Sunday, May 31, 2020
Editors' Note:In two previous posts, Professor Lin wrote about the dignitary interests foregrounded in the statutory interpretation and causation issues in the trio of cases addressing Title VII and gender identity and sexual orientation pending before the Supreme Court.
The essence of Title VII is that employers are uniquely positioned in our society to inflict severe economic and psychological harm as a form of social control. This is no less true today than in the Civil Rights Act’s passage in 1964. But by spending considerable time on bathroom and dress codes during last Fall’s arguments in Harris Funeral Homes and the consolidated Zarda and Bostock cases, the Court’s justices implicitly demonstrated confusion about self-identified sex, whether “biological sex” is solely defined by anatomy, and whether the discomfort of others can veto equality at work.
Answering the third: there is no “heckler’s veto” within Title VII law, and America’s history of race discrimination and segregation have made this clear. Nor can Title VII be warped so far as to allow employers to determine our sincerely held sex or gender identity for us. But that is exactly what the defendant funeral home sought to do in Aimee Stephens’ case, and the Court’s inquiries seem to imply. And a ruling against the employees here would be an egregious blow to the legitimacy of the Court.
The fact of sex’s complexity is reflected in dictionary definitions’ use of the word “properties” of the socially constructed trait and “typical” connotations. Sexual variation beyond a fixed binary view was amply acknowledged in medical and social science literature by mid-century. Since the 1960s, U.S. medical experts in developmental sexology have considered several non-exclusive criteria in determining sex including: (1) genetic or chromosomal sex; (2) gonadal sex; (3) internal morphologic sex; (4) external morphologic sex; (5) hormonal sex; (6) phenotypic sex; (7) assigned sex/gender of rearing; and (8) “self-identified sex” (i.e., gender identity). Thus, for millions of individuals and the medical community, sex cannot be deemed only biologically external, immutable, or dimorphic.
The complexity of sex was documented within the United States throughout the first eight decades of the twentieth century, reflecting earlier understanding that gender identity is a major determinant of one’s sex. Prominent stories include Christine Jorgensen, who returned from successful sex reassignment surgery in Denmark and caused a “media sensation” in 1953. By the 1940s, the term “transsexual” appeared in American medical discourse. The idea that sex is mutable became conventional medical advice by the 1950s. Dr. Harry Benjamin further popularized the term transsexual during this time as the published his seminal text, The Transsexual Phenomenon, in 1966. Although wide surveys did not exist until recently, the size of the adult U.S. transgender-identified population is currently about 1.4 million, with a recent federal study estimating that approximately 1.8% of all high school students identify as transgender, and an additional 1.6% have responded that they were unsure. (For additional reading, I recommend the amicus brief in support of the employees filed by Law & History Professors.)
Natural sexual variation by the 1950s was also admittedly more complex than binary male or female, and thus a legal definition of “sex” should not foreclose the existence of non-binary individuals. A comprehensive survey of medical literature from 1955 to 2000 concluded that “[b]iologists and medical scientists recognize . . . that absolute dimorphism is a Platonic ideal not actually achieved in the natural world.” For example, the frequency of intersexuality is approximately 1.7% of live births, or millions of Americans at any point in the last half-century. (For additional reading, I recommend the amicus brief in support of the employees filed by InterACT: Advocates for Intersex Youth and expert amici.)
Arguments that original public meaning or original legislative intent should drive interpretation of Title VII must not only overcome issues with collective attribution when actual experiences and opinions are diffuse. This alone could end the debate. But they must contend also with scientific and public knowledge at the time regarding considerable sexual variation. Rather than “updating” statutory construction with twenty-first century meanings of “sex,” what a tidal wave of lower courts has done since 2015 is acknowledge existing complexity and typographies that serve as functions of sex. By so doing, these courts have rejected the inaccurately narrow “biological-as-anatomical” view of sex as not neutral.
As an arm of the State, the Court must focus on its actual task of determining the scope of the social trait of “sex,” and avoid the harm of imposing its own close-ended concept of sex. As to sexual orientation, the Court acknowledged in Obergefell v. Hodges that laws targeting homosexuality “put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” The political branches continue to engage in variable and oppositional politics regarding sex. Currently, the Trump Administration’s policies seek to rescind gender identity and sexual orientation from federal non-discrimination protections, while states and localities expand their laws and policies memorializing such protections or defining sex and gender even more broadly, and offering non-binary or third sex markers, and other policies.
