Monday, May 16, 2022

A Mourning Mom Identifies Cause of SIDS

Scary Mommy tells a powerful story of how a grieving mother and scientist has identified the cause of Sudden Infant Death Syndrome. The findings were published in the June 2022 publication of The Lancet. The publication provides the following contextual summary of the research: 

Evidence before this study

Despite the effectiveness of public health campaigns in reducing the incidence of Sudden Infant Death Syndrome (SIDS), SIDS remains the major cause of infant death in western countries. The “triple risk model” hypothesises that SIDS deaths result from coincident occurrence of a vulnerable infant, a critical developmental period, and an exogenous stressor. Despite intensive research, identification of any specific vulnerability prior to the sudden death has remained elusive. And, while autonomic dysfunction has long been considered a candidate for this vulnerability, studies have been hampered by reliance on post-mortem samples.

Added value of this study

We found that Butyrylcholinesterase Activity, measured in dried blood spots taken 2-3 days after birth, was significantly lower in babies who subsequently died of SIDS compared to living controls and other Non-SIDS infant deaths. This study identifies a biochemical marker that differentiates SIDS infants from control cases and those dying from other causes, prior to their death. We postulate that this decreased activity of Butyrylcholineserase represents an autonomic cholinergic dysfunction and therefore an inherent vulnerability of the SIDS infants.

Implications of all the available evidence

This finding represents the possibility for the identification of infants at risk for SIDS infants prior to death and opens new avenues for future research into specific
interventions.

These findings have implications for the patchwork of state laws governing SIDS throughout the country. 

 

 

May 16, 2022 in Family, Healthcare, Science | Permalink | Comments (0)

Thursday, April 21, 2022

Situating the Law of Menopause in the Broader Socio-Legal Context of Pregnancy and Menstruation

Emily Gold Waldman, Naomi Cahn & Bridget J. Crawford, Contextualizing Menopause in the Law, Harvard J. L. & Gender (forthcoming)

  “It is horrendous, but then it’s magnificent,” says one character about menopause in an episode of the 2019 Netflix comedy Fleabag. Her younger interlocutor is incredulous at this proclamation. That younger character, and even the audience, may be somewhat taken aback by this frank discussion. After all, menopause is not a subject that is commonly discussed, let alone praised. Whether among friends, acquaintances, or colleagues (fictional or not), silence about menopause is more likely the norm. This is true in the law, too. The law mostly ignores menopause.

The law’s silence about menopause is linked to a broader cultural silence about the inevitable consequences of the aging process. It is also linked to longstanding silence and stigma around the menstrual cycle. A growing menstrual advocacy movement, however, has begun to chip away at stigmas and shame surrounding menstruation, in the course of pursuing policy and legal changes that make menstrual products more affordable and available. This Article imagines a role for the law in addressing challenges faced by those transitioning to menopause, whether in the workplace or beyond. It considers why that has not yet occurred, and explores the possible contours of a future legal landscape.

To inform this analysis, the Article situates its discussion of menopause in a broader context: the socio-legal treatment of pregnancy, breastfeeding, and menstruation. By viewing the four reproduction-associated conditions or processes together, rather than in silos, it is possible to discern a hierarchy of favorable treatment, with breastfeeding and pregnancy at the top, trailed by menstruation, and with menopause at the bottom. The Article also highlights a connective thread across these processes: law’s abnormal/normal binary often maps uneasily onto them.

Ultimately, the Article argues that the law should move beyond individual one-off accommodations for “abnormal” manifestations of these conditions. The law should instead recognize and incorporate protections for the broad spectrum of what can be considered “normal” experiences. Such an approach challenges the abnormal/normal dichotomy and is necessarily part of a larger scholarly dialogue that challenges binary thinking about gender and disability. By chipping away at the stigma surrounding menopause, this Article seeks for menopause a socio-legal solicitude equal to the one that exists for breastfeeding and pregnancy and that is beginning to emerge for menstruation.

