Gender and the Law Blog

Debunking the Motherhood Myth of Why Women are Underrepresented in Traditional Law Firm Partnership

Paula Schaefer, The Motherhood Myth, Traditional Firms, and the Underrepresentation of Women 

This Article makes the case that the motherhood narrative-that women are underrepresented in partnership and leadership ranks of law firms because they are their children's primary caregivers-is a myth. After detailing how the motherhood myth has been used as an excuse for a lack of meaningful change, the Article provides evidence of an alternative narrative: "traditional firms" are structurally and culturally antagonistic to women. These firms are characterized by extreme work expectations and heavy reliance on the unpaid labor of stay-at-home spouses (SAHSs). Traditional firms' dependence upon SAHSs is central to maintaining the firm status quo and driving out women. Next, the Article describes how firm modernization would allow women to gain parity in firm partnership and leadership ranks. The Article argues that modernization should be measured in terms of firm reliance on SAHSs and then responds to counter-arguments that modernization is not possible in the service of clients and is unlikely to improve the retention of women. Finally, the Article explains how three different groups-bar associations and other organizations, firms, and attorneys-should collect and analyze data about firm reliance on SAHSs as a first step towards change.

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

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

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

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

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

Toward a Socio-Legal Theory of Male Rape

Orna Alyagon-Darr and Ruthy Lowenstein Lazar published Toward a Socio-Legal Theory of Male Rape in volume 113 of The Journal of Criminal Law & Criminology (2023). The abstract is excerpted here: 

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.

 

The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works.

 

Based on the comparison, the Article develops a sixfold framework containing three recurring and three missing themes. The recurring themes are otherness—the construction of male rape as something that occurs to others, at the margins of society; masculinity—pivotal for the understanding of male rape; and the embeddedness of male rape in social power relations. The three missing themes are consent—possibly the most discussed aspect in current theories of female rape but hardly elaborated with respect to male victims; racial aspects of male rape in the community; and female perpetrators of male rape. The burgeoning literature on male rape dwells mostly on the first three themes.

 

The Article argues that a meaningful theory of male rape requires further study of the missing themes. The sixfold analytical framework suggested in this Article can assist in identifying blind spots in the academic discourse, accurately conceptualizing this phenomenon, and offering a better general understanding of it. It is also a first step toward the creation of a more inclusive and general theory of rape that accounts for sexual abuse of all victims, regardless of gender, race, sexual orientation, or other social traits.

Barbie, Law, and Gender Theory

On understanding the gender and masculinities theories of the Barbie movie, see:

The Atlantic, Shirley Li, The Surprising Key to Understanding the Barbie Movie

NYT Magazine, Greta Gerwig's Barbie Dream Job

Time, How Barbie Helped Raise a Generation of Feminists

MSNBC, Ken is a bell hooks critique come to life in Barbie

The Hunger Fed by Barbie and Taylor Swift

Greta Gerwig's Lessons From Barbie Land

On one of the big legal cases about the intellectual property of Barbie, see:

Orly Lobel, You Don't Own Me: The Court Battles that Exposed Barbie's Dark Side (Norton 2017)

The battle between Mattel, the makers of the iconic Barbie doll, and MGA, the company that created the Bratz dolls, was not just a war over best-selling toys, but a war over who owns ideas.

When Carter Bryant began designing what would become the billion-dollar line of Bratz dolls, he was taking time off from his job at Mattel, where he designed outfits for Barbie. Later, back at Mattel, he sold his concept for Bratz to rival company MGA. Law professor Orly Lobel reveals the colorful story behind the ensuing decade-long court battle.

The Roberts Court's Jurisprudence of Masculinity

Melissa Murray, Children of Men: The Roberts Court's Jurisprudence of Masculinity, 60 Hous. L. Rev. 799 (2023).

Focusing on Dobbs, New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and Kennedy v. Bremerton School District, three landmark cases, this Address sketches the contours of the jurisprudence of masculinity. As it argues, the jurisprudence of masculinity evinces a striking solicitude for constitutional rights that are associated with men and masculinity while exhibiting disdain for and disinterest in rights that traditionally have been associated with women. On this account, rights to free exercise of religion, speech, and guns are preferred and prioritized, while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely.