It is not only up to litigants and civil rights counsel who have tirelessly raised these points to give our dignitary interests their meaning. We must do our part to engage in these conversations and address these misconceptions and biases within our own communities also.
Sunday, May 17, 2020
Monday, April 20, 2020
A recent post discussed how states have used the COVID 19 emergency to restrict abortion accessibility claiming that abortions are "non-essential" medical services. Now the 5th Circuit has upheld the abortion restrictions issued by Texas that limit medical procedures to essential services only. While abortion was not directly mentioned, the state's attorney general interpreted the order to include abortions. While federal district courts twice stayed the order as applied to abortions but today the Court of Appeals overruled the District Court and reinstated the ban in its entirety.
The Court reached far back into legal history in order to rationalize its decision. The Court cited 1905 Supreme Court decision Jacobson v Massachusetts which upheld a mandatory vaccination law during a smallpox outbreak. The case offered little in the way of analogy. The orders are vastly different and the Texas ban does not rationalize how the abortion restrictions will assist in containing the COVID-19 threat. While medication abortions are permitted along with those that would be time-barred during the duration of the ban, the orders discount not only women's autonomy but the psychological and physical harm that women will suffer by delayed procedures.
Monday, January 13, 2020
On Friday the Court of Appeals for the Fourth Circuit upheld an injunction prohibiting implementation of a policy preventing the deployment of Air Force members living with HIV. The case of Roe and Voe v. United States Department of Defense was argued for Plaintiffs by Scott Schoettes of the Lambda Legal Defense and Education Fund and others. The decision prevents the discharge of the Plaintiffs and other similarly situated Air Force members.
Quoting the lower court the addressed the vulnerability of those living with HIV and the need to include similarly situated members in the protections ordered by the court:
"Because of the longstanding stigma and discrimination facing those living with HIV, it may be difficult to identify potential plaintiffs in a case of this nature. Granting relief to all similarly situated servicemembers is thus the only way to ensure uniform, fair, rational treatment of individuals who belong to a vulnerable, and often invisible, class."
Importantly, the court addressed the failure of policy to incorporate medical advances.
A ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks. But any understanding of HIV that could justify this ban is outmoded and at odds with current science. Such obsolete understandings cannot justify this ban, even under a deferential standard of review and even according appropriate deference to the military's professional judgments."
Addressing the current state of science is desperately needed in legal opinions involving HIV. Laws criminalizing HIV are not based upon science but on the fear of contraction common among those unfamiliar with medical advances. Perhaps state courts will follow and find spitting laws, unprotected sex laws and other statutes based on fear, not science. no longer serving any public interest and instead discriminating against a vulnerable population.
Thursday, June 20, 2019
This year’s June LGBTQ Pride Month is distinctive because it marks the 50th anniversary of the Stonewall Riots. A half-century ago, New York City police raided the Stonewall Inn, a cramped gay bar in Greenwich Village. That harassment incited a six-day riot from gay patrons and neighborhood sympathizers. In LGBTQ history, the Stonewall Riots represents a defining moment of acting up and symbolizes the threshold of the gay liberation movement of the 1970s, which ultimately transformed LGBTQ visibility.
This past year has brought other LGBTQ anniversaries. Last October was the 30th anniversary of National Coming Out Day. This past February marked 15 years since Massachusetts first legalized same-sex marriage. There is much to commemorate.
Yet, not all anniversaries this June are celebratory. A year ago, the Supreme Court reversed a Colorado ruling that a Christian baker’s refusal to sell a wedding cake to a same-sex couple was discriminatory. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court protected the baker’s religious freedom by finding that the lower proceedings had been tainted by religious hostility—even when the same-sex couple’s sexual orientation discrimination claim was sound. Some legal commentators have since questioned the Court’s grounds for finding religious hostility.
Before Masterpiece, full equality for LGBTQ individuals seemed inevitable. The Supreme Court had protected LGBTQ people from legislative animus, de-criminalized their sexual relationships, and overturned the Defense of Marriage Act. In 2010, Congress repealed Don’t Ask, Don’t Tell. Progress culminated in 2015 when the Supreme Court recognized same-sex marriages in Obergefell v. Hodges. Love won—as the popular saying went.
