Gender and the Law Blog

A Poor Mother's Right to Privacy

Danielle Keats Citron, A Poor Mother's Right to Privacy: A Review, 98 Boston J. L. Rev. (forthcoming)

Collecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the existential state of poor mothers is persistent and indiscriminate state surveillance. 

Professor Khiara Bridges’s book, The Poverty of Privacy Rights, advances the project of securing privacy for the most vulnerable among us. It shows how the moral construction of poverty animates the state’s surveillance of poor mothers, rather than legitimate concerns about prenatal care. It argues that poor mothers have a constitutional right not to be known if the state’s data collection efforts demean and humiliate them for no good reason. The Poverty of Privacy Rights provides an important lens for rethinking the data collection imperative more generally. It supplies a theory not only on which a constitutional right to information privacy can be built but also on which positive law and norms can develop. Concepts of reciprocity may provide another analytical tool to understand a potential right to be as unknown to government as it is to us.

When Barbie Went to War with Bratz

Jill Lepore, When Barbie Went to War with Bratz: How a Legal Battle Over Intellectual Property Exposed a Cultural Battle over Sex, Gender Roles, and the Workplace, The Atlantic

The feud between Barbie and Bratz occupies the narrow space between thin lines: between fashion and porn, between originals and copies, and between toys for girls and rights for women. In 2010, Alex Kozinski, then the chief judge of the U.S. Court of Appeals for the Ninth Circuit, who presided over Mattel v. MGA, wrote in his opinion that most of what makes a fashion doll desirable is not protectable intellectual property, because there are only so many ways to make a female body attractive. “Little girls buy fashion dolls with idealized proportions which means slightly larger heads, eyes and lips; slightly smaller noses and waists; and slightly longer limbs than those that appear routinely in nature,” Kozinski wrote, giving “slightly” a meaning I never knew it had. But only so much exaggeration is possible, he went on. “Make the head too large or the waist too small and the doll becomes freakish.” I’d explain how it is that anyone could look at either a Barbie or a Bratz doll and not find it freakish, except that such an explanation is beyond me. As a pull-string Barbie knockoff once told Lisa Simpson, “Don’t ask me! I’m just a girl!”

 

Orly Lobel, a professor at the University of San Diego School of Law, has recently published “You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side” (Norton). For the book, a hair-raising account of a Barbie Dreamhouse-size Jarndyce and Jarndyce, Lobel interviewed Judge Kozinski over lunch and happened to mention that, when she was a girl, her mother, a psychologist, told her that Barbie dolls were bad for girls’ body image. Kozinski professed astonishment. “The only thing wrong that I saw when I held Barbie,” he said, joking, “is when I lift her skirt there is nothing underneath.” Last month, Kozinski resigned from the federal judiciary after more than a dozen women, including two of his own former law clerks, accused him of inappropriate behavior. Justice is hard! ***

 

Once told to be hotties, girls were next told to empower themselves by being hot employees, as both the culture and corporations set aside long-standing concerns about sexual harassment in the workplace—abandoning possible societal, industry-wide, or even governmental remedies—in favor of sex-positive corporate feminism. The 2013 publication of Sheryl Sandberg’s “Lean In” marked a steepening in the decline of structural efforts to reform workplaces. Instead of fighting for equal pay, equal work, and family leave, women were told that they needed to empower themselves, one by one, through power dressing and personal exertion. Unsurprisingly, Barbie and Bratz leaned in, too. MGA relaunched Bratz with the latest mindless lingo of corporate-friendly girl power in a box. “We have doctors, lawyers, journalists,” MGA’s C.E.O., Isaac Larian, told Forbes. “Now more than ever before, Bratz empowers girls.” The rebranded dolls, though, had no discernible interests in such careers. Instead, the Bratz, who, like Barbie, started out as teen-agers, now came with hobbies, including yoga and running, and wardrobes newly inspired by study-abroad travel. Mattel ran its own Sandbergian campaign—“When a Girl Plays with Barbie, She Imagines Everything She Can Become”—and promoted Doctor Barbie, who, with her stethoscope, wears stilettos, a miniskirt, and a white lab coat embroidered, in pink thread, “Barbie.”

 

Empowerment feminism is a cynical sham. As Margaret Talbot once noted in these pages, “To change a Bratz doll’s shoes, you have to snap off its feet at the ankles.” That is pretty much what girlhood feels like. In a 2014 study, girls between four and seven were asked about possible careers for boys and girls after playing with either Fashion Barbie, Doctor Barbie, or, as a control, Mrs. Potato Head. The girls who had played with Mrs. Potato Head were significantly more likely to answer yes to the question “Could you do this job when you grow up?” when shown a picture of the workplaces of a construction worker, a firefighter, a pilot, a doctor, and a police officer. The study had a tiny sample size, and, like most slightly nutty research in the field of social psychology, has never been replicated, or scaled up, except that, since nearly all American girls own a Barbie, the population of American girls has been the subject of the scaled-up version of that experiment for nearly six decades.

