Gender and the Law Blog

Rachel Arnow-Richman on "Beyond the Glass Ceiling: Panes of Equity Partnership"

Rachel Arnow-Richman has posted Beyond the Glass Ceiling: Panes of Equity Partnership on SSRN. This article is forthcoming in the Florida International University Law Review. The abstract is excerpted here:

This Article . . . explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners . . . against elite firms. [I]t reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not.

Aya Gruber Publishes "A Tale of Two Me Toos"

Aya Gruber has published A Tale of Two Me Toos in volume 2023 of the Illinois Law Review. The abstract is excerpted here: 

What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #MeToo’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.” Milano’s #MeToo, by contrast, incorporated popular narratives of criminality, bolstered the legitimacy of the penal state, and relied on traditional notions of sex and gender. And it was Milano’s that became the Me Too. This Article contrasts the two Me Toos to critique the individualistic and punitive #MeToo movement that is and mourn the intersectional and restorative Me Too movement that could have been. #MeToo’s emphasis on sensational stories and social media derived evidence of “epidemics” effectively cut off debate, enabling carceral reforms to pass at a dizzying pace. This Article is the first to catalogue, describe, and examine the actual criminal laws and policies erected in #MeToo’s name. Even a surface analysis of these reforms reveals that, contrary to advocates’ claims, they do not just close “loopholes.” Instead, each new or broadened criminal law raises troubling issues of civil liberties, defendants’ rights, and state power, and each portends to sweep in people—including women—who bear little resemblance to the unrepentant monstrous offenders featured in #MeToo discourse.

Reviewing Clarke's Sex Discrimination Formalism

Leah Litman, Toggle Boggle, JOTWELL, reviewing Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023).

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).

Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.

These differences are not just academic. They help clarify some of what is happening in recent decisions

Prabha Kotiswaran on "Laws of Social Reproduction"

Prabha Kotiswaran has published Laws of Social Reproduction in volume 19 of the Annual Review of Law and Social Sciences. The abstract states: 

Feminists have long demonstrated the invisibility of women’s reproductive labor, performed in bearing and raising children, maintaining households, and socially sustaining male labor. Every wave of feminist struggle from the late nineteenth century onward has actively queried the inequalities that characterize women’s performance of such work, variously referred to as unpaid domestic and care work, domestic labor, or care work. Robust traditions of scholarship on women’s unpaid work animate various disciplines, often spilling into political struggles for adequate recognition of this work. As the pandemic has rendered visible once again the reproductive labor of women the world over, this article offers an overview of social reproduction theory, feminist legal theorizations of reproductive labor, and how we might recuperate a rich tradition of theorizing on social reproduction to develop a materialist approach to law’s regulation of reproductive labor across the marriage-market spectrum with a view to social and economic justice.

Deep Disagreements in the Last Five Years of Equality Jurisprudence at the Supreme Court of Canada

Jennifer Koshan & Jonnette Watson Hamilton, "'Clarifications' or 'Wholesale Revisions'? The Last Five Years of Equality Jurisprudence at the Supreme Court of Canada" (2023) Supreme Court Law Review (Forthcoming)
Presented at the Asper Centre's Litigating Equality Symposium at the University of Toronto in May 2023

Over the past five years, the Supreme Court of Canada’s equality jurisprudence under the Canadian Charter of Rights and Freedoms has revealed deep disagreements within the Court. This paper reviews the six decisions that comprise that jurisprudence, drawing out the major points of contention on the role of substantive equality, the test for section 15(1), adverse effects discrimination, causation, evidence, contextualization, and positive obligations. Our argument is that while the section 15 majorities in the first three decisions – Alliance, Centrale, and Fraser – attempted to respond to the critiques of equality-seeking groups, these decisions could not paper over the profoundly ideological disagreements embedded in equality rights jurisprudence, particularly in cases of systemic discrimination. In light of the recent push-back by a significant proportion of the Court in R v CP and a majority in Sharma, we also discuss the implications of the six decisions for equality-promoting litigation strategies going forward.