But Masterpiece and the current lack of full equality loom over this Pride Month, especially as Stonewall’s anniversary approaches.
Aside from the Supreme Court’s questionable interpretation of religious hostility in Masterpiece, the problem with last year’s wedding cake case reveals a hurdle for current LGBTQ activism. This hurdle was one that Stonewall, in part, externalized and what turned the conformist style of gay rights activism of the 1960s into its 1970s radical liberationist incarnation. In the quest for equality, some gays, unfortunately, tend to get ahead of others.
To win marriage equality in 2015, the same-sex couples in Obergefell had to show that their interests in marrying converged with the interests of mainstream America to uphold traditional marriage. In his studies on American racial progress, the late Derrick Bell, NYU legal scholar, had called this strategy “interest convergence.”
- Achieving interest convergence in Obergefell meant that the same-sex couples could not threaten the mainstream status quo of America while seeking one of its most prized institutions. The strategy was conformance, assimilation, and respectability. The couples resembled mainstream straight married couples by exhibiting cultural, economic, and gender norms that aligned with the status quo. A 2015 Yale Law paper explored just how assimilated these same-sex couples were in Obergefell. See Cynthia Godsoe, Perfect Plaintiffs, 125 Yale L.J. F. 136 (2015). The couples looked all-American in the upper-middle class, mostly-white, professional, and family-oriented sense, and made marriage equality an issue seemingly confined to a small, elite segment of the LGBTQ population. That strategy worked. Love did win.
But the strategy also relied on gay elite privilege to overcome a legal struggle for equality.
Last year, the same-sex couple in Masterpiece did not resemble the same-sex couples in Obergefell. Without children and upper middle-class professions, they didn’t seem as “all-American” or mainstream. In public, their hairstyles and clothing blurred gender lines. The two men, Charlie Craig and David Mullins, even dared to kiss outside the Supreme Court building. Culturally, they were queer, not assimilated. And their plight against discrimination pitted their queerness directly against anti-gay Christian beliefs—threatening another status quo institution: religion. Interests didn’t converge then. Instead, the status quo felt threatened and so the baker won.
Thus, equality bears a conditional message for gays: resemble the mainstream or your chances for equal treatment are attenuated.
In spirit, Stonewall and the gay liberation movement of the 1970s urged against surrendering visible, authentic lives for compromises that assimilation and respectability might bring. The LGBTQ movement must do better to show mainstream America that there are others to recognize. In my forthcoming article from the Yale Journal of Law & Feminism, I detail further the status quo anxiety in Masterpiece and propose a shift away from identity politics to broad coalitions premised on democratic values. A preview of the piece is available here.
Moreover, in the next Supreme Court term, three cases of employment discrimination against gay and transgender individuals will also allow the movement to re-examine its strategies.
Yes, marriage equality provided progress and the Obergefell plaintiffs were true to their own struggles. But when discrimination in employment, housing, and public accommodations still affect LGBTQ individuals, marriage equality was not full equality.
So this Pride Month when we see those “Love Wins” signs again, we must also ask: when will queer win?
Thursday, January 31, 2019
By JoAnn Kamuf Ward, Director, Human Rights in the US Project & Lecturer-In-Law, Columbia Law School.
While 2018 has been dubbed the year of the woman, it is abundantly clear that misogyny is alive and well. And, in order to address the underlying structures and beliefs that allow gender inequality to persist requires transformation. It requires a cultural shift. Treating acts of discrimination, harassment, and assault on an individual basis is simply insufficient. It is not enough that four women have announced they are running for President. It is not enough that more than 100 women were elected to Congress.
As advocates fighting for passage of the ERA and US adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) have long recognized, the laws and institutions we have in place are insufficient to guarantee women’s equality.
Tarana Burke founded #MeToo to challenge the underlying beliefs that allow assault and harassment to occur. It is about reshaping relationships of power and privilege. As she has so clearly stated, “we need to dramatically shift a culture that propagates the idea that vulnerability is synonymous with permission and that bodily autonomy is not a basic human right.”
