Gender and the Law Blog

Analyzing Feminist Theories of the Silencing Function of Pornography, Constraining Women's Sexual Refusal

Kate Greasley, Silencing Without Uptake, in B. Leiter and L. Green eds., Oxford Studies in Philosophy of Law, Vol 4 (forthcoming)

In the argument over pornography’s censorship, feminist theorists of certain stripes have argued that one of the ways pornography might harm women is by silencing them. First suggested by Catharine MacKinnon, the silencing claim has since been considerably developed, most notably by Rae Langton and Jennifer Hornsby. Taking their cue from J.L. Austin’s speech act theory, these scholars have argued that pornography is capable, in principle, of silencing women in the ‘illocutionary’ sense, that is, by robbing them of a speech act power — as a case in point, the power of sexual refusal. Langton refers to this as the silencing of ‘illocutionary disablement’. The illocutionary disablement claim has met with plenty of resistance, especially concerning its reliance on an ‘uptake’ condition for illocutionary success, also attributed to Austin. Pursuant to this uptake condition, certain speech acts — meaning, acts constituted in the uttering of certain words in a certain context — depend, for their very performance, on the addressee’s recognition of a particular speaker intention.

Among other misgivings, critics of the silencing claim have found it implausible that the performance of a speech act such as sexual refusal could possibly depend on the happenstance of the speaker’s intention getting through to the addressee. Sympathetic to these complaints, I will try to relay how the illocutionary disablement claim can do without the uptake condition as Hornsby, Langton, and others have heretofore formulated it. I am aligned with their critics in thinking that performing the speech act of sexual refusal cannot depend on any individual addressee’s recognition of illocutionary intent. Nevertheless, I will argue, ‘reciprocity’ of a certain kind is a condition of women’s ability to engage that illocution. The speech act of sexual refusal depends, for its very survival, on the existence of semantic and pragmatic conventions that recognisably signal refusal to competent auditors. To the extent that pornography works to destabilise these conventions, it will effectuate illocutionary disablement with regard to that speech act power. Moreover, I argue, if porn did such a thing in the way Langton and others have envisaged, it would indeed be ‘silencing’ women in a distinctive and distinctively disquieting way.

Analyzing Feminist Theories of the Silencing Function of Pornography, Constraining Women's Sexual Refusal

Kate Greasley, Silencing Without Uptake, in B. Leiter and L. Green eds., Oxford Studies in Philosophy of Law, Vol 4 (forthcoming)

In the argument over pornography’s censorship, feminist theorists of certain stripes have argued that one of the ways pornography might harm women is by silencing them. First suggested by Catharine MacKinnon, the silencing claim has since been considerably developed, most notably by Rae Langton and Jennifer Hornsby. Taking their cue from J.L. Austin’s speech act theory, these scholars have argued that pornography is capable, in principle, of silencing women in the ‘illocutionary’ sense, that is, by robbing them of a speech act power — as a case in point, the power of sexual refusal. Langton refers to this as the silencing of ‘illocutionary disablement’. The illocutionary disablement claim has met with plenty of resistance, especially concerning its reliance on an ‘uptake’ condition for illocutionary success, also attributed to Austin. Pursuant to this uptake condition, certain speech acts — meaning, acts constituted in the uttering of certain words in a certain context — depend, for their very performance, on the addressee’s recognition of a particular speaker intention.

Among other misgivings, critics of the silencing claim have found it implausible that the performance of a speech act such as sexual refusal could possibly depend on the happenstance of the speaker’s intention getting through to the addressee. Sympathetic to these complaints, I will try to relay how the illocutionary disablement claim can do without the uptake condition as Hornsby, Langton, and others have heretofore formulated it. I am aligned with their critics in thinking that performing the speech act of sexual refusal cannot depend on any individual addressee’s recognition of illocutionary intent. Nevertheless, I will argue, ‘reciprocity’ of a certain kind is a condition of women’s ability to engage that illocution. The speech act of sexual refusal depends, for its very survival, on the existence of semantic and pragmatic conventions that recognisably signal refusal to competent auditors. To the extent that pornography works to destabilise these conventions, it will effectuate illocutionary disablement with regard to that speech act power. Moreover, I argue, if porn did such a thing in the way Langton and others have envisaged, it would indeed be ‘silencing’ women in a distinctive and distinctively disquieting way.

