Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Thursday, November 19, 2020

How Native American Women Inspired the Women's Rights Movement

Sally Roesch Wagner, How Native American Women Inspired the Women's Rights, Suffrage Movement

“Never was justice more perfect; never was civilization higher,” suffrage leader Matilda Joslyn Gage wrote about the Haudenosaunee, or Iroquois Confederacy, whose territory extended throughout New York State.

Matilda Joslyn Gage led the National Woman Suffrage Association (NWSA) along with Elizabeth Cady Stanton and Susan B. Anthony, the three women trading executive positions over the 20 years of the organization’s existence.

According to Gloria Steinem, Gage was “the woman who was ahead of the women who were ahead of their time.” When the women’s suffrage leadership grew conservative, Gage dropped out of the movement. Suffragists stopped remembering her progressive contributions, like her 1893 revelation of the sex trafficking of women and girls in the United States.

Gage, and to a lesser extent Stanton, were largely dropped from the history. With their exclusion, we also lost this story of how they saw women’s rights in action in the native culture of the Haudenosaunee, and realized they could create the conditions for it in their own society.

Having worked for women’s rights for forty years, Gage and Stanton became increasingly frustrated with their inability to make major gains in their social, economic or political positions as women by the 1880’s.

In their disappointment, they looked beyond the Euro-American culture that was already known intimately to them and gained a vision of a world of equality from their nearby neighbors. Stanton and Gage grew up in the land of the Haudenosaunee, the six nations of the Iroquois Confederacy: the Onondaga, Mohawk, Seneca, Cayuga, Oneida and Tuscarora who had social, religious, economic and political positions far superior to their own, they wrote.

The Six Nation Haudenosaunee Confederacy had, and still have today, a family/governmental structure based on female authority. Haudenosaunee women controlled the economy in their nations through their responsibilities for growing and distributing the food. They had the final authority over land transfers and decisions about engaging in war.

Children came through the mother’s line, not the father’s, and if the parents separated, the children stayed with their mother, and if she died, with her clan family. Women controlled their own property and belongings, as did the children. Political power was shared equally among everyone in the Nation, with decisions made by consensus in this pure democracy, the oldest continuing one in the world.

November 19, 2020 in Legal History, Race, Theory | Permalink | Comments (0)

Friday, October 23, 2020

Book Review, Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress

Book Review: Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress 

In Injustice and the Reproduction of History: Structural Inequalities, Gender and RedressAlasia Nuti explores the relationship between history and the provision of justice by focusing on women as a historical-structural group subject to historical injustices that continue to impact the present. This is a very welcome contribution to the literature, writes Ebru Demir, providing both deep and rigorous analyses of its case studies and proposing thought-provoking new terminology. 

 

Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress. Alasia Nuti. Cambridge University Press. 2019.

 

Why should an unjust history matter for egalitarians seeking justice in the present? How and why does history relate to the provision of justice both theoretically and practically? Alasia Nuti’s Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress not only engages with such longstanding questions but also makes an important contribution to the existing literature as it centres on the argument that women as a historical-structural group (HSG) are the subjects of historical injustices.

 

One of the main arguments of the book is that ‘unjust history that should normatively matter in justice-based considerations is present because it has been reproduced over time through different means’ (4). In the first half of the book, Nuti builds this argument on very solid ground by engaging with the relevant literature and by providing examples to validate this very point. ‘De-temporalising injustice’, borrowed from Reinhart Koselleck’s terminology, is significant and necessary in order to capture the relation between past and present injustices (13). The book contributes to the de-temporalising of injustice by suggesting that past and present injustices have possible connections and all backward-looking approaches to injustice consider only past injustices as significant enough to address (15). According to Nuti, past and present cannot be separated if one seeks to provide justice for historical-structural injustices (HSIs) that have been committed. For this very reason, the division between past and present becomes deceptive. The present reproduces the unjust past ‘over time and through changes’ (8). Thus, change also becomes a suspect in perpetuating unjust history.