April 21, 2022 in Pregnancy, Reproductive Rights, Science, Theory | Permalink | Comments (0)

Thursday, March 31, 2022

Women are Calling Out Medical Gaslighting

NYT, Women are Calling Out "Medical Gaslighting"

Patients who have felt that their symptoms were inappropriately dismissed as minor or primarily psychological by doctors are using the term “medical gaslighting” to describe their experiences and sharing their stories on sites like Instagram. The term derives from a play called “Gaslight” about a husband’s attempt to drive his wife insane. And many patients, particularly women and people of color, describe the search for accurate diagnosis and treatment as maddening.

“We know that women, and especially women of color, are often diagnosed and treated differently by doctors than men are, even when they have the same health conditions,” said Karen Lutfey Spencer, a researcher who studies medical decision-making at the University of Colorado, Denver.

Studies have shown that compared with men, women face longer waits to be diagnosed with cancer and heart disease, are treated less aggressively for traumatic brain injury, and are less likely to be offered pain medications. People of color often receive poorer quality care, too; and doctors are more likely to describe Black patients as uncooperative or non-compliant, which research suggests can affect treatment quality.***

Women say doctors frequently blame their health problems on their mental health, weight or a lack of self-care, which can delay effective treatment. For instance, Dr. Spencer’s research suggests that women are twice as likely as men to be diagnosed with a mental illness when their symptoms are consistent with heart disease.***

Women may be misdiagnosed more often than men, in part, because scientists know far less about the female body than they do about the male body, even though “there are biological differences that go down to the cellular level,” said Chloe Bird, a senior sociologist at Pardee RAND Graduate School who studies women’s health.

In 1977, the U.S. Food and Drug Administration began recommending that scientists exclude women of childbearing years from early clinical drug trials, fearing that if enrolled women became pregnant, the research could potentially harm their fetuses. Researchers were also concerned that hormonal fluctuations could muddle study results.

Today — thanks in large part to a law passed in 1993 that mandated that women and minorities be included in medical research funded by the National Institutes of Health — women are more systematically included in studies, yet there are still huge knowledge gaps.

March 31, 2022 in Gender, Healthcare, Science | Permalink | Comments (0)

Monday, February 28, 2022

Sonia Rankin on "Would You Make it to the Future? Teaching Race in an Assisted Reproductive Technologies and the Law Classroom"

Sonia M. Gipson Rankin has posted a forthcoming work titled Would You Make It to the Future? Teaching Race in an Assisted Reproductive Technologies and the Law Classroom on SSRN. This work is forthcoming in the Family Law Quarterly. The abstract previews: 

Would you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would be the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing orthodontic headgear turn reflective when someone raises the question: would someone in the future select my race?

In this paper, Section I describes how race connects to family law. Section II explains cognitive dissonance theory, color blindness ideology, and the relationship of these theories to racial inequality in family law and how this connects to assisted reproductive technologies. Section III provides the framework for race-centered learning outcomes, a relevant rubric for reflection papers, and examples of case law and legislation that addresses race and ART. Section IV concludes by addressing how these skills and assessments in our family law curricula can impact systemic change in the practice of family law and the legal academy.

The article concludes: 

Legal education must be at the forefront of assisted reproductive technology. Our students will serve be crafters and litigators of ART contracts and decisions, policymakers and drafters of legislation, and will hold the hands of clients planning the biggest decisions of their futures. Showing students distinctions in family law shows the academy is responsive to realties in the practice of law. Race can serve as the first way to unpack cognitive dissonance. Professors must show the fallacies in the law so students can learn how to use their agency to critique the law and be excellent advocates for their clients. A racial cognitive dissonance lens allows students to review the impact of all the law, given the role of technology in the law that did not exist when the law was being formed. Understanding cognitive dissonance and cultural competency can help reduce legal issues in family law and ART.

A tagline for Gattaca [a "1997 science fiction film [depicting] a future society that uses reproductive technology and genetic engineering to produce genetically enhanced human beings"] states, “There is no gene for the human spirit.” There is a part of our lived journey that cannot be captured by DNA nor contract law but can only be bettered through our interactions with each other.

February 28, 2022 in Abortion, Conferences, Law schools, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Wednesday, January 12, 2022

Examining Intersections of Menopause and the Law of Anti-Discrimination

Bridget Crawford, Emily Gold Waldman, Naomi Cahn, Working Through Menopause, Washington U. L. Rev. (forthcoming)

There are over thirty million people ages 44 to 55 in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers inevitably will experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic, because of cultural stigmas and attitudes about aging and gender. Yet menopause raises critical issues at the intersections of gender equity, disability, aging, transgender rights, and reproductive justice. This Article imagines how the law would change if it accounted for menopause and the associated unequal burdens imposed.

