Gender and the Law Prof Blog

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

Wednesday, February 24, 2021

How Sex Discrimination Law Can Do Positive Work for Dismantling Anti-Black Racism

Kyle Velte, Toward a Touchstone Theory of Anti-Racism: Sex Discrimination Law Meets #LivingWhileBlack" 
Yale Journal of Law & Feminism, Forthcoming

This article asks the question: Can sex discrimination law do positive work for the project of dismantling anti-Black racism and white supremacy? This article’s answer is “yes.”

White supremacy and anti-Black racism continue their pervasive and destructive paths in contemporary American society. From the murder of George Floyd to the daily exclusions of Black bodies from white spaces, the nation’s failure to right the wrongs of chattel slavery and racism continues to be highlighted in stark relief. This article centers the racism made manifest through #LivingWhileBlack aggressions—the phenomenon of white people calling 911 to report Black people engaging in lawful, routine, everyday activities—and examines it through the lens of two sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It contends that analyzing #LivingWhileBlack aggressions through the lens of sex discrimination law may yield two positive results: First, looking at the problem with a new perspective may lead to different, additional, or more comprehensive strategies for disrupting and dismantling white supremacy. Second, utilizing a sex discrimination frame to consider #LivingWhileBlack aggressions holds the potential to make legible to white women the connection between their own oppression and the oppression of Black people, thus create the opportunity for coalition building.

The article proposes what it calls a “touchstone theory” of inquiry for understanding #LivingWhileBlack aggressions. This theory envisions multiple “touchstones”—legal, political, and cultural, to name a few—that may inform our analysis of white supremacy. It asserts that lessons from sex discrimination law are one such analytical touchstone, while recognizing that a number of touchstones are necessary to fully unpack and address #LivingWhileBlack aggressions. In providing another touchstone for thinking about and resolving the #LivingWhileBlack problem, the article contributes to the scholarly dialogue addressing this pervasive and harmful phenomenon.

The article first explores the sex stereotyping theory established in Price Waterhouse v. Hopkins and uses it to develop a derivative theory of racial stereotyping, which it describes as a White Privilege Stereotype. Framing #LivingWhileBlack aggressions as white people retaliating against Black people for claiming white privilege parallels Price Waterhouse’s framing of the rejection of Ann Hopkins as a partner in an accounting firm as punishing a woman for claiming male privilege. The article then engages with the history of the campaign for inclusion of “sex” in public accommodations laws. The article describes how the lessons learned from the history of prohibiting discrimination against sex in public spaces can help us to understand #LivingWhileBlack aggressions—punishing Black people attempting to live their “race in public.”

In proposing a sex discrimination touchstone as one among many salient touchstones for analyzing #LWB aggressions, the article builds on the idea of a symbiotic dynamic through which multiple systems of subordination work together. As applied to the sex discrimination touchtone theory, this dynamic means that white (straight) women who are exercising white privilege in #LivingWhileBlack aggressions are doing so at the expense of reinforcing male privilege (to their own detriment). Exposing this dynamic through a sex discrimination touchstone inquiry of #LivingWhileBlack aggressions may encourage white women to work in coalition with Black individuals and organizations to engage in anti-racist work.

February 24, 2021 in Race, Theory | Permalink | Comments (0)

Monday, February 22, 2021

Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality

Caroline Henckels, Ronli Sifris & Tania Penovic, Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality, Federal Law Review (2021)

This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, the where the Court found that laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity as one of the axiological bases of the implied freedom in a manner that generally emphasises individual autonomy over other conceptions of dignity that might be described as operating as a constraint on behaviour to protect other interests. Yet while the Court has used dignity as the common measure with which to commensurate competing claims, it has yet to convincingly address concerns regarding incommensurability that attend the balancing stage of proportionality review, not to mention the potential objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution. In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political participation so as to more clearly link the concept to the text and structure of the Constitution, and to identify what is at stake when women’s ability to access reproductive health care is impaired or denied.

February 22, 2021 in Abortion, Constitutional, International, Theory | Permalink | Comments (0)

Friday, February 19, 2021

12th Feminist Legal Theory Conference: Applied Feminism and Privacy

Conference 12th Feminist Legal Theory Conference: Applied Feminism & Privacy

We hope you will join the Center on Applied Feminism at the University of Baltimore School of Law for this exciting conference on April 22-23, 2021. The theme is Applied Feminism and Privacy. As always, the conference focuses on the intersection of gender and race, class, gender identity, ability, and other personal identities. We are excited that Fatima Goss Graves , president and CEO of the National Women’s Law Center, has agreed to serve as our keynote speaker.

We are at a critical time for a broad range of privacy issues. State-level abortion bans have put a spotlight on the importance of decisional privacy to women’s equality. Across America, advocates are fighting for reproductive justice and strategizing to preserve long-settled rights.