Critically, the jurisprudence of masculinity goes beyond prioritizing the rights of men. The jurisprudence of masculinity recasts the legal landscape to ensure maximum solicitude for the protection of men and the exercise of men’s rights. Specifically, it reorganizes the traditional public–private divide to insulate men’s bodies from the imposition of state regulation, it recasts women’s bodies in terms that make them particularly susceptible and well-suited to public regulation, and it recharacterizes the relationship between the state, rights, and regulation.

The Roberts Court’s commitment to cultivating a jurisprudence of masculinity is inextricably intertwined with its selective commitment to originalism. By its own terms, originalism focuses constitutional interpretation and meaning on certain key historical moments. But tellingly, those constitutional moments on which the Roberts Court frequently relies are moments in which women and people of color were expressly excluded from political participation and deliberation

Wilkins on "Stories that Kill: Masculinity and Capital Prosecutors' Closing Arguments"

Pamela Wilkins has published "Stories that Kill: Masculinity and Capital Prosecutors' Closing Arguments" in volume 71 of the Cleveland State Law Review. The abstract previews: 

The American death penalty is a punishment by, for, and about men: Both historically and today, most capital prosecutors are men, most capital defendants are men, and killing itself is strongly coded male. Yet despite--or perhaps because of--the overwhelming maleness of the institution of capital punishment, the subject of masculinity is largely absent from legal discourse about the death penalty. This Article addresses that gap in the legal discourse by applying the insights of masculinities theory, an offshoot of feminist theory, to capital prosecutors’ closing arguments. This Article hypothesizes that capital prosecutors’ masculinity is strongly influenced both by white Southern ideologies around manhood and by the hypermasculinity common within law enforcement. In turn, these ideologies influence capital prosecutors’ sentencing phase closing arguments.

New Book The Patriarchs: How Men Came to Rule

Angela Saini, The Patriarchs: How Men Came to Rule

SHORTLISTED FOR THE ORWELL PRIZE FOR POLITICAL WRITING 2023

In this bold and radical book, award-winning science journalist Angela Saini goes in search of the true roots of gendered oppression, uncovering a complex history of how male domination became embedded in societies and spread across the globe from prehistory into the present.

Travelling to the world’s earliest known human settlements, analysing the latest research findings in science and archaeology, and tracing cultural and political histories from the Americas to Asia, she overturns simplistic universal theories to show that what patriarchy is and how far it goes back really depends on where you are.

Despite the push back against sexism and exploitation in our own time, even revolutionary efforts to bring about equality have often ended in failure and backlash. Saini ends by asking what part we all play – women included – in keeping patriarchal structures alive, and why we need to look beyond the old narratives to understand why it persists in the present.

 

Research on Gender Stereotypes as to Moral and Legal Culpability for Deception

Gregory Klass & Tess Wilkinson-Ryan, Gender and Deception: Moral Perceptions and Legal Responses, Northwestern University Law Review, Forthcoming

Decades of social science research has shown that the identity of criminal defendants and alleged victims often affects case outcomes. Parties’ race, gender, class, and age affect decisions of prosecutors, judges, juries, and other actors in the criminal system. Less studied has been how identity might affect other forms of legal regulation. This essay begins to explore how parties’ gender might figure into legal decisionmakers’ responses to deceptive behavior. More specifically, we explore the hypothesis that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes and decisions to regulate.

The hypothesis is consistent with research into gender stereotypes, which has shown for example that women are perceived as less capable of protecting themselves against deception and that men have special duties to protect women. The hypothesis is also of a piece with recent work on moral typecasting, which explores how attributions of agency and patiency affect perceptions of moral wrongfulness, as there is evidence that men tend to be associated with agency and women with patiency.