It is not surprising that Tarana Burke has defined eradicating gender-based violence as a human rights issue. Human rights are about systems change. They are about centering the experience of those most vulnerable to violations. And, they are about a new, affirmative approach to addressing discrimination and inequality. That includes changing how each of us views our individual and collective responsibilities to address gender discrimination and inequality. It requires reshaping gender and racial stereotypes that have led to current dynamics of power and privilege. We must reform institutions to eradicate implicit and explicit bias. We must also change the laws in place to prevent and respond to acts of discrimination, assault, and harassment in order to foster more collective accountability.
In the United States, the predominant paradigm for dealing with sexual harassment, gender-based violence, and discrimination has historically been largely individual. Yet, focusing on individual perpetrators and isolated incidents falls short of the transformative change that is required. As Dahlia Lithwack wrote in September, it is a myth “that patriarchal systems, based in entrenched power, and supported by others in power, could be brought down by individual, brave women.” Systemic change is essential, because the system in which we operate has failed women.
#MeToo has also made clear that the challenges we face are societal and institutional.
And, in response to the movement, global human rights actors have spoken out. UN experts have recognized the need for more concerted action to address the oppression that exclude women from positions of power in order to eradicate all forms of gender discrimination, and there is increasing guidance on core elements of a rights-based approach to gender-based violence and harassment though law and policy grounded in human rights principles, building off existing standards found in principles of CEDAW. There are also calls for more specific international protections for women in the workplace. And examples of how U.S. workplaces can be transformed through human rights-based worker driven solutions, such as the Fair Food Program.
As already reported on this blog, across the U.S. local advocates, law school clinics, and local governments are also looking to human rights to foster broader based approaches to advancing gender equity, focusing on eradicating negative stereotypes, and identifying and addressing barriers to equality for women and girls by adopting CEDAW principles.
CEDAW offers a framework to foster gender equality and eliminate discrimination against women. It defines what constitutes discrimination against women broadly to encompass laws and policies that negatively affect women’s human rights, and identifies pathways to more equitable opportunities and outcomes in a wide range of areas. According to CEDAW, governments must:
In order to ensure equal enjoyment of rights for all women, CEDAW calls for policies that reflect the ways that individual’s multiple identities, including her race, nationality, disability, age, as well as economic and social status, impact her enjoyment of rights, and calls for targeted and culturally-appropriate solutions.
Recognizing the power of these principles, the umbrella organization of state and local civil and human rights agencies – many of whom are charged with resolving complaints of individual discrimination – passed a resolution in support of CEDAW in 2017 – calling on its members to support municipal, county, and state-wide policy efforts to affirm the rights of women, eliminate all forms of discrimination, advance gender equity, and promote and affirm the principles of CEDAW. This is an important foundation for a more affirmative, proactive approach to advancing women’s rights and achieving the transformative change that is needed.
To cultivate action, and support state and local government human rights implementation, the Columbia Law School Human Rights Institute recently published a Gender Equity Toolkit. Developed in partnership with the Leadership Conference on Civil and Human Rights and UNA-USA, the toolkit highlights specific ways that state and local agencies and officials can utilize CEDAW to promote and protect women’s rights, including: fostering human rights education and awareness; assessing the status of women through a gender analysis; and incorporating CEDAW principles into local law and policy.
The Toolkit offers a menu of activities that can strengthen protection for women’s rights, and serve as a springboard for local, city, and state efforts to break down the barriers that continue to impede full equality for women, and redefine relationships of power and privilege.
Thursday, September 20, 2018
Lack of a Strategic Approach. We found that BOP could not ensure that its correctional institutions adhered to BOP policies pertaining to female inmates because BOP has only recently taken steps to formalize a process for verifying compliance with those policies. Further, while BOP established a Central Office branch that serves as its source of expertise on the management of female inmates, this branch may not have adequate staffing to fully fulfill its mission. Additionally, BOP requires all staff in female institutions to take training on the management of female inmates and trauma-informed correctional care; however, BOP does not require its National Executive Staff to complete these trainings. As a result, the officials who develop policy and make decisions that affect female inmates may not be aware of their needs.
