Friday, April 3, 2020
Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minnesota L. Rev. (forthcoming)
A central tenet of sex discrimination law is the protection of gender nonconformity: unless a feature of biological sex requires it, regulated entities may not expect that individuals will conform their gender performance to the stereotypes of their sex. This doctrine is critical to promoting the antistereotyping aims of sex discrimination law by allowing gender nonconformers from aggressive women to caregiving fathers to challenge expectations that would limit them to the gender performance that accords with their sex. More recently, courts have extended gender nonconformity protection to transgender persons in cases where discrimination is due to the transgender person’s gender performance. The Supreme Court will consider this new law of gender nonconformity this term in EEOC v. R.G. & G.R. Harris Funeral Homes, which asks whether sex discrimination law of the workplace covers transgender discrimination.
Notwithstanding its partial success, the gender nonconformity doctrine is the wrong path for pursuing transgender rights. The doctrine has led to losses when transgender persons are discriminated against not for their gender performance, but for seeking recognition as their identified sex rather than the sex they were assigned at birth. Transgender plaintiffs are likely to continue to lose under the doctrine when seeking such recognition in the long list of contexts—like bathrooms, dress codes, sports, schools, and beyond—that are still lawfully sex segregated. Even transgender plaintiffs’ successes under the doctrine are Pyrrhic victories. Under the gender nonconformity doctrine, a plaintiff who was designated male at birth but who identifies as female is an effeminate man rather than a woman. The doctrine thus reinforces the notion that transgender persons are their birth-designated sex, contrary to substantial medical and legal authority, and to the claims of transgender persons seeking recognition as their identified sex. And treating transgender plaintiffs as gender nonconformers risks harm not only to transgender rights, but to protection for gender nonconformity, by raising the bar to prove such claims, even in paradigm cases. Regardless of the outcome in Harris, this Article has implications for transgender rights throughout sex discrimination law.
These losses and harms are not inevitable. They all stem from one error—misunderstanding transgenderism as a matter of gender rather than sex—that can be corrected. As a few courts have suggested, discrimination on the basis of seeking recognition for one’s identified sex is discrimination on the basis of sex. Contrary to the concerns of some courts and scholars, extending protection to transgender discrimination would advance rather than undermine the antistereotyping aims of sex discrimination law. Doing so under the right theory can protect transgender persons while promoting sex discrimination law’s historic role in fighting sex stereotypes.
Thursday, March 19, 2020
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.
Wednesday, March 18, 2020
Deborah Hellman, Sex, Causation, and Algorithms: Equal Protection in the Age of Machine Learning, 98 Wash.U. L. Rev. (forthcoming 2020)
U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute [VMI] may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state – consistent with equal protection – rely on an algorithm that uses a sex-based classification?
This Article presents a new normative principle to guide the analysis. I argue that courts ought to ask why sex is a good proxy for the trait of interest. If prior injustice is likely the reason for the observed correlation, then the use of the sex classification should be presumptively prohibited. This Anti-Compounding Injustice principle both explains and justifies current doctrine better than the hodge-podge of existing rules and concepts and provides a useful lens through which to approach new cases.
Tuesday, March 17, 2020
The Imperfect Metaphor of the Waves of Feminism -- Historically Misleading and Politically Unhelpful
***People began talking about feminism as a series of waves in 1968 when a New York Times article by Martha Weinman Lear ran under the headline “The Second Feminist Wave.” “Feminism, which one might have supposed as dead as a Polish question, is again an issue,” Lear wrote. “Proponents call it the Second Feminist Wave, the first having ebbed after the glorious victory of suffrage and disappeared, finally, into the sandbar of Togetherness.”
The wave metaphor caught on: It became a useful way of linking the women’s movement of the ’60s and ’70s to the women’s movement of the suffragettes, and to suggest that the women’s libbers weren’t a bizarre historical aberration, as their detractors sneered, but a new chapter in a grand history of women fighting together for their rights. Over time, the wave metaphor became a way to describe and distinguish between different eras and generations of feminism.
It’s not a perfect metaphor. “The wave metaphor tends to have built into it an important metaphorical implication that is historically misleading and not helpful politically,” argued feminist historian Linda Nicholson in 2010. “That implication is that underlying certain historical differences, there is one phenomenon, feminism, that unites gender activism in the history of the United States, and that like a wave, peaks at certain times and recedes at others. In sum, the wave metaphor suggests the idea that gender activism in the history of the United States has been for the most part unified around one set of ideas, and that set of ideas can be called feminism.”