We report the results of three studies designed to test the hypothesis. We use simple vignette experiments to elicit subjects’ off-the-cuff intuitions about men and women deceiving and being deceived. We examine the effects of gender by randomly varying party names (Ashley or Josh), by randomly varying the gender associated with a product (e.g., beard trimmer vs. hair dryer), and by randomly varying the gendered noun identifying the victims of a fraud (brothers vs. sisters). We ask subjects to report on their reactions to different deceptive situations by reporting on the ethicality of a behavior, on their support for a regulatory approach, and on their preference for level of punishment. We also explore differential responses of male- and female-identified subjects.

We find preliminary support for the proposition that men deceiving women and firms deceiving women are regarded as somewhat more problematic than men or firms deceiving men. We find suggestive but limited evidence that paternalistic regulation of women’s transactions is more welcome than that of regulation of men’s consumer choices. We find robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong, and that corporations are viewed as male. The studies reported here also suggest the challenges of studying how the gender of deceiver and deceived might affect moral and legal judgments. Subjects’ politics, for example, appear to correlate both with the effect of parties’ gender on their judgments and with subjects’ views on the appropriateness of regulation. We suggest how future research might disaggregate these effects and explore the mechanisms behind gender-driven moral and legal judgments regarding deception.

Study Shows Individual Level Traits of Vocal Masculinity Influence Corporate Executive Status for Women

John Lynch, CEOs, Masculinity, and Language" 

The lack of female CEOs and the persistent gender pay gap, especially at higher income levels, have become popular topics both in academics and society. Most studies focus on the differences between males and females that perpetuate this "glass ceiling," while few look at within-gender traits that can help mitigate its effects. In this paper, I use novel measures of CEO and CFO vocal masculinity and language complexity to gain insight into how these individual-level traits influence executive status and compensation both within and across genders. I find that vocal masculinity, within females, positively impacts their likelihood of becoming a CEO while the opposite is true for males. When it comes to communication, CEOs speak with greater complexity than CFOs while both female CEOs and CFOs use more complex language and speak longer during earnings calls than their male counterparts. Differences in CEO-CFO language complexity are greater at low entrenchment firms while differences in masculinity are greater at high entrenchment firms. Additionally, while boards with greater female representation hire more female CEOs, they surprisingly seem to place a greater emphasis on female masculinity, while male masculinity plays a larger role at firms with male-dominated boards. Finally, for both male and female CEOs, compensation is positively related to masculinity, while increased language complexity only matters for females. These results help provide insight into the determinants of CEO status and compensation and may help explain how boards view and reward perceived competency across genders.

Nino Monea on Gender Neutrality in the Uniform Code of Military Justice

 

Nine Monea has published "An Officer and a Gentlewoman: Why Congress Should Modernize Article 133 of the UCMJ" in volume 61 of the Washburn Law Review. The abstract previews: 

Article 133 of the Uniform Code of Military Justice—the penal code for the armed forces—makes it a crime for an officer to do anything that is “unbecoming an officer and a gentleman.” This Article argues that Congress should modernize the statute to acknowledge the contributions of servicewomen to the officers’ corps and the unequal treatment they had to endure in order to serve their country by making the offense gender neutral. Given that Congress is poised to overhaul the military justice system, there is no reason why this relic should not be addressed.

Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence

Benjamin C. Carpenter, Sperm is Still Cheap: Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence, Yale Journal of Law & Feminism, forthcoming 2022

Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their ex-wives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground—one party’s interests must yield to the other. To date, appellate courts in one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in nineteen cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 125 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.

Maternal Instinct is a Myth that Men Created

NYT, Maternal Instinct is a Myth that Men Created

The notion that the selflessness and tenderness babies require is uniquely ingrained in the biology of women, ready to go at the flip of a switch, is a relatively modern — and pernicious — one. It was constructed over decades by men selling an image of what a mother should be, diverting our attention from what she actually is and calling it science.

It keeps us from talking about what it really means to become a parent, and it has emboldened policymakers in the United States, generation after generation, to refuse new parents, and especially mothers, the support they need.

New research on the parental brain makes clear that the idea of maternal instinct as something innate, automatic and distinctly female is a myth, one that has stuck despite the best efforts of feminists to debunk it from the moment it entered public discourse.

To understand just how urgently we need to rewrite the story of motherhood, how very fundamental and necessary this research is, it's important to know how we got stuck with the old telling of it.