BOP Programming and Policies. We identified three areas in which BOP’s programming and policy decisions did not fully consider the needs of female inmates: (1) trauma treatment programming, (2) pregnancy programming, and (3) feminine hygiene. We found that BOP may not be able to provide its trauma treatment program to all eligible female inmates until late in their incarceration, if at all, because BOP has assigned only one staff member at each institution to offer this program. We also estimated that only 37 percent of sentenced pregnant inmates participated in BOP’s pregnancy programs between fiscal year (FY) 2012 and FY 2016. We believe that participation was low because BOP inmates and staff lacked awareness of these programs, and staff may apply eligibility criteria more restrictively than intended by BOP headquarters. Further, we found that the distribution methods for feminine hygiene products provided to inmates varied by institution and did not always ensure that inmates had access to a sufficient quantity of products to meet their needs.
Lack of Gender-Specific Posts. We found that BOP’s practice of assigning Correctional Officers to posts solely by seniority has resulted in an inefficient use of Correctional Officer resources at female institutions. Male Correctional Officers are assigned to posts at which staff must regularly conduct searches of female inmates. Because the Prison Rape Elimination Act of 2003 and BOP policy prohibit male Correctional Officers from searching female inmates, female Correctional Officers must leave other assigned posts to conduct these searches.
· Negative Impact of Federal Correctional Institution (FCI) Danbury Conversion. We examined BOP’s 2013 decision to convert FCI Danbury from a female institution to a male institution, which resulted in 366 low security sentenced female inmates serving a portion of their sentences in Metropolitan Detention Center (MDC) Brooklyn—a detention center intended for short-term confinement. We found that at MDC Brooklyn, BOP offered female inmates no access to outdoor space, less natural light, and fewer programming opportunities than what would otherwise be available to them at BOP facilities designed for long-term confinement.
Click here to read the full report.
Wednesday, July 18, 2018
In the Matter of A-B- the government disqualified domestic violence claims as a basis of asylum except on narrow grounds. Those grounds will be near impossible for most asylum applicants to prove. The opinion demands that "An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims." When police refuse to respond to a domestic violence call or appear at a home after abuse happened and refuse to intervene, the applicant will likely be unable to show malintent on the part of the state.
In the wake of a letter signed by family law professors to Attorney General Sessions seeking revocation of the A-B- decision, Nermeen Arastu, Janet Calvo and Julie Goldscheid, of CUNY Law School, have written an op-ed in response to Attorney General Sessions' virtual elimination of domestic violence, or any private violence for that matter, as grounds for asylum. As the authors state "survivors may not ever be able to bring their legitimate claims and will be summarily sent back to the hands of their persecutors, exposing them to life-threatening harm."
You may read the entire op-ed here.
Wednesday, February 14, 2018
Under-reported in discourse addressing prison conditions and human rights violations is the particularly harsh treatment of women prisoners. The dis-empowerment that comes with gender oppression brings with it even more abusive conditions for pregnant women who have even less control over their lives than other prisoners.
A class action lawsuit filed in Almeda County, California addresses the horrific conditions suffered by incarcerated women the Santa Rita prison. The lawsuit details the horrific conditions, particularly for pregnant women. The lawsuit details pregnant women being denied blankets, healthy nutrition, and fresh air. Pregnant women are denied medical care and encouraged to have abortions.
A press release describing the suit states the "The women seek injunctive relief under the U.S. and state constitutions and demand an end to inhumane and sexually biased treatment at Santa Rita. Plaintiffs charge they are subject to more restrictions and harsher treatment than male prisoners, including being held in holding cells for longer periods of time, being denied equal access to jobs outside the cell, limited on classes and education, and subjected to more frequent strip searches and body cavity searches." One woman delivered her child alone with the baby's umbilical cord around the child's neck. The woman screams were not only ignored, a prison employee shut a door to muffle the sounds. Other inhumane treatment is described in the complaint.
Sunday, January 7, 2018
Is Matt Damon one of the celebs looking to derail the #MeToo movement? For those of you who have the sense not to follow celebrity "news", Mr. Damon remarked during a recent interview that there is a big difference between patting someone on the rear and rape. Well, I concede, there is a difference, but Mr. Damon should not diminish the serious psychological harm that comes to women who endure unwanted physical touching day after day. The behavior not only demeans their work, but their entire being, causing some severe psychic pain and loss of self-esteem. Just ask the women at Ford. Or ask the women who left the entertainment industry, forfeiting their chosen careers due to harassment. Mr. Damon also suggested that men who grew up believing patting women's rears was ok should be treated differently.
