Gender and the Law Blog

Addressing Gender Biases and Barriers to Women's Leadership in Mass Tort Multidistrict Litigation

Stephanie Iken, Addressing Biases and Barriers: Advancing Women in Mass Tort MDL Leadership 

The legal profession grapples with profound gender disparities, particularly evident in leadership roles within mass tort litigation. This article delves into the myriad biases and systemic barriers that hinder women's advancement in legal leadership, shedding light on the challenges they face and proposing strategies for fostering gender equity.

The analysis begins by examining the lack of representation of women in mass tort leadership, despite their significant presence in law school cohorts. Data reveals stark disparities in the appointment rates of women to leadership positions, underscoring systemic biases entrenched within the legal industry. Biases such as the Prove-It-Again Bias, Tightrope Bias, and Maternal Wall contribute to the underrepresentation of women in leadership roles, perpetuating a cycle of discrimination and marginalization.

The Prove-It-Again Bias dictates that women must continually prove their competence and dedication, facing greater scrutiny and exhaustion than their male counterparts. Women experience challenges in asserting their ideas and contributions, often facing dismissal or attribution of their work to others. Moreover, the Tightrope Bias imposes restrictive standards on women's behavior, forcing them to navigate contradictory expectations and behaviors. The Maternal Wall presents additional barriers, as women encounter biases against mothers and birthing persons, leading to challenges in balancing family and career aspirations.

The article further explores biases against women in leadership roles, including interruptions, the "Boys Club" mentality, dismissal of accomplishments, and delegation of stereotypical tasks. These biases perpetuate gender inequalities and hinder women's career advancement, creating environments where women's voices are silenced, and their contributions undervalued.

The gender pay gap exacerbates disparities, with women overwhelmingly paid less for equal work, stifling their economic empowerment and career progression. Sexual harassment and networking challenges further compound these inequalities, creating hostile environments that deter women from pursuing leadership roles.

However, amidst these challenges, the article highlights initiatives and strategies for advancing women in legal leadership. Mentorship programs, diversity, equity, and inclusion (DEI) initiatives, and policy reforms emerge as critical tools for fostering gender equity and dismantling systemic biases. By creating inclusive environments, challenging traditional norms, and prioritizing the well-being of female professionals, the legal profession can work towards creating a more diverse and equitable future for women in leadership roles.

In conclusion, the article calls for transformative action to address biases and barriers hindering women's advancement in legal leadership. By acknowledging and confronting systemic inequalities, implementing inclusive practices, and advocating for policy reforms, the legal profession can strive towards a future where women are equally represented and empowered in leadership roles within mass tort litigation and beyond.

Re-examining the Three-Year Legal Education Through a Critical Theory Lens

Paula A. Monopoli, Remembering the Origins of Modern Legal Education, 85 University of Pittsburgh Law Review 305 (2023)

American legal education came under tremendous pressure in the wake of the 2008 financial crisis. That crisis precipitated a decline in law school applications and a concomitant decrease in the size of American law school enrollments during the 2011-2012 academic year. Commentators offered a myriad of proposals for reforming legal education during that period. Yet many of those proposals failed to gain traction, and a decade later legal education looks much the same, albeit with smaller enrollments. One of those proposals was to shorten the three-year course of study. In this Article, I revisit the origins of that long-standing feature of American legal education introduced by Christopher Columbus Langdell, Dean of Harvard Law School, in the nineteenth century and later embraced by the legal education's regulatory bodies in the twentieth century. Viewed through a critical theory lens, its intractability can be explained, in part, by the persistence of exclusionary impulses and masculine norms in the legal profession from its origins to the current day. This Article proposes that American law faculty revive previous conversations about the value of this central design feature. And the subordinating effects of that feature should be a factor in weighing the costs and benefits of moving to a shorter course of study.

Yvette Butler on "Survival Labor"

Yvette Butler has published Survival Labor in volume 112 of the California Law Review. The abstract is excerpted below. The piece relies on feminist theory in building its reasoning. 

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor. The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating and policing racialized bodies have created a culture where Blackness, in particular, is equivalent to criminality. While a penal abolitionist framework is helpful in getting rid of the harmful criminal and civil consequences of criminal penalties, a labor framework shifts the narrative in a way required to transform the perception of crime to one of labor. This shift is particularly important given the renewed attention to penal abolitionist logic and conservative and libertarian attempts to resurrect greater protection for economic liberty through the “right to earn a living.” In what will become a series of several pieces, this first Article proposes a narrative shift that allows us to critique and reimagine our conceptions of work. People engaged in survival crimes are often subject to the criticism that they should pursue “real work.” After reading this Article, I hope the legal community will question the continued criminalization of poverty, reconsider our understanding of work, and invest in this transformative project to protect the victims of state-sponsored oppression.