The wave metaphor can be reductive. It can suggest that each wave of feminism is a monolith with a single unified agenda, when in fact the history of feminism is a history of different ideas in wild conflict.It can reduce each wave to a stereotype and suggest that there’s a sharp division between generations of feminism, when in fact there’s a fairly strong continuity between each wave — and since no wave is a monolith, the theories that are fashionable in one wave are often grounded in the work that someone was doing on the sidelines of a previous wave
Friday, February 28, 2020
If you're someone who claims the mantel of feminism, who believes in the innate equality of all genders, who thinks that solidarity among communities of women is a core component of the world you want to live in, I strongly encourage you to read Mikki Kendall's debut essay collection, Hood Feminism: Notes from the Women That a Movement Forgot. (Also, if you're not one of those someones, I really think you should read Hood Feminism.)
As the subtitle makes clear, Kendall's central thesis is that mainstream feminism in the United States has been anything but inclusive, despite being "a movement that draws much of its strength from the claim that it represents over half of the world's population." In prose that is clean, crisp, and cutting, Kendall reveals how feminism has both failed to take into account populations too often excluded from the banner of feminism and failed to consider the breadth of issues affecting the daily lives of millions of women.
Many of the book's essays focus on these overlooked issues, with chapters examining how gun violence, hunger, poverty, education, housing, reproductive justice, and more are all feminist issues.***
Securing that equality, Kendall argues, requires that women accept some inconvenient truths, specifically "the distinct likelihood that some women are oppressing others.... [W]hite women can oppress women of color, straight women can oppress lesbian women, cis women can oppress trans women, and so on." If feminism is to truly represent all women, it must resist the "tendency to assume that all women are experiencing the same struggles [which] has led us to a place where reproductive health imagery centers on cisgender able-bodied women to the exclusion of those who are trans, intersex, or otherwise inhabiting bodies that don't fit the narrow idea that genitalia dictates gender."
Those already familiar with Kendall as a leader in Black feminist thought won't be surprised that Hood Feminism is grounded in intersectionality, a term coined by Prof. Kimberlé Williams Crenshaw to reflect how race and gender combine to impact Black women in the criminal justice system.
Wednesday, February 19, 2020
New Research Shows Bringing Up Past Injustices Against Women Alienates Men, Making Reform More Difficult
Ivona Hideg & Anne Wilson, Research: Bringing up Past Injustices Make Majority Groups Defensive, Harvard Bus. Rev.
Many organizations and institutions reference past injustices with the intention of making people more sensitive to how historic systems of oppression contribute to present-day inequalities. By drawing on social identity theory, however, we speculated that excessive focus on historical injustices can actually backfire by causing key groups to deny current discrimination and withdraw support for ongoing remediation programs.
Social identity theory posits that people derive some of their sense of identity and self-worth from their group memberships (including gender, race, religion, politics, or even sports teams), and are highly motivated to maintain and protect a positive image of their social groups. Just as an individual’s self-image can be shaken by reflecting on their own misdeeds, threats to social identity may arise when contemplating past misconduct by their group. This threat can lead to defensive behavior that diminishes or deflects perceived criticisms. As the historically-advantaged group, social identity theory predicts men will react defensively when presented with evidence of past injustices suffered by women, the disadvantaged group.
We tested these ideas through our recent research.***
These converging results suggest invoking past discrimination can threaten men’s social identity and undermine their perceptions of current levels of discrimination, consequently lowering their support for policies meant to ameliorate this situation.
What might be done to mitigate these negative effects? Must we sidestep these discussions of current groups’ shameful history, sacrificing its capacity to enrich our understanding for fear of triggering defensive backlash? Rather than simply avoiding discussions of the past, we reason that historically-advantaged groups (men, in these studies) might be more open to information about past injustices if there was a way to lessen the threat to their social identity.***
This work has important implications for policy-makers and organizations seeking to implement diversity and equity policies. Despite the intuitive appeal of using past injustices to bolster the case for such initiatives, this approach can undermine progress by threatening the social identity of key participants. As the efficacy of diversity and equity programs depends on establishing broad-based support, getting both men and women to view these policies positively should be considered an important pre-condition for success.
Thursday, February 6, 2020
Symposium Book Discussion: The Common Law Inside the Female Body by Anita Bernstein
Symposium Contributors: Bridget J. Crawford, David S. Cohen, Joanna L. Grossman, Cyra Akila Choudhury, Margaret Chon, Maritza I. Reyes, Teri A. McMurtry-Chubb, Anita Bernstein
The Common Law Inside the Female Body: In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.