This Article makes four contributions to legal scholarship. First, it identifies the intersections of menopause and the law in a way that counters the larger culture of silence, stigma, and shame. Second, it analyzes the uneasy fit between menopause and existing U.S. anti-discrimination doctrines. Third, the Article uses a comparative lens to explore how and why menopause is becoming a priority issue for the government, private employers, and workers in the United Kingdom. Finally, the Article situates menopause in U.S. equality jurisprudence broadly and suggests a place for menopause in employment law in particular. It sets out a normative vision for menopause equity in the workplace and suggests possible pathways for achieving it.

January 12, 2022 in Equal Employment, Family, Gender, Healthcare, Reproductive Rights, Science | Permalink | Comments (0)

Can Men Legally be Given a Priority in Receiving Covid Treatment?

Diane Hoffman & Katherine Goodman, Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?,
University of Maryland Legal Studies Research Paper No. 2021-13

Nearly two years into the pandemic, COVID-19 has touched all U.S. states and populations. However, severe outcomes and deaths have not been borne equally. As is now well recognized, there have been significant demographic disparities by age and race: nearly 80% of all U.S. COVID-19 deaths have been among persons aged 65 or older, and hospitalization and death rates for Black and Hispanic patients with COVID-19 are two to three times higher than the rate for White patients. What has received much less attention, however, is an additional demographic disparity evident in the COVID-19 pandemic — sex. Nationally there are 20% more COVID-19 deaths among men, and men have higher COVID-19 mortality rates in every U.S. state with publicly available data. Numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death, even when accounting for other risk factors, such as hypertension and obesity, that are more common among men.

While there has been a significant amount of discussion in the press and the academic literature regarding the role that race can or should play in decisions to allocate scarce medical resources such as vaccines, there has been much less attention paid to the role of sex in the allocation of early-intervention treatments, such as monoclonal antibodies (mAbs) and the soon-to-be-authorized oral antivirals. In this article, we seek to remedy this gap in the literature. We use a hypothetical but realistic scenario in which states have available to them a treatment that is very similar to currently available mAbs and in which therapeutic demand greatly exceeds the available supply. Even if limited to individuals over the age of 65 with one or more comorbidities, there is not enough of the therapy to treat these high-risk individuals and some sort of further triaging would be necessary. Given the strong data that male sex is an independent risk factor for poor COVID-19 outcomes, we speculate that states and/or hospital systems might wish to use sex as one risk factor, among many, in an algorithm to calculate a patient’s probability of experiencing hospitalization or death from COVID-19. These estimates, in turn, would be used to allocate this scarce medical resource to highest-risk individuals. We then ask two questions: (1) whether, as a legal matter, sex would be a permissible factor to incorporate into allocation criteria; and (2) whether, as a normative matter, sex should be considered in allocation of early-intervention therapies for COVID-19.

In answering the legal question, we first look at the possibility of successful challenges under the Equal Protection Clause of the 14th Amendment and then at possible challenges under Section 1557 (the antidiscrimination provision) of the Affordable Care Act. As to the former, we conclude that constitutionality could depend upon whether the federal courts view the basis for differential treatment as one based primarily upon biology, or upon a combination of biology and socio-cultural factors. Although we believe there is room for the courts to find that either basis is constitutionally valid, courts would be more likely to find it so if they analyzed it as a biological difference.

Under the Affordable Care Act, we conclude that it is much more difficult to predict how a federal court would rule. Section 1557 prohibits discrimination “on the basis of sex” in healthcare facilities and in the administration of healthcare. The statute permits the importation of Title IX jurisprudence in interpreting this provision. Courts, in interpreting Title IX, have also looked to Title VII case law. Each of these Titles have exceptions that permit distinctions “on the basis of sex” under certain circumstances. Whether courts would apply Title VII jurisprudence to Section 1557 is an unknown, even if it has been imported to Title IX. Additionally, whether courts would apply the exceptions provided in Title IX and Title VII to Sec. 1557, and how they would apply those exceptions, is difficult to predict. We argue that because of the flexibility the Court possesses in applying the relatively new Section 1557, as a normative matter, the Court should permit the use of sex as a factor in allocating early treatments that can prevent severe COVID-19 outcomes. We believe such a conclusion is justified by both a utilitarian framework of maximizing lives saved and stewarding scarce medical resources and by an egalitarian framework of providing individuals with the resources they need to achieve the same or similar outcomes.