New Book, The Sentimental State: How Women-Led Reform Built the American Welfare State

Interview with Elizabeth Garner Masarik on her Book, The Sentimental State: How Women-Led Reform Built the American Welfare State (Univ. Georgia Press 2024)

I got the chance to speak with historian Elizabeth Garner Masarik about her new book The Sentimental State: How Women-Led Reform Built the American Welfare State. An assistant professor of history at SUNY Brockport, Elizabeth is a scholar of American women’s history, the Gilded Age and Progressive Era, and the administrative state. Her new project is on American spiritualism, and she was also eager to discuss her findings on women and the history of welfare networks, charity, and maternalist sentiment. Dr. Masarik defines “sentimentalism,” or feelings surrounding motherhood and child-rearing, as one of the chief drivers behind the push for women-led public health and social initiatives in the nineteenth century.

Your new book is a fascinating examination of the intersection of women’s state-building and the politics of domesticity. Can you talk a little bit about the origins of the book? Was it part of your dissertation? What new directions did you go in as you wrote?

Yes, this book came out of my dissertation. I took a women’s history course with sexuality, gender and sports scholar Susan Cahn during the first semester of my MA program and was hooked. I really latched on to the U.S. maternalist movement of the late 19^th and early 20^th centuries and dove headfirst into learning about the early formation of the U.S. welfare state. Additionally, the primary sources I found where women were speaking about, and grieving over, the death of their infants and young children just hit me; after becoming a mother myself, I couldn’t fathom being able to go on with life if one of my children died. And so, in a way, examining child and infant mortality became a kind of masochistic way for me to study history while also feeling this immense empathy for my subjects. I didn’t set out to focus on infant and child death at the beginning, but the connections between emotions and state-building became so glaringly obvious that I couldn’t look away. It was a subject that spoke to me as a mother and as a recipient of welfare. It felt very personal. When I revised the dissertation into book form I focused more heavily on sentimentalism as a cultural phenomenon of the nineteenth century and how I found that bleeding into the twentieth century.

The Future of Sex Discrimination Law in Cases of Pregnancy and Sport

Katharine K. Baker, Gender (Discrimination) Trouble, South Carolina L. Rev. (forthcoming)  

The LGBTQ civil rights movement has upended traditional understandings of what it means to be male or female. Building on this movement’s achievements, a growing number of scholars have urged that the goal of sex discrimination law be to question when, if ever, the law can make distinctions between men and women. This article pushes back against these claims. Even though what it means to be male or female is now much more contested both socially and legally, sex discrimination law always has and always will have to grapple with the normative dilemmas posed by treating those who have traditionally female anatomy differently than those with traditionally male anatomy.

To illustrate this point, I examine two sex equality stories that have rarely been told together: pregnancy in the workplace and sport in educational institutions. Pregnancy discrimination law has often rejected different treatment for those with female anatomy; in contrast, the major federal law dealing with sex discrimination in sports, Title IX, is premised on recognizing female sports as different from male sports. For those who believe that sex equality efforts should challenge all legal distinctions between men and women, the history of pregnancy and sports offers a cautionary tale. The drive to diminish the significance of anatomical differences has produced a system of legal protections for pregnant workers in the United States that is conspicuously lacking. The substantial rise in female participation in sport under Title IX, on the other hand, has been a resounding success. The history of pregnancy and sport shows that the future of sex equality lies not in abandoning sex distinctions but in creating doctrine and laws that recognize their risks but also accept their benefits.

