Gender and the Law Prof Blog

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

Wednesday, February 24, 2021

How Sex Discrimination Law Can Do Positive Work for Dismantling Anti-Black Racism

Kyle Velte, Toward a Touchstone Theory of Anti-Racism: Sex Discrimination Law Meets #LivingWhileBlack" 
Yale Journal of Law & Feminism, Forthcoming

This article asks the question: Can sex discrimination law do positive work for the project of dismantling anti-Black racism and white supremacy? This article’s answer is “yes.”

White supremacy and anti-Black racism continue their pervasive and destructive paths in contemporary American society. From the murder of George Floyd to the daily exclusions of Black bodies from white spaces, the nation’s failure to right the wrongs of chattel slavery and racism continues to be highlighted in stark relief. This article centers the racism made manifest through #LivingWhileBlack aggressions—the phenomenon of white people calling 911 to report Black people engaging in lawful, routine, everyday activities—and examines it through the lens of two sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It contends that analyzing #LivingWhileBlack aggressions through the lens of sex discrimination law may yield two positive results: First, looking at the problem with a new perspective may lead to different, additional, or more comprehensive strategies for disrupting and dismantling white supremacy. Second, utilizing a sex discrimination frame to consider #LivingWhileBlack aggressions holds the potential to make legible to white women the connection between their own oppression and the oppression of Black people, thus create the opportunity for coalition building.

The article proposes what it calls a “touchstone theory” of inquiry for understanding #LivingWhileBlack aggressions. This theory envisions multiple “touchstones”—legal, political, and cultural, to name a few—that may inform our analysis of white supremacy. It asserts that lessons from sex discrimination law are one such analytical touchstone, while recognizing that a number of touchstones are necessary to fully unpack and address #LivingWhileBlack aggressions. In providing another touchstone for thinking about and resolving the #LivingWhileBlack problem, the article contributes to the scholarly dialogue addressing this pervasive and harmful phenomenon.

The article first explores the sex stereotyping theory established in Price Waterhouse v. Hopkins and uses it to develop a derivative theory of racial stereotyping, which it describes as a White Privilege Stereotype. Framing #LivingWhileBlack aggressions as white people retaliating against Black people for claiming white privilege parallels Price Waterhouse’s framing of the rejection of Ann Hopkins as a partner in an accounting firm as punishing a woman for claiming male privilege. The article then engages with the history of the campaign for inclusion of “sex” in public accommodations laws. The article describes how the lessons learned from the history of prohibiting discrimination against sex in public spaces can help us to understand #LivingWhileBlack aggressions—punishing Black people attempting to live their “race in public.”

In proposing a sex discrimination touchstone as one among many salient touchstones for analyzing #LWB aggressions, the article builds on the idea of a symbiotic dynamic through which multiple systems of subordination work together. As applied to the sex discrimination touchtone theory, this dynamic means that white (straight) women who are exercising white privilege in #LivingWhileBlack aggressions are doing so at the expense of reinforcing male privilege (to their own detriment). Exposing this dynamic through a sex discrimination touchstone inquiry of #LivingWhileBlack aggressions may encourage white women to work in coalition with Black individuals and organizations to engage in anti-racist work.

February 24, 2021 in Race, Theory | Permalink | Comments (0)

Thursday, February 18, 2021

Black Women Challenge Florida's Felony Disenfranchisement Law as Undue Burden and Violative of 19th Amendment

Courts Asked to Analyze Undue Burden of Florida's Felony Disenfranchisement Law on Black Women

New filings in the nation’s sole 19th Amendment felony disenfranchisement suit seek acknowledgement of historical and economic factors that impact Black women in particular.

After nearly two-thirds of the state voted to restore the right to vote to those convicted of felony offenses, McCoy and more than 700,000 Floridians lost access to the voting box in 2019, when Gov. Ron DeSantis signed Senate Bill 7066 into law. The legislation requires formerly incarcerated people to pay any restitution, fines, fees or court costs — also known as legal financial obligations — before regaining the right to vote. McCoy learned that she owed about $7,500 in victim restitution, including interest, and her county expected her to pay it all at once. Advocates call the law a modern-day poll tax. 