Interpreting the Reasonable Expectation of Sexual Privacy in Canada's Digital Technology Criminal Laws

Moira Aikenhead, A '"Reasonable" Expectation of Sexual Privacy in the Digital Age, 41 Dalhousie L.J. 274 (2018)

Two Criminal Code offences, voyeurism, and the publication of intimate images without consent, were enacted to protect Canadians’ right to sexual privacy in light of invasive digital technologies. Women and girls are overwhelmingly targeted as victims for both of these offences, given the higher value placed on their non-consensual, sexualised images in an unequal society. Both offences require an analysis of whether the complainant was in circumstances giving rise to a reasonable expectation of privacy, and the use of this standard is potentially problematic both from a feminist standpoint and in light of the rapidly evolving technological realities of the digital age. This article proposes a feminist-inspired, technology-informed approach to the reasonable expectation of privacy standard in relation to these offences, and examines the extent to which the Supreme Court of Canada’s recent voyeurism decision, R. v. Jarvis, aligns with this approach. 

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?

The Impact of Liberal Feminism and Critical Race Theory on Reproductive Rights and Justice in the U.S.

Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming)

This chapter examines the impact of liberal feminism and critical race theory on reproductive rights and justice in the United States. Liberal feminism has played a key role in this fight. Other feminist theories, including, prominently, critical race theory, have taken the mainstream reproductive rights movement to task for marginalizing the voices and experience of women of color and low-income women, thus reinforcing stratified reproduction. This work has put issues like surrogacy, coerced sterilization, welfare family caps and criminal prosecution of pregnant women on the reproductive rights and justice agenda. Interaction among feminist theories has produced a dialectic and evolution that enable them to meet new challenges. Similarly, a multi-theory account of reproductive rights and justice issues produces a more useful analysis and range of strategies than a single theory approach.

Replicating Gender, Race and Class Hierarchy in Virtual Reality

Mary Anne Franks, Augmented Inequality, UC Davis Law Review (forthcoming)

The world we all live in is structured by inequality: of gender, race, class, sexual orientation, disability, and more. The promoters of virtual and augmented reality often claim that they offer a more perfect world, one that offers more stimulation, more connection, more freedom, more equality. For such technologies to be considered truly innovative, they should in some sense move us beyond our current limitations and prejudices. But when existing inequalities are unacknowledged and unaddressed in the “real” world, they tend to be replicated and augmented in virtual realities. We make new worlds based on who we are and what we do in old ones. All of our worlds, virtual and physical, are the product of human choice and human creation. The developers of virtual and augmented reality make choices about which aspects of our lived history they want to replicate, enhance, or change. The design – and design flaws - of new virtual and augmented reality technologies reveal much about the values of their developers and their consumers, providing a unique opportunity to evaluate just how innovative new technologies are with regard to social inequality.

A Judge's Thoughts on What it Means to be a "Feminist" Judge

Judge Elinore Marsh Stormer, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).

Judge Stormer gave these remarks as part of a panel discussion on feminist judging at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. She offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.

 

I’m going to give you a brief history of my life, because I’m so old that I’ve experienced many of the things that you read about in articles that you have before you. When I went to law school in 1979, I had just taken a gap year, which did not involve me going to school. I was a waitress at the Brown Derby. I was just sick of school and that was very educational. It actually formed a lot of the things that have happened to me since then. I was a union worker. I was sexually harassed by my boss, who didn’t feel that I could say or do anything about that, but found that I could get more tips if I was flirtatious. I’d lived this kind of intellectual life before that, and it really was very helpful to me as I went forward with the rest of my life.

 

I came to law school where twenty percent of my class was women, so obviously everyone else was a man. We had gotten past the question of whether or not women being in law school worked with taking a man’s job, which is what Ruth Bader Ginsburg and Sandra Day O’Connor encountered. We were there, but to some extent there was still reluctance to perceive us as equals. We had very few women law professors, as a matter of fact, I can only remember one, but there may have been more than that. She taught contracts.

 

When I would go on job interviews, I interviewed with a number of firms in Cleveland, and at that time it was perfectly permissible for them to ask you questions like “do you expect to get married,” “how many children do you think you want,” and sometimes they would couch these questions in terms of “where do you see yourself in ten years” and my standard answer was “well as a partner in your firm, of course” and they would sit back and look kind of grim.

Book Review: Two Books on Cyberspace Harassment of Women

Catharine Ross, Taming the Wild West: Online Excesses, Reactions and Overreactions, 51 Tulsa L.Rev. 267 (2016)

Abstract:     

A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their own lives must lead them refuse to sext (a widespread approach) deprives them of voice. Both books analyze law and propose legal reforms, and both also explore the relationship between social norms and legal regimes. Ross’s review finds commonality in the authors’ arguments that women “have a right to sexual expression without fear of moral or legal repercussions” and that both ultimately “look to greater self-policing by the technology industry,” and to promoting “cultural transformation” as much as legal change.

