Gender and the Law Blog

New Book Gender, Sex and Tech

Jennifer Jill Fellows & Lisa Smith, Gender, Sex & Tech: An Intersectional Feminist Guide

In this timely collection, gender, sex, and technology are explored through an intersectional and interdisciplinary lens. Gender, Sex, and Tech! provides insight into the ways that technology affects, and is affected by, cultural perceptions of gender and sex. Through an examination of a range of past and present issues, the text highlights our relationships to technology and illustrates how gendered relations are shaped and transformed through social and technological innovations. Contributors bring to the fore feminist, decolonizing, and anti-racist methods to examine our everyday uses of technology, from the mundane to the surreal to the playful to the devastating. Original research and scholarship is skillfully grounded in real-world scenarios like revenge pornography, gender bias in artificial intelligence, menstrual tracking, online dating, and the COVID-19 pandemic, inviting students to take a closer look at technological transformations and their impact on gendered lived experience and to consider how the benefits of technology are inequitably shared within society. Centring Canadian scholars and Canadian perspectives without losing sight of the broader global connection, Gender, Sex, and Tech! is bursting with timely and of-the-moment content, making this collection a must-read for courses focused on gender and technology. 

I. Glenn Cohen on "Reproductive Technologies and Embryo Destruction After Dobbs"

I. Glenn Cohen has posted an updated draft of the work Reproductive Technologies and Embryo Destruction After Dobbs on SSRN.  This is a chapter contribution to a forthcoming book, edited by Geoffrey R. Stone and Lee Bolinger, titled Roe v. Dobbs: The Past, Present and Future of a Constitutional Right of Abortion (forthcoming 2023). 

Upon the release of the Dobbs decision, indeed upon the leak of Justice Alito’s draft opinion, the public and legal academic conversation about the decision very quickly shifted to its implications for other rights closely connected to substantive due process. The dissenters and Justice Thomas saw a broad attack on all substantive due process rights, while Justice Alito's opinion attempts to argue that: “[w]hat sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’"

Only time will tell who correctly foresaw the shape of what is to come as to these constitutional rights. But as to reproductive technologies, specifically those that involve the destruction of embryos, I argue in this Chapter that the situation is more clear cut. If a state were to prohibit entirely the destruction of embryos, the exact language Justice Alito uses to distinguish abortion from other constitutional rights directly applies – embryo destruction just as much as abortion “destroys . . . ‘potential life’ and what” such a potential state law “regards as the life of an ‘unborn human being’.” For reproductive technologies, the caller is already in the house.

This chapter tries to answer three questions. First is a constitutional law question: It explains why post-Dobbs, it is hard to argue for a federal constitutional right to engage in IVF or other reproductive technologies involving embryo destruction.

Second, is a political question: are the states that prohibit abortion, in particular those that prohibit abortion from the very start of pregnancy, likely to adopt such measures that restrict embryo destruction as part of IVF? Here the chapter argues that the available polling and other data on public attitudes to IVF suggest that at least currently such measures are unlikely to be a priority or perhaps even supported in most states.

Third, and the bulk of the chapter, is a normative question: should those who seek to prohibit abortion also prohibit embryo destruction as part of IVF or other reproductive technology use? My answer will be “maybe,” that it will depend among other things on their theory of embryonic/fetal personhood and when it obtains. I conclude that some but not all of those who believe abortion should be restricted, as a normative matter, should also oppose embryo destruction and push for laws restricting it. Perhaps more surprisingly, some who oppose abortion restrictions should not oppose restrictions on embryo destruction, because restrictions on embryo destruction do not involve trumping women’s rights as to bodily autonomy in the same way.

Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring

Elena Pisanelli, A New Turning Point for Women: Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring 

This paper studies whether firms’ adoption of artificial intelligence (AI) has a causal effect on their probability of hiring female managers. Using panel data on the 500 largest firms, measured by revenues, in Europe and the US, and a two-stage difference- in-differences I find that firms’ use of AI causes, on average, an increase by 3.5% in the hiring of female managers. Exploiting heterogeneity across different types of AI I find that my result is driven by the use of assessment software, rather than that of predictive algorithms. The use of assessment software increases the share of female managers hired by companies and correlates with a reduction in firms being sued for gender discrimination in hiring. Conversely, my findings show that predictive algorithms do not affect gender inequality in managerial hires.