January 12, 2022 in Constitutional, Gender, Healthcare, Science | Permalink | Comments (0)

Monday, November 29, 2021

Landmark Study on Safety of Waterbirth

A landmark study by Uplift Lab of Oregon State University, a Research and Reproductive Equity Laboratory, offers important data supporting the safety of waterbirth. The press release first explains the significance of the study and its data set: 

[The authors] compared 35,060 pregnancies from all 50 states: 17,530 water births and 17,530 non-water births. A unique aspect of the OSU study was that they were able to match pregnancies within the two groups on more than 80 covariables, such as age, education level and pregnancy characteristics. This propensity score method ensured a direct comparison between the two groups.

The authors offer a summary of the key findings here. They also offer a link to request the full study from the researchers. The press release summaries these findings: 

In the propensity-matched analysis, the only maternal outcome where water births resulted in a slightly elevated risk was postpartum uterine infection. Water births were associated with an additional six postpartum uterine infections per 10,000 water births compared with non-water births. However, there was no increase in risk of being hospitalized for infection.

 

Furthermore, water births were associated with lower risks for several other maternal outcomes, including 64 fewer hemorrhages per 10,000 births, and 28 fewer hospitalizations in the first six weeks.

 

Water births were associated with 20 additional umbilical cord avulsions per 10,000 births. Avulsions occur when the umbilical cord snaps before it can be tied off and can cause hemorrhages. However, there were no infant deaths from cord avulsions and no difference in overall death rates between the two groups. There were 26 fewer infant hospitalizations per 10,000 water births, suggesting that the midwives attending these births successfully managed cases of avulsion.

November 29, 2021 in Healthcare, Reproductive Rights, Science | Permalink | Comments (0)

Tuesday, November 23, 2021

Sex Ambiguity in Early Modern Common Law (1629 - 1787)

Sex Ambiguity in Early Modern Common Law (1629-1787)

By: Maayan Sudai

Forthcoming in: Law and Social Inquiry

Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.

November 23, 2021 in Gender, Legal History, Science | Permalink | Comments (0)

Monday, November 8, 2021

Justice for Victims of the Guatemalan Sexually Transmitted Disease Experiments

Susan S. Lee & Aurora J. Grutman have published a new article Seeking Justice for Victims of the Guatemalan Sexually Transmitted Disease Experiments 1946-1948 in Volume 39 of the Columbia Journal of Gender and Law. The abstract states that: 

Between 1946 and 1948, researchers sponsored by the United States government intentionally exposed more than 1,300 Guatemalan men and women to sexually transmitted diseases without their informed consent. Many of the surviving victims and their descendants suffer from the effects of untreated syphilis, gonorrhea, and similar illnesses. But the general public did not become aware of these non-consensual human experiments for more than sixty years. After a researcher uncovered the experiments, the United States government apologized to the Guatemalan victims, but the victims received no compensation for their injuries. So far, the efforts of the victims to receive legal redress for their injuries have been unsuccessful.
 
This Article has two aims—one descriptive and the other conceptual. First, it seeks to bring awareness to the history and legacy of the Guatemalan sexually transmitted disease experiments. Second, it argues that litigation—even if unsuccessful—can play a role in amplifying the victims’ voices in a way that acknowledges their pain and helps to repair harm that was done. Even if the United States government is immune from formal legal liability, the government and the corporate interests that benefitted from the Guatemalan experiments, have a moral obligation to compensate the victims. The lens of reproductive justice makes clear this obligation. By critically investigating the Guatemalan sexually transmitted disease experiments and their legacy, one can better understand how gender, race, socioeconomic class, geopolitical power, and even geography informed the initial decision to conduct non-consensual human experimentation in that country and why the victims have been unable to obtain formal legal recognition for their suffering. 
 