 

The second half of the book forms a study of women as a group and as the subjects of The second half of the book forms a study of women as a group and as the subjects of historical injustices. Although previously Catherine Lu has argued that women are a group suffering from enduring injustice, by carrying this argument one step further, this book provides a thorough analysis of how such a group is defined. Nuti, being aware of intersectional identities and differences, argues that to be categorised as a woman, one is not obliged to have been through systematic oppression: it is sufficient for one to be more likely to be exposed to unjust constraints and abuses (90). Therefore, possibility and potentiality become the requirements for being categorised as a group undergoing historical injustices.

October 23, 2020 in Books, Legal History, Theory | Permalink | Comments (0)

How Sexual Harassment Law Failed its Feminist Roots

L. Camille Hebert, How Sexual Harassment Law Failed its Feminist Roots, 22 Georgetown J. Gender Law (forthcoming)

The dawn of sexual harassment law showed so much promise. But in spite of the hopefulness with which the legal recognition of sexual harassment was greeted, the intervening years have shown that the law of sexual harassment has not lived up to its potential. Rather than creating a cause of action empowering women to challenge employment practices that have subjected them to degrading treatment while limiting their workplace opportunities, courts have instead recognized a number of elements of a cognizable claim of sexual harassment that have effectively sanctioned the continuance of the conduct, while effectively blaming women for its occurrence. The judicial imposition of the elements of a claim for sexual harassment and the judicial gloss placed on those elements has turned the cause of action for sexual harassment into something far different than the feminists who worked for recognition of the cause of action envisioned. The courts have turned that promise into a cause of action that seeks to protect the workplace from women who would make claims of sexual harassment, rather than a cause of action that seeks to protect women from discriminatory workplaces. This article explores how some of that lost promise might be recaptured, first through a reshaping of the law by the courts and legislatures within the frame of the existing structure of the cause of action, explaining how the courts could apply the existing elements of the cause of action in a way more consistent with the purpose of Title VII to assure women of the right to workplace equality. The article then imagines a more fundamental reshaping of the law of sexual harassment, exploring what the law of sexual harassment might look like if it were designed by feminists, forged by an overriding concern about ensuring women’s workplace equality rather than protecting existing workplace norms.

October 23, 2020 in Courts, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Monday, October 12, 2020

Indigenous Feminist Legal Theory in the United States

Sarah Deer, (En)Gendering Indian Law: Indigenous Feminist Legal Theory in the United States, 31 Yale J. Law & Feminism 1 (2019)

In this Article, I argue that attorneys and legal scholars should intentionally think about gender in the context of Federal Indian law and tribal law to assess whether there are areas for closer consideration and attention. I am primarily interested in whether we can better address gender inequities in the lives of Native women, including gendered violence. As part of this analysis, I explore how attorneys and legal scholars can—and do—support the interests of Native women in their work.

 

As a self-identified Native feminist who is also an attorney, I am interested in asking hard questions about the shortcoming of the Indian Bar to adequately address the needs of Native women and Two-Spirit people. How do feminism and Indian law “meet”? What are the cross-sections of efforts to promote gender equity and the continued resilient existence of tribal nations? In order to answer these questions, I begin by defining the word “feminism” itself. There are multiple strands of schools of feminist thought—some entirely inconsistent with one another. Therefore, more scholars are now speaking of plural feminisms rather than a monolithic feminism. For the purposes of this Article, I consider feminisms to be legal and social responses to entrenched patriarchy. This simplified definition is, on the one hand, reductive, but on the other, a useful framework because it is broad  enough to encompass different types and styles of patriarchy, along with different types and styles of responses. Patriarchy comes in different forms and can be modified to include terms like “hetero-patriarchy” and “settler colonial patriarchy,” which are both relevant for Native women. The thrust of most feminist movements is to
overturn sexist and misogynist laws and practices through legal and social action, which, again, can take many forms.