Feminist Cyberlaw Perspectives Offer a Clear View of the Nature of Digital Privacy Threats from Abortion Bans

Michela Meister & Karen Levy, Digital Security and Reproductive Rights: Lessons for Feminist Cyberlaw,  
Feminist Cyberlaw (Meg Leta Jones and Amanda Levendowski, eds.), University of California Press, Forthcoming

Reproductive rights in the United States are under threat, and the threat is growing more serious by the day. The 2022 Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, overturning the fundamental right to abortion enshrined in Roe v. Wade, cast into danger the lives and livelihoods of millions of people. The rise of digital technologies has exacerbated these threats in multiple ways, and digital threats have a marked impact on abortion access. Threats to reproductive rights are of paramount importance to people interested in the gendered relationship between law and technology. But they also offer a case study in what a feminist viewpoint provides to cyberlaw even beyond abortion. In this chapter, we offer three lessons for feminist cyberlaw in the wake of Dobbs. Feminist perspectives offer a clear-eyed view of the nature of threats to reproductive privacy. They illustrate that privacy threats indeed lead to physical harms and “dead bodies,” if you prioritize looking for them; they show the insufficiency of protecting discrete pieces of particularly sensitive data while continuing to collect massive amounts of other more general data; and they emphasize the entanglements and interdependence of multiple kinds of vulnerabilities, multiple kinds of attacks, and multiple kinds of targets. Recognizing these characteristics shows an appreciation for the complexity of the problem—a first step toward devising adequate solutions to protect the lives and livelihoods of abortion seekers and providers in the post-Dobbs era.

Danielle Citron on "The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age"

Wired published an adaptation of Danielle Keats Citron's newly released book on The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. Citron argues that digital privacy is not just about consumer protection. Rather, it is "inextricably linked to equality, with urgent implications for women and minorities."

To combat invasions of intimate privacy, we first need to recognize intimate privacy as a moral and legal right. Everyone deserves intimate privacy to create a life of meaning, respect, and love and to feel that they belong as citizens. In making this a civil right, lawmakers would show their appreciation of intimate privacy’s significance for individuals, groups, and society. 

 

* * * 

Following the development of modern civil rights laws, a civil right to intimate privacy would combat privacy invasions amounting to invidious discrimination. It would limit or ban data practices that imperil the opportunities of women and marginalized communities because of their membership in protected groups. * * *  

But a civil right to intimate privacy should not only be a right to combat invidious discrimination: It should also be a right to baseline protections for intimate privacy for everyone. As legal philosopher Robin West explains, civil rights should be understood—​and protected—​as “human or natural rights” that enable “our most fundamental human capabilities.” They are rights to something—​entitlements that let us “thrive and be social,” feel like we belong, and engage as citizens. Civil rights deserve recognition and protection because they “secure the preconditions for a good life.” In the United States, civil rights protections have been operationalized through the interpretation of constitutional rights, the passage of state and federal laws, and the enforcement of existing laws that foreground those rights.

Amanda Levendowski on "Defragging Feminist Cyberlaw"

Amanda Levendowski has posted a forthcoming article, Defragging Feminist Cyberlaw, on SSRN. The article is forthcoming in volume 37 of the Berkeley Tech. L. J. in 2023. The abstract explains: 

In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which creates tension with feminist values. Cyberlaw simply hasn’t been understood that way—until now.

In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how the feminist values of consent, accessibility, and safety shape cyberspace and the laws that govern it. Consent impacts copyright law and fair use, the DMCA, criminal laws, and free speech. The copyright doctrine of fair use allows other people to use copyrighted works without consent under certain conditions—and without concern for the desires of photographic subjects. The DMCA was enacted to prevent accessing others’ content without consent, which can include the distribute of nonconsensual intimate imagery. The latter issue has also encouraged scholars to call for new criminal laws combating consentless invasions of privacy and dignity. Two other laws, the ADA and the FOSTA/SESTA amendments to Communications Decency Act (CDA) Section 230, influence web accessibility. Plaintiff lawyers made web accessibility for disabled people an urgent legal issue by strategically suing corporations with inaccessible websites. But technological access is not the only hurdle for an accessible cyberspace. After the enactment of the FOSTA/SESTA amendments to CDA 230, sex workers found themselves increasingly isolated from the Internet due to overaggressive content moderation policies adopted by interactive service providers, a trend that bears out with other marginalized communities as well. And safety influences privacy law and the CFAA. Technologically tracking abortion doctors and pregnant people exposes those people to increased risks of harassment by both anti-abortion activists and police. Computers are used to spread hateful messages or fantasize about hurting women, but the CFAA cannot always be used to respond—often for the better. This Article concludes that feminist cyberlaw is a new term, but feminism has always been foundational to making sense of cyberlaw.