Now, the Southern Poverty Law Center (SPLC), which sued Florida on behalf of McCoy and another Black woman named Sheila Singleton, is asking an appeals court to require a new analysis of the nation’s sole felony disenfranchisement lawsuit alleging a violation of the 19th Amendment. Lower courts dismissed SPLC’s analysis of the law’s disproportionate financial, “undue burden” on women of color. ***

The 11th Circuit Court of Appeals upheld Florida’s felony disenfranchisement laws in September, but, according to court documents filed on February 10, McCoy’s lawyers want the court to weigh in on The 19th Amendment more directly because of the law’s disparate impact on women of color. 

At the core of this renewed legal battle is the question of intent. Lawyers for the state of Florida argue that McCoy and her legal team have to prove that lawmakers and the governor intended to disenfranchise women with the law. But Nancy Abudu, the deputy legal director for the SPLC, filed an appeal for Florida to focus on the impact of this law on women of color.

“We have to move away from having to prove that people are racist and sexist,” Abudu told The 19th. “If that is our burden of proof, then we might as well not bring any of these cases. Instead, we need to focus on what is the impact of these laws. You can’t feel comfortable with a system that incarcerates mostly poor Black people just because the system doesn’t say arrest poor Black people.” 

Attorneys representing DeSantis and Florida’s secretary of state did not respond to a request for comment at press time. 

Nationwide 57 percent of men made less than $23,000 prior to incarceration, this is true for 72 percent of women, court documents read. The SPLC’s past filings include data from Prison Policy, a nonpartisan criminal justice think tank, showing the unemployment rate among formerly incarcerated people between the ages of 35 to 44 was 44 percent among Black women and 35 percent for Black men, and 23 percent among White women compared to 18 percent of White men.  

Abudu sees this as a timely fight. Black women’s votes ushered in the first ever woman in the White House, and Black women like Stacey Abrams, who’ve been largely uncredited with this work, became household names. Yet laws like Florida’s felony disenfranchisement law have the heaviest burden on Black women, Abudu said. 

“Our argument essentially is that because of that legislative history, and because of the political history of Black women and voting in our country, that that leads to the conclusion that Black women, or women of color in general, need greater protection when it comes to their voting rights,” Abudu said. 

As the SPLC argues in new court documents, the 19th Amendment claim should be read in a way that grants the greatest protection to women, especially because when Congress passed it in 1920, it hardly enfranchised all women. 

“The aim of enfranchising women was not simply so they could cast a ballot, but so they could directly influence the other areas of life that ultimately infringe upon their right of self-determination,” the lawsuit reads. 

h/t Paula Monopoli

February 18, 2021 in Constitutional, Courts, Poverty, Race | Permalink | Comments (0)

Tuesday, February 9, 2021

Revisiting the Importance of Diversity in Judicial Selection

Natalie Gomez-Velez, Judicial Selection: Diversity, Discretion, Inclusion, and the Idea of Justice,48 Capital Law Review 285 (2020)

Improving the “diversity” of the bench often has been discussed as a component of judicial selection and presented as a goal that nominally has had the support of the mainstream legal community. Judicial selection methods that support fairness and impartiality are particularly important at a time when there is significant evidence of bias and animus on the part of the Executive. Today, there is deep concern that on the federal level, the goal of judicial diversity has been not only abandoned, but reversed. This article examines difficulty in improving judicial diversity despite oft-stated support for greater inclusion. It then discusses the role philosophical theories of justice embracing a “view from nowhere” has been used, erroneously, to link impartiality to colorblindness (read “whiteness”). It critiques this transcendental approach and offers a different philosophical “view from everywhere” which argues that the inclusion of persons representing diverse views and experiences supports impartiality and open-mindedness and should be a key consideration in improving justice and supporting greater diversity on the bench.