A Theory of Perversity as an Outer Bound of Rational Basis Review

Professor Boone's theory discussed, and then applied to the contexts of abstinence-only sex education, mandatory arrest laws in domestic violence, and targeted regulation of abortion providers.

Meghan Boone, Perverse & Irrational, 16 Harv. Law & Policy Rev. (2022)  

In our system of representative democracy, legislatures are given a great deal of latitude to select and pass laws that they deem to be in the public interest. Assuming that no suspect class or fundamental right is involved, the Constitution has been interpreted to only require legislative action to satisfy rational basis review—a highly deferential standard that requires only that a legitimate purpose exist and the means adopted to achieve that purpose are rationally related to that purpose. Under rational basis review, legislatures can and do enact laws that are significantly over- or underinclusive to the identified problem. They can enact laws that do not even accomplish their intended purpose in most instances. They can even enact laws which are unsupported by any evidence, much less high-quality evidence. And yet . . . courts insist that rational basis review still means something. That it is something other than a blank check for legislatures to do as they will.

This Article explores one example of the outer bounds of rationality—demonstrated perversity. That is, a law that clearly contravenes the overarching legislative intent because the law is solely or primarily responsible for producing the opposite result of that intent. Although often unnamed as such, perversity presents itself across the legislative landscape, from mundane local ordinances to sweeping federal legislation. And while not explicitly recognized as a basis for finding a law unconstitutional, Supreme Court precedent clearly hints at the possibility that demonstrated perversity could be a basis for invalidating laws.

By defining perversity, identifying when and how it occurs, and exploring how it might be used to challenge the constitutionality of various government actions, this Article aims to illuminate an undertheorized corner of the already robust literature on rational basis review. It argues that current rational basis review precedent already employs a type of perversity analysis, although courts fail to explicitly acknowledge it as such. Moreover, it argues that modern changes in scientific and empirical methodologies and the explosion of the information economy demonstrate the need for this type of analysis; without it, rational basis review is meaningless. Ultimately, the Article concludes that while rational basis scrutiny gives legislatures wide latitude, courts must set a constitutional limit by striking down statutes which cause outcomes clearly counterproductive to legislative goals.

Reconstructing the Myth of the Perfect Victim in Rape Crimes Through the Use of Experts

Deborah Tuerkheimer, Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm, U. Illinois L. Rev. (forthcoming)  

The “perfect victim” embodies enduring misconceptions about how victims behave during and in the wake of sexual violence. However misguided, these myths are sufficiently pervasive to pass for common sense—the same common sense that jurors in sex crimes trials are instructed to deploy when judging the credibility of accusers. One obvious corrective is expert testimony. But expertise in rape cases has mostly been anchored to an odd syndrome—the “rape trauma syndrome,” which, quite apart from its questionable scientific underpinnings, suffers from two conceptual defects: the syndrome individualizes the structural, and it pathologizes the normal. As #MeToo has brought into sharp focus, sexual violence is not aberrant; nor is it possible to abstract rape and its aftermath from a social context defined by steep social hierarchies. Expert testimony should account for these realities, reconstructing the victim accordingly. This move can reverberate beyond rape trials to other parts of the criminal justice system and—most urgently—to the cultural realm, where quotidian credibility judgments dictate the path forward for countless survivors. The paradigm that emerges promises to upend entrenched understandings of who counts as a victim and what constitutes rape.

Publication of Gender & Law 2023-2024 Volume

Thomson Reuters has published the 2023-2024 volume of Gender & Law (previously titled Women & Law). The Table of Contents is here. This series is edited by Anibal Rosario Lebron, Daniela Kraiem, and Jamie R. Abrams. The articles were selected by an Editorial Board, including April G. Dawson, Elizabeth R. Kukura, Neoshia R. Roemer, and Laura Lane-Steele.