November 8, 2021 in Gender, Healthcare, International, Legal History, Race, Reproductive Rights, Science | Permalink | Comments (0)

Wednesday, October 27, 2021

Sex Discrimination in Medical Research and its Impact on COVID

Is Sex Discrimination in Medical Research Thwarting a Cure for COVID?

This piece is part of “Women on the Frontlines: COVID and Beyond,” an online symposium examining the political, economic, social and legal status of women.

Sponsored by the Cornell Law Review with the Center for Biotechnology and Global Health Policy and co-hosted by Ms. and others, the symposium brings to light the ways women labor and lead at the forefront of society, constituting the foundation of essential workers, and performing critical services from child to medical care. But during the pandemic, women (especially women of color) suffer persistent economic constraints; health and death disparities; obstruction of rights; and the troubling perceptions of expendability. Watch “Women on the Frontlines: COVID and Beyond” for a discourse about the role of women and pathways toward a more just society.

When I read that men are twice as likely to die from COVID-19 as women, I thought of science fiction books that posit pandemics that wipe out men.  Only men. ***

 

Such scenarios could plausibly exist, given the biological differences between men and women.  Women have a more aggressive immune response than do men.  Women’s hormones, too, play a role in fighting infections by slowing the process that causes tissue damage, while testosterone can help an infection enter the cells. 

 

During previous pandemics, including the 1918 Spanish flu and the SARS outbreak, men died at higher rates than women did—even when, as was the case with SARS, women had higher rates of infection.

 

Despite the knowledge we might gain about COVID-19 and other infectious diseases from research on women, most medical research focuses on men.

 

  • A study of heart disease—the leading cause of death among women—was undertaken on 22,000 men and no women. 
  • A federal study on health and aging proceeded for twenty years with only male subjects. 
  • Absurdly, even though women account for 80 percent of autoimmune disorder patients, the main research subjects are—you guessed it—men. 
  • Even basic biological research is done mainly with male mice!  

Male-Centered Research is Killing Us

 

The dangers from male-centered research are profound.  Even though women consume 80 percent of medications in the U.S., drug research is still predominantly conducted on men and fails to consider how drugs act over the course of a woman’s menstrual cycle.  Consequently, drugs can reach the market that are actually harmful to women.  In fact, eight of the ten dangerous drugs removed from the market between 1997 and 2000 caused greater harm and fatalities for women. 

 

A wide range of medications, including some antihistamines, gastrointestinal drugs, antibiotics and antipsychotics trigger potentially fatal heart arrhythmias more often in women than men.  

 

In 1993, Congress adopted a law designed to ensure that women were allowed to participate in medical research. 

 

When discrimination persisted, the National Institutes of Health in 2016 announced guidelines requiring federally-funded scientists to enroll women in studies, to disaggregate medical research data by sex, and to study female animals and female cells as well.

October 27, 2021 in Gender, Healthcare, Science | Permalink | Comments (0)

Monday, October 18, 2021

Henrietta Lacks Honored by World Health Organization

The World Health Organization honored Henrietta Lacks this month. 

Henrietta Lacks, a Black American woman and a young mother, died from cervical cancer on October 4, 1951—just eight months after her cancer diagnosis. She was 31 years old. Although her life was cut short, her legacy lives on through an “immortal” line of cells, known as HeLa cells.

During her treatment, researchers took samples of Mrs. Lacks’ tumour without her knowledge or consent. For two decades, Mrs. Lacks’ cells were commercialized and distributed across the globe unknown to her family.

Contributing to nearly 75 000 studies, Henrietta Lacks' cells have paved the way for advancements from HPV and polio vaccines to medications for HIV/AIDS and breakthroughs including  in vitro fertilization. In addition, HeLa cells are currently used in vital research for COVID-19 response efforts. * * *

In recognizing Henrietta Lacks’ enduring legacy, WHO acknowledges her story—one of inequity—and looks forward to collectively rectifying unjust disparities in global health.

 The story of Henrietta Lacks is featured in many law casebooks and her story is an important lens into the intersections of race and gender in informed consent. Readers might accordingly be interested in this recognition. 