February 9, 2021 in Courts, Judges, Race | Permalink | Comments (0)

Monday, February 1, 2021

Recovering the Aspiration of the Equal Rights Amendment to Overcome Gendered Disempowerment in the Work of Pauli Murray

Julie C. Suk, A Dangerous Imbalance: Pauli Murray's Equal Rights Amendment and the Path to Equal Power, 107 Virginia L. Rev. Online 3 (Jan. 30, 2021)

This Essay recovers the aspiration of the 1970s ERA to overcome gendered disempowerment, which was most acutely experienced by Black women. That aspiration did not become part of the “de facto” ERA through Fourteenth Amendment litigation. Whether the ERA would sufficiently respond to “intersectional” discrimination, as it later came to be known, became a point of contention in Illinois’s 2018 ratification debates. This Essay begins by highlighting the leading roles that African American women legislators have played in sponsoring and framing the 1972 ERA in the three states that have ratified it after the statutory deadline. It posits that this should matter to the ongoing debates about the legitimacy of these post- deadline ratifications.  These states ratified the ERA long after the deadline imposed by an overwhelmingly white male Congress, but they did so as soon as women—including women of color and LGBTQ women—accumulated the modicum of power necessary to insist on their constitutional inclusion. These legislators’ twenty-first century vision of the ERA resonates with Pauli Murray’s testimony in favor of the ERA in congressional hearings in the 1970s, which built on her work as a member of the President’s Commission on the Status of Women, as a founder of the National Organization for Women in the 1960s, and as a board member of the ACLU.12 Murray built a strategy for women’s empowerment using the race equality victories under the Fourteenth Amendment as a template. Her writings laid the intellectual architecture for the gender equality victories won by Ruth Bader Ginsburg throughout the 1970s. Murray argued that African American women had the most to gain from an ERA,15 which could end their disempowerment, beyond merely winning litigated cases. The quest for empowerment, more so than doctrinal legal change, is driving the ERA’s twenty-first-century resurgence. Women seek empowerment not only to help themselves but also to help save democracy from dangerous abuses of power that threaten its legitimacy.

Part I begins in the present, highlighting the leadership and opposition by Black women in the state legislative debates leading to ERA ratification since 2017. Part II analyzes Pauli Murray’s 1970 written testimony to the Senate Judiciary Committee, in which she articulated African American women’s stake in the ERA for a congressional audience. Part III situates Murray’s vision of the ERA in the context of her 1960s writings for the President’s Commission on the Status of Women and as a co- founder of the National Organization for Women. Coining the term “Jane Crow” to focus on discrimination faced by Black women, Murray’s initial ambivalence about the ERA centered her work on a litigation strategy based on the Fourteenth Amendment. But by the end of the decade, she persuaded ERA skeptics, including colleagues at the ACLU, where she served on the Board, to pivot and support the ERA. Part IV develops the implications of Murray’s analysis of equal rights as equal power for contemporary efforts to overcome women’s underrepresentation in positions of power.

February 1, 2021 in Constitutional, Legal History, Race, Women lawyers | Permalink | Comments (0)

Monday, November 30, 2020

Understanding Sojourner Truth's Role in Passage of the Nineteenth Amendment and the Fight for Black Women's Rights

Lolita Buckner Inniss, "While the Water is Stirring": Sojourner Truth as Proto-agonist in the Fight for (Black) Women’s Rights, 100 Boston U. L. Rev. 1637 (2020)

This Essay argues for a greater understanding of Sojourner Truth’s little discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in particular, were created and sustained by the work of antebellum activists like Sojourner Truth, a towering figure who was tied to nineteenth-century movements for abolition and women’s suffrage. Sojourner Truth’s advocacy on behalf of women was premised upon a womanist approach to speech and action that centered the experiences of black women in the business of equal rights both in terms of race and gender. Sojourner Truth’s work as a justice-seeking sage with a goal of advancing the legal, political, and economic rights of women in general and black women in particular is a source of inspiration and a model for making contemporary black women protagonists and co-agonists—co-centric figures—in the work that is still much needed at the centennial of the Nineteenth Amendment.

November 30, 2020 in Constitutional, Legal History, Race | Permalink | Comments (0)

Thursday, November 19, 2020

How Native American Women Inspired the Women's Rights Movement

Sally Roesch Wagner, How Native American Women Inspired the Women's Rights, Suffrage Movement

“Never was justice more perfect; never was civilization higher,” suffrage leader Matilda Joslyn Gage wrote about the Haudenosaunee, or Iroquois Confederacy, whose territory extended throughout New York State.