 

Promising Male Birth Control Pill is Highly Effective with Few Side Effects

Is Male Birth Control Finally Here?

 Nevertheless, researchers recently announced that male birth control trials with mice were wildly successful—99 percent effective at preventing pregnancy.

The new pill, created by a team at the University of Minnesota, blocks proteins from binding to vitamin A, which is crucial to fertility and virility in mammals. In addition to the drug being virtually able to block all pregnancies, the researchers said the pill has no apparent side effects. The findings were shared in March at the annual meeting of the American Chemical Society.***

The sexism behind birth control is blatant. Why do women bear most of the burden of preventing pregnancy? Researchers have traditionally paid much more attention to birth control for women than men, male birth control researchers acknowledge—from pills to patches to intrauterine devices. Seeing men expand birth control options—including taking more responsibility—is essential, especially now.

When male mice were given the drug orally for just four weeks, researchers found they had such a steep drop in sperm count that they became sterile. Yet, when the team stopped dosing the animals, the drug’s effects reversed: The mice bounced back to normal virility in four to six weeks.***

Because this contraceptive is non-hormonal, it’s likely to have fewer side effects, researchers say. Earlier attempts at male birth control pills largely worked by blocking testosterone, which can lead to depression, weight gain and decreased libido. Even when scientists super-dosed the mice with the new drug, the rodents seemed to do just fine, Noman noted.***

As noted, the side effects of weight gain, depression and increased levels of LDL made testosterone not a good choice. “Since men do not have to suffer the consequences of pregnancy, the threshold for side effects from birth control pills is rather low. This is a big barrier to developing a male contraceptive. That’s why we are trying to develop non-hormonal birth control pills to avoid hormonal side effects,” Noman said.

The Controversial Origins of Father's Day and its Connection with Women's Child Custody Rights

Wash Post, Father's Day Once was Highly Political--and Could Become So Again

Sonora Smart Dodd, whose father raised her and her siblings after their mother died in childbirth, was inspired to propose the holiday in 1910 after attending a church service honoring mothers. Even so, while federal law enshrined the second Sunday in May as Mother’s Day in 1914, it took another half-century for fathers to receive similar recognition, first with Lyndon B. Johnson issuing a presidential proclamation in 1966 and then with Congress enacting an official holiday in 1972.

 

For decades, there was less political will to honor fathers, especially because many men regarded the holiday as “silly.” Such thinking continues to this day, as some men celebrate being fathers by using the holiday as a ticket to spend a day at the golf course, enjoying hours on “their” day away from their children.

 

This understanding of Father’s Day, though, misses the ways in which Americans have used the holiday as a political vehicle. In the latter decades of the 20th century, Father’s Day was a key battleground regarding parental rights and responsibilities for activists radicalized by the nation’s rapidly shifting familial landscape. At the root of this politicization of Father’s Day — maybe surprisingly — was the history of divorce.***

 

Enter Father's Day.  As some feminists came to view child support enforcement as a key women’s issue, they turned to the new holiday as an opportunity to publicize their cause. In 1971, a group of women and children from the Association for Children Deprived of Support (ACDS) picketed the home of California assemblyman, and potential gubernatorial candidate, Robert Moretti on Father’s Day to press him to champion child-support reforms.

 

Several years later, in 1975, NOW chapters in Tulsa, Pittsburgh and Hartford, Conn., all participated in “Father’s Day Actions.” The Tulsa protesters promised, in a news release, that “Fathers who are not paying child support can expect that their names and the amounts they are in arrears will be announced” and publicly “displayed by mothers, children and concerned NOW members.” The Hartford women, for their part, laid a wreath at the door of the Superior Court of Connecticut to “mourn the loss of paternal responsibility by all the fathers involved in divorce, separation, and enforcement.”

 

Some divorced fathers, however, had their own political agenda for Father’s Day.