More specifically, in this Article, I approach Indian law using the lens of indigenous feminisms. I intentionally choose to use the fraught “f” word in this analysis, even though mainstream feminist movements and Native women have not always had an easy relationship. Indeed, mainstream feminism has historically failed Native women by ignoring or marginalizing issues like sovereignty and self-determination. Moreover, despite the fact that many early white American feminists were influenced by Native women, early American feminists were sometimes the instigators and supporters of horrific Federal Indian law policies, including the boarding school era and child removal. Thus, it makes sense that many indigenous women categorically reject the label of “feminist” because of its Western, colonial connotations, even while supporting Native women’s rights. Some Native women who reject the term “feminism” point out that patriarchy is a foreign concept to traditional tribal cultures. If feminism is a response to patriarchy, Native women have perhaps not needed it. 

 

October 12, 2020 in Gender, Theory | Permalink | Comments (0)

Wednesday, October 7, 2020

Including Feminist Ethics in the Model Rules of Professional Conduct

Anietie Akpan, Examining the Model Rules of Professional Conduct to Include Women's Moral Experience and Feminist Ethics, 28 American J. Gender, Social Policy & Law 29 (2019)

[F]eminism is often dismissed, its core values minimized, and its unique interconnectedness to matters such as socioeconomics, education, and health policy fall on deaf ears.

 

The relationship between the female experience and the law is perhaps even more complex: for decades, men have comprised the majority of state and federal lawmakers, resulting in past legislation being completely uninformed of the complex and intersectional social, political, and economic needs of women.

 

Feminist jurisprudence, the nexus of feminism and the law, is a philosophy of law based on the equality of the sexes, beginning as a field of legal scholarship in the 1960s. The premise of this legal theory is that patriarchy infuses the legal system and all its workings, making the legal system inadequate in identifying gendered components of seemingly neutral laws and practices. Such practices affect for example, employment, reproductive rights, domestic violence, and sexual harassment.

 

This article purports that existing jurisprudence is "masculine" because it reflects the connection between  patriarchal laws and humanity. Masculine jurisprudence not only perpetuates the methods of lawmaking, but it infiltrates the mode of construction for the codes of professional conduct. Feminist jurisprudence seeks to remedy this matter by recognizing male power, calling for substantive changes necessary to bring gender equality, and encouraging consciousness-raising in the practice of law.

 

As with most "doctrines" governing behavior, the Model Rules of Professional Conduct are constructed with a male-oriented convention, rooted in "traditional" ethics completely uninformed of women's moral experience. The construction of traditional ethics is based on our social system being male-centered and therefore, not only have men devised all philosophical and moral thought,' but such thought is universally codified. Feminist
critique on traditional ethics examines components of moral conduct that male philosophers praise (i.e., rationality, partiality, universality) with components of moral conduct that are disparaged (i.e., community,
relationality, individuality).

 

October 7, 2020 in Masculinities, Theory, Women lawyers | Permalink | Comments (0)

Friday, October 2, 2020

Catharine MacKinnon's Sexual Harassment Work as Invention of a New Form of Common Law Legal Reasoning

Charles Barzun, Catharine MacKinnon and the Common Law  

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

October 2, 2020 in Gender, Legal History, Theory, Workplace | Permalink | Comments (0)

Tuesday, September 29, 2020

Debate: Is Amy Coney Barrett a Feminist?

Yes

Erika Bachiochi, Amy Coney Barrett: A New Feminist Icon, Politico

FoxNews, Feminists Have an Amy Coney Barrett Problem

National Review, Why Left Wing Feminists Hate Amy Coney Barrett

Newsweek, Amy Coney Barrett and the New Feminism of Interdependence ism-interdependence-opinion-1534703

 

No

Amy Coney Barrett is Not a Feminist Icon, Huff Post

Amy Coney Barrett is Not a Feminist, She's a Unicorn

No, There is No Such Thing as Conservative Feminism

Amy Coney Barrett and the Triumph of Phyllis Schlafly

Amy Coney Barrett: What Will She Mean for Women's Rights?