Matilda Joslyn Gage led the National Woman Suffrage Association (NWSA) along with Elizabeth Cady Stanton and Susan B. Anthony, the three women trading executive positions over the 20 years of the organization’s existence.

According to Gloria Steinem, Gage was “the woman who was ahead of the women who were ahead of their time.” When the women’s suffrage leadership grew conservative, Gage dropped out of the movement. Suffragists stopped remembering her progressive contributions, like her 1893 revelation of the sex trafficking of women and girls in the United States.

Gage, and to a lesser extent Stanton, were largely dropped from the history. With their exclusion, we also lost this story of how they saw women’s rights in action in the native culture of the Haudenosaunee, and realized they could create the conditions for it in their own society.

Having worked for women’s rights for forty years, Gage and Stanton became increasingly frustrated with their inability to make major gains in their social, economic or political positions as women by the 1880’s.

In their disappointment, they looked beyond the Euro-American culture that was already known intimately to them and gained a vision of a world of equality from their nearby neighbors. Stanton and Gage grew up in the land of the Haudenosaunee, the six nations of the Iroquois Confederacy: the Onondaga, Mohawk, Seneca, Cayuga, Oneida and Tuscarora who had social, religious, economic and political positions far superior to their own, they wrote.

The Six Nation Haudenosaunee Confederacy had, and still have today, a family/governmental structure based on female authority. Haudenosaunee women controlled the economy in their nations through their responsibilities for growing and distributing the food. They had the final authority over land transfers and decisions about engaging in war.

Children came through the mother’s line, not the father’s, and if the parents separated, the children stayed with their mother, and if she died, with her clan family. Women controlled their own property and belongings, as did the children. Political power was shared equally among everyone in the Nation, with decisions made by consensus in this pure democracy, the oldest continuing one in the world.

November 19, 2020 in Legal History, Race, Theory | Permalink | Comments (0)

Tuesday, October 13, 2020

Study Documents Gender Pay Disparities Among Tenured Law Faculty, Particularly Acute for Women of Color

CJ Ryan & Meghan Dawe, Mind the Gap: Gender Pay Disparities in the Legal Academy, Georgetown J. Legal Ethics (forthcoming)

Differences in pay between women and men in the same jobs have captured the public’s attention in recent years. However, public interest in and press coverage of salary differences on the basis of gender—or any other ascriptive class—in the learned professions are wanting. Moreover, few studies have spoken directly on the gender pay disparities in the legal academy, despite emerging evidence of it at multiple law schools. In this Article, we use a unique dataset, drawn from the only nationally representative survey to date of tenured law professors in the United States, to track how gender and race are tied to salary outcomes. But we look beyond the raw differences in salary, probing the mechanisms that undergird gendered pay inequities.

Part I of this Article introduces the concepts of human capital and social capital as important factors underpinning inequalities in outcomes for the legal profession. We then provide an overview of how careers in law—and particularly in the legal academy—are stratified by access to social capital and returns to human capital. In Part II, we introduce the After Tenure survey, from which our data originate. Next, we describe our analytical approach, examining the demography of the legal academy and the legal profession more broadly to discuss the ways in which law professors experience their jobs differently along lines of gender and race. In Part III, we provide evidence of gendered earnings disparities among tenured law professors that is particularly acute for women of color. We conclude by demonstrating how these disparities stem from the differential valuation of human capital., 

October 13, 2020 in Equal Employment, Gender, Law schools, Race | Permalink | Comments (0)

Friday, October 2, 2020

New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood

Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)

Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.

October 2, 2020 in Books, Healthcare, Poverty, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Monday, September 28, 2020

Executive Order Against Training Federal Employees, Contractors and Military on Racism Applies to Sexism Too

Executive Order on Combating Race and Sex Stereotyping, White House (Sept. 22, 2020)

This executive order is an expression not only of white fragility, but also of male fragility.  It reads as a defense of the oppressors.  It embodies defensiveness in the face of illustrations of racial and gender privilege, while it reacts to perceived affronts to white men's moral character.  While titled as an order about "stereotyping," it is most concerned with what the order calls "race and sex scapegoating."