Wednesday, December 4, 2019
Kate Webber Nunez, Persuasive or Pipe Dream? The Feminist Judgments Project's Potential Influence on Judicial Decision Making, British Journal of American Legal Studies (Vol. 9 2020 Forthcoming)
The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP’s alternative jurisprudence can influence future decisions. The FJP rewrites the law in order to reveal the underlying biases that exist in purportedly neutral decision making. In doing so, the FJP seeks to influence future advocacy and, ultimately, change the law. According to the Project’s commentary, this change will come by revealing unconscious bias and opening judicial minds to previously unknown perspectives; a method that draws on psychological theories of decision making, such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science on how judges decide cases. The article’s analysis is relevant because certain prominent theories in the political science field would challenge the utility of the Project. Specifically, given an increasingly conservative judiciary and Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. This article explains, however, that the field of political science would not universally nor completely dismiss the Project’s efforts. An alternative line of thought, historical institutionalism, presents a theoretical explanation for why and how the FJP’s re-envisioned law could possibly create persuasive arguments that will influence the judiciary. This article applies historical institutionalist concepts to the FJP, exploring how, and the degree to which, this view of decision making supports the Project’s utility. Ultimately, it concludes that the path of persuasion is somewhat narrow and limited, but possible.
Tuesday, November 26, 2019
The New York Times won a Pulitzer and helped ignite the #MeToo movement with its reporting on sexual harassment. But the Times still doesn’t understand what sexual harassment is. In its official definition and the stories it pursues, the Times employs a sexualized conception of sexual harassment that is twenty years out of date in the law. It’s also disconnected from the lived experience of most people and from the findings of social science research. In this, the Times is not alone. Even the two leading enforcers of federal antidiscrimination law — the EEOC and the Department of Justice — still at times issue pronouncements that fail to reflect current Title VII law or even those agencies’ own enforcement priorities.
Lost in these outdated but still pervasive definitions of sexual harassment are the many ways employees are undermined, excluded, sabotaged, ridiculed, or assaulted because of their sex, even if not through words or actions that are “sexual” in nature. “Put-downs” and not simply “come-ons,” these types of sexual harassment are even more pervasive than the overtly sexualized forms. Relegating them to another category or term such as “gender harassment” or “sex-based harassment” treats them as secondary to the sexualized forms, causes society to misunderstand the dynamics at play even in the latter, and skews the focus of workplace training (and subsequent reporting) about sexual harassment. With the #MeToo movement giving unprecedented attention to the problem of sexual harassment, now is the time to better understand that term.
Tuesday, September 17, 2019
This article, part of a Wills, Trusts, and Estates Meets Gender, Race, and Class Symposium, explores the relationship between trusts and gender by looking at the language, myths, and trends that appear in current trust law. After discussing the relationship between gender and inheritance law more generally, the article focuses on the three dominant characteristics: divided ownership; privacy; and existence over time. Using a universe of recent cases, it discusses how gender affects fiduciary and settlor identity, including who is being chosen and by whom to serve as trustee and what language is being used to describe this important role. It then considers the impact of trustee identity and power from the perspective of trust privacy. It concludes by examining trust duration, which captures a larger problem having to do with “objectivity.” In Justice Engendered, Martha Minow explains that the “special burden and opportunity” of the law is to create “opportunities for insight and growth,” to “engender” justice by using language to help “remake the normative endowment that shapes current understandings.” This article argues that an “engendered” approach to trust law uses perspective, rhetoric, and “subtexts” to disrupt rather than ignore or reinforce existing social patterns and myths, to unearth embedded assumptions in language, and to notice when a particular vantage point is being used and “appreciate a perspective other than one’s own.” It concludes that although some courts are taking this “engendered” approach toward trusts and trustees, there is work yet to do.
