respectively. The French law purported to be religiously neutral, in that it prohibited all apparel concealing the face. However, Article 2 of the French law exempted a large number of face coverings other than the full-face veil, and, in practice, the vast majority of the checks conducted under the Act involved Muslim women wearing the full veil. Sonia Yaker, who was twice subjected to criminal fines for wearing the niqab, and the claimant in S.A.S., who wished to wear the full veil without risk of sanction, separately challenged the Act as, inter alia, violating their right to manifest their religion and constituting indirect discrimination on grounds of religion.

 

Both the Court and the Committee recognized that by imposing criminal penalties on the Muslim women claimants who chose to wear the fullface veil in public, the Act interfered with their ability to manifest their religion under Article 9 of the European Convention and Article 18 of the ICCPR, respectively. The two bodies diverged, however, in their application of the limitations provisions of those articles, as well as the nondiscrimination provisions of the two treaties. This Essay explores the treatment of the claims of religious freedom and religious discrimination by the European Court and the Committee. This case study offers an opportunity to consider the relationship between these two fundamental human rights, as well as the respective doctrinal and institutional roles of the regional Court and the more universal Committee as human rights interpreters.

Vulnerable Bodies and Invisible Work

Ellen Gordon-Bouvier has published an article titled Vulnerable bodies and invisible work: The Covid-19 pandemic and social reproduction in volume 21 of the International Journal of Discrimination and the Law. The introduction situates the project within Martha Fineman's influential Vulnerability Theory and reveals the urgency of new approaches involving the Responsive State (internal citations omitted): 

Seldom has an event so clearly illustrated the core tenets of Martha Fineman’s vulnerability theory as the global Covid-19 pandemic has – that, as embodied beings, we share a constant and inescapable vulnerability, our fragile bodies living with ‘the ever-present possibility of harm and injury’ . * * *  

In this paper, I critically analyse the UK’s response to the pandemic through a vulnerability lens. In particular, I examine how the pandemic has affected the visibility and status of socially reproductive work, as well as the impact on those who perform it. Social reproduction, defined as ‘the maintenance of life on a daily basis and intergenerationally’ , includes a wide range of labour, including supporting and nurturing those who undertake paid work, caring for infant, elderly, sick, and disabled populations (either paid or unpaid), food preparation, and domestic work in the home. * * * Yet, the state consistently devalues social reproduction, denying its essential nature and society’s reliance upon it. * * * Instead, the state organises its institutions, including law, around an artificial image of autonomous liberal personhood, whereby the individual is imagined as rational, self-interested, and economically self-sufficient.

 

I argue in this paper that the pandemic has shattered the illusion of autonomous individualism that underlies the liberal state’s actions. Socially reproductive labour and society’s undeniable reliance on it have come into public view after being concealed for so long. In this sense, an image of an embodied ‘vulnerable subject’  has been forced to the forefront of the public imagination, also revealing the state’s ultimate control (and the individual’s corresponding lack of control) over the production of resilience against vulnerability. * * *

 

* * *  Unfortunately, as I argue, the UK’s response has retained a commitment to the autonomous liberal ideal and has been inadequate and ineffective as a consequence. Despite this, I suggest that the atmosphere of exceptionality and crisis generated by the pandemic has provided a glimmer of hope that a different way forward is possible. In particular, the state’s new willingness to consider non-means tested basic income schemes could be used to improve the conditions of those who perform socially reproductive labour. However, such measures must take care to avoid further perpetuating gender inequalities.