The prohibitions on addressing racism in federal employment training and contractors have been mentioned in the media and challenged by scholars. 

Less discussed have been the provisions that also prevent teaching about sexism.  The Order prohibits federal workplaces, unions, military, and federal contractors from teaching about such "divisive concepts" as sexism, male privilege, or systemic sexism. 

It decries "sex scapegoating," defined as: "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."

The order provides an example of a training of concern: "Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other."  

September 28, 2020 in Education, Gender, Race | Permalink | Comments (0)

Book Review: A Reckoning Over Law Faculty Inequality, Reviewing Meera Deo's Unequal Profession

Melanie Wilson, A Reckoning Over Law Faculty Inequality, 98 Denver L.Rev. (2020)  

In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.

Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body. If law schools are serious about changing, then they should read Unequal Profession. As this review demonstrates, Unequal Profession is a definitive resource for improving inequality in legal education.

September 28, 2020 in Books, Law schools, Race, Women lawyers | Permalink | Comments (0)

Friday, September 25, 2020

CFP Con Law Center Symposium: Examining Black Citizenship from Reconstruction to Black Lives Matter

Call for Papers: Examining Black Citizenship from Reconstruction to Black Lives Matter

The Center for Constitutional Law at Akron
Virtual Symposium (online)
Friday, Feb. 5, 2021, 9am to 5pm

This year celebrates 150 years of the Fifteenth Amendment, 100 years of the Nineteenth Amendment, 55 years of the Voting Rights Act, and just over 55 years of Title VII. Each of these laws brought some systemic change to the participation of Black citizens in the polity. This symposium will explore the ways in which the reconstructed Constitution intended or neglected to establish political and civil citizenship rights regardless of race. Drawing on current social movements like Black Lives Matter, MeToo, SayHerName, and Defund the Police, this academic discussion reflects on the role of law in creating, sustaining, and resolving the identified problems.

Topics for presentation in the broad umbrella of this symposium might include: how social movements transform or engage the law, how academics translate social movements, a reconstructed history of the 15th or 19th Amendment, the Jim Crow and Jane Crow eras and their continuing effects, current battles for voting rights regarding felons, polling restrictions, and other limitations with disparate impact, intersectional dimensions of justice including Black feminism, the causes and consequences of Black Lives Matter, vestiges of slavery, reparations for slavery, policing reform, mass incarceration, judicial remedies for citizenship violations, and/or the gendered differences of black citizenship rights.

The Virtual Symposium is sponsored by the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial for the purpose of promoting scholarship and education on matters of constitutional law. The Center includes five affiliated faculty fellows, student fellows, an online journal, ConLawNOW, a JD certificate program in constitutional law, a social justice project, and a Masters of Law in social justice.

Papers presented will be published in a symposium edition of ConLawNOW. ConLawNOW is an online, open-access journal that is also indexed in Westlaw, Lexis, and Hein. It is designed to publish shorter works of 10-20 pages within a short editorial timeframe to get scholarship into the public discourse more quickly. Recent authors published in ConLawNOW include Larry Solum, Paula Monopoli, Ernie Young, Harold Koh, Helen Norton, Judge Jeffrey Sutton, Ruthann Robson, and Julie Suk.

Those interested in presenting a paper should submit a proposal detailing the intended presentation to Professor Tracy Thomas, Director of the Center for Constitutional Law, at thomast@uakron.edu by December 1.  Draft papers should then be submitted by January 20, 2021 for circulation among the other participants for the symposium. Final papers will be due by March 1, 2021, and expected to publish by early April.