Legal Scholars Argue that Femtech Products Poised to Fill Gaps as States Try to Limit Birth Control and Abortion Access

Leah Fowler & Michael Ulrich, Femtechnodystopia 

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral changes that support the health of the fetus. However, more nefarious actors also have interests in these technologies and the intimate information they contain. In the wrong hands, these tools can effectuate increased reproductive control and criminalization. What happens next will depend on whether we can improve efficacy, limit foreseeable privacy risks, and raise consumer awareness. But the current legal and regulatory landscape makes achieving these goals far from a straightforward proposition, further complicated by political influence and a conservative Supreme Court. Thus, this Article concludes with multiple solutions involving diverse stakeholders, offering that a multifaceted approach is needed to keep femtech’s dystopian future from becoming a reality.

Study Shows Unintended Consequences of MeToo in Fewer Research Projects and Collaborations for Junior Women Academics

Marina Gertsberg, The Unintended Consequences of #MeToo - Evidence from Research Collaborations 

In this study, I use research collaborations between junior female and male academics at U.S. Economics departments as a laboratory in which to analyze how #MeToo affected workplace interactions between men and women. I find that junior female academics start fewer new research projects after the #MeToo movement. This decrease is driven by a decline in the number of collaborations with new male co-authors at the same institution. The negative effect is more pronounced in locations with more liberal gender attitudes. Moreover, I show that the drop in collaborations is concentrated in universities with both a high number of sexual harassment cases and more ambiguous sexual harassment policies. These results suggest that the social movement had unintended consequences that disadvantaged the career opportunities of the protected group. The study has also important implications for the design of organizational sexual harassment policies.

Misattribution of Authorship in Legal Work Masks Women's Efforts and Contributes to Gender Gap in Legal Profession

Jordana Goodman, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, Yale J. Law & Tech. (forthcoming)

 Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis of gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work illustrates that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. The gender gap in the legal profession is exacerbated through this practice by falsely implying that women do less work, are more junior, and do not deserve as much credit as their male colleagues.

Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship, doctrine, and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy de facto and de jure discrimination.

Bringing Feminist Theory to Study the Moral Rights Protections of Copyright Law

Carys Craig & Anupriya Dhonchak, Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution, Research Handbook on Intellectual Property and Moral Rights, Ysolde Gendreau (ed), Edward Elgar (Forthcoming)

The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails.

This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.

Supremacy Clause May Preempt State Restrictions on Abortion Pills

FDA Abortion Pill Policy May Preempt State Restrictions

In December of 2021, the FDA lifted some of its burdensome restrictions on the abortion pill mifepristone, including the requirement that healthcare providers must meet in-person with patients to dispense the medication. Nineteen states, however, continue to impose in-person dispensing requirements and many impose other restrictions that go beyond FDA requirements, like only allowing physicians to dispense the medication and requiring multiple in-person visits to obtain the medication. In October, Texas banned clinicians from prescribing abortion pills after seven weeks of pregnancy—three weeks before the current FDA time limit of 10 weeks. Legal scholars and advocates are questioning the constitutionality of these additional restrictions on abortion pills.

University of Pittsburgh law professor Greer Donley argues that state bans of an FDA-approved abortion medication may violate the supremacy clause of the U.S. Constitution. The supremacy clause establishes that federal laws take precedence over state laws that are in conflict, and prohibits states from interfering with matters that are exclusively entrusted to the federal government—such as the regulation of medications.***

A similar lawsuit has already been filed by GenBioPro, which produces a generic form of the abortion pill mifepristone. The company has sued the state of Mississippi in federal court, challenging state restrictions that go beyond the FDA rule, including a law allowing only physicians to dispense the drug and requiring in-person dispensing. That suit is currently pending.