At the same time, our informational privacy is increasingly precarious. Data brokers, app designers, and social media platforms are gathering and selling personal data in highly gendered ways. As a result, women have been targeted with predatory marketing, intentionally excluded from job opportunities, and subject to menstrual tracking by marketers and employers. In online spaces, women have been objectified, cyber-stalked, and subject to revenge porn.

With regard to physical privacy, the structural intersectionality of over-policing and mass incarceration impacts women of color and other women. And while a man’s home may be his castle, low-income women are expected to allow government agents into their homes – and to turn over reams of other personal information -- as a condition of receiving state support. In addition, families of all forms are navigating the space of constitutionally protected family privacy in relation to legal parentage, marriage and cohabitation, and child welfare systems.

In this conference, we will explore such questions as: Is privacy dead, as often claimed? If so, what does this mean for women? How can privacy reinforce or challenge existing inequalities? How has feminist legal theory wrestled with privacy and what lessons can we draw from past debates? What advocacy will best advance privacy protections that benefit women? How do emerging forms of surveillance impact women? Can intersectional perspectives on privacy lead to greater justice? Who defines the “right to privacy,” and what do those understandings mean for women? How is privacy related to other values, such as autonomy, anti-subordination, vulnerability, justice and equality?

Register for Thursday's sessions here.
Register for Friday's sessions here.

12th Annual Feminist Legal Theory Conference
Applied Feminism and Privacy
April 22 & 23, 2021 
via Zoom

Thursday, April 22, 2021

4:00-6:30 Achieving Menstrual Justice: Law and Activism
 

Panel One: Menstrual Justice and Activism Across Employment, Homelessness, Education, and Data Privacy

  • Margaret E. Johnson, Associate Dean for Experiential Education, Professor of Law, and Co-Director, Center on Applied Feminism, University of Baltimore School of Law, Menstrual Justice
  • Marcy Karin, Jack and Lovell Olender Professor of Law and Director of the Legislation Clinic, David A. Clarke School of Law, University of the District of Columbia, Menstruation at Work
  • Marni Sommer, Associate Professor, Sociomedical Sciences, Mailman School of Public Health, Columbia University, Menstruation and Homelessness
  • Michele Gilman, Venable Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore School of Law, Menstrual Apps and Privacy

Panel Two: Focus on Menstrual Justice in Schools

  • Laura Strausfeld, Co-Founder, Period Equity, Menstrual Equity, Comprehensive Sex Education, and Title IX
  • Diana Philip, Executive Director, NARALProChoice Maryland, Menstrual Equity as Reproductive Justice
  • Alana Glover, Symposium Editor, University of Baltimore Law Review, Menstrual Equity & UB Law
  • Christopher A. Cotropia, Dennis I. Belcher Professor of Law, Director, Intellectual Property Institute, University of Richmond School of Law, Period Poverty & School Attendance/Performance
Friday, April 23, 2021
9:00-9:15 Welcome and Opening Remarks
 
  • Ronald Weich, Dean, University of Baltimore School of Law
  • Margaret E. Johnson, Professor of Law, Associate Dean for Experiential Education, and Co-Director, Center on Applied Feminism, University of Baltimore School of Law
  • J.J. Lucido, Editor-in-Chief, and Christian Coward Symposium Editor, University of Baltimore Law Review
9:15-10:15 Panel One: Controlling Personal Data in The Digital Age
 
  • Kendra Albert, Clinical Instructor, Harvard Law School, The Double Binds of Transgender Privacy
  • Cynthia Conti Cook, Civil Rights Lawyer and Law & Technology Resarcher, and Brook Kelly-Green, Program Officer, Gender, Racial and Ethnic Justice, Ford Foundation, Data for Reproductive Autonomy or Surveillance? The Role of New Technology in Criminalizing Pregnant People
  • Lynn Daggett, Smithmoore P. Myers Chair and Professor of Law, Gonzaga University School of Law, Gender and Student Medical Privacy
  • Nicole McConlogue, Associate Professor of Law and Clinic Director, West Virginia University College of Law (moderator)
10:15-10:45 Break Rooms Open for Coffee and Discussion
 
  • Room 1:    Data Privacy as Social Justice
  • Room 2:    Academic & Activist Social Mingle
10:45-12:00 Panel Two: Resisting Intrusions into Physical Privacy
 