September 25, 2020 in Call for Papers, Conferences, Constitutional, Legal History, Race | Permalink | Comments (0)

Wednesday, August 26, 2020

Recommended Reading on the 19th Amendment

My own work

Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civ. Rgts. & Civ. Liberties 349 (2020)

Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen:  Challenging the Myth that Women Judges Judge Differently, William & Mary J. Race, Gender & Social Justice (forthcoming) (on Ohio women’s suffrage story)

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

Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) (on vote as part of greater demand for gender equality in the family)

19th Amendment Symposium, University of Akron School of Law, in ConLawNOW and Akron Law Review

 

Reading List:

Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford 2020)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family 115 Harvard L. Rev. 945 (2002)

Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Norton 2020)

Ellen Carol DuBois, Feminism & Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Cornell 1999)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

Kimberly Hamlin, Free Thinker Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner (Norton 2020)

Doris Stevens, Jailed for Freedom: A First Person Account of the Militant Fight for Women’s Rights

Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2019)

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution, 27 Duke J. Gender Law & Policy 235 (2020)

Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)

Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)

Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev.  1456 (2001

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Say Her Name: Black Women Activists in the Women's Suffrage Movement

Angela Dodson, Why Women's Suffrage Matters for Black People

While our collective memory of the suffrage movement is often a vision of a small band of white women — fighting the establishment alone, marching and picketing in their flowy white dresses — the story of the women’s movement was more complicated and nuanced than that. It involved many women, but also men, of different races who had to find their voice, identify allies and build coalitions.

 

As the centennial of the 19th Amendment’s certification on Aug. 26, 1920, approaches, many African Americans have questioned whether the suffrage movement is relevant to them, because most Black people in the South were disenfranchised anyway. For many African Americans, the movement’s reputation for discriminating against or dismissing Black suffragists and the long history of discord between white and Black feminists do not inspire enthusiasm for the anniversary celebration.

 

As we approach the centennial and the first presidential election with a Black/Asian woman in the race, the first woman of color on a major political party’s ticket, we should examine how we got the vote and at what cost.

 

To dismiss the suffrage movement as irrelevant dishonors the many Black women and men who participated — lobbying, debating, lecturing, petitioning, editorializing, parading and picketing alongside white suffragists.

 

As women are gaining greater leverage in the political system, now is the time to study and credit the contributions of all suffragists and expand our knowledge of the entire movement.

African American Women Leaders in the Suffrage Movement

Including Soujourner Truth, Angelina Weld Grimke, Sarah Redmond, Mary Ann Shadd Cary, Frances Harper, Josephine Ruffin, Mary Church Terrell, Ida B. Wells-Barnett, and many more.

 

Taken from Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

 

 

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Monday, August 17, 2020

NY Times Special Issue on Women's Suffrage and the 19th Amendment Challenges Myths and Offers More Inclusive Version of the Legal History

The NY Times features this special section on women's suffrage on the 100th Anniversary of Women's Suffrage:

 

Tom Jolly (@TomJolly) | Twitter

 

The 19th Amendment: An Important Milestone in an Unfinished Journey

Historians who specialize in voting rights and African-American women’s history have played a welcome and unusually public role in combating the myths that have long surrounded the women’s suffrage movement and the 19th Amendment, which celebrates its 100th anniversary on Tuesday.

In the lead-up to this centennial, these same campaigning historians have warned against celebrations and proposed monuments to the suffrage movement that seemed destined to render invisible the contributions of African-American women like Frances Ellen Watkins Harper, Mary Church Terrell, Sojourner Truth and Ida B. Wells — all of whom played heroic roles in the late 19th- and early 20th-century struggles for women’s rights and universal human rights. In addition to speaking up for Black women of the past, these scholars have performed a vital public service by debunking the most pernicious falsehood about the 19th Amendment: that it concluded a century-long battle for equality by guaranteeing women the right to vote.

Americans who imbibed this fiction in civics classes are caught off guard when they hear the more complicated truth — that millions of women had won voting rights before the 19th Amendment was ratified, and millions more remained shut out of the polls after ratification. Indeed, as middle-class white women celebrated ratification by parading through the streets, African-American women in the Jim Crow South who had worked diligently for women’s rights found themselves shut out of the ballot box for another half century — and abandoned by white suffragists who declared their mission accomplished the moment middle-class white women achieved the franchise.