“It gets a little bit more complicated when we start thinking about the post-Roe world and abortion bans. I think if a state were to pass a law that specifically banned mifepristone or misoprostol that would be preempted,” said Greer. “But I think it’s a really hard question about whether or not a state’s general abortion ban is preempted

Critiquing the Use of Artificial Intelligence for MeToo Enforcement in the Workplace

Leora Eisenstadt, #MeTooBots and the AI Workplace, U. Penn. J. Business L. (forthcoming)

Responding to the #MeToo Movement, companies across the United States and Europe are beginning to offer products that use AI to detect discrimination and harassment in digital communications. These companies promise to outsource a large component of the EEO compliance function to technology, preventing the financial costs of toxic behavior by using AI to monitor communications and report anything deemed inappropriate to employer representatives for investigation. Highlighting the problem of underreporting of sexual harassment and positing that many victims do not come forward out of a fear of retaliation, these “#MeTooBots” propose to remove the human element from reporting and rely on AI to detect and report unacceptable conduct before it contaminates the workplace.

This new technology raises numerous legal and ethical questions relating to both the effectiveness of the technology and the ways in which it alters the paradigm on which anti-discrimination and anti-harassment doctrine is based. First, the notion that AI is capable of identifying and parsing the nuances of human interactions is problematic as are the implications for underrepresented groups if their linguistic styles are not part of the AI’s training. More complicated, however, are the questions that arise from the technology’s attempt to eliminate the human reporter: (1) How does the use of AI to detect harassment impact employer liability and available defenses since the doctrine has long been based on worker reports? (2) How does this technology impact alleged victims’ vulnerability to retaliation when incidents may be detected without a victim’s report? (3) What is the impact on the power of victim voice and autonomy in this system? and (4) What are the overall consequences for organizational culture when this type of technology is employed?

This Article examines the use of AI in EEO compliance and considers whether the elimination of human reporting requires a reconsideration of the U.S.’s approach to discrimination and harassment. Appearing on the heels of revelations about the use of non-disclosure agreements and arbitration clauses to silence victims of sexual harassment, this Article posits that the use of AI to detect and report improper communications, an innovation that purports to help eradicate workplace harassment, may, in reality, be problematic for employers and employees alike, including functioning as a new form of victim abuse. Lastly, the Article considers the difficult work of creating open, healthy workplace cultures that encourage reporting, and the impact of outsourcing this work to Artificial Intelligence. Rather than rejecting what may be an inevitable move towards incorporating artificial intelligence solutions in the workplace, this Article suggests more productive uses of AI at work and adjustments to employment discrimination doctrine to be better prepared for an AI-dependent world.

The Strict Scrutiny Team and "A Podcast of One's Own"

 

Leah Litman, Melissa Murray, and Katherine Shaw, A Podcast of One's Own, 28 Mich. J. Gender & L. 51 (2021).

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.

With the title derived from British feminist writer Virginia Woolf's famous essay, A Room of One's Own (1929).

All I could do was to offer you an opinion upon one minor point--a woman must have money and a room of her own if she is to write fiction; and that, as you will see, leaves the great problem of the true nature of woman and the true nature of fiction unsolved.

FemTech, AI, and the Propagation of Gender Stereotypes and Discrimination

Eleonore Fournier-Tombs & Celine Castets-Renard, Algorithms and the Propagation of Gendered Cultural Norms, forthcoming for publication in French in “IA, Culture et Médias” (2022) (edited by: Véronique Guèvremont and Colette Brin. Presses de l’université de Laval).

Artificial intelligence is increasingly being used to create technological interfaces - whether chatbots, personal assistants or robots whose function is to interact with humans. They offer services, answer questions, and even undertake domestic tasks, such as buying groceries or controlling the temperature in the home.

In a study of personal assistants with female voices, such as Amazon's Alexa and Apple's Siri, the United Nations Educational, Scientific and Cultural Organization (UNESCO) argued that these technologies could have significant negative effects on gender equality . In addition to the fact that these artificial intelligence (AI) systems are trained on gender-specific models, these female-voiced assistants all feature stereotypical female attributes. This problem is compounded by the fact that these systems were probably created primarily by male developers . These gender-specific assistants can pose a threat through the biased representation of women they generate, especially as they become increasingly ubiquitous in our daily lives. It is predicted that by the end 2021, there will be more voice assistants on the planet than human beings .

Given the increasing use of voice assistants trained with biased language models, the potential impact on gender norms is of concern. While isolation has increased significantly during COVID-19, there is a risk that some people's main 'female' interaction is with these voice assistants. If we are not careful, sexist representations of women, totally out of step with real women, will intrude into the privacy of the home or our smartphones, anywhere, anytime. Moreover, the models are essentially the same, leading to the reproduction of a single 'standard' and a cultural smoothing in human-machine interaction, denying the diversity of users of these products around the world.