 

The "Intellectual Bohemia" of the Internet for Feminism

Claire Bond Potter, Is the Internet the Final Bohemia?. Chronicle.

Yet flexible, voluntary networks in virtual space offer other political and intellectual possibilities, and we should imagine them before it is too late. Jacoby has said that even though he was wrong about a few things, he was right about most things. I’m glad he did. We may disagree about the importance of intellectual movements anchored principally by women, people of color, and queers, but we don’t disagree about how quickly these movements have been sucked into the academy — the barbarians at the gates becoming gatekeepers in turn. Internet bohemia, with its disdain for credentialing, and its networks that form, dissolve and form again according to new needs and desires, could, in fact, be different.

Notable Mention to Gender & the Law Prof Blog

Jennifer Rose at "The Blog Spot" in Internet Researcher notes Gender & the Law Prof Blog among recommended legal blogs. [Westlaw]

Also noted is the Gender & Sexuality Law Blog by Katherine Franke (Columbia) and Suzanne Goldberg (Columbia).

"Gender Bias Suit Will Soon Shine a Harsh Light on Microsoft"

From Wired: 

MICROSOFT FACES A class action lawsuit from former employee and noted computer security researcher Katie Moussouris. The suit claims that during Moussouris’s seven years at Microsoft, she and other women were unfairly discriminated against on the basis of their gender, passed over for raises and promotions, and ranked below their male counterparts during bi-annual performance reviews.

Moussouris was instrumental in prompting Microsoft to launch its first bug bounty program in 2013, something the company resisted for years. The program pays researchers who find security vulnerabilities in its software. After resigning from Microsoft in May, Moussouris took a job as chief policy officer at HackerOne, which helps companies manage bug bounty programs and communicate with security researchers.

From the Guardian UK: 

The barrister at the centre of a sexism furore over a complimentary LinkedIn message from a solicitor 30 years her senior has said she is facing a professional backlash over her decision to speak out.

Writing for the Independent, the human rights lawyer Charlotte Proudman said she did not regret her decision to make public a message from Alexander Carter-Silk that commented on her “stunning” photograph, because it had led to an outpouring of similar experiences from other women.

Proudman said she had named Carter-Silk because she believed the public interest in exposing the “eroticisation of women’s physical appearance” by an influential and senior lawyer was greater than his right to privacy.

"Why Aren't There More Women Futurists?"

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.

The incredible dearth of women in tech firms

Tracy Chou, a young tech professional with Pinterest, started blogging about the dearth of women in the tech world.  The story is in the latest issue of Mother Jones.  Here are some of her findings: 

The numbers were as bad as you might expect: Just 17 of Yelp's 206 engineers (8 percent) were women, for example. Dropbox was barely better, with 26 out of 275 (9 percent). Nextdoor, a social-media tool for neighborhoods, had 29 engineers—all male. Change.org, which bills itself as "the world's platform for change," had less than 13 percent women engineers; it has since changed for the better, with 20 percent.*

Chou's project helped fuel the wave of public criticism that has shamed big companies into coming clean. Seven months after the launch, Google disclosedthat 17 percent of its tech staff is female. (Chou heard that her Medium post had made it all the way to cofounder Larry Page.) Twitter, Facebook, Yahoo, and dozens of other companies coughed up their stats not long after: Most reported between 10 and 20 percent women in "tech" positions—which can be pretty loosely defined. Some household names, like IBM, Netflix, and Zynga, still have yet to produce meaningful diversity data. "The crowdsourced stuff is way better and more reliable than the official party line," notes Silicon Valley diversity consultant Nicole Sanchez, whom Github recently hired as a VP. (The racial diversity numbers are equally cringeworthy; see our related story on Jesse Jackson's efforts in Silicon Valley.)
 

How to Tweet From Conferences

The Chronicle, Ten Tips for Tweeting at Conferences

It’s no surprise that we here at ProfHacker like Twitter. We’ve covered how to start tweeting (and why you might want to) and practical advice for teaching with Twitter. I’ve found Twitter to be a tremendous boon to developing my professional networks and helping me stay on top of what’s happening in my fields of scholarship. But there’s one place where where Twitter perhaps ends up being more valuable for me than other place: at conferences.