This series is described as: 

Gender and the Law is the new title for our long-running Women and the Law publication. Gender and the Law provides timely coverage highlighting the most pressing legal questions in the realm of gender and law. Assembled by a team of expert editors, this work collects the best research addressing legal issues affecting women, the law and masculinities, gender identity and expression, and sexuality published within the last year.

The Foreward states: 

Gender, in all its guises, is at the center of the United States conversation. As we move into the next presidential election cycle, legislation and litigation on these linked gender-based legal questions will come with relentless fury. The authors and advocates represented in this 2023 Gender and Law volume have been working on these questions for years, in some cases many decades. This volume presents them as a selection of the most interesting and important scholarship in what is now a deep tradition in legal scholarship that takes gender, along with race, class, and disability seriously. The questions that will come before courts and legislatures in the next few years will set the course for the next generation. These scholars are best situated to guide lawyers and advocates who want to engage in thoughtful legal analysis and not just superficial appeals to ideology.

Reconceptualizing Domestic Violence as "Patriarchal Violence"

Rona Kaufman Kitchen, Patriarchal Violence, 71 Buffalo L.Rev. (2023)  

For over a century, feminist theorists and activists have sought equality for women. They have aimed their efforts at the many distinct and related causes of women's inequality, among them gendered violence, sexual violence, domestic violence, and violence against women. Recognizing the need to understand problems in order to solve them, feminist theorists have devoted decades to conceptualizing various manifestations of such violence, ranging from private acts, such as sexual assault and intimate partner abuse, to public acts, such as the incarceration of mothers and the criminalization of pregnancy. In this article, I argue in favor of conceptualizing the many discrete types of violence that subjugate girls, women, and all gender-oppressed people as part of one comprehensive system of ''patriarchal violence." Further, I introduce an organizational framework that will allow scholars, teachers, and activists to more effectively and efficiently theorize, teach, and eradicate patriarchal violence. Through this framework, various manifestations of patriarchal violence can be better identified, organized, and understood at micro and macro levels.

Sex Discrimination Formalism

Jessica Clarke, Sex Discrimination Formalism, Virginia L. Rev. (forthcoming 2023)

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court’s interpretations of race discrimination law. The Court’s most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII’s sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that “formal equality” is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary, to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment, to enforce sex-specific dress codes, to exclude transgender people from restrooms consistent with their gender identities, to ban gender-affirming health care, or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism.

Teaching Patriarchy After Barbie

Teaching Patriarchy Post-Barbie, Ms.

Like many, I’m grateful that this summer’s Barbie film has moviegoers around the world talking about the patriarchy. I am delighted that the highest-grossing movie of 2023 has brought the word “patriarchy” into our daily parlance. Now that we have the language to describe our predicament, it’s critically important to keep talking about the patriarchy, and to keep going down the path that Barbie takes us on to investigate the way our daily lives are impacted by patriarchal constructs. I’ve been using similar tactics to the Barbie movie to introduce these ideas to my first-year students at UC Santa Cruz, with revealing results.

Most students sign up for my composition course to fulfill a general writing requirement, without knowing what the subject of the class will be. When they discover the topic on the first day of class, some students express that they have no desire to “Come Closer to Feminism,” as I have titled the course (borrowing this phrase from bell hooks’ marvelous handbook Feminism is for Everybody).

Faced with this reality, I have had to create a way for students to learn about feminism even if they initially describe themselves as anti-feminist. My goal is to make the course accessible and applicable for everyone who is placed into it. This includes helping students of all backgrounds unpack how the intersections of their individual gender, racial and sexual identities make them particularly privileged—or oppressed—within our patriarchal society.