The New Gender Perspective of Intersectional Autonomy in International Human Rights

Rose Celorio, The New Gender Perspective: The Dawn of Intersectional Autonomy in Women’s Rights,  
25 Chi. J. of Int’l L. 67 (2024)

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations. This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due respect for women’s self-direction, agency, and dignity. This evolving approach is a move towards intersectional autonomy, which advances the notion that women should be the sole architects of their life plans, based on their identities and different experiences, and meaningfully participate in their societies. Creating the conditions for free and informed choices underpins current women’s rights jurisprudence. This is a break from historical notions of human rights protection solely focused on women as victims, as members of a homogenous group, and a limited binary perspective to their rights. This article discusses illustrative decisions of this tendency from the European Court of Human Rights, the Inter-American Commission and Court of Human Rights, the United Nations Committee on the Elimination of Discrimination against Women, and the United Nations Human Rights Committee, among other bodies. This article further proposes that intersectional autonomy is treated and interpreted in the future in international jurisprudence as a right, with independent content, offering guidance to states on needed laws, policies, programs, and services at the local and national levels. This human rights development is presented as essential for international law standards concerning women to be impactful and truly transformative at the national level. This article analyzes the main elements of the right of women to intersectional autonomy, and states’ negative and positive obligations in its fulfillment. The author is currently pursuing a line of research exploring contemporary understandings of the international human rights of women, and how existing legal standards should evolve based on modern scenarios and realities. This article represents a contribution to this line of scholarship. It aims to increase understanding of the connection of the concepts of intersectional discrimination and autonomy, how they can be analyzed by global and regional human rights jurisprudence, and their promise to enhance effectiveness in international law concerning women.

Interrogating Dobbs's Claim to Vindicate Democracy

Katherine Shaw & Melissa Murray, Dobbs and Democracy, 137 Harvard L. Rev. 738 (2024)  In Dobbs v. Jackson Women’s

Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree of this claim and its substantive vision of democracy.

In grounding its decision in democracy, the Dobbs majority relied on a well-worn but dubious narrative: that Roe, and later Casey, disrupted ongoing democratic deliberation on the abortion issue, wresting this contested question from the people and imposing the Court’s own will. The majority insisted that this critique had always attended Roe. However, in tracing the provenance of the democratic deliberation argument, this Article finds more complicated intellectual origins. In fact, the argument did not surface in Roe’s immediate aftermath, but rather emerged years later. And it did so not organically, but through a series of interconnected legal, movement, and political efforts designed to undermine and ultimately topple Roe and Casey. The product of these efforts, the Dobbs majority’s claim that democracy demanded overruling Roe and Casey, was deployed to overcome the force of stare decisis in Dobbs — and may ultimately reshape the scope and substance of the Court’s stare decisis analysis in future cases.

Having identified the intellectual origins of the democratic deliberation argument and its contemporary consequences, this Article examines the contours of the Dobbs majority’s vision of democratic deliberation. We show that although Dobbs trafficked in the rhetoric of democracy, its conception of democracy was both internally inconsistent and extraordinarily limited, even myopic. The opinion misapprehended the processes and institutions that are constitutive of democracy, focusing on state legislatures while overlooking a range of other federal, state, and local constitutional actors. As troublingly, it reflected a distorted understanding of political power and representation — one that makes political power reducible to voting, entirely overlooking metrics like representation in electoral office and in the ecosystem of campaign finance. The opinion was also willfully blind to the antidemocratic implications of its “history and tradition” interpretive method, which binds the recognition of constitutional rights to a past in which very few Americans were meaningful participants in the production of law and legal meaning. The deficits of the Dobbs majority’s conception of democracy appear even more pronounced when considered alongside the Court’s recent and active interventions to distort and disrupt the functioning of the electoral process. Indeed, Dobbs purported to “return” the abortion question to the people and to democratic deliberation at the precise moment when the Court’s own actions have ensured that the extant system is unlikely either to produce genuine deliberation or to yield widely desired outcomes.

Ultimately, a close examination of the Dobbs majority’s invocation of democracy suggests that the majority may have employed the values and vernacular of democracy as a means to a different end. As we explain, the majority’s embrace of democracy and democratic deliberation allowed it to shield its actions from claims of judicial activism and overreach. More profoundly, and perhaps paradoxically, the opinion may lay the groundwork for the eventual vindication and protection of particular minority interests — those of the fetus. With this in mind, the Dobbs majority’s settlement of the abortion question is unlikely to be a lasting one. Indeed, aspects of the opinion suggest that this settlement is merely a way station en route to a more permanent resolution — the recognition of fetal personhood and the total abolition of legal abortion in the United States.

Re-envisioning Family Law in Light of the Change in the Public/Private Home

"The Public/Private Home" 
110 Cornell Law Review (2025), Forthcoming
U of Alabama Legal Studies Research Paper No. 4920594

CLARE RYAN, University of Alabama School of Law
Email: [email protected]

Families today are more private and more public than traditional family law doctrine ever envisioned. This Article reveals how many elements of family life, which the law often assumes will occur in public—work, school, social life—have moved into the private sphere of the home. While at the same time, private family life has become increasingly visible and public through social media and continuous data collection within the home.