October 18, 2021 in Healthcare, Race, Science | Permalink | Comments (0)

Tuesday, July 13, 2021

Ruth Bader Ginsburg's Copyright Jurisprudence

Ryan Vacca & Ann Bartow, Ruth Bader Ginsburg’s Copyright Jurisprudence,  22 Nevada L.J. (forthcoming 2022)

When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This article discusses one of the most interesting: copyright law. During her time as a jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and joined her colleagues’ opinions in eleven others. But unlike her gender equality and social justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg’s copyright writings. It identifies several themes running through her copyright opinions: incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism, and juxtaposes her copyright jurisprudence with her approaches to gender equality and reproductive rights.

July 13, 2021 in Courts, Judges, Science, SCOTUS | Permalink | Comments (0)

Thursday, July 1, 2021

The All-Women SCOTUS Dissent in an Environmental Case -- What Does it Mean?

In a rare occurrence, all women joined the dissent in last week's SCOTUS decision in HollyFrontier and all men joined the majority, cutting across all the usual jurisprudential lines.  But why?

The decision is HollyFrontier Cheyenne Refining v. Renewable Fuels Association (June 25, 2021). The majority written by Justice Gorsuch interpreted an EPA rule to allow an extension of a prior exemption for small refiners to not have to use renewable fuels.  The dissent of all women written by Justice Barrett read the text differently, to deny the extension, and thus enforce the renewable fuels EPA rule.  Both Gorsuch and Barrett are textualists, and reasoned their different opinions on mostly text based grounds and some concern about the impact on businesses.

What other motivation might Barrett have for joining the dissent? (And Breyer, why is he joining the majority??).  The only slight clue is that Barrett notes the impact of her conclusion, finding it consistent with Congress's intent to "funnel all refineries into eventual compliance" and that such compliance had happened up until 2014, with some backtracking in 2017 and 2018.

It is sometimes argued that women are concerned more for the environment.  Whether that is due to a feminist ethic of care, ecofeminism, or cultural feminism of a maternal concern with care for families and their environment, these different gendered arguments suggest that women might see these issues differently.

See generally Cynthia Grant Bowman, Path from Feminist Legal Theory to Environmental Law & Policy, 22 Cornell J. Law & Public Policy 641 (2013); Cinnamon Pinon Carlarne, , Environmental Law & Feminism, forthcoming in The Oxford Handbook of Feminism and Law in the United States.

July 1, 2021 in Science, SCOTUS | Permalink | Comments (0)

Friday, February 12, 2021

Using Emerging Science of Women's Sex-Based Brain Differences of Emotional Harm to Support a Reasonable Woman Standard

Betsy Grey, Sex-Based Brain Differences and Emotional Harm,  70 Duke L.J. Online 29 (2020)

Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.

This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims.

February 12, 2021 in Courts, Gender, Science | Permalink | Comments (0)

Friday, December 4, 2020

Patents and Gender: Rethinking Structural and Institutional Biases

Jessica Lai, Patents and Gender: A Contextual Analysis, 10(3) Queen Mary Journal of Intellectual Property 283-305 (2020)

Patent law is considered to be an objective law, dealing with the objective subject matter of the “technical arts”. Yet, empirical studies show that patenting rates around the world are gendered. This article analyses the roots of the gender patent gap, and how this correlates to the invention and innovation processes. It shows that the gendered nature of the patent-regulated knowledge governance system forces women into traditionally male spaces and fields in order to partake in the extant patent game. Yet, when they enter those spaces and fields, they often find themselves unwelcome and subject to institutional, structural or organisational biases, which impinge upon their ability to invent, patent and commercialise.

The article re-frames the discourse around women inventors. It argues that we have to stop focusing on the “women in science, technology engineering and mathematics (STEM)” narrative, because it is a distraction from the underlying problem that the Western knowledge governance system reflects the hegemonic powers at play. Instead, we need to re-think the knowledge governance system and the ecosystem it creates, in order to ensure egalitarian knowledge production and protection.

December 4, 2020 in Business, Gender, Science | Permalink | Comments (0)

Monday, November 23, 2020

How Sex Discrimination in Medical Research is Thwarting a Cure for COVID

Lori Andrews, Is Sex Discrimination in Medical Research Thwarting a Cure for COVID?