  • Jenny Brooke Condon, Professor of Law, Director, Equal Justice Clinic, Seton Hall Law School, Uncaging Privacy:  What "Me Too" Means for the Fight Against Sexual Violence and Coercion in U.S. Prisons and Jails
  • Michelle Ewert, Associate Professor of Law, Washburn University School of Law, Their Home Is Not Their Castle: Subsidized Housing’s Intrusion into Family Privacy and Decisional Autonomy
  • Susan Hazeldean, Associate Professor of Law, Brooklyn Law School, Privacy as Pretext
  • Sapna Khatri, Attorney, Advocacy and Policy Counsel at the ACLU of Illinois, From Rosary to Camera: The Shift in Protesting Tactics Jeopardizing the Privacy of Patients
  • Shanta Trivedi, Clinical Teaching Fellow, Georgetown University Law Center (moderator)
12:00-12:30 Break Rooms Open for Lunch and Discussion
 
  • Room 1:  Pitching and Writing Op-eds on Privacy Topics
  • Room 2:  Reproductive Justice Agenda:  What’s Now/Next?
12:30-1:30   Keynote
   Fatima Goss Graves, CEO and President, National Women’s Law Center
1:30-1:45 Break
1:45-3:00 Panel Three: Protecting Decisional Autonomy To Shape Identity And Families
 
  • Deborah Brake, John E. Murray Faculty Scholar and Professor of Law, University of Pittsburgh School of Law, andJoanna Grossman, Ellen K. Solender Endowed Chair in Women and the Law and Professor of Law, SMU Dedman School of Law, Beyond Pregnancy: Title IX and Reproductive Rights
  • Laura Kessler, Professor of Law, University of Utah, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Discrimination Law
  • Anibal Rosario Lebrón, Assistant Professor of Lawyering Skills, Howard University School of Law, Weaponizing Civil Liberties: A Crisis Lens Analysis to Sex, Gender, and Sexuality Equality
  • Lynn Lu, Associate Professor of Law and Co-Director, Economic Justice Project, CUNY School of Law, Anti-Poverty or Anti-Privacy? Reimagining Welfare through Restorative Justice and “Radical Help”
  • Emily Poor, Clinical Teaching Fellow, University of Baltimore School of Law (moderator)
3:00 Closing Remarks
 
  • Michele Gilman, Venable Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore School of Law

 

 

 

February 19, 2021 in Conferences, Family, Reproductive Rights, Theory | Permalink | Comments (0)

Feminism, Privacy and Law in Cyberspace

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

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

February 19, 2021 in Technology, Theory | Permalink | Comments (0)

Thursday, February 18, 2021

Evidentiary Relevance Through a Feminist Lens

Julia Ann Simon-Kerr, Relevance Through a Feminist Lens, Philosophical Foundations of Evidence Law, Oxford University Press: Christian Dahlman, Alex Stein & Giovanni Tuzet, eds (Forthcoming 2021)

Evidence theorists have long recognized that relevance is contingent upon generalizing from social understandings or experience. Because knowledge and experience shape our understanding of relevance, assessing relevance naturally raises fundamental questions that are at the heart of feminist inquiry: Whose knowledge, and whose experience? The answers to these questions drive relevance determinations in ways that have been subject to feminist critique. At the same time, relevance’s social contingency holds the potential to validate alternative ways of knowing and to expand the process of arriving at truth. This chapter begins by exploring the contingent nature of the relevance inquiry from a feminist perspective. It then considers the practical importance of relevance in incorporating new baseline positions into legal judgment as a result of legal or non-legal change.

February 18, 2021 in Courts, Theory | Permalink | Comments (0)

Monday, November 30, 2020

The Long History of Feminist Legal Theory

I've just posted a new book chapter, The Long History of Feminist Legal Theory, forthcoming in in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams eds. Oxford Univ. Press).

This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred and fifty years. This chapter traces that development. It begins with the establishment of the core theoretical precepts of gender and equality grounded in the surprisingly comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. It then shows how feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality, and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.

 

November 30, 2020 in Books, Constitutional, Legal History, Theory | Permalink | Comments (0)

How Americans Talk About MeToo and Law

Lesley Wexler, #MeToo and Law Talk, 29 Univ. Chicago Legal F (2019)  

How Americans talk when they talk about #MeToo is often deeply rooted in the law—even in non-legal settings, participants in the #Me-Too conversation often deploy legal definitions of victims and perpetrators, reference legal standards of proof and the role of legal forums, draw explicit or implicit comparisons to legal punishments, and derive meaning from legal metaphors and legal myths. In this essay, I identify and assess the deployment of such law talk to help understand both how legal rhetoric may facilitate the national #MeToo conversation and related legal reforms, but may also simultaneously limit and obscure some of the #MeToo’s more transformative possibilities. Such critical engagement seeks to open space for selective pushback, including initial thoughts on the possibilities of reclaiming colloquial law talk to better match the interests at stake in non-legal settings as well as bringing to the forefront the therapeutic, informative, and structural issues law talk might crowd out.

November 30, 2020 in Equal Employment, Gender, Pop Culture, Theory | Permalink | Comments (0)

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)