The balance of public and private life has shifted with profound implications for the field of family law, especially as it governs the parent-child relationship. Transformations in home life have the potential to ameliorate deep inequities inherent in modern family privacy law. But these transformations also risk exacerbating issues of family violence, oppressive state intervention, and inequality. Deploying vital critiques of family privacy arising from feminist theory, queer theory, and other critical traditions, this Article unpacks three foundational assumptions about the home: 1) What happens within the home is protected from outside view; 2) The home is separate from the market; and 3) Provision of public goods happens outside of the home. I argue that these assumptions present a doctrinal vision of family life that is starkly at odds with lived experience.

This Article proposes that parental rights should be untethered from the private home. Instead, law governing parent’s decisions about their children should be grounded in a core element of the parent-child relationship: parents’ duty to protect their children’s wellbeing.

Gender and Competition Law: An Exploration of Feminist Perspectives

Giorgio Monti has posted on SSRN "Gender and Competition Law: An Exploration of Feminist Perspectives." Excerpts of the introduction are presented below: 

This essay is motivated by the outcomes of an OECD project on gender inclusive competition policy.  * * * [T]his paper explores whether a feminist jurisprudence of competition law may emerge. Beyond expanding upon the liberal feminist approach (implicitly espoused by the authors of the OECD project), the findings from using alternative feminist perspectives to consider competition law reveal some fundamental flaws in the legal system and concerns about the design of the economic system, neither of which can be addressed by tinkering with competition policy. * * *

The essay is structured in the following way: in section 2 the OECD studies are presented and a feminist assessment is provided. In section 3 these studies are shown to belong to a tradition of liberal feminism and consideration is given if the liberal paradigm might be extended to address a wider range of feminist concerns. In section 4, other feminist approaches are examined to identify alternative directions for competition law. A general reflection on this exploratory exercise is found in section 5.

 

* * * [First,] The purpose of the essay is to speak to any jurisdiction and to explore how far general competition law principles might be transformed. Second, the purpose is to provide concrete illustrations of how a feminist perspective might be used to construct competition law. No feminist scholar has, to my knowledge, engaged with competition law. Many have criticized the role of competition as an economic institution. This work is not relevant here because competition law is designed to place limits on the operation of markets. Third, feminist literature is rich and for reasons of space some of the nuances among scholars are glossed over in favor of an approach that allows the reader to see certain key feminist claims and their possible practical implications. * * * This essay instead experiments with how far feminism can engage with the existing legal order so as to transform it. The purpose of the essay is to invite a fuller exploration of how far feminist perspectives can be a helpful addition to competition law analysis. It is hoped that by offering concrete examples to tease out the normative prescriptions that flow from diverse feminist approaches, that these stimulate discussion about the merits of the proposals and create space for considering alternatives. The reader will see that some of the possible feminist claims suggested here go beyond antitrust as we know it. * * * A feminist perspective necessarily requires a reorientation of what law is, reshaping it to reflect women and their realities. 

The Disconnect Between Sex and Pregnancy-Based Affirmative Action

Ruth Colker, The Hypocrisy of Sex or Pregnancy-Based Affirmative Action, 25 Georgetown J. Gender & Law 1139 (2024)  

The Supreme Court’s sex-based jurisprudence has always been a mess; the Court, for example, is not even willing to conceptualize pregnancy-based discrimination as sex discrimination. But, oddly, within this mess, the Court has consistently recognized sex-based affirmative action as consistent with its sex discrimination jurisprudence.

The Supreme Court’s race-based affirmative action jurisprudence has consisted of a different kind of mess, a confusion stemming from its choice to narrowly justify affirmative action in college admissions based on the need for a robust exchange of ideas rather than on the need to remedy centuries of race-based subjugation in our society. After decades of hammering away at this limited justification, the Court has now seemingly abandoned the race-based affirmative action enterprise altogether. This states’ rights Court has swept broadly by taking away the opportunity for state and private actors to craft effective affirmative action programs.