Despite the knowledge we might gain about COVID-19 and other infectious diseases from research on women, most medical research focuses on men.

  • A study of heart disease—the leading cause of death among women—was undertaken on 22,000 men and  no women. 
  • A federal study on health and aging proceeded for twenty years with only male subjects. 
  • Absurdly, even though women account for 80 percent of autoimmune disorder patients, the main research subjects are—you guessed it—men. 
  • Even basic biological research is done mainly with male mice!  

Male-Centered Research is Killing Us

The dangers from male-centered research are profound.  Even though women consume 80 percent of medications in the U.S., drug research is still predominantly conducted on men and fails to consider how drugs act over the course of a woman’s menstrual cycle.  Consequently, drugs can reach the market that are actually harmful to women.  In fact, eight of the ten dangerous drugs removed from the market between 1997 and 2000 caused greater harm and fatalities for women. 

 

A wide range of medications, including some antihistamines, gastrointestinal drugs, antibiotics and antipsychotics trigger potentially fatal heart arrhythmias more often in women than men.  

 

In 1993, Congress adopted a law designed to ensure that women were allowed to participate in medical research. 

 

When discrimination persisted, the National Institutes of Health in 2016 announced guidelines requiring federally-funded scientists to enroll women in studies, to disaggregate medical research data by sex, and to study female animals and female cells as well.

 

Then along came COVID-19, with its tsunami of scientific articles.  By May 13, 2020, there were more than 23,000 papers published on COVID-19 with the number of articles doubling every twenty days. 

 

When I analyzed the burgeoning medical research literature about COVID-19 along with my team at the Institute for Science, Law and Technology at Chicago-Kent College of Law, we found that the historical discrimination against women in medical research still exists. 

 

Only a few scientific articles about COVID-19 analyze the difference in symptoms between men and women.  Most not only fail to break down the symptoms by sex, but also erroneously assume that the death rate of men and women is the same—ignoring the numerous studies that already demonstrated that men with COVID-19 die at a higher rate than women.

 

The fact that, in 2020, researchers would blindly assume women’s bodies behave like men’s is troubling.

November 23, 2020 in Gender, Healthcare, Pop Culture, Science | Permalink | Comments (0)

Monday, July 6, 2020

Book Invisible Women: Data Bias in a Male World

  Caroline Criedo Perez, Invisible Women: Data Bias in a World Designed for Men

Data is fundamental to the modern world. From economic development, to healthcare, to education and public policy, we rely on numbers to allocate resources and make crucial decisions. But because so much data fails to take into account gender, because it treats men as the default and women as atypical, bias and discrimination are baked into our systems. And women pay tremendous costs for this bias, in time, money, and often with their lives.

Celebrated feminist advocate Caroline Criado Perez investigates the shocking root cause of gender inequality and research in Invisible Women​, diving into women’s lives at home, the workplace, the public square, the doctor’s office, and more. Built on hundreds of studies in the US, the UK, and around the world, and written with energy, wit, and sparkling intelligence, this is a groundbreaking, unforgettable exposé that will change the way you look at the world.

From Goodreads:

Imagine a world where your phone is too big for your hand, where your doctor prescribes a drug that is wrong for your body, where in a car accident you are 47% more likely to be seriously injured, where every week the countless hours of work you do are not recognised or valued. If any of this sounds familiar, chances are that you're a woman.

Invisible Women shows us how, in a world largely built for and by men, we are systematically ignoring half the population. It exposes the gender data gap – a gap in our knowledge that is at the root of perpetual, systemic discrimination against women, and that has created a pervasive but invisible bias with a profound effect on women’s lives.

Award-winning campaigner and writer Caroline Criado Perez brings together for the first time an impressive range of case studies, stories and new research from across the world that illustrate the hidden ways in which women are forgotten, and the impact this has on their health and well-being. From government policy and medical research, to technology, workplaces, urban planning and the media, Invisible Women reveals the biased data that excludes women. In making the case for change, this powerful and provocative book will make you see the world anew.
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July 6, 2020 in Books, Business, Gender, Healthcare, Science | Permalink | Comments (0)

Wednesday, January 29, 2020

Studying Women's Beliefs as to Whether STEM Leaders Think Women are Bad at Doing Science