 

My own view is the same as that I explained years ago when asked similarly whether then-VP candidate Sarah Palin was a feminist.  No.  Feminism is not just girl power, or women doing things traditionally reserved for men.  Individual achievement in a field or profession (sometimes called "I-feminism") whether Vice Presidential candidate or Supreme Court Justice is not feminism.  But it is a consequence of feminism and the work it has done to eradicate barriers to women's achievement.  Feminism is the understanding of the gendered hierarchies and stereotypes of law and society, a commitment to reforming those gender injustices, with the goal of women's full and equal autonomy, agency, and opportunity.   Under this definition, Barrett is not a feminist. 

September 29, 2020 in Gender, Judges, SCOTUS, Theory | Permalink | Comments (0)

Books: Sexual Citizens: A Landmark Study of the Social Roots of Campus Sexual Assault

Jennifer Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power and Assault on Campuses

A groundbreaking study that transforms how we see and address the most misunderstood problem on college campuses: widespread sexual assault.

The fear of campus sexual assault has become an inextricable part of the college experience. Research has shown that by the time they graduate, as many as one in three women and almost one in six men will have been sexually assaulted. But why is sexual assault such a common feature of college life? And what can be done to prevent it? Drawing on the Sexual Health Initiative to Foster Transformation (SHIFT) at Columbia University, the most comprehensive study of sexual assault on a campus to date, Jennifer S. Hirsch and Shamus Khan present an entirely new framework that emphasizes sexual assault’s social roots—transcending current debates about consent, predators in a “hunting ground,” and the dangers of hooking up.

Sexual Citizens is based on years of research interviewing and observing college life—with students of different races, genders, sexual orientations, and socioeconomic backgrounds. Hirsch and Khan’s landmark study reveals the social ecosystem that makes sexual assault so predictable, explaining how physical spaces, alcohol, peer groups, and cultural norms influence young people’s experiences and interpretations of both sex and sexual assault. Through the powerful concepts of “sexual projects,” “sexual citizenship,” and “sexual geographies,” the authors offer a new and widely-accessible language for understanding the forces that shape young people’s sexual relationships. Empathetic, insightful, and far-ranging, Sexual Citizens transforms our understanding of sexual assault and offers a roadmap for how to address it.

September 29, 2020 in Books, Education, Theory, Violence Against Women | Permalink | Comments (0)

Friday, September 11, 2020

Book Review: Law and Non-Legal Entitlements, Reviewing How Male Privilege Hurts Women

Lesley Wexner, Law and Non-Legal Entitlements: Kate Manne's Entitled: How Male Privilege Hurts Women, Verdict

Philosopher Kate Manne’s first book Down Girl exploded into the popular consciousness just a few years ago. She rejected a simplistic view of misogyny as simply men who hate women and instead developed a broader view that misogyny serves “primarily a property of social environments in which women are liable to encounter hostility due to the enforcement and policing of patriarchal norms and expectations. . . . Misogyny functions to enforce and police women’s subordination and to uphold male dominance.” Given Manne’s sharp analytic approach, I eagerly awaited her follow-up, Entitled, just now published. This new work focuses on how “privileged men’s sense of entitlement. . . is a pervasive social problem with often devastating consequences.”

Coming to Manne’s new work as a law professor, I thought about how Entitled might fit within the property literature. It reminded me, in a good way, of Robert Ellickson’s infamous article on Shasta County and the role of informal norms in managing property rights. Ellickson’s investigation of ranchers and farmers was seminal in challenging the Coasean intuition that in the absence of transaction costs, initial property entitlements are irrelevant since parties will simply bargain their way to the efficient outcome. He urged law and economics to think about and account for the development and the enforcement of informal norms and what those might tell us about the recourse to the law to enforce legal entitlements. Manne makes a similar move, but one step earlier. She suggests that to successfully challenge both the law and the informal norms, more of society needs to first clearly see and understand the original underlying entitlements. Her book identifies, names, and explores a whole universe of entitlements that often benefit men at the expense of women. While many of the entitlements Manne identifies are not legal entitlements provided for by the state, they are pervasive, they shape a great deal of human interaction, their use as the social default disfavors women, and society is having a difficult time bartering to what I see as the appropriate socially optimal egalitarian outcome. I found her entitlement framework illuminating and will spend the rest of this post explaining how the framework exposes different entitlements in American society.