While critiquing this Court’s sex- and race-based jurisprudence, this Article highlights one bizarre but salutary logical outcome from these constitutional strands. Both sex-based and pregnancy-based affirmative action should be found constitutional under the logic of the Court’s existing jurisprudence. This Article urges state entities to aggressively push both sex-based and pregnancy-based affirmative action to remedy historical vestiges of discrimination in both arenas while also making the public and the courts see the absurdity of the current situation. While it is hard to imagine the current Court changing course on the need for race-based affirmative action, I hope this Article can help reinvigorate discussions about the Court’s approach to race-based affirmative action by drawing on the Court’s recognition of the continuing need for sex-based affirmative action. The robust exchange of ideas justification for race-based affirmative action has done its damage and needs to be replaced by an anti-subordination approach, which has been somewhat reflected in the Court’s sex-based jurisprudence.

Teneille R. Brown on "The Criminalization of Care: Health and the Home"

Teneille R. Brown has posted The Criminalization of Care: Health and the Home on SSRN. This article was a forward, published in 2024 Utah Law Review 761 (2024), to a Symposium issue. Brown summarizes the scope of the Symposium:

The lines between private care and criminal law are being deliberately obscured. In the last few years, states have criminalized life-saving forms of reproductive and trans health care, normalized police provision of sub-standard mental health “treatments” to people in crisis, and in general have allowed law enforcement to invade the private lives of vulnerable families. This is not entirely new. But perhaps emboldened by the Dobbs decision1 and to retaliate against those protesting police brutality, the pace of the criminalization of care is off-the-charts. This fall, we had the pleasure of welcoming scholars in health care law and policy, medical ethics, trans rights, and feminist legal theory, to discuss the legal issues that arise when doctors and other institutional actors are asked to serve the interests of law enforcement. The central question we asked is this: how are communities harmed when we criminalize care both in health care settings and the home? In this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities.

 The symposium volume is available here. It includes the following articles: 

Gender Regrets: Banning Abortion and Gender-Affirming Care, Noa Ben-Asher & Margot J. Pollans

We Cannot Police Systemic Racism and Systemic Poverty: Why Policing Is Not a Solution to Our Public Health Crisis, Semir Bulle, MD

Caught in the Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Wright Clayton, MD, JD & Luke A. Gatta, MD

Preempting Red State Restrictions on the Use of FDA-Approved Drugs in Gender-Affirming Care?, Lars Noah

Panel Presentation, The Criminalization of Trans Lives and Health Care: Provider and Patient Perspective, Dr. Dana N. Johns

Examining the Constitutionality of Legislative Medical Care Bans for Transgender Youth, John Mejia

 

Velte on "The Supreme Court's Gaslight Docket"

Kyle Velte has published "The Supreme Court's Gaslight Docket" in Volume 96 of the Temple Law Review. Here is the article's abstract: 

The U.S. Supreme Court's new conservative supermajority is gaslighting the American public. This Article takes a systematic look at key cases from the Court's October 2021 Term through the lens of gaslighting. It describes these cases as being part of what it dubs the Court's “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court's recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has been the subject of academic and theoretical inquiry. This Article identifies gaslighting in both oral arguments and written decisions of the Court's civil rights cases. It reveals that this gaslighting is transsubstantive, spanning cases involving voting rights, race discrimination, affirmative action, reproductive rights, LGBTQ rights, and the First Amendment's religion clauses.

Because gaslighting has epistemic dimensions--knowledge production and gaslighting are connected--gaslighters instill epistemic doubt in their victims as a way to have the gaslighter's production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower”--indeed, it is given the position of ultimate “knower” of the meaning and application of the Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 Term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and antidemocratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalist movement, declaring that those interests are not coequal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the Article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalist ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

Using the Language of Law and Gender in Speech Theory to Understand the Gender Identify Backlash

Susan Etta Keller, Doing Things With The Language of Law and Gender: Using Speech Theory to Understand the Meaning and Effect of the Gender Identity Backlash, 24 Nevada L. Rev. 413 (2024).

A significant legal backlash against transgender individuals is currently under way. This movement--which includes state legislation, state executive action, and federal cases--seeks to limit access and participation by transgender individuals in school sports, use of bathrooms, access to appropriate care, and even the right to be addressed appropriately in the classroom. Properly understood as a political backlash in response to previous political gains by transgender individuals, this movement is composed of a series of speech acts: language that makes change in the world and alters human relations.

This article identifies the features of the backlash and the power dynamics that fuel it. Applying Speech Act Theory, the article undertakes a close examination of the language of the legislation and cases to reveal the many cloaked performative speech acts that animate the backlash. Understanding the way that the language of law and the language of gender operate to promote and normalize this backlash is a key first step to undermining the deleterious effects of these speech acts.