As the distinguished historian Nancy Hewitt has shown, a lengthy campaign and a range of subsequent laws was required to fully open ballot access to others, including Black women, Mexican-Americans, Native Americans, Chinese-Americans and Korean-Americans. Among those necessary laws were the repeal of the Chinese Exclusion Act in 1943 and the adoption of the Immigration and Nationality Act of 1952, the 24th Amendment in 1964 and the Voting Rights Act in 1965, along with its amendments of 1970 and 1975. In other words, the 19th Amendment was one step in a long, racially fraught battle for voting rights that seemed secure a few decades ago but face a grave threat today.

Spotlight: Suffrage at 100

Including:

Maya Salam, How Queer Women Powered the Suffrage Movement

Martha Jones, Tackling a Century-Old Mystery: Did my Grandmother Vote?

Sarah Elizabeth Lewis, For Black Suffragists, the Lens Was a Mighty Sword

Meet the Brave, but Overlooked Women of Color Who Fought for the Vote

Cathleen Cahill & Sarah Deer, In 1920, Native Women Sought the Vote: Here's What was Next

August 17, 2020 in Conferences, Legal History, LGBT, Race | Permalink | Comments (0)

Thursday, July 23, 2020

The Law's Historic Unwillingness to Shield Black Girls from Acts of Sexual Violence

Mikah Thompson, Just Another Fast Girl: Exploring Slavery’s Continued Impact on the Loss of Black Girlhood,  
Harvard Journal of Law and Gender, Forthcoming

A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. Survivors experience negative reactions not just from White society but also from their own African-American community. Stereotypes about Black girls also influence the players in the justice system, including police officers, prosecutors, defense attorneys, and jurors. In light of the recent shift in societal attitudes ushered in by the #MeToo and #TimesUp movements, it is important to consider whether our culture can now move away from the stereotypes that have left Black girls unprotected for centuries.

July 23, 2020 in Legal History, Race, Violence Against Women | Permalink | Comments (0)

Tuesday, July 14, 2020

How Policing Became the Go-To Response for Domestic Violence

Aya Gruber, How Police Became the Go-To Response for Domestic Violence

In response to widespread demands to “defund the police,” a specific question repeatedly crops up: “What about domestic and sexual violence?” These “what about” questions imply that defunding, reducing, and reforming the aggressive street policing currently under public scrutiny will leave people without vital protection and trigger a tidal wave of crime.

 

As prominent prison abolitionist Mariame Kaba has explained, the police have never been the solution to violence against women. Few women actually report rapes to police, and when they do, officers disbelieve and mistreat them. Kaba and others point out that police officers frequently commit domestic and sexual violence themselves, often using their authority to get away with it.

 

Still, some argue that this reality calls for more policing. Laws and policies could require officers to believe women and make arrests in their cases. This may, in turn, increase reporting and victim satisfaction. Some policies like this already exist in the form of special victims units where officers are trained to be victim-centered and trauma-informed and to pursue cases to arrest. One letter to the editor responding to Kaba suggested that we could change the face of policing: “I disagree that we should abolish the police. Instead, we should simply replace male policemen with more women.”

 

It is tempting to see aggressive rape and domestic violence policing as the solution to violence against women, especially as the coronavirus lockdown is increasing such violence. But we have been down that road before, and it just led to more harm for marginalized people, including women.

 

Beginning in the late 1970s, battered women’s activists launched a remarkably successful campaign for states and police departments to adopt laws and policies that encouraged, even required, police officers to arrest in domestic violence cases. Before the policies, officers who responded to “domestic disputes” often did not arrest, instead choosing to mediate between the parties or temporarily remove the suspect from the scene. Department policies even encouraged police not to arrest.

 

In the early days of the movement, many feminists also rejected strict law enforcement. Black activists within the movement vociferously opposed increasing police presence in the lives of people of color. Social scientists warned that arrest “initiates a judicial process which, experience tells us, has little chance of a productive outcome,” as researcher Morton Bard observed.

 

Consequently, much of the early battered women’s movement was oriented not around policing but around services like helping women obtain housing, employment, and public benefits

July 14, 2020 in Race, Violence Against Women | Permalink | Comments (0)

Virtual Conference: The 15th & 19th Amendments on the Anniversary of their Ratifications

Massachusetts Historical Society, “Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of Their Ratifications

“Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of their Ratifications, October 12-16, 2020

Registration opens in August!