 

Taking Action Against Sexual Harassment; Concrete Solutions Begin to Emerge

NPR, Hollywood Women Launch Initiative to Stop Sexual Harassment

Some of Hollywood's most powerful women have teamed up to launch an initiative aimed at combating sexual harassment inside and outside their industry after an avalanche of allegations set in motion by the Harvey Weinstein scandal.

In a full-page open letter published in Monday's New York Times, 300 prominent actresses, female agents, writers, directors, producers and entertainment executives announced the campaign called "Time's Up."

The Time's Up initiative includes:

• A $13 million legal defense fund to help women in blue-collar jobs and farm work
• Drafting of legislation to punish companies that tolerate sexual harassment and to discourage nondisclosure agreements in such cases.
• A push to reach gender parity in Hollywood studios and talent agencies; and a call for women walking the red carpet at the Golden Globes to wear black as a sign of protest and solidarity.

Anita Hill to Lead Hollywood Commission on Sexual Harassment

A commission headed by Anita Hill and composed of and funded by some of the most powerful names in Hollywood has been created to tackle widespread sexual abuse and harassment in the media and entertainment industries.

Called the Commission on Sexual Harassment and Advancing Equality in the Workplace, the initiative was spearheaded by Kathleen Kennedy, the president of Lucasfilm; Maria Eitel, the co-chair of the Nike Foundation; the powerhouse attorney Nina Shaw; and Freada Kapor Klein, the venture capitalist who helped pioneer surveys on sexual harassment decades ago.

The commission’s mission, according to a news release, is to “tackle the broad culture of abuse and power disparity.”

“The commission will lead the entertainment industry toward alignment in achieving safer, fairer, more equitable and accountable workplaces —particularly for women and marginalized people,” according to a statement released Friday evening.

NLJ, Hitting Workplace Harassers Where It Hurts

Employers can hit sexual harassers hard—in the pocketbook. There are a variety of channels by which to claw back compensation and benefits from bad-acting employees. The smartest employers have for years aimed those threats at employees who violate noncompete and trade secret protections. Now, they may want to toughen up their benefit plans and stock awards, because routine harassment training may not have the in terrorem effect that could come through broad-based forfeitures and clawback.

Chief Justice Roberts Says Courts Will Examine Protections Against Sexual Harassment

Chief Justice John G. Roberts Jr. announced an initiative Sunday to ensure there are proper procedures in place to protect law clerks and other court employees from sexual harassment, saying it is clear that the federal judiciary “is not immune” from a widespread problem.

The statement, in Roberts’s 2017 State of the Judiciary Report , follows the retirement last month of Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.

Time's Person of the Year: The Women Who Broke the Silence on Sexual Harassment

Time, The Silence Breakers: The Voices that Launched a Movement

The galvanizing actions of the women on our cover—Ashley Judd, Susan Fowler, Adama Iwu, Taylor Swift and Isabel Pascual—along with those of hundreds of others, and of many men as well, have unleashed one of the highest-velocity shifts in our culture since the 1960s. Social media acted as a powerful accelerant; the hashtag #MeToo has now been used millions of times in at least 85 countries. “I woke up and there were 32,000 replies in 24 hours,” says actor Alyssa Milano, who, after the first Weinstein story broke, helped popularize the phrase coined years before by Tarana Burke. “And I thought, My God, what just happened? I think it’s opening the floodgates.” To imagine Rosa Parks with a Twitter account is to wonder how much faster civil rights might have progressed. * * * 

 

This reckoning appears to have sprung up overnight. But it has actually been simmering for years, decades, centuries. Women have had it with bosses and co-workers who not only cross boundaries but don't even seem to know that boundaries exist. They've had it with the fear of retaliation, of being blackballed, of being fired from a job they can't afford to lose. They've had it with the code of going along to get along. They've had it with men who use their power to take what they want from women. These silence breakers have started a revolution of refusal, gathering strength by the day, and in the past two months alone, their collective anger has spurred immediate and shocking results: nearly every day, CEOs have been fired, moguls toppled, icons disgraced. In some cases, criminal charges have been brought.