 

Is International Criminal Law Feminist?

Margaret M. Deguzman & Rachel Lopez, Is International Criminal Law Feminist?, Oxford Handbook on Women and International Law (forthcoming) 

The future of international criminal law as a feminist project at its essence turns on one central question: Does international criminal law advance feminist goals? To answer this question, this chapter charts the landscape of feminist critiques of international criminal law, identifying two schools of feminist thought. On one hand, there are those who believe in the enterprise of international criminal law as a method of advancing women’s rights and on the other, those who reject the enterprise believing that it undermines them.

To aid this analysis, the chapter applies a framework conceived by Robert Cover, and elaborated by Katherine Young, of redemptive and rejectionist approaches. Feminists who adopt a redemptive frame recognize the limitations of international criminal law, but ultimately see the enterprise as redeemable—that is, they believe that with the right reforms it can be a tool for advancing women’s rights. In contrast, those who adopt a rejectionist frame, believe the premises that undergird international criminal law are so fundamentally anti-woman, that the best course is to reject it wholesale and find another tool for advancing women’s rights. The goal of this chapter is to put these schools of thought in conversation and suggest ways that feminists can work together to support their core shared goal: the advancement of women’s equality.

Chan Tov McNamarah on "Cis-Woman-Protective Arguments"

Chan Tov McNamarah has published "Cis-Woman-Protective Arguments" in Volume 123 of the Columbia Law Review.  Here is a summary excerpt: 

It has become common to oppose the equal citizenship of transgender persons by appealing to the welfare of cisgender women and girls. Such Cis-Woman-Protective (CWP) arguments have driven exclusionary efforts in an array of contexts, including restrooms, sports, college admissions, and antidiscrimination law coverage. Remarkably, however, this unique brand of anti-trans contentions has largely escaped being historicized, linked together, or subjected to extended analytical scrutiny as a group.

Tallied up, these problems make a strong case that, strategically, CWP arguments are ineffective and deeply flawed—even counterproductive—assuming that protecting cis women and girls is truly the goal. Building on that assessment, the Essay concludes with reasons for healthy skepticism that it actually is. Stripping away the veneer of protectionism begins to expose some less-palatable intentions and effects possibly driving the use of CWP arguments.

This Essay provides those missing pieces.

First, it situates CWP arguments within the longer history of woman-protective justifications in American law. Taking their well-known harms to women, alongside their use in lending legitimacy to discrimination against racial and religious minorities, forcefully demonstrates that the rationales’ current use against transgender persons warrants closer inspection.

Second, the Essay canvasses recent CWP arguments to document the line of thought. Reading the heretofore-uncollected allegations reveals a far-reaching cluster of contentions, whose members bear striking family resemblances to, and inherit the disfigurements of, their historical priors.

Third, casting unsparing light on the claims, the Essay demonstrates that CWP arguments overwhelmingly fail to deliver. Structurally, the arguments’ moves are questionable, at best. Substantively, most fall wide of their mark. And, instrumentally, the arguments backfire completely, since their operationalization harms the very persons they supposedly protect.

Book Review, Kerri Stone's, Panes of the Glass Ceiling

Rona Kaufman Kitchen, Feminist Legal Theory and Stone's Panes of the Glass Ceiling, 17 FIU L. Rev. 771 (2023).

In her book, Panes of the Glass Ceiling: The Unspoken Beliefs Behind the Law’s Failure to Help Women Achieve Professional Parity, Professor Kerri Lynn Stone explores and deconstructs the many practical reasons why women have been unable to achieve equality in employment. Professor Stone painstakingly deconstructs the belief systems that underlie the American workplace and the path to professional success to reveal many of the nuanced reasons why women, despite their education, skill, and commitment to the workforce, continue to struggle to achieve professional success comparative to men. Stone insightfully explains why women continue to experience irremediable discrimination in employment almost sixty years after Congress outlawed sex discrimination in employment. Stone’s book is a long overdue deconstruction and indictment of the toxic masculinity and seemingly benign social norms that pervade workplace culture and its negative impact on women and equality. Her book is geared toward an audience that wants to understand the problems women face in employment today and solve those problems. While she provides historical context for many of the beliefs that ground the panes of the glass ceiling, her focus is not on theory or history. It is a book about the reality of 2022 and a map for how to shift that reality in 2023 and beyond.