As a result of ongoing public health concerns, the Massachusetts Historical Society has altered its original plan for an in-person conference in October 2020. Rather than meeting for two days of sessions, we will host the conference panels online between Monday, 12 October and Friday, 16 October 2020. The originally scheduled keynote panel will be postponed until it is safe to hold the event in person at the MHS.

Download Conference Schedule 

The year 2020 marks the anniversaries of two critical amendments to the United States Constitution. Spaced fifty years apart, the Fifteenth and Nineteenth Amendments, ratified in 1870 and 1920, respectively, prohibited the use of race or sex to deny American citizens the franchise. However, the amendments did not prevent states from adopting other methods of discrimination. Viewed as the product of two different movements—abolitionism and the Civil War on the one hand and the Progressive campaigns and the First World War on the other—these two periods and amendments are not often considered together. This conference revisits the long journey to secure voting rights for African Americans and women in United States history. It considers the legal precedents and hurdles that each amendment faced, the meaning and uneven outcomes of each, the social context that allowed for ultimate ratification, the role of key individuals and groups in these respective contexts, and how each amendment has been remembered over time.

At a later date, a keynote panel will feature feature Profs. Alison M. Parker (University of Delaware) and Lisa Tetrault (Carnegie Mellon University) and will be moderated by Prof. Alex Keyssar (Harvard).

July 14, 2020 in Conferences, Constitutional, Legal History, Race | Permalink | Comments (0)

Monday, July 6, 2020

Grounding the Role of the Feminist Scholar-Activist in a Transnational Black Feminist Framework

Kia Hall, A Transnational Black Feminist Framework: Rooting in Feminist Scholarship, Framing Contemporary Black Activism, 15 Meridians 86 (2016) [pay wall]

What is the role of feminist scholar-activists in contemporary Black freedom movements such as Black Lives Matter? This article proposes a Transnational Black Feminist framework as a theoretical complement to grassroots activism in Black communities. The proposed framework is rooted in Black feminist and transnational feminist traditions, and has as its core the guiding principles of intersectionality, scholar-activism, solidarity building, and attention to borders and boundaries.

July 6, 2020 in Race, Theory | Permalink | Comments (0)

Wednesday, June 10, 2020

Exploring the Toxic Racial Construct of the Black Welfare Queen

Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Geo.L.J., 19th Amendment, Special Edition (forthcoming)

As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

In service of these goals, we use this Article to explore a toxic racial construct often used to distract American women from our shared rights claims—the political trickster known as the “welfare queen.” This construct was born as a result of fiscal conservatives’ attacks on government anti-poverty subsidy programs in the 1980s. It relied on antipathy toward Black women—characterized as “welfare cheats” or frauds—and pathologized women of color to call for aggressive cuts to social-safety-net programs. This Article explores the remobilization of this construct in present-day electoral politics and the ways in which it compromises cross-racial coalitions and obscures the path to reform. We take as our object the 2016 presidential election and its aftermath, for in 2016, then-presidential candidate Donald Trump and his surrogates reanimated the welfare queen construct and alleged that she was stealing American democracy through voter fraud. The visceral power of this construct allowed this group of Republicans to transform Americans’ understanding of voting rights and American democracy. In so doing, their representations simultaneously sidetracked feminist efforts to build strong cross-racial coalitions. This Article explores the various paths out of our current discourse, dispelling thedistracting haze generated by the welfare queen construction. In the process, we also hope to advance our conceptual understanding of intersectional identities and their relationship to political change.

June 10, 2020 in Family, Legal History, Poverty, Race | Permalink | Comments (0)

Thursday, June 4, 2020

Posts on Race and Gender from the Gender and Law Prof Blog

To browse the posts on race and gender here on the Gender & Law Prof Blog, click here.  (Or go to the home blog page, categories, and select "Race")

Recent posts include research on theory like intersectionality and hood feminism; gender, race, and crime; pay gaps for black women; inequality for black women, black women lawyers, and black women academics; black women in the #MeToo and suffrage movements; and many others.

June 4, 2020 in Race | Permalink | Comments (0)