Teneille Brown on "Abortion and the Extremism of Bright Line Rules"

Teneille R. Brown has posted a copy of Abortion and the Extremism of Bright Line Rules on SSRN. The article is forthcoming in the Northwestern University Law Review. The abstract provides: 

Rather than eliding the workability or necessity of bright-line rules in certain domains, this essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer clear-cut, “objective” solutions to thorny moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch." When we ignore the bio-legal mismatch, we undermine the fairness and legitimacy of the law by obfuscating the moral justifications with objective biological criteria.

For example, some fetal cells pulsate at roughly six weeks post-fertilization. But what does this tell us that is morally significant, vis-à-vis the relationship between the fetus, the pregnant person, and the state? How does the presence of something like a human heartbeat answer normative questions for us? The answer is that on its own, it cannot. In this essay I discuss various abortion-restrictive statutes and cases to engage with the bio-legal mismatch. Specifically, I explore the rigid use of gestational age, definitions of medical emergency, fetal anomalies, fetal pain, and the perverted way informed consent is mandated and particular medical procedures are banned. Each of these advance biologically-naive, black-and-white thinking to reinforce gender norms and dehumanize pregnant people and the complex reasons they terminate. After explaining how black-and-white thinking relies on cognitive distortions and triggers tribalism, I conclude with a non-exhaustive list of factors that legislators and judges should examine when developing policy based on biological criteria—such as in the highly contested context of abortion. The factors are geared at assessing whether the biological criteria are reliable and connected to legally and normatively relevant events, or whether they are being exploited to mask ideological extremism.

Toward a Socio-Legal Theory of Male Rape

Orna Alyagon-Darr and Ruthy Lowenstein Lazar published Toward a Socio-Legal Theory of Male Rape in volume 113 of The Journal of Criminal Law & Criminology (2023). The abstract is excerpted here: 

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.

 

The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works.

 

Based on the comparison, the Article develops a sixfold framework containing three recurring and three missing themes. The recurring themes are otherness—the construction of male rape as something that occurs to others, at the margins of society; masculinity—pivotal for the understanding of male rape; and the embeddedness of male rape in social power relations. The three missing themes are consent—possibly the most discussed aspect in current theories of female rape but hardly elaborated with respect to male victims; racial aspects of male rape in the community; and female perpetrators of male rape. The burgeoning literature on male rape dwells mostly on the first three themes.

 

The Article argues that a meaningful theory of male rape requires further study of the missing themes. The sixfold analytical framework suggested in this Article can assist in identifying blind spots in the academic discourse, accurately conceptualizing this phenomenon, and offering a better general understanding of it. It is also a first step toward the creation of a more inclusive and general theory of rape that accounts for sexual abuse of all victims, regardless of gender, race, sexual orientation, or other social traits.

Finding a Constructive and Fair Way to Frame the Rhetoric of Rape

Kathryn Stanchi, The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz, International Journal for the Semiotics of Law (Forthcoming)

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change.

This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Jessie Allen on "Property and More-Than-Human Personhood"

Jessie Allen has posted on SSRN the forthcoming work Property and More-than-Human Personhood. The abstract previews: 

It was international news when the New Zealand Parliament, in a 2017 settlement of Māori land claims, declared that the Whanganui River “is a legal person and has all the rights, powers, duties, and liabilities of a legal person.” Such grants of non-human personhood seem peculiar. They contradict a conventional understanding that Western legal doctrine inscribes a sharp boundary between human owners of property and objects of that ownership, and only the owners have power. That anthropocentric view is part of what has made AngloAmerican property law an instrument of violent dispossession and extraction. But it is not the only way to read property doctrine. This article uses mainstream current and historical legal sources— recent U.S. case law and Blackstone’s Commentaries to tell a different story, one in which the line between persons and property has always been vanishingly thin.

Drawing on philosophical critiques of modern Western anthropocentrism and the work of Indigenous scholars, the article reveals how everyday property doctrines can accommodate a more holistic worldview. Blackstone is associated with an extreme vision of private property as exclusive individual human control over an objectified world. But viewing his canonical work through a less dualistic lens, the human subjects he describes can appear less potent than the landscape they inhabit. Blackstone’s “permanent and immoveable” land is not just a physical object, and real property combines material and “incorporeal” entities that both restrict and enable owners’ actions. This interactive more-than-human agency persists in land today, for example, in the counterintuitive doctrine of adverse possession and through servitudes that “run with the land” to shape human conduct.