This book review seeks to provide deeper grounding for Stone’s panes of the glass ceiling by placing her work in the broader historical and theoretical context of feminism, the women’s movement, and the history of women in the American labor force. This discussion proceeds in three parts. Part I provides the historical context for discrimination against women in the American workplace and anti-discrimination law by tracing the evolution of the modern women’s movement and the history of women’s participation in the labor force. Part II discusses Professor Kerri Stone’s panes of the glass ceiling and places each pane in theoretical context. Part III concludes with a brief discussion of how Stone’s articulation of the panes or the glass ceiling and her suggestions for reform contribute to the ongoing feminist legal theory discourse.

The Ethical and Practical Significance of Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

The Ethical and Practical Significance of Using Feminist Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

Book Review, Not Everything is About Gender, Reviewing Judith Butler's New Book

Katha Pollitt, Books: Not Everything is About Gender, Atlantic

udith butler, for many years a professor of rhetoric and comparative literature at UC Berkeley, might be among the most influential intellectuals alive today. Even if you have never heard of them (Butler identifies as nonbinary and uses they/them pronouns), you are living in their world, in which babies are “assigned” male or female at birth, and performativity is, at least on campus, an ordinary English word. Butler’s breakout 1990 book, Gender Trouble, argued that biological sex, like gender, is socially constructed, with its physical manifestations mattering only to the degree society assigns them meaning. The book is required reading in just about every women’s-, gender-, or sexuality-studies department. Butler has won a raft of international honors and been burned in effigy as a witch in Brazil. How many thinkers can say as much? ***

The central idea of Who’s Afraid of Gender? is that fascism is gaining strength around the world, and that its weapon is what Butler calls the “phantasm of gender,” which they describe as a confused and irrational bundle of fears that displaces real dangers onto imaginary ones. Instead of facing up to the problems of, for example, war, declining living standards, environmental damage, and climate change, right-wing leaders whip up hysteria about threats to patriarchy, traditional families, and heterosexuality. And it works, Butler argues: “Circulating the phantasm of ‘gender’ is also one way for existing powers—states, churches, political movements—to frighten people to come back into their ranks, to accept censorship, and to externalize their fear and hatred onto vulnerable communities.” ***

In the United States, this politicized use of the word gender itself has not caught on as it has in much of the world, where, as an English word for which many languages have no equivalent, it is often used to attack feminism and LGBTQ rights as foreign imports. Still, as Butler notes, America’s Christian fundamentalists and far-right Republicans are fervently in the anti-gender vanguard, whether or not these groups actually use the word gender.

Book Review, Not Everything is About Gender, Reviewing Judith Butler's New Book

Katha Pollitt, Books: Not Everything is About Gender, Atlantic

udith butler, for many years a professor of rhetoric and comparative literature at UC Berkeley, might be among the most influential intellectuals alive today. Even if you have never heard of them (Butler identifies as nonbinary and uses they/them pronouns), you are living in their world, in which babies are “assigned” male or female at birth, and performativity is, at least on campus, an ordinary English word. Butler’s breakout 1990 book, Gender Trouble, argued that biological sex, like gender, is socially constructed, with its physical manifestations mattering only to the degree society assigns them meaning. The book is required reading in just about every women’s-, gender-, or sexuality-studies department. Butler has won a raft of international honors and been burned in effigy as a witch in Brazil. How many thinkers can say as much? ***

The central idea of Who’s Afraid of Gender? is that fascism is gaining strength around the world, and that its weapon is what Butler calls the “phantasm of gender,” which they describe as a confused and irrational bundle of fears that displaces real dangers onto imaginary ones. Instead of facing up to the problems of, for example, war, declining living standards, environmental damage, and climate change, right-wing leaders whip up hysteria about threats to patriarchy, traditional families, and heterosexuality. And it works, Butler argues: “Circulating the phantasm of ‘gender’ is also one way for existing powers—states, churches, political movements—to frighten people to come back into their ranks, to accept censorship, and to externalize their fear and hatred onto vulnerable communities.” ***

In the United States, this politicized use of the word gender itself has not caught on as it has in much of the world, where, as an English word for which many languages have no equivalent, it is often used to attack feminism and LGBTQ rights as foreign imports. Still, as Butler notes, America’s Christian fundamentalists and far-right Republicans are fervently in the anti-gender vanguard, whether or not these groups actually use the word gender.