While some have argued that learning algorithms may be less biased than humans, who are often influenced by discriminatory cultural norms of which they may not be aware , this is without regard to the fact that artificial intelligence (AI) is necessarily created by human beings whose way of thinking it incorporates. Indeed, it is easy to underestimate the importance of cultural norms in human decision-making. Artificial intelligence mimics the social biases of the data it has been given unless it is explicitly designed with different principles. It is therefore not surprising that artificial intelligence developed without built-in values only reflects already biased social norms.

Bethany Corbin, Digital Micro-Aggressions and Discrimination: FemTech and the "Othering" of Women, 44 Nova L. Rev. 337 (2020)

 

The boundary between the digital world and the human body has disintegrated. With the rise of artificial intelligence and the internet of medical things, patients’ bodies can resemble a sci-fi cyborg that operates both independently and electronically through sensors. As the physical and cyber worlds blur, scholars and practitioners have debated medical device regulation, liability for device malfunctions, device privacy, and cybersecurity. One area of the discussion that has been left relatively untouched, however, is femtech. Described broadly as female technology, femtech encompasses wearables, artificial intelligence, apps, and other hardware and software that not only seek to heighten awareness of female health, but also aim to enhance women’s agency over their bodies. Reporters have called femtech a win for women’s health, as startups and venture capitalists finally invest in female products that can benefit half of the population. Today, the most common femtech products on the market focus on menstruation, maternity, and fertility, and are advertised as giving women control over their bodies and wellbeing.

But what if they don’t? By using femtech devices without understanding how these products are regulated and how their data is collected, manipulated, or sold, women may unintentionally be losing control and autonomy over their bodies. These devices collect intimate health data that may be used to maintain stereotypes and societal norms about the female body. For instance, some femtech menstruation products do not permit a user to input abortions or irregular cycles. This failure to account for all female body types and decisions perpetuates the flawed assumption that abortions and irregular cycles are deviations from the standard female body and can marginalize women who do not conform to these “norms.” Similarly, femtech can reinforce outdated perceptions about women and their bodies by consistently trying to quantify, analyze, and create a version of “normal” that all women should strive to achieve.

The fundamental assumptions of femtech, therefore, do not necessarily align with female consumers and patients, and may inadvertently diminish women’s agency and control over their own bodies. This misalignment stems, in part, from the lack of female and provider input into device creation, the rush to market new devices without adequate testing and vetting, and the male-dominated startup industry creating these products. This article analyzes the societal implications associated with femtech in its current form and offers recommendations for modifying the femtech model to avoid undesirable consequences as the industry – and devices – grow in size and complexity.

 

From Digital Platforms to Facial Recognition Technologies: Structural Challenges to Women’s Activism

From Digital Platforms to Facial Recognition Technologies: Structural Challenges to Women’s Activism

By: Monika Zalnieriute

Submission to the Thematic Report on Girls’ and Young Women’s Activism for the 50th Session of the United Nations Human Rights Council

Girls and women face many challenges in engaging in activism across the globe. Both online and in public spaces in our cities, which are increasingly surveilled and monitored by government and law enforcement agencies, women face challenges. In this submission, I would like to draw attention to several issues in particular. First, many countries around the world do have discriminatory face-covering laws, which ban Muslim face coverings in public spaces and thus prevent young women and girl activists from Muslim cultural backgrounds from exercising their rights to freedom of assembly, expression and opinion, among other rights. Second, a lot of public places, including cities and airports, are increasingly equipped with facial recognition technology, which undermines women's activism in city streets and squares. Third, in the digital environment and on media platforms, women from marginalized groups, such as LGBTI communities, face new threats and challenges – their speech and expression are often suppressed and also weaponized against them. Furthermore, the rise of large-scale data collection and algorithm-driven analysis targeting sensitive information poses many threats for women activists, especially from LGBTI communities, who are especially vulnerable to privacy intrusion due to their often hostile social, political, and even legal environments. I invite the UN Working Group on Discrimination against Women and Girls to:

1) Call on the UN bodies to enhance their understanding of theory intersectionality. I have recently proposed a way to enhance judicial interpretation of reconceptualizing by reference to a modified concept of “harmful cultural practices”, (paper is freely available on SSRN).
2) Call for a ban on the use of facial recognition technology by governments in public city spaces.
3) Call for the development of binding international human rights law for private actors to remedy the violations of freedom of expression of women activists, especially from LGBTI communities in the digital environment.