 

Fathers’ rights advocates objected to being used as “wallets” and claimed that their ex-wives purposely kept them from seeing their children in violation of visitation orders. In 1971, the National Council for Family Preservation — one of several failed attempts by fathers’ rights advocate Richard F. Doyle to form a robust national organization like NOW — urged its member groups to hold protests on the Saturday before Father’s Day, noting that fathers might “want to be elsewhere with their children on Sunday.” In a news release, Doyle called for the recognition of the “stupid and cruel divorce laws and practices that have made this holiday a mockery for countless fathers and children.”

Graham Ferris on "Law Students Wellbeing and Vulnerability"

Graham Ferris has published Law Students Wellbeing and Vulnerability in volume 56 of The Law Teacher. Here is the article abstract: 

There is compelling evidence that law students in the UK, USA, and Australia are subject to low levels of wellbeing. * * * Low wellbeing is produced by difficulties responding to stressors and life events, or low resilience. Therefore, law students are a subgroup of a larger group of young people with low resilience, however, law students have lower self-reported wellbeing than the overall student group. The trend for student wellbeing is downwards. Vulnerability theory offers a theoretically coherent heuristic that can enable us to think constructively about the problems of law students and students generally and to generate ideas for potentially beneficial courses of action. With such widespread phenomena, for law students across three continents and over many years, it is unrealistic to posit individualistic explanations as causes. Resilience, and consequent wellbeing, is not best understood as a characteristic of individuals but as generated or degraded by life histories, family and community resources, institutional supports or stressors, and social factors. We need to look at institutional and cultural factors if our response is to be coherent and effective. We need to seek a responsive law school in a responsive university in a responsive state.

The article emphasizes the importance of a legal curriculum that recognizes vulnerability. 

All of these suggestions share a common characteristic, they are reactions to assumptions in the curriculum about the characteristics of the ideal hyper-rational, masculine, autonomous, competitive, liberal subject. Being autonomous and competitive they neglect collective action. Being hyper-rational and autonomous they have no emotional needs and are happy if left at liberty to pursue their own pre-given ends. Being masculine they are primarily the recipients of care, not care givers. Neo-liberalism reduces all values to money and market choices. The law exists to sustain markets, not to impose collective values upon markets. Vulnerability theory rejects this world view and asserts the importance of social reproduction, of the vulnerable individual, and the need for collective responses to deficiencies in resilience. A legal curriculum that recognizes vulnerability as fundamental to law and justice would provide a counterbalance to the current pervasive drift towards neo-liberal paradigms.

Dara Purvis on "Frozen Embryos, Male Consent, and Masculinities"

Dara E. Purvis has published her article Frozen Embryos, Male Consent, and Masculinities in volume 97 of the Indiana Law Journal. The abstract previews:

Picture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization (IVF) with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.

 

By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult, and her partner was a child under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave birth, she sued the teenager for child support. Despite his protest that he did not consent to the sexual activity that led to the child’s birth, the court affirms the child support order.

 

As a practical matter, this inconsistency in treatment of unwanted fatherhood may instinctively make sense, applying two different rules for two very different contexts. A deeper examination of the cases, however, reveals much more going on. This Article uses the frame of masculinities theories to dive further into the inconsistency and uncovers two groundbreaking implications that stretch far beyond the specific circumstances. First, the varying treatment of embryo disposition disputes and the characterization of male victims of statutory rape have one constant: a dismissal and rejection of men’s emotions. Second, exploring the inconsistent treatment of men’s consent to become fathers in sexual reproduction versus stored embryos reveals a clear rejection by courts of the personhood concept that embryos are human life. These revelations inform not only how embryo disposition disputes should be resolved, but also fetal personhood and family law’s treatment of fathers.

The article concludes: 

When frozen embryo disputes are viewed in isolation, they appear to be extremely specialized. Such disagreements only arise in a relatively specialized medical circumstance, and the raw numbers and reported cases are both quite small. It might be hard to imagine, at least on first exposure, that analysis of such litigation would generate conclusions beyond an opinion about how to solve the very particular problem of embryo disposition disputes.

 

Similarly, statutory rape of boys is a minority of statutory rape cases, and such assaults are under-reported and under-prosecuted. Only a fraction of such events will result in a pregnancy that is brought to term, and few challenges to paternity determinations make their way into court.