Andrew Dustan, Kristine Koutout & Greg Leo, Beliefs About Beliefs About Gender

Do women believe that leaders in science, technology, engineering, and math (STEM) fields believe that women are bad at doing science? Such beliefs about beliefs—second order beliefs—could drive women to sort out of STEM fields, leading to the observed gender gap in employment (Beede et al., 2011). Importantly, this belief-driven sorting could occur regardless of leaders’ true beliefs about women’s scientific abilities. When historically persistent beliefs about the differences between men and women—first-order beliefs—cause disparities, they may generate second-order beliefs that perpetuate those disparities even once first-order beliefs change. To facilitate investigating questions of this nature, we develop an incentive-compatible
experimental framework for measuring first- and second-order beliefs about the difference in any quantifiable characteristic between any two populations. We implement this procedure in a lab experiment to elicit beliefs about men’s and women’s performance on a timed math task and choices in an abstract bargaining task.

We find an interesting contrast between first- and second-order beliefs. There is no evidence that men’s and women’s first-order beliefs differ; however, both men and women believe that such differences exist. While a large majority of people believe that most men believe men outscore women on the math task, the majority also believe that most women do not share this belief. In the bargaining task, we again find that people believe that men and women hold different first-order beliefs even though we observe no such differences in the data. In summary, even when men and women have similar first-order
beliefs, second-order beliefs about men and women can vary substantially.

January 29, 2020 in Business, Gender, Science | Permalink | Comments (0)

Tuesday, June 11, 2019

The Gendered Effects of Using Algorithms of Recidivism

Melissa Hamilton, The Sexist Algorithm, 38 Behavioral Sciences & the Law 145 (2019)

Algorithmic risk assessment tools are informed by scientific research concerning which factors are predictive of recidivism and thus support the evidence‐based practice movement in criminal justice. Automated assessments of individualized risk (low, medium, high) permit officials to make more effective management decisions. Computer generated algorithms appear to be objective and neutral. But are these algorithms actually fair? The focus herein is on gender equity. Studies confirm that women typically have far lower recidivism rates than men. This differential raises the question of how well algorithmic outcomes fare in terms of predictive parity by gender.

This essay reports original research using a large dataset of offenders who were scored on the popular risk assessment tool COMPAS. Findings indicate that COMPAS performs reasonably well at discriminating between recidivists and non‐recidivists for men and women. Nonetheless, COMPAS algorithmic outcomes systemically overclassify women in higher risk groupings. Multiple measures of algorithmic equity and predictive accuracy are provided to support the conclusion that this algorithm is sexist.

June 11, 2019 in Courts, Science | Permalink | Comments (0)

Friday, March 15, 2019

Using AI to Overcome Implicit Gender Bias in Employment Decision-Making in the Tech Industry

Kimberly Houser, Can AI Solve the Diversity Problem in the Tech Industry? Mitigating Noise and Bias in Employment Decision-Making, 22 Stanford Tech. L. Rev. (forthcoming)

After the first diversity report was issued in 2014 revealing the dearth of women in the tech industry, companies rushed to hire consultants to provide unconscious bias training to their employees. Unfortunately, recent diversity reports show no significant improvement, and, in fact, women lost ground during some of the years. According to a 2016 Human Capital Institute survey, nearly 80% of leaders were still using gut feeling and personal opinion to make decisions that affected talent-management practices. By incorporating AI into employment decisions, we can mitigate unconscious bias and variability in human decision-making. While some scholars have warned that using artificial intelligence (AI) in decision-making creates discriminatory results, they downplay the reason for such occurrences – humans. The main concerns noted relate to the risk of reproducing bias in an algorithmic outcome (“garbage in, garbage out”) and the inability to detect bias due to the lack of understanding of the reason for the algorithmic outcome (“black box” problem). In this paper, I argue that responsible AI will abate the problems caused by unconscious biases and noise in human decision-making, and in doing so increase the hiring, promotion, and retention of women in the tech industry. The new solutions to the garbage in, garbage out and black box concerns will be explored. The question is not whether AI should be incorporated into decisions impacting employment, but rather why in 2019 are we still relying on faulty human-decision making?

March 15, 2019 in Business, Equal Employment, Science, Technology, Workplace | Permalink | Comments (0)