 

The Story Behind the Woman You Don't See on Time's Person of the Year Cover

But on the lower right-hand corner of the cover, there’s simply an arm, cropped at the shoulder. It belongs to an anonymous young hospital worker from Texas — a sexual harassment victim who fears that disclosing her identity would negatively impact her family.

She is faceless on the cover and remains nameless inside TIME’s red borders, but her appearance is an act of solidarity, representing all those who are not yet able to come forward and reveal their identities. 

But see

Wash Post, #MeToo? In 80 Years, No American Woman has Won Time's Person of the Year by Herself

How Many Women Have Been Time's Person of the Year? It's a Short List.

Why is Now the Sexual Harassment Tipping Point?

Julia Carpenter, CNN Money, Sexual Harassment Tipping Point: Why Now?

It's been called the Weinstein effect.

Following the bombshell investigations into Harvey Weinstein's conduct, more people began to speak out about sexual harassment, leading to a string of allegations against other prominent men like Charlie Rose, Kevin Spacey, Louis C.K., Jeffrey Tambor, Al Franken and others. Many of the accused have paid a steep price for their behavior.

 

But why now?

 

 

America has had its share of news-making scandals before. Anita Hill testified against Clarence Thomas in 1991, and Thomas still sits on the Supreme Court today.

 

Decades of assault accusations followed former television star Bill Cosby even as his star was rising. And in 2016, the "Access Hollywood" tape depicting then-candidate Donald Trump boasting of sexual assault did not stop his ultimate presidential victory.

 

So what's different in the moment we're experiencing now?

 

We know their names

Many of the women who spoke out against Weinstein -- Gwyneth Paltrow, Ashley Judd, Rose McGowan -- are famous names. In previous high-profile sexual harassment cases, it's usually the men who are more well-known (see: Bill O'Reilly, Clarence Thomas). Experts say that the previous power dynamic -- the famous man accused by the less-famous woman -- only bolstered a false narrative, one that discredited women's stories.

 

In Weinstein's case, however, as more women added their own allegations to a growing list, people paid attention.

 

"What do we focus on in our society? Movies and social media and People magazine," says Tracy Thomas, law professor at the University of Akron. "So those are the voices that finally ... make a difference."

 

And to people watching around the world, the women's fame cemented the credibility of their stories.

 

"Class and race and stature play into whether someone is believed," says Fatima Goss Graves, president and CEO of the National Women's Law Center. "The nature of who is telling the story mattered here."

 

Other women are sharing their stories

Since Hill testified in 1991, the way in which people show support for survivors has changed, says Renee Knake, professor at the University of Houston Law Center.

 

Case in point: the words we use.

 

"When Anita testified, women supported her, but they said, 'I believe Anita,'" Knake says. "And the reason why they believed her is because it was happening to them, but no one wanted to face what she endured. Now, women are saying, 'Me, too,' which is more tangible and more concrete."

 

The advent of social media, and the way women now turn to it to share their own stories, on their own terms, has created "a critical mass" of testimonials, Knake says.

 

"Suddenly, when you have more people speaking, that always creates a tipping point," Thomas says. It's harder for critics to say, "'They can't all be overly sensitive. They can't all be lying,'" she added.

 

And more importantly, these testimonials made an issue that was otherwise removed from many lives into something personal.

 

And when it's personal, Thomas says, you're encouraged to share your story, too -- whether on Facebook, with your friends or in an HR office making a formal complaint.  ***

 

Men are paying attention

Thomas says the recent outpouring of support for harassment survivors has also engaged a critical population: men.

 

At previous sexual harassment flashpoints throughout American history, men were listening, but they weren't engaged.

 

But in the last month, the #metoo campaign and barrage of accusations has made the issue personal for millions of women -- and men -- as they shared their own harassment stories or realized this issue had touched every woman they knew.

 

Thomas points to the important role men have played in previous women's rights milestones. Just a century ago, in the fight for suffrage, women relied on male supporters to add their voices to the conversation. In harnessing such widespread support and demonstrating in numbers before the White House, advocates won women the right to vote in 1920.

 

"Just like any movement when we're talking about women, bringing men into that dialogue is so critical and must really be taken seriously," Thomas says.

New Movie on Ruth Bader Ginsburg, "On the Basis of Sex"

Armie Hammer Joins Felicity Jones in Ruth Bader Ginsburg Biopic  

Armie Hammer will start opposite Felicity Jones in On the Basis of Sex, the biopic of renowned Supreme Court Justice Ruth Bader Ginsburg.