September 11, 2020 in Books, Gender, Manliness, Theory | Permalink | Comments (0)

Tuesday, September 8, 2020

Local Gender Norms by Geography as Significant Influences in Gender Equality

Local Gender Norms Across the US, Gender & Society blog

We wanted to learn more about whether gender norms varied across cities in the U.S. and if so, and what this means for gender equality. Although we often revel and delight at places’ unique cultural flair, does this local culture also contain  elements that convey different expectations for women and men? Our analysis and results are published in a recent Gender & Society article. We highlight our key findings below.

MAPPING LOCAL GENDER NORMS ACROSS THE U.S.

We measured local gender norms by focusing on the way they’re reflected in personal attitudes about gender (e.g. beliefs that women are better caregivers than men and beliefs about women’s suitability for politics) as well as revealed preferences behavior (e.g. age of mothers’ first birth and the segregation of college majors). Focusing on differences in these indicators across commuting zones, we found that cities and their surrounding areas (commuting zones)  fall into four general categories of gender norms:

  • Liberal-egalitarian areas have norms that convey values of gender equality. In these locations, women and men are expected to contribute equally to caregiving and are viewed as having similar skills and leadership qualities. Places with these norms include Burlington, VT, Honolulu, HI, San Francisco, CA, and Washington, DC.
  • Egalitarian-essentialist places have local norms that support women’s labor force participation and leadership, but where people hold  gender essentialist beliefs that women and men are inherently suited for different types of work. Areas with egalitarian-essentialist norms include Charlotte, NC, Milwaukee, WI, and Orlando, FL.
  • Traditional-breadwinner norms exist in places where people hold  beliefs that the ideal family is one where men work and women tend the home. In these areas, women and men are not viewed as essentially different, but instead expected to hold different responsibilities. Places with these norms include Knoxville, TN and Tulsa, OK.
  • Traditional-essentialist locations are places where people believe in the essential difference between women and men with norms that women should focus primarily on family responsibilities. Places with these norms include Little Rock, AR, Charleston, WV, and Midland, TX.

***We found greater evidence that people are influenced by the gender norms where they reside rather than their personal characteristics, particularly if they live a city with traditional-breadwinner or traditional-essentialist norms. In those traditional places, even residents with a college degree, who tend to show more support for gender equality, were much more likely to oppose women’s leadership and feel that men should be earners and women caregivers than college graduates who lived in more egalitarian environments. Residing in a place with traditional norms appears to cause those who would otherwise support gender equality to, instead, endorse more conventional beliefs about women’s leadership and the gendered division of labor.

September 8, 2020 in Family, Gender, Masculinities, Theory | Permalink | Comments (0)

Thursday, September 3, 2020

Restorative Justice Approaches for MeToo

Julie Goldscheid, #MeToo, Sexual Harassment and Accountability: Considering the Role of Restorative Approaches, Ohio State J. Dispute Resolution, Forthcoming

Questions about the meaning of accountability for civil rights violations, and about what role the law can play in advancing accountability, are critically important to law reform. With respect to gender violence, the #MeToo movement has prompted widespread recognition of what feminists have long known, that sexual harassment is pervasive both in and out of the workplace. Yet its persistence, notwithstanding sexual harassment laws and policies that now have been on the books for decades, should spur reflection about what law and policy reforms actually would deter and prevent harassment, and what approaches would meaningfully advance equality at work.

Sexual harassment at work lies at the intersection of parallel critiques of anti-discrimination law and of criminal legal interventions in response to gender violence. Both critiques should be taken into account in developing workplace responses to sexual harassment. In both contexts, commentary as well as pilot programs have begun to explore the possibility of incorporating restorative programs to promote healing and redress harms.