This article is the first to show how traditional Western property law can be reimagined to share legal personhood – and power. Recognizing how longstanding property doctrines support more-than-human personhood matters for two main reasons: (1) It grounds novel grants of non-human personhood in a durable, widely accepted legal framework; and (2) it undermines the hierarchical anthropocentric version of property law that has facilitated and justified Western domination of both non-Western humans and non-human others. The goal is to envision a legal system that will help bring about more sustainable, morally responsible relationships among humans and between humans and others.

Rona Kaufman on "Patriarchal Violence"

Rona Kaufman has posted Patriarchal Violence on SSRN. This work was published in volume 71 of the Buffalo Law Review. 

For over a century, feminist theorists and activists have sought equality for women. They have aimed their efforts at the many distinct and related causes of women's inequality, among them gendered violence, sexual violence, domestic violence, and violence against women. Recognizing the need to understand problems in order to solve them, feminist theorists have devoted decades to conceptualizing various manifestations of such violence, ranging from private acts, such as sexual assault and intimate partner abuse, to public acts, such as the incarceration of mothers and the criminalization of pregnancy. In this article, I argue in favor of conceptualizing the many discrete types of violence that subjugate girls, women, and all gender-oppressed people as part of one comprehensive system of ''patriarchal violence." Further, I introduce an organizational framework that will allow scholars, teachers, and activists to more effectively and efficiently theorize, teach, and eradicate patriarchal violence. Through this framework, various manifestations of patriarchal violence can be better identified, organized, and understood at micro and macro levels.

The Fetal Personhood Movement as Eradicating the Legal Personhood of Women

Meghan Boone & Benjamin McMichael, Reproductive Objectification, Minnesota L. Rev. (forthcoming)  

The American system of rights is individualized – premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate and autonomous.

This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person conceptually precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object – a reproductive vessel, merely the container for another individual rights’ holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the “maternal-fetal conflict” and undermine pregnant people’s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome – undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety.

Defining "Woman"

Camille Hebert, Defining Women, J. Gender, Race & Justice (forthcoming) 

The current debate about the meaning of the term “woman” has become a proxy for the culture wars over the rights of sexual and gender minorities, with social conservatives claiming that “sex” has traditionally meant “biological sex” and that the determination of one’s sex can easily be resolved by resort to biology. Progressives, on the other hand, argue for a broader definition of “sex,” to include gender identity. It has sometimes been assumed that the social conservatives have history on their side, but this article demonstrates that the courts, including the United States Supreme Court, have not traditionally defined “sex” in such a way as to protect only “biological sex”—better understood to mean sex assigned at birth. Instead, the courts have long interpreted statutory and constitutional prohibitions against sex discrimination to apply to a range of gender-related and sex-related characteristics, including compliance with traditional gender norms and gender roles. This article also demonstrates that the social conservatives do not have science on their side, because current understandings of biology do not support a strict male and female binary. In addition, gender identity itself is believed by scientists to have a biological basis, such that gender identity is a component of sex as defined by biology.

As state and federal legislators and some courts seek to define “sex” narrowly to mean sex assigned at birth, these efforts pose real and significant threats to the rights of transgender individuals to obtain appropriate identification documents, to use public spaces, to obtain healthcare, and to engage in other activities that cisgender individuals take for granted, including the right to participate in sports. And although these efforts are often said to be motivated by a desire to protect women, if “sex” is defined narrowly to mean sex assigned at birth, the protections that cisgender women and men are afforded by the anti-discrimination and other laws are likely to be narrowed as well. These efforts should be seen as what they are—an effort to impose a narrow and limiting definition of the meaning of “sex” in order to restrict protections for the sex-based and gender-based characteristics of all individuals and to impose their own notion of what it means to be “a woman.”