Tuesday, September 10, 2019
Jenna Sapiano & Beverley Baines, Feminist Curiosity about International Constitutional Law and Global Constitutionalism, Journal of the Oxford Centre for Socio-Legal Studies, Issue 1, 2019
Cynthia Enloe’s theory of feminist curiosity inspired us to ask whether feminist International Constitutional Law (ICL) scholars and their Global Constitutionalism (GC) counterparts apply the same concept of gender to the internationalization/globalization of constitutional norms. We analyzed ICL scholarship on substantive rights to security and equality (Hilary Charlesworth and Christine Chinkin), freedom from violence (Catharine A. MacKinnon), and parity (Ruth Rubio-Marín) and GC scholarship on processes of contestation (Antje Wiener), proportionality (Anne Peters), and democratic iterations (Seyla Benhabib). Our findings, in the form of a hypothesis, are that gender specificity infuses the former and gender inclusivity, the latter. In other words, these scholars take competing approaches to protecting (ICL) and empowering (GC) women. This hypothesis sets the stage for the conversations we imagine these feminist scholars might have: Charlesworth and Chinkin with Wiener about the rule of law; MacKinnon and Peters about the separation of powers; and Rubio-Marín and Benhabib about democracy. Their collective insights could yield constructive connections that advance women’s protection and empowerment domestically, internationally, and globally.
Thursday, September 5, 2019
Signs Special Issue: Rethinking “First Wave” Feminisms
Over the past several decades, scholarship in a variety of disciplines has challenged the “wave” model of feminism. Inspired by the 2020 centennial of the Nineteenth Amendment, this special issue seeks to rethink “first wave” feminisms in a heterogeneous and expansive way—by pushing geographic, chronological, and ideological boundaries and by broadening the definition of whom we usually think of as early feminists. While contributions on the Nineteenth Amendment in the United States, and the suffrage movement worldwide, are welcome, we also encourage submissions that consider early manifestations of feminism and feminist movements in broad and global terms. Scholars from all disciplines are encouraged to submit their work.
The editors invite essays that consider questions along but by no means limited to the following lines:
- How were the era’s signal achievements—the global movement for universal suffrage, international labor legislation for women and children, international human rights, and transnational solidarities around a range of goals—achieved? What compromises were entailed in the legislative accomplishments, and what possibilities did their passage enable? What accomplishments were outside the realm of legislation?
- In our scholarly and popular retellings, what is celebrated, and what is silenced? Are there historical figures, or events that have been written out of the story, and why?
- What were the racial politics of the first manifestations of feminism? How do we understand—in light of the intervening history—the compromises and political exigencies that led to the passage of the Nineteenth Amendment and similar developments worldwide? How do the exclusions of the era help us recognize the exclusions of our own?
- What were the sexual politics of early feminisms? What role did class- and race-based understandings of respectability play? What role did reproductive rights and justice play?
- What are the feminist implications of the medical history of the era, notably the movement for birth control, underground abortion networks, and early transgender movements?
- What were the class politics of early feminisms, and what role did political economy and labor play in feminist thought and activism?
- How do we understand first-wave feminisms through the frames of the Romantic and modernist turns? How did new literary, visual, and musical representations of women shape (and how were they shaped by) women’s newfound status as public and political actors?
- How do we understand the long history of feminism in terms of coterminous (and overlapping) movements and developments, including but not limited to war, imperialism, revolution, socialism, migration, urbanization, pandemic, progressivism, abolitionism, Reconstruction, segregation, and fascism—and how does this confluence shed light on the present era?
- Can we understand early feminisms as media phenomena shaped by (and shaping) the communications and technological developments of their era, notably the telegraph, radio, and the increasing proliferation of print culture? What key texts (including literary texts) articulated important feminist theories and galvanized activism?
- Finally, how could we understand the initial emergences of feminism and its subsequent history if we rejected the wave metaphor and instead conceive of early feminism—with its limitations and its extraordinary achievements—as a beginning that casts a clear and compelling light on the feminist activism to come?
Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We seek essays that are passionate, strongly argued, and willing to take risks.
The deadline for submissions is September 15, 2020. The issue will be guest edited by Susan Ware, general editor of the American National Biography and Honorary Women’s Suffrage Centennial Historian at the Schlesinger Library, and Katherine Marino, assistant professor of history at UCLA.
Please submit full manuscripts electronically through Signs’ Editorial Manager system at http://signs.edmgr.com. Manuscripts must conform to the guidelines for submission available at http://signsjournal.org/for-authors/author-guidelines/.
Tuesday, September 3, 2019
Linda Greene, Lolita Buckner Inniss, Bridget Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia James & Keisha Lindsay Talking About Black Lives Matter and #MeToo, Wisconsin Women's Law Journal, Forthcoming
This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, implications, and future of Black Lives Matter and #MeToo.