This Article builds on those foundations and argues that workplaces should integrate restorative approaches into the options available to workers who raise sexual harassment complaints. It summarizes, and draws parallels between critiques of criminal legal regimes addressing gender violence, on the one hand, and workplace discrimination, on another. It describes principles common to restorative justice approaches and reviews the emerging research on the use of restorative justice with gender violence cases. It offers a beginning assessment of how restorative justice approaches might be incorporated into workplace sexual harassment responses, and identifies challenges that will have to be addressed for effective implementation.

September 3, 2020 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Monday, August 17, 2020

New Book: Entitled--How Male Privilege Hurts Women

 

Book Review, Kate Manne: "Entitled" Takes a Scalpel to What Men Feel they are Automatically Deserve

“This book shows that an illegitimate sense of male entitlement gives rise to a wide range of misogynistic behavior,” she writes in “Entitled.” “When a woman fails to give a man what he’s supposedly owed, she will often face punishment and reprisal.”***

 

The book goes on to parse the various “goods” that men, in Manne’s reckoning, have been conditioned to feel entitled to — admiration, sex and consent; a home where someone else uncomplainingly does most of the child care and housekeeping. Some of these things are “feminine-coded,” she writes; others, like power and knowledge, are typically reserved as a masculine prerogative.

 

Some forms of discrimination are subtle, operating below the level of our conscious thoughts, but they still exert meaningful effects, Manne says. The reflexive distaste or suspicion that greets any woman who asserts her ambition is in some ways just as indicative of how the social order gets preserved as the violence meted out by the most vicious misogynists.***

 

One of the qualities that makes Manne’s writing bracing and even thrilling to read is her refusal to ingratiate herself by softening the edges of her resolve. She was trained as a logician, and in “Down Girl” she systematically laid out her premises and evidence to show how misogyny operated according to its own peculiar logic.

 

“Entitled” doesn’t feel as surprising or as tightly coiled as that book. In “Down Girl,” she offered a brilliantly original understanding of misogyny, a term that can sound too extreme to use, by showing the routine and banal forms that its hostility often took. The concepts of entitlement and privilege aren’t nearly as rare or mysterious; swaths of this new book are clarifying but also familiar.

 

Still, the subject of “Entitled” is trickier in many ways than the subject of “Down Girl.” Feelings of entitlement may be essential to misogyny — but Manne argues that they’re essential to defeating misogyny, too. She ends by writing about her newborn daughter, and the things that she wants her daughter to feel she deserves, which are necessarily connected to a set of moral obligations. This more reciprocal understanding of entitlement encourages us to think hard about what we owe, not just to ourselves but to one another.

 

August 17, 2020 in Books, Manliness, Masculinities, Theory | Permalink | Comments (0)

Thursday, August 6, 2020

Book Talk: What Does a Feminist City Look Like

What Does a Feminist City Look Like?

Feminist geographer Leslie Kern has faith in cities.

 

Kern, an associate professor of geography and environment and director of women’s and gender studies at Mount Allison University in Sackville, Canada, believes cities’ histories as bastions of social progress prove they can be transformative places for women and other people who have been, and remain, socially and politically oppressed.

 

But in her new book, “Feminist City: Claiming Space in a Man-Made World,” Kern argues that despite their potential, cities have also long failed — and continue to fail — women, and specifically women of color and women with disabilities. Kern spoke to The Lily about how she believes feminist cities could stymie domestic violence and better support parents, why urban planners should read feminist theory and what the coronavirus pandemic reveals about how cities need to change to be more equitable places for all their inhabitants

 

Julianne McShane: I first want to ask a question that’s probably on a lot of readers’ minds: What makes a city feminist?

Leslie Kern: A feminist city would be one that prioritizes care work — the work that we all do to take care of one another and to survive as human beings — rather than mostly prioritizing the economic work of the city. So there’s lots of ways that can play out, whether it’s in housing, transportation, food, child care, all of these realms, but to me that is one of the core principles that would underlie a feminist city.

