Monday, October 18, 2021
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.
Tuesday, July 13, 2021
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.
Thursday, July 1, 2021
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.
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.
Friday, December 4, 2020
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.
Monday, November 23, 2020
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.
Monday, July 6, 2020
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.
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. (less)
Wednesday, January 29, 2020
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.
Tuesday, June 11, 2019
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.
Friday, March 15, 2019
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?
Thursday, October 1, 2015
Kathleen Darcy (Michigan State), Medicalizing Gender: How the Legal and Medical Professions Shaped Women's Experience as Lawyers, 4 Tennessee J. Race, Gender & Social Justice 31 (2015)
Abstract:Despite significant progress, women in the legal profession still have not advanced into positions of power at near the rate in which they saturate the legal market. Scholars agree that simply waiting for parity is not sufficient, and, thus, they have identified many of the barriers that contribute to women’s difficulties. To date, however, the role that scientific and medical understandings play on the evolution of law, and on women as lawyers, has not received examination until now. To this end, I posit that medicine played a significant role in shaping societal expectations and assumptions about gender, and was similarly influenced by already-existing societal assumptions about gender. This created a complex and substantial barrier that kept women from exploring options outside the “spheres” of society they traditionally occupied. This article explores how medically-supported gender theories, in practice, have actually operated to limit women’s professional progress, relegating them to traditional gender roles and halting their ascension in the ranks of the legal profession. I examine how this barrier operates in three ways: how early women lawyers adopted these medical theories into views about their own gender; how society and those around these early women lawyers adopted these views to shape expectations about women as lawyers; and how the court explicitly and implicitly relied on these assumptions about gender to keep women out of the legal profession. An examination of how these medical and scientific theories about gender have shaped the ways society views gender, and vice versa, can help illuminate the discussion on the barriers that impede modern women lawyers.
Thursday, August 13, 2015
The title, from an Atlantic piece, just caught my eye.
Why can’t people imagine a future without falling into the sexist past? Why does the road ahead keep leading us back to a place that looks like the Tomorrowland of the 1950s? Well, when it comes to Moneypenny, here’s a relevant datapoint: More than two thirds of Facebook employees are men. That’s a ratio reflected among another key group: futurists.
Both the World Future Society and the Association of Professional Futurists are headed by women right now. And both of those women talked to me about their desire to bring more women to the field. Cindy Frewen, the head of theAssociation of Professional Futurists, estimates that about a third of their members are women. Amy Zalman, the CEO of the World Future Society, says that 23 percent of her group’s members identify as female. But most lists of “top futurists” perhaps include one female name. Often, that woman is no longer working in the field.