A Feminist Rethinking of Applying Negligent Infliction of Emotional Distress to Nonconsenual Sex Videotaping

Lisa Pruitt, Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments: Rewritten Torts Opinions,  
Commentary on Cristina Carmody Tilley's Rewritten Opinion in Boyles v. Kerr (Feminist Judgments: Rewritten Torts Opinions, Cambridge University Press 2020, Forthcoming)

This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.

The Future Effect of Legal Technology on Women in the Practice of Law

Kayal Munisami, Legal Technology and the Future of Women in Law, 36 Windsor Yearbook of Access to Justice 164, 2019

Much has been written about how automation will change the legal profession as a whole, less so about how automation might affect women in legal practice. This paper briefly maps the likely changes that legal tech (legal technology) will bring to the provision of legal services, and explores how these changes might affect the barriers to advancement that women face in the profession. It determines that, while the use of legal tech may improve women’s work/life balance and overall job satisfaction by bringing about more flexible working hours, positive changes to the billing hours’ system, and fairer hiring and promotion mechanisms, an unfettered inclusion of legal tech might lead to increased working hours for less wages, increased competition for case files among associates, and the perpetuation of existing gender biases when using algorithms in the hiring and promotion process. Finally, the paper makes several recommendations on how law societies, bar associations and other relevant regulatory bodies could ensure that legal tech promotes rather than hinders Equality & Diversity in the legal profession. It proposes that:

(1) detailed data on men and women lawyers should be collected to better inform equality and diversity policies;

(2) law firms should be required to report on their progress in pursuing equality and diversity;

(3) management techniques to promote work/life balance and more flexible pricing systems should be encouraged;

(4) female entrepreneurship in legal tech should be promoted; and,

(5) technological due process procedures should be required when using algorithms in law firm management to ensure fairness, accuracy and accountability.

Feminism, Privacy and Law in Cyberspace

Michele Gilman, Feminism, Privacy and Law in Cyberspace, Oxford Handbook of Feminism and Law in the U.S. (2021 Forthcoming) (Martha Chamallas, Deborah Brake & Verna Williams, eds.)

Feminism has long centered on breaking down the public and private divide that traditionally organized social relations and subordinated women. Privacy is lauded for giving women space for self-determination, but also criticized for creating spaces where patriarchy and misogyny can flourish unchecked. Cyberspace heightens the stakes of this tension because it creates almost limitless access to people’s personal data. We live in a datafied society powered by digital profiling, automated decision-making, and surveillance systems in which we no longer control our personal data; rather, it is used to control us. Women face multiple, gendered harms in cyberspace, including online harassment, digital discrimination, and sexual surveillance by the “femtech” industry. Yet the United States lacks comprehensive privacy laws, and its analog-era anti-discrimination statutes are no match for the digital world. American privacy protections hinge upon a notice and consent regime that puts the onus on users to protect their privacy, rather than the entities that benefit from gathering individual’s personal data. This chapter presents an overview of the oppression women and other marginalized people suffer through a loss of privacy in the digital age and the efforts that activists have taken to ameliorate the harms of cyberspace and to shape privacy norms in a feminist and inclusive manner. It describes the meaning of privacy through four waves of feminist theorizing and activism, analyzes how American privacy law responds to major gender equity challenges in cyberspace, and highlights current feminist theories and models of resistance.

Leveling Up or Leveling Down Equal Protection Remedies - The Trump Challenge to the PA Election

In the recent case of the Trump challenge to the Pennsylvania votes, garnering much scholarly attention, one issue is the appropriate remedies for equal protection violations and the question of leveling up or leveling down. See Trump for President v. Boockvar, (M.D. Pa. Nov. 21, 2020). Plaintiffs allege an equal protection violation from some counties allowing correction or curing of defective mail in ballots, but not other counties including theirs.  They seek the remedy of invalidating the votes that were allowed to be corrected rather than allowing theirs to be cured.

The Supreme Court addressed this issue in the 2017 case Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).  And I wrote about it extensively in,  Leveling Down Gender Equality, 42 Harvard J. Law & Gender 177 (2019), challenging the Court's decision in Morales-Santana leveling down the remedy for gender discrimination against fathers in grants of citizenship.

I think the district court gets it right here in the PA case:  that the presumption is leveling up.  And it is arguably an easier case as leveling down threatens the fundamental rights of others. 