 

Tweeting at conferences is a great way to share what you’re learning in a session with your followers and the wider world. It’s also a great way to be in two places at once, as you can read tweets from other sessions that you weren’t able to attend. You can read those tweets as they come in or—if you’d rather not fracture your attention—read them after the fact using a Twitter search. I personally find tweeting during conference sessions to be a great way for me to take notes; it helps me pay closer attention to what someone is saying than if I were simply working with pen and paper. It can even turn into something of a competition.

"Five Ways To Improve Gender Equity In The Tech Sector"

From Forbes: 

When it comes to gender equity, the technology ecosystem, which prides itself on being a meritocracy in so many other respects, is failing badly.

How else can we explain that women held 34% of software and computing jobs in 1990, but only 27% in 2011? Or that, according to the “Women Entrepreneurs 2014” report from Babson College, the “total number of women partners in venture capital firms declined significantly since 1999 from 10% to 6%.” Or that, as the Babson report also observed, in the three years from 2011 to 2013, “companies with no women on the executive team received almost 90% of the total investments in semiconductors, computers and peripherals/electronics and instrumentation, and media and entertainment.”

So, what is to be done?  Five proposals, with the first one being: 

1. Push companies to publish data about gender diversity

Pushing companies to collect and publicize data on the proportion of women in tech and leadership capacities adds an element of public accountability, and provides an important frame of reference to assess progress. Understanding the state of gender (and other forms of) diversity on a company-specific basis can catalyze greater awareness of diversity in hiring and promotions. And, year-over-year comparisons provide a way to measure progress both within a single company and more broadly.

Sexual Consent -- There's an App for That

The Chronicle, When It Comes to Preventing Sexual Assault, Should There be an App for That?

To some people, the idea for an iPhone app designed to let students record video statements of agreement before engaging in sexual activity sounds like a bad joke. Or perhaps just a well-intended overuse of technology. 

 

But Michael Lissack has come up with a set of such apps, and he defends them as a way to reset the conversation around sex on the campus. His creation, called We-Consent, is actually three apps — one that lets students document mutual consent to a sexual encounter by video-recording a conversation about it with the cellphone’s camera, and two "no" apps that record an individual watching a message on the phone that clearly states "no," so there is a record of that individual having received the message.

  

Mr. Lissack, who is executive director of the Institute for the Study of Coherence and Emergence, said the videos are encrypted and unhackable; they don’t save onto a user’s phone, but they are stored in an offline database. The only time the videos can be viewed is when there is a legal reason to disclose them, such as a court proceeding or university adjudication. Right now, the two "no" apps are available through the App Store on Apple's iTunes, but the yes app is accessible only on the apps’ website. Mr. Lissack said that Apple considered the yes app "icky."

Phone apps and gender

From the Guardian UK: 

A growing number of children’s app makers are upping their efforts to ensure their products do a better job of reflecting the diversity of their young audiences.

And (regarding the picture above, of the robot): 

As an example, he gave Toca Robot Lab, a robot-building app that was released in 2011: a “classically boy-skewing theme of building robots” that the auditor suggested played to those stereotypes with its colour scheme and art-style of “rusty old things that you might find in a garage, as opposed to everyday things you might find at home”.

Toca Boca redesigned the game’s visuals and added in more of the latter kind of objects. “It opened it up and made it much more inclusive than it was from the beginning,” said Jeffery, who cited his company’s Toca Hair Salon range of apps as much more successful in bucking gender stereotypes.

 

"DARPA'S Robotics Challenge Has a Gender Problem"

From WaPo: 

The tech world deservedly catches some flack for its lack of gender diversity.

For example, only 30 percent of Google’s employees are women. At Facebook31 percent are women. The number are more skewed in technical roles.

As lopsided as those numbers are, they pale in comparison to the gender breakdown at the finals of this year’s DARPA Robotics Challenge, which takes place Friday and Saturday in Pomona, Calif. Eleven of the 24 teams competing are made up completely of men. Of the 444 individuals on the teams, only 23 are women. An alarming 94.8 percent of the participants are men.

Lulu and Attractiveness Assessment

From the New Yorker:

“Super Sad True Love Story,” Gary Shteyngart’s novel set in a social-media dystopia, each person is publicly assigned a “fuckability” score, determined by various algorithms. Lulu, an app founded in 2013, is the closest anyone has come, so far, to making Shteyngart’s vision come true. “We look up everything these days,” Alexandra Chong, Lulu’s founder, said recently. “Before we go out for a drink, we look up bars. Why should we not also have references when it comes to the most important thing?” Chong calls her startup “a community where women can talk honestly about what matters to them.” Others have called it Yelp for men.