Let's not get distracted as Joan Vennochi did. Yes- there are degrees of behavior. There are even differences on what an appropriate employer response should be to reports of current or past sexual harassment.
Let's look at two unexplored aspects of Mr. Damon's chatter. First is the timing. Why interrupt a relatively nascent movement that is just beginning to see effects outside of the entertainment industry? Mr. Damon's follow-up remarks saying that all of the unwanted behavior must be eradicated, do not justify the timing of criticizing the movement when the impact of his remarks could slow, if not stop, the momentum. Mr. Damon is defensive from criticism that he did not "know" about Harvey Weinstein's behavior . That is possible. But it is not plausible that Damon did not understand the consequences of creating diversion at a critical time in women's attempts to be heard.
Second point, once again Mr. Damon removed men's responsibility for decision making and subtly put it on the women of the #MeToo movement. Mr. Damon failed to mention that the men being fired from their positions were being fired by men. Next time Mr. Damon decides to pontificate about men's behavior, perhaps he could make it clear that he is criticizing the male CEO's for their post-allegation responses. The silence of not naming the problem shifts blame to the victims.
Equally unfortunate that the focus of recent firings has been solely on physical behavior, including threats or demands for sex. We risk making inappropriate physical behavior or threats involving sexual demands the bar for firing when non-physical displays of misogyny should be adequate.
Tuesday, November 21, 2017
The celebrity men are falling. Charlie Rose is the latest formerly venerated but large egoed man to fall under the weight of sexual harassment allegations. The line of the dethroned is getting longer, but the time is getting shorter.
During the 1980’s I was one of a handful of lawyers who tried divorce cases on grounds of abuse. “No Fault” divorce had arrived in all but a few states. Trying cases on any other grounds was considered distasteful. But my clients wanted their truth heard in court. The judgments my clients received would today be considered amazing. In the 80’s the judgments were viewed as just compensation for the suffered abuse.
Then came the 90’s. Domestic abuse was discussed widely and openly. Those jurisdictions that had not yet enacted civil protection order statues, did so. Slowly women, who were primarily if not exclusively the petitioners, came forward to demand protection. Judges heard stories of abuse that shocked them.
But then things changed.
So many women came forward seeking protection from abuse that judges assumed that not all of the women’s claims could be true. Judges had difficulty accepting the prevalence of gender bias. By the end of the decade, the seeds had been sown in family court culture for women seeking divorce to be found not credible in that surely women were seeking protection orders only to gain a “leg up” in the divorce proceedings. No mind that all of the data shows that seeking a protection order does not result in an advantage for the abused parent. Quite the opposite. Raise abuse when children are involved, and the mother's presumed motive will be to "alienate" the children from their father.
So I am compelled to raise the alarm. With so many women, and some men, coming forward alleging sexual harassment by celebrities what will be the tipping point where accusers are branded as liars? Am I being an unnecessary alarmist?
We have not scratched the surface of sexual harassment. Rather than #MeToo, perhaps #NotMe would give a more accurate count of who has and has not been the victim of sexual harassment. I am afraid that our non-celebrity sisters will be deprived of their opportunity to air their grievances and be believed. That is where the work needs to be done. Finding platforms for the most vulnerable to air their stories without retaliation has a short window.
So if you have a plan – whether to provide legal services to those who tell their stories and are vulnerable to immediate discharge from work or other consequences – or if you hope to publicize how common sexual harassment is in all levels of our nation- do it soon.
File legislation, record the stories of our unknown sisters, bring the powerful to the workplace to prevent firing when disclosures are made, Prepare for the backlash and have a plan to defeat it - but do it within the next fifteen minutes.
Monday, November 6, 2017
Editors' Note: This post is part of the symposium examining where we are one year after the presidential election.
by Prof. Justine Dunlap
Not too long ago, in a galaxy not too far away, I was contemplating some of the improvements in the law, procedure, and culture concerning intimate partner violence. In particular, I was pondering why those improvements had not yielded as much change as one might have hoped and had too often resulted in adverse unintended consequences to the survivor.