This essay organizes around internal and external spatial metaphors and makes five schematic moves. First, internal considerations ground comparisons of the definitions, goals, and ideas of success employed by or applied to Black Lives Matter and #MeToo. Second, external concerns inspire questions about whether both movements may be better understood through the lens of intersectionality, and relatedly, what challenges these movements pose for an intersectional analysis. Third, a meta-internal framework invites inquiry into how the movements shape the daily work of scholars, teachers, lawyers, and community activists. Fourth, a dialectical external-internal frame drives questions about the movements’ effects on law and popular culture, and the reciprocal effects between those external influences and the movements themselves. Returning to an external, even forward-looking, approach, we ask what the next steps are for both movements. This five-part taxonomy frames the inquiry into where the Black Lives Matter and #MeToo movements are located individually, but also where they are co-located, and, perhaps most importantly, where they are going
Wednesday, July 31, 2019
Consent is a concept at the center of criminal law and sexual assault. So, why is it so difficult to accurately define? In this episode, two experts on the topic, Criminal Law Professor Aya Gruber and Equitas Co-Founder and CEO Jennifer Long, discuss and debate the potential for success and failure of implementing an “affirmative consent” requirement, how we now understand that there is no expected behavior during or after a sexual assault, and how important is to treat every case individually.
Monday, July 29, 2019
ALI Podcast, Consent and Sexual Assault in Criminal v. Tort Law
From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.
Wednesday, July 17, 2019
Farnush Ghadery, "#MeToo – Has the ‘Sisterhood’ Finally Become Global or Just Another Product of Neoliberal Feminism?" , Transnational Legal Theory (vol. 02, 2019)
The article discusses the #MeToo movement by reflecting on its origins and recent developments to consider its position within feminist theory. On the one hand, the cross-border proliferation of this hashtag revived the question once posed by liberal feminist Robin Morgan: Has the ‘sisterhood’ finally become global? Others questioned the deeper meaning of the ‘me’ as part of #MeToo, wondering whether the need for individual responsibility to come forward indicates that the movement fits only too well with what has been coined neoliberal feminism. Disagreeing with both categorisations, the article positions #MeToo as a transnational feminist consciousness-raising endeavour which can be traced across different places worldwide. Referring to some of these contextualised uses of #MeToo, the article argues that #MeToo has been able to manifest itself as a transnational feminist phenomenon, as it has allowed groups in distinct spaces and localities to take ownership of the varying manifestations of #MeToo.
Wednesday, May 22, 2019
Martha Fineman, Vulnerability and Social Justice, 53 Valparaiso U. L. Rev. (forthcoming 2019)
This Article briefly considers the origins of the term social justice and its evolution beside our understandings of human rights and liberalism, which are two other significant justice categories. After this reflection on the contemporary meaning of social justice, I suggest that vulnerability theory, which seeks to replace the rational man of liberal legal thought with the vulnerable subject, should be used to define the contours of the term.Recognition of fundamental, universal, and perpetual human vulnerability reveals the fallacies inherent in the ideals of autonomy, independence, and individual responsibility that have supplanted an appreciation of the social. I suggest that we need to develop a robust language of state or collective responsibility, one that recognizes that social justice is realized through the legal creation and maintenance of just social institutions and relationships.
Friday, April 26, 2019
Book Review Sex and Secularism, Challenging the Idea that Secularism is Synonymous with Gender Equality
In Sex and Secularism Joan Wallach Scott challenges the pervasive idea that secularism has always been synonymous with gender equality, entrenching and codifying the “historical triumph of enlightenment over religion” (p. 1)***
Like many feminist historians educated in the late twentieth century, I studied and absorbed Scott's seminal article, “Gender: A Useful Category of Historical Analysis” published in 1986 in the American Historical Review. It became part of the canon of second-wave feminist theory for scholars in a variety of disciplines. Scott's clear and pervasive analysis demanded that feminist historians understand and dive deeply into dimensions of social and political power that emanated from perceived notions of sexual difference, both historic and contemporary. ***
Utilizing a wide variety of literature written by second-wave feminists and historians of race, colonialism, and religion from the nineteenth to the twenty-first century, Scott provides a plethora of examples from gender and secular discourse on religion, reproduction, and politics—ending with the most recent “clash of civilization” discourse that transcends the “Cold War” rhetoric and supports and justifies Islamaphobia in a post-9/11 world. She effectively argues, first, that gender equality is not inherent in secularism (nor ever has been) and, second, that gender equality has not been ameliorated by white, Christian racial and religious discourse or practices in either public or private spheres of a gendered world. It is her third argument about secularism that provides intriguing food for thought. Scott posits that the discourse of secularism has also “functioned to distract attention from a persistent set of difficulties related to differences of sex” regardless of the nation, government, or period (p. 4). Inequality is ingrained and has been, and continues to be, a moving target in the discourse of secularism that allows Western nations to effectively ignore, if not “hide,” the inherent core of gender inequality under the guise of focusing on the “other”—the latest threat to the “civilized” world.