Participant Media is behind the drama, which will be directed by Mimi Leder from a script by Daniel Stiepleman, who is also Ginsburg’s nephew.Sex focuses on Ginsburg, played by Jones, as she teams up with her husband, Marty Ginsburg (Hammer) to bring the first landmark gender discrimination case before the Supreme Court.

The movie is eyeing a fall shoot in Montreal.

The feature is slated for release in 2018, in line with Ginsburg's 25th anniversary as a Supreme Court Justice. Focus Features is distributing domestically.

 

Felicity Jones Replacing Natalie Portman in Ruth Bader Ginsburg Biopic 

Felicity Jones is set to star as Ruth Bader Ginsburg in a biopic about the Supreme Court justice's life.

On the Basis of Sex will be directed by Mimi Leder (The Leftovers, Shameless) and follows Ginsburg as she fights for equal rights throughout her entire law career, which began at Harvard University and Columbia Law School and led to Washington.

At one time, Natalie Portman was considered to play Ginsburg in the feature, which was written by Daniel Stiepleman and was placed on the 2014 Black List. 

 

Gender Biases in Cyberspace

Shlomit Yanisky-Ravid & Amy Mittelman, Gender Biases in Cyberspace: A Two-Stage Model, the New Arena of Wikipedia and Other Websites, 26 Fordham IP, Media & Entertainment LJ (2016) 

Abstract

Increasingly, there has been a focus on creating democratic standards and norms in order to best facilitate open exchange of information and communication online―a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution for which social activists, intellectual property opponents, and feminist theorists have been waiting. Unfortunately, we are now realizing that this utopian dream does not exist as anticipated: the Internet is neither neutral nor open to everyone. More importantly, these websites are not egalitarian; rather, they facilitate new ways to exclude and subordinate women. This Article innovatively argues that the virtual world excludes women in two stages: first, by controlling websites and filtering out women; and second, by exposing women who survived the first stage to a hostile environment. Wikipedia, as well as other cyber-space environments, demonstrates the execution of the model, which results in the exclusion of women from the virtual sphere with all the implications thereof.

Poll Shows 51 Percent of US Women have Personally Experienced Gender-Based Discrimination

Poll: Majority of Women in US Have Experienced Gender-Based Discrimination

• The results show that a majority, 51 percent, of women have personally experienced discrimination based on their gender, and 35 percent said they have not experienced gender-based discrimination. A majority of women, 51 percent, also said society has not yet reached the point where women and men have equal opportunities for achievement                                                                                                                                                                                                                                                                        
• The data also show some interesting splits when examined in detail by partisanship. The percentage of Democratic women who said they've experienced discrimination on the basis of their race was 23 points higher than the percentage of Republican women who said so - 62 percent to 39 percent. Among Independent women, 46 percent said they've personally experienced gender-based discrimination.

• Just under half, 49 percent, of Republican women said society has reached the point where women and men have equal opportunities for achievement. Among Independent women, 36 percent said women and men have equal opportunities. In contrast, a little over a quarter, 27 percent, of Democratic women agreed that society allows for equal opportunity for both genders. These findings show that Republican and Democratic women have starkly different experiences and perspectives on where society stands on the matter of gender equality.

The vexed paradox of Fiorina's feminism

From the NYT: 

When the novelist Jennifer Weiner watched the second Republican presidential debate with her two daughters on Sept. 16, she felt a sense of pride at seeing the lone woman on stage,Carly Fiorina, hold her own against Donald J. Trump.

Then Mrs. Fiorina denounced abortion and Planned Parenthood in a graphic monologue that thrilled many conservative Republican voters but left Ms. Weiner appalled.

Marc Maron

The book was published in 2013, but I recently discovered it, and read it.  

Marc Maron--the guy who interviewed Obama from his garage in L.A.--is a comedian and actor.  He is also a smart social critic, and his book Attempting Normal is terrific.  

True, the book is often puerile, vulgar and some sections (like his somewhat pointless digression about trying to herd feral cats) don't work.  But overall, the book contains nuggets of insight about manliness and, seldom found in academic writing, Maron renders his observations with poignant wit and unforgettable humor.  

Manliness--at least Maron's manliness--is destructive and self-destructive; it aspires for nobility but is frequently crippled by paranoia; it yearns to be tough but always circles back to its vulnerabilities; it desires love from women but is consumed by a relentless narcissism.  It is also highly self-conscious and acutely cognizant of its flaws, and is willing to share those flaws with the reader.  

There's an interview with Maron on the Good Men Project today.  