 

When these two seemingly narrow corners of family law are set against each other, however, the inconsistency in how the law treats consent to become a father is striking. When that inconsistency is viewed through the lens of masculinities theories, the threads of commonality become even easier to identify. From seemingly discordant questions emerge far-reaching implications not only for how embryo disposition disputes should be resolved, but broader issues of reproductive rights, abortion, and the law’s conception of fatherhood.

Yvonne Lindgren on "The Fathers' Veto and Fatherhood as Property"

Yvonne Lindgren has posted her forthcoming article The Fathers' Veto and Fatherhood as Property  on SSRN. This article will be published in the North Carolina Law Review. The abstract states: 

Over the last twenty-five years, state legislators have been quietly adding civil remedy provisions to antiabortion legislation to supplement, and in the case of Texas’ SB8, to completely replace the traditional criminal and administrative enforcement mechanisms of restrictive abortion legislation. Laws currently in effect in at least seven states permit putative fathers, regardless of their relationship to the pregnant woman, to sue abortion providers for civil damages for wrongful death and emotional distress for alleged harms that result from the abortion procedure. Several state legislatures have introduced laws—although to date all have been enjoined or are in the process of being challenged—that require women seeking an abortion to get signed consent of the father. As these laws gain traction, abortion opponents have advanced a new narrative of abortion: regret for lost fatherhood.

 

While civil remedy antiabortion provisions are an attempt to establish fetal personhood, what may be less obvious is their potential to shift the regulation of women’s reproductive autonomy from the state to private actors, specifically to fathers. This Article explores these previously unexamined civil remedy provisions to reveal the ways that they function as a veto over women’s reproductive decision-making and place women’s constitutional rights in the hands of private actors through the pretextual vehicle of parentage. Granting a putative father the right to sue in wrongful death recognizes him as having a parental interest that is compensable when lost, even when a pregnancy has been terminated through a consensual abortion procedure. While the nominal purpose of these laws is to compensate putative fathers in tort, these laws in fact have a much broader sweep: to recast abortion as an issue of parentage and to extend the power of fathers over their genetic offspring and, by extension, their pregnant sexual partners, both through monetary compensation and veto power over abortion. In short, antiabortion civil remedy laws forge a property interest in genetic fatherhood. 

Jordan Woods on "Destabilizing Policing's Masculinity Project"

Jordan Blair Woods has published Destabilizing Policing’s Masculinity Project in volume 89 of the George Washington Law Review. The abstract summarizes: 

In the wake of national calls for police reform and nationwide protests of police killings of unarmed people of color, and unarmed Black men in particular, there is a renewed focus on the relationship between masculinity and police violence. This Article, prepared for a symposium on “Addressing the Crisis in Policing Today: Race, Masculinity, and Police Use of Force in America,” evaluates how scholars inside and outside of law have approached issues of masculinity and police violence. The analysis places special emphasis on where these approaches leave us in terms of police reform. As discussed, how police-civilian encounters relate to the social construction of gender and the enactment of masculinity are major focal points of recent literature on masculinity and police violence. From this perspective, interventions are geared towards negating gender hierarchies through processes of professional resocialization and degendering that aim to replace dominant masculinist cultural norms with antimasculinist ones. When adopted for the specific purpose of changing masculinist police culture, antimasculinist officer training and enhanced diversity recruitment (especially aimed at enhancing gender diversity) are noteworthy examples of these professional re-socialization strategies.

 

This Article aims to incite a conversation about moving discussions of masculinity and policing to a different plane. It evaluates the limits of social constructionist views of masculinity in policing contexts, and more specifically, the types of police reforms that follow from those views. To accomplish these goals, this Article looks outside the field of law to the discipline of criminology. As discussed, criminology is a useful comparative space to consider masculinity issues because for over a century the field has been concerned with its own “sex question” about crime, which revolves around the acknowledgment that most known criminal offenders, especially violent offenders, are men. Looking to literature outside of law, this Article argues that critical theoretical frameworks that move beyond the sex/gender distinction, such as those in postmodern feminism and queer theory, offer promise to dismantle gender hierarchies in policing on a deeper level through discursive and political strategies that challenge basic assumptions about the existing order and structure of contemporary policing. Although this Article is exploratory and invites further reflection and development, its analysis reveals the value in continually scrutinizing and reevaluating the discursive and political strategies in policing’s masculinity project.