Wednesday, April 10, 2019
Anthony Michael Kreis, Policing the Painted and Powdered, 41 Cardozo L. Rev. (forthcoming)
Is homophobia also sexism?
This question was the focus of pioneering scholarship nearly three decades ago and has been the subject of reignited controversy because of litigation over marriage rights, employment discrimination, educational opportunities, fair housing, religious exemptions, and military service. Even though some courts, federal agencies, and state employment commissions have recognized that sexual orientation and gender identity discrimination are subsets of sex discrimination, including the landmark Title VII decisions Hively v. Ivy Tech and Zarda v. Altitude Express, academics, judges, and public administrators have been unable to articulate a plain theory of sexual orientation discrimination as sexism. Without a straightforward theory to operationalize into law, some judges are unpersuaded that sexism and homophobia are linked. Appellate judges have struggled to find consensus even when they agree that sexual orientation discrimination is sex discrimination.
This Article’s objective is to reconsider the relationship between sexism and homophobia, by reexamining prior scholarship with new historical evidence and an exploration of recent LGBTQ rights jurisprudence to provide a more complete, easily digestible analytical framework that explains how homophobia fits in in the larger puzzle of American sexism. The Article argues that American law’s historical and more contemporary maltreatment of sexual minorities is a product of a particular brand of sexism — ambivalent sexism — which utilizes a carrot and stick approach to subjugate both women and sexual minorities simultaneously. Ambivalent sexism punitively targets visible gender non-conformity while patronizingly rewarding individuals compliant with traditional gender expectations at the expense of women.
The Article contends that the path-dependent consequences of actions taken by Progressive Era lawmakers and the early administrative state in response to the LGBTQ community’s amplified visibility in the nineteenth-century and the reappropriation of paternalistic legal theories initially used to restrict women’s rights, constitute the crux of homophobia in the law. The Article proffers how ambivalent sexism animates the homophobic state and urges courts and administrative actors to recognize that homophobia is a type of sexism.
Monday, April 1, 2019
Melissa Murray, Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Northwestern L. Rev. 825 (2019)
The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses are substantively different, both evince a sense of the state’s failure. For conservatives, the changes wrought by the decriminalization of “deviant” sexual behavior, the shift to no-fault divorce regimes, and the recognition of constitutional protections for sex and sexuality suggest that the state has abdicated its historic role in imposing consequences on those who do not comply with traditional sexual mores. For progressives (and especially feminists), state efforts to properly regulate rape, sexual assault, and sexual harassment are, at best, anemic and, at worst, utterly ineffectual. As they see it, the state has failed to impose consequences for harassment, assault, and other offensive sexual conduct.
But it is not just that these two constituencies believe that the state has failed to properly regulate sex and sexuality; they have also responded in uncannily similar ways to these lapses. Specifically, in response to the state’s failure to regulate, private actors on both sides of the ideological spectrum have stepped into the regulatory void, challenging extant sexual norms and articulating new visions of appropriate sex and sexuality. These private regulatory efforts are evident in the rise and proliferation of conscience objections or exemptions, as exemplified in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as well as in the emergence of the #MeToo movement. As this Article maintains, conscience objections allow private actors to reject the extant normative regime and instead articulate and enforce their own views of appropriate sex and sexuality through the denial of goods and services. The #MeToo movement has similarly sought to advance an alternative vision of appropriate sex and sexuality through private action. Using social media and the press, the #MeToo movement has identified recidivist harassers and workplaces where sexual harassment and sexual assault are rife, advocated for increased workplace harassment training, and, ultimately, called for the expulsion from the workplace of many high-profile men who, for years, engaged in objectionable conduct.
As this Article explains, the fact that private actors are stepping in to regulate in the state’s stead is not necessarily novel. Private actors have often played a regulatory role—particularly in contexts where norms are in flux or contested. Nevertheless, the private regulation seen in Masterpiece Cakeshop and #MeToo evinces a new turn in the regulation of sex and sexuality. In the absence of appropriate state regulation of sex and sexuality, private actors are coming to the fore to take on a more visible role in regulating sex and sexuality, and in doing so, have claimed and recast parts of the public sphere as private space suitable for the imposition of their own norms and values.