New Yorker: The GOP's Misogyny Problem

From the New Yorker: 

Here in America, at the beginning of the twenty-first century, sexism is very much on the wane, but misogyny is not. Sexism—the conviction that women don’t deserve equal pay, political rights, or access to education—can be combatted by argument, by anti-discrimination laws, and by giving women the opportunity to prove their ability. Misogyny is not amenable to such advances; they can in some circumstances exacerbate it, though they may drive it underground. An example of misogyny is when someone online threatens to rape and mutilate a woman whose opinions that person does not like. Another is when a Presidential candidate says of a female journalist whose questions he finds impertinent, “There was blood coming out of her eyes, blood coming out of her—wherever.”

 

Trump and Women

Donald Trump's unforgettable performance in the GOP debate last night is now well publicized.  

Among the several provocative comments he uttered, one is especially noteworthy.  During an exchange with Megyn Kelly of Fox News, who had asked him to respond to charges that he was a misogynist, he snapped at her and made a vague threat.  

Today's WaPo contains some discussion about Trump's views on women.  

“I don’t know why, but I seem to bring out either the best or worst in women.”

So wrote Donald Trump in his 1997 book, “Trump: The Art of the Comeback.”At the time, the real-estate billionaire was dealing with the end of his second marriage, so a little bitterness might be expected. Yet, throughout Trump’s books — particularly in his three memoirs, “Trump: The Art of the Deal”(1987), “Trump: Surviving at the Top” (1990) and “The Art of the Comeback” — he writes at length on his personal relationships, his experiences with women in marriage and in the workplace, even his dating life.

A memorable excerpt from the WaPo piece, quoting The Donald: 

“Women have one of the great acts of all time. The smart ones act very feminine and needy, but inside they are real killers. The person who came up with the expression ‘the weaker sex’ was either very naive or had to be kidding. I have seen women manipulate men with just a twitch of their eye — or perhaps another body part.” (“Trump: The Art of the Comeback”)

Upcoming Big Screen Movies on Women and the Law

Suffragette - on the British women's suffrage movement starring Meryl Streep, Carey Mulligan, and Helena Bonham Carter 

She's Beautiful When She's Angry - on the second-wave US feminist movement

Justice Ruth Bader Ginsburg Biopic

Ms., Lilly Ledbetter's Fight for Equal Pay is Coming to the Big Screen

 

 

"White Male Bluster"

So reads the Salon headline for an article that assesses the public rhetoric by GOP presidential candidates.  

Chris Christie roared onto the presidential campaign stage calling out his onetime pal, President Obama, for being “weak.” He labeled the economy as “weak,” U.S. foreign policy as “weak,” and the president’s style of governance as a “handwringing” incompetence. Christie’s theme is not just his, though; it seems to dominate the Republican candidates’ critique of any Democratic leader whose approach to the larger world refrains from their over-the-top bluster. The real question, though, is what makes the Republicans think theirs is the party of strength? What lies behind their in-your-face, Clint Eastwood-style American bravado?

Feminism is Like Brussels Sprouts

Both are delicious. And good for you.

Slate, When Did Feminism Get So "Sneaky"?

But the moment I recognized the excellence of Brussels Sprouts represented a twofold cause for celebration. Not only was I set up for a lifetime of consuming a nutritious vegetable, but I suddenly had the discernment to enjoy said vegetable. . . . Just so with feminism. Mainstream culture has finally figured out that feminism is delicious, and we should rejoice rather than squint doubtfully into the glorious, gender-equal sunrise.

The disappearance of the manly journalist?

An amusing, and interesting, essay from the Atlantic.  

I, Elspeth Reeve, am the manliest journalist in the world. That’s not something I go around thinking about all day, but recently Mark Judge wrote a semi-viral article titled, “Where Have All the Manly Journalists Gone?” I am here to answer that question. 

Judge’s essay for Acculturated.com, “an online magazine about the virtues and vices of pop culture” with a politically conservative slant, drew some attention when he savvily tweeted it at many journalists. It is a tailored-for-Twitter version of a longstanding anxiety—ex: “THE SISSIFICATION OF AMERICA CONTINUES APACE.” Judge, who has written a book titled A Tremor of Bliss: Sex, Catholicism, and Rock 'n' Roll, wonders what happened to the burly old guys with alcohol problems who wrote about big wars: “Ernest Hemingway. Ernie Pyle. Jack London. Christopher Hitchens.” The article is illustrated with a photograph of Hemingway using a typewriter outdoors, with rugged mountains behind him, while wearing a leather vest and pomade in his hair, which clearly was not staged for his own vanity, because that would be unmanly.

In the good old days, there was an “intense physicality” to reporting, Judge writes, and “journalism was a job of grit and hard effort, like boxing.” These days, we type things on computers, like pussies.