 

 

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

By: Amanda M. Fisher

Published in: Rutgers Journal of Law and Public Policy, Volume 19:1

The modern woman lawyer faces many of the same challenges that women in law faced during their earliest entry into the profession. While circumstances have certainly improved for women in law, gendered stigma is still prevalent in the profession. In this article, “gendered stigma” refers to circumstances resulting from one’s gender as a salient feature of their work, serving to discredit one’s abilities and accomplishments. Women began to enter the legal profession in large numbers in the 1970s, gaining attention as they did so. Although early research on women in the law focused on blatant discrimination, that type of discrimination is fortunately less common now. Much of the modern research addressing women’s status in the legal profession, however, focuses on the quantitative evidence, like the number of women in the profession and their salaries as compared to men. Numerical evidence does show progress, but qualitative evidence reveals that the gender-driven experiences of women new to the profession are eerily similar to those of women who have long retired from the profession. This belies the assumption that simply improving numbers, e.g., having more women in the profession, would solve the disparities between men and women who practice law. This article relies on identity theory and stigma to inform the cycle of gendered stigma prevalent in the legal profession to critically examine basic tenets of the profession that must change for progress to flourish. This theoretical foundation can then inform practical solutions for mitigating the negative effects of gendered stigma on the profession and the individuals serving within it.

Veterans Day from a Gender & Law Perspective: Equality, Discrimination, Preferences, Family, Health, Assault, and the Draft

Here is an overview of some of the scholarship and current legal movements regarding gender, veterans, and the miltiary:

The Supreme Court's classic case upholding veterans' preferences despite their disparate impact against women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).

United States v. Virginia (VMI), 518 U.S. 515 (1996) (Ginsburg, J.) (requiring state male-only military college to admit women equally to VMI)

US v. Briggs,  592 U.S. ___ (Dec. 10, 2020) (holding that military rape cases have no statute of limitations)

Gender & the Law Prof Blog, SCOTUS Refuses to Hear Challenge to Male-Only Draft but 3 Justices Dissent (June 15, 2021)

Gender & the Law Prof Blog, Federal Judge Holds Male-Only Military Draft Violates Equal Protection (Feb. 26, 2019)

Gender & the Law Prof Blog, 9th Circuit Hears Challenge to Men Only Draft

Gender & the Law Prof Blog, Senate Overwhelming Votes to Require Women to Register for Draft (2016)

Gender & the Law Prof Blog, Justice Ginsburg's Legacy and the Draft Case

EEOC, Policy Guidance on Veterans' Preferences Under Title VII

Jamie Abrams, editor at the Gender & Law Prof blog, Examining Entrenched Masculinities Within the Republican Government Tradition,  114 West Va. L. Rev. (2011). 

Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLawNOW 93 (2021). 

Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

Melissa Murray, Made With Men in Mind: The GI Bill and the Reinforcement of Gendered Work After World War II, in Feminist Legal History (Tracy Thomas & Tracey Jean Boisseau eds. 2012).

Congress' Deborah Sampson Act Signed Into Law (2021):  to improve the benefits and services provided by the Department of Veterans Affairs to women veterans, and for other purposes.

H.R. 2982, Women Veterans Health Care Accountability Act: To direct the Secretary of Veterans Affairs to conduct a study of the barriers for women veterans to health care from the Department of Veterans Affairs.

Gender & the Law Prof Blog, How to Reduce Discrimination in Veterans' Preferences Laws, featuring Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)

Gender & the Law Prof Blog, Bills Introduced in Congress to Allow Professional Licenses of One State to be Valid in State to Which Military Spouse is Relocated  

Gender & the Law Prof Blog, Parental Right Issues in Military Academies Disproportionately Harms Women 

Gender & the Law Prof Blog, Study on Military Sexual Assaults Concludes that Rate of Assaults is Lower, Rate of Prosecution Higher, and Victims Report More Often than in Civilian Society (May 2021)