Sologamy, The Increasingly Important Social Identity of Singlehood

 

Naomi Cahn, Singlehood, Wash. U. J. Law & Policy (forthcoming 2024)

Singlehood is becoming an increasingly important social identity category. Thousands of people are members of Facebook groups such as I am my Own Soulmate or Community of Single People. Sologamy, marrying oneself is on the rise. The growing social movement to bring attention to voluntarily single people is creating pressure on the law.

Single people are also highly visible when it comes to categories for the allocation of government benefits: eligibility requirements may well differ based on whether an applicant is single or married. This occurs, for example, in the qualifications for long-term care under Medicaid or various public welfare benefits, the availability of portability in utilizing the estate and gift tax, or even in the choices for filing income tax returns. This categorization reflects core assumptions about the privatization of dependency during marriage rather than taking singlehood seriously.

Nonetheless, this legal treatment and the growing number of voluntarily single people lead to questions about whether singlehood should be a distinct legal category, a basis for analyzing legal distinctions. Indeed, single people are still not yet adequately explored in legal scholarship. This may be a reflection of cultural (and legal) images of single people that are often negative: single people are lonely, have not yet met the right person, are reluctantly un-partnered, singlehood status is seen as something that is temporary and subject to control—or a reflection that singlehood is such an indeterminate legal category, difficult to define, that it would be too difficult to establish it as a distinct category.

New Systemic Approaches to Understanding Gender Violence

Deborah M. Weissman, Gender Violence as Legacy: To Imagine New Approaches, 20 UC Law SF J. Gender & Justice 55 (2023)  

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to social theories about harm. That is, to understand the political economy as the structural environment from which the social pathology of inequality originates--a factor inextricably related to IPV--as a legacy of colonialism and slavery and suggests that these matters are best considered in historical context and addressed through tools and approaches offered by restorative and transformative justice approaches (RJ/TJ). RJ/TJ.

It is useful to contextualize the origins of social ills as outcomes of historical relationships associated with colonialism. Colonial systems summoned into existence racial hierarches and patriarchal forms through which they exerted power and have shaped the current political economic landscape, including the character of the harms endured by communities, families, and individuals. The consequences of wealth extraction, labor exploitation, and the attending ideological rationale contributed to the immiseration of vast numbers of people as a matter of racial and gender categories. Stratification economics debunks the notion that subordination is a consequence of individual or group failings or self-defeating behaviors and demonstrates the durability of the harms of the theft of wealth and resources in its many forms. William Darity explains that the “existence--indeed persistence--of income, but especially wealth [] inequalities” is “the central problem” that affects social disorders.

An examination of the workings of colonialism has added a new understanding of oppressive gender hierarchies and the violence that may follow gender inequality. For instance, patriarchy derived from colonial invocations of the absolute authority of a monarchy created deep gender divisions manifested in the subordination of women. Colonialism shaped ideologies of masculinities to “produce[] a cultural consensus in which political and socio-economic dominance symbolizes the dominance of men and masculinity over women and femininity.” Colonialism also has resulted in “the enforcement of gendered and racial differences from the most intimate of circumstances--within households and families--to the most public.” Expansion of colonialism in the United States extended patriarchal norms on many indigenous communities through the imposition of “male dominance in societal arrangements” Settler colonialism often disenfranchised Native American women from previously established matriarchal systems and practices that were demonstrated to mitigate IPV.

The historical sources of inequality and the shaping of gender hierarchies traced to systems of colonialism suggest new ways for advocates to address the structural sources of these harms. RJ/TJ approaches are well-positioned to deploy historical analyses to address the systemic factors to which carceral responses ignore. RJ/TJ strategies can address the more immediate harms of IPV while seeking structural changes related to past harms.