Click the link above to read the rest of the interview.

August 6, 2020 in Books, Family, Theory | Permalink | Comments (0)

Monday, July 27, 2020

Thin and Thick Interpretations of the Nineteenth Amendment -- A More Robust Understanding of Women's Constitutional Rights

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.

 

This Article argues the Nineteenth Amendment does more. A “thick” understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting-rights plaintiffs to attack restrictive voting laws burdening women—especially those laws burdening young women of color, who are also guaranteed nondiscrimination in voting on the basis of age and race. A thick understanding of Congress’s power to enforce the Nineteenth Amendment would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. The thick understanding offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach. It also reinforces the democratic legitimacy of the Constitution. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.

Paula Monpoli similarly argues for a thick or more robust interpretation of the Nineteenth Amendment, tracing the historical development of the thin conception of the amendment post-ratification in her new book, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Aug. 2020).  See Paula Monopoli, The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification, 11 ConLawNOW 61 (2019)

Reva Siegel argues for a more robust interpretation of the Nineteenth Amendment for gender equality more generally by a better understanding of the pre-ratification history, and a symbiotic reading of the Nineteenth with the Fourteenth Amendment Equal Protection Clause.  Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J. Forum 450 (2020)

 

July 27, 2020 in Constitutional, Gender, Legal History, Theory | Permalink | Comments (0)

Monday, July 20, 2020

Survey Shows 80 Percent Support Gender Equality, But Less Identify as "Feminist"

This is How America Feels About Feminism in 2020

Feminism is sometimes referred to as the other "f" word, a term so loaded its meaning is often obscured by the intense emotions around it.

This was reflected in a Pew Research Center survey released this month, which found that although nearly 80% of Americans support gender equality – and feminism is defined as "the theory of the political, economic and social equality of the sexes" by Merriam-Webster – only 61% of women and 40% of men say "feminist" describes them very or somewhat well. 

 

“I think ‘identify as feminist’ has morphed into ‘identify with a wide breadth of social, political issues that align with contemporary politics of equity and reparative justice,’ ” says Karla Holloway, who has taught African American studies, women's studies and law at Duke University. “Feminism is taken to mean a shared perspective on these issues, but because the issues divide constituencies, it turns into pushing aside the label rather than understanding it as a category that can, and does, contain complexity."  

 

Three-quarters of self-identified feminists say the country hasn’t gone far enough in giving women equal rights with men, and only 39% of nonfeminists say the same, according to the survey, which found divisions along gender, racial and political lines, as well

July 20, 2020 in Gender, Pop Culture, Theory | Permalink | Comments (0)

Monday, July 6, 2020

Grounding the Role of the Feminist Scholar-Activist in a Transnational Black Feminist Framework

Kia Hall, A Transnational Black Feminist Framework: Rooting in Feminist Scholarship, Framing Contemporary Black Activism, 15 Meridians 86 (2016) [pay wall]

What is the role of feminist scholar-activists in contemporary Black freedom movements such as Black Lives Matter? This article proposes a Transnational Black Feminist framework as a theoretical complement to grassroots activism in Black communities. The proposed framework is rooted in Black feminist and transnational feminist traditions, and has as its core the guiding principles of intersectionality, scholar-activism, solidarity building, and attention to borders and boundaries.

July 6, 2020 in Race, Theory | Permalink | Comments (0)

Thursday, July 2, 2020

Anti-LGBT Free Speech and Group Subordination

Luke A. Boso, Anti-LGBT Free Speech and Group Subordination

In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.

This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over Free Speech and LGBT rights. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights — like Free Speech — with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.

The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.