From the Boockvar decision:

Moreover, even if they could state a valid claim, the Court could not grant Plaintiffs the relief they seek. Crucially, Plaintiffs fail to understand the relationship between right and remedy. Though every injury must have its proper redress,116 a court may not prescribe a remedy unhinged from the underlying right being asserted.117 By seeking injunctive relief preventing certification of the Pennsylvania election results, Plaintiffs ask this Court to do exactly that. Even assuming that they can establish that their right to vote has been denied, which they cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others. Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race.118 This is simply not how the Constitution works.

When remedying an equal-protection violation, a court may either “level up” or “level down.”119 This means that a court may either extend a benefit to one that has been wrongfully denied it, thus leveling up and bringing that person on par with others who already enjoy the right,120 or a court may level down by withdrawing the benefit from those who currently possess it.121 Generally, “the preferred rule in a typical case is to extend favorable treatment” and to level up.122 In fact, leveling down is impermissible where the withdrawal of a benefit would necessarily violate the Constitution.123 Such would be the case if a court were to remedy discrimination by striking down a benefit that is constitutionally guaranteed. Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution.124 “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.”125 “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”126 Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief. 

116 Marbury v. Madison, 5 U.S. 137, 147 (1803).
117 Gill, 138 S. Ct. at 1934 (“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”) (citing Cuno, 547 U.S. at 353).

118 Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. Doc. 183 at 1. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.
119 Heckler v. Matthews, 465 U.S. 728, 740 (1984) (internal citations omitted).
120 Id. at 741; Califano v. Westcott, 443 U.S. 76, 90-91 (1979).
121 E.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1701 (2017).
122 Id. (internal citations omitted).
123 See Palmer v. Thompson, 403 U.S. 217, 226-27 (1971) (addressing whether a city’s decision to close pools to remedy racial discrimination violated the Thirteenth Amendment); see also Reynolds, 377 U.S. at 554 (citing Mosley, 238 U.S. at 383).

However, it should be noted that Justice Ginsburg in Morales-Santana rejects this focus on particularized individual injury.  Even though that is the longstanding standard of standing, redressability, and remedies.  And what I, and other Remedies and Constitutional Law Scholars argued was the correct standard.   Instead, she finds that a equal protection remedy is sufficient if it corrects the unconstitutional government action.  

 

Gender Diversity and Diversity Fatigue: Shifting the Focus to Corporations and Systemic Solutions

Douglas Branson, Gender Diversity, Diversity Fatigue, and Shifting the Focus, 87 Geo. Wash. U. L. Rev. 1061 (2019)

The women’s movement has been with us for approximately 50 years. Women are airline pilots, police officers, engineers, fire fighters, physicians, and veterinarians. By contrast, the progress to corporate senior executive positions has been paltry, in fits and starts, at best in baby steps. Ascendant males would tell you that women have made no business case for increasing the number of female executives. In response, this Article contends that the focus, exclusively upon women themselves, is all wrong. The focus should be on corporations themselves, the employers, and not exclusively on aspiring women. Beyond lip service, corporations have done little, throwing a few dollars at STEM programs that may lead to a first or second position, but not to leadership roles. Information technology empirical studies show that of the measly 4.8% of executive positions women hold, only two are held by women with STEM degrees. All of the remaining 25 female executives have law or business degrees with MBAs predominating. The tech industry attempts to crowd out women completely, by hiring males from foreign countries who enter the United States with H1-B visas that allow them to stay for six years and often permanently. It is high time for corporations themselves to undertake concrete steps of the nature with which this Article concludes.

See also Douglas Branson, The Future of Tech is Female (2018)

The Future of Tech is Female considers the paradoxes involved in women’s ascent to leadership roles, suggesting industry-wide solutions to combat gender inequality. Drawing upon 15 years of experience in the field, Douglas M. Branson traces the history of women in the information technology industry in order to identify solutions for the issues facing women today. Branson explores a variety of solutions such as mandatory quota laws for female employment, pledge programs, and limitations on the H1-B VISA program, and grapples with the challenges facing women in IT from a range of perspectives.

Branson unpacks the plethora of reasons women should hold leadership roles, both in and out of this industry, concluding with a call to reform attitudes toward women in one particular IT branch, the video and computer gaming field, a gateway to many STEM futures. An invaluable resource for anyone invested in gender equality in corporate governance, The Future of Tech is Female lays out the first steps toward a more diverse future for women in tech leadership