July 2, 2020 in Constitutional, LGBT, Theory | Permalink | Comments (0)

Wednesday, May 27, 2020

Podcast: Feminist Prosecutors and their Feminist Detractors

Podcast, Feminist Prosecutors and their Feminist Detractors

One prosecutor in rural Maine is trying to change the norms of evidence around prosecutions for domestic violence and sexual assault—she wins, even when she loses. In the era of progressive prosecution, two different historical injustices are pulling prosecutors in opposite directions. Patriarchy has kept too many men from being prosecuted for gender-based crimes, while tough-on-crime policing has resulted in too many men being prosecuted for other crimes. This week we look at what it means to be a feminist prosecutor, and whether advocacy for more policing and prosecution on behalf of women can backfire for progressive causes. Guest voices include Maine District Attorney Natasha Irving, Villanova law professor Michelle Madden Dempsey, University of Colorado law professor Aya Gruber, and University of Maryland law professor Lawrence Sherman.

In Slate Plus, Sarah Lustbader, senior legal counsel at the Justice Collaborative and contributor at the Appeal, and Barry talk about whether the adversarial system of prosecution and defense makes the criminal justice system a bad way to pursue improvements in gender relations and reduce gender-based crime.

May 27, 2020 in Courts, Theory, Women lawyers | Permalink | Comments (0)

Wednesday, May 20, 2020

Papers from the Feminist Legal Theory Research Network at Next Week's Law & Society Association Virtual Meeting

I am probably one of the few people in the world who is thrilled that the Law & Society Annual Conference is virtual -- since I will now be able to attend.  In general virtual conferences open up access to some barriers to participation due to finances,  travel, family, disability, and health issues.

You can register for the virtual conference here at the Law & Society Association website.  

Scheduled papers to be presented from the Feminist Legal Theory Research Network:

 

Time

Title

Type

Wed, 5/27
1:00 PM - 2:45 PM

#MeToo: The Narrative of Resistance Meets the Rule of Law

Plenary Session 

Thu, 5/28
11:00 AM - 12:45 PM

Moving Rules: Struggles for Reproductive Justice on Uneven Terrain

Paper Session 

Thu, 5/28
11:00 AM - 12:45 PM

Sexual Harassment: Victims and Survivors

Paper Session 

Thu, 5/28
1:00 PM - 2:00 PM

CRN07: Feminist Legal Theory Business Meeting

Business Meeting 

Thu, 5/28
2:15 PM - 4:00 PM

Families, Laws, and Institutions

Paper Session 

Thu, 5/28
2:15 PM - 4:00 PM

The State and Violence: New Proposals for Stopping the Cycle

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

Normativity in Men, Women, and Bodies

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

The Politicization of Safety: Critical Perspectives on Domestic Violence Responses

Roundtable Session 

Fri, 5/29
1:00 PM - 2:15 PM

Sexual Harassers, Sex Crimes, and Accountability

Paper Session 

Fri, 5/29
4:00 PM - 5:45 PM

Women's Rights in the Shadow of the Constitution

Paper Session 

Sat, 5/30
11:00 AM - 12:45 PM

Perspectives on Sex, Work and New Legal Orders

Paper Session 

Sat, 5/30
1:00 PM - 2:45 PM

Trans and Queer Life in Private and Public

Paper Session 

Sat, 5/30
4:00 PM - 5:45 PM

Human Rights in an Unequal World: Autonomy, Status, and Other Stories

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Feminist Legal Theory in a Public/Private World

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Laws of Social Reproduction

Paper Session 

Sun, 5/31
1:00 PM - 2:00 PM

Intimate Lies and the Law

Author Meets Reader (AMR) Session 

Sun, 5/31
2:15 PM - 4:00 PM

Feminist Judgments on Reproductive Justice and Family Law

Roundtable Session 

Sun, 5/31
2:15 PM - 4:00 PM

Women and Gender in Private, Public, and Places in Between: Old Doctrines Meet New Realities in the Twenty-First Century

Paper Session 

May 20, 2020 in Conferences, Constitutional, Equal Employment, Family, Masculinities, Reproductive Rights, Theory, Violence Against Women | Permalink | Comments (0)

Friday, April 3, 2020

Misunderstanding Transgenderism as a Question of Gender Rather than Sex

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.

April 3, 2020 in Gender, LGBT, Theory | Permalink | Comments (0)