I concluded that implicit bias, which for these circumstances I termed soft misogyny, was a primary culprit. One of the solutions, therefore, was for people to start acknowledging implicit bias and to examine ways to counteract it. Familiarity with the work of Mahjarin Banaji, one of the founders of Project Implicit, made me hopeful. Heck, even the title of the book she co-authored--Blind Spot: The Hidden Biases of Good People—suggested that we could do better. We can become of aware of our biases. Then once aware, we can work to counteract and nullify them.
In this current era, however, with the coarsening of so much discourse and the re-emergence of hard misogyny, I now find myself wishing for “only” soft misogyny. In our President, we have a man whose objectification of women, even his own daughter, is out in the open for all to see. A man who bragged about sexual assault, dismissed it as meaningless locker-room talk, and was elected president.
The hard misogyny was also clear in the treatment of Hillary Clinton in the presidential race. Sure, soft misogyny was there too—I had to examine some of my concerns about Clinton to see my own implicit bias was at play.
But the simultaneous demonization and disqualification of Ms. Clinton by many on the basis of her gender surely flips the switch to hard misogyny. We could start with Ted Cruz’s reference to her deserving a spanking and end a long while later after reviewing the virtually endless sexist and often violent references. To make matters worse, some of the misogynistic language and behavior seems mild compared to the racial hatred that it is now acceptable to spew.
The President has made division and hatred great again. The “other” looms large as America’s boogeyman. The biases that everyone has are things to be celebrated and revered, not weaknesses to rise above.
I had harbored hope that the weight of the presidency would sober Trump. That it would call to his better angels. That he would gain awareness of the historical and moral nature of his deeds and words. That he would be more circumspect. I was wrong. And now I long for soft misogyny.
Thursday, October 12, 2017
Those of us litigating intimate partner abuse cases have been privy to the tactic of false equivalencies as a means of protecting male privilege. One particularly vexing case I tried resulted in extensive findings of the husband's abuse of the wife. The judge found also that the wife had been inhospitable to her mother-in-law. The latter finding was justification for the judge to ignore the abuse in fashioning remedies. Consequently, the husband's abusive behavior remained unconsidered when the judge gave unfettered access to the children. This is not an isolated case. In both petitions for civil protection orders and family law decisions, courts fail to protect partners and children if the abused partner failed to behave in the perfect, mythical manner embedded in the judge's stereotypes. In these cases, false equivalency is used to protect white male privilege. The faulty premise can also be used as a sword.
The same discriminatory technique plays out in race cases, as well. A particularly shocking example happened this week in Virginia. A magistrate issued a warrant for DeAndre Harris, a black man who had been viciously beaten by white supremacists following a "Unite the Right" rally. Mr. Harris suffered spinal injuries and a head wound requiring ten stitches. Then a man who claims to be an attorney and a "Southern Nationalist" filed a police report and then a request for a warrant for the arrest of Mr. Harris alleges "unlawful wounding", a felony. In Virginia a magistrate may issue the warrant, even where, as in this case, a police investigation is complete. As in civil protection order hearings where abusers file retaliatory petitions for protection orders, the goal is to discredit the victim. An additional benefit is the victim's reluctance to appear in court given that the victim could have adverse consequences. Dropping the cross complaints is often the result, leaving the victim unprotected and reluctant to seek future help.
My sense is that this is the goal of the white supremacist. While three men have been arrested for beating Mr. Harris, cross charges will adversely impact any jury. Confusion and reluctance to convict will result.
This is the time for courageous prosecutors and police to step up and request dismissal of the charges for lack of evidence and because the allegations are retaliatory.
Wednesday, July 26, 2017
In an effort to show his conservative base that he has not lost his way, on Wednesday President Trump announced that he is banning all transgender individuals from military service. President Trump hid behind medical expenses that he claims the government incurs in supporting trans military personnel. The PBS Newshour estimated that the transgender related medical costs incurred by the government is around $2,000,000 per year. The military spend approximately $10,000,000 per year on Viagra and related drugs. The New York Times reported estimates of fewer than 2,500 and later up to 11,000 transgender individuals on active duty. But the National Center for Transgender Equality places the number at 15,000.00. Trump said that he would not accept or allow trans soldiers to serve. While undefined at the moment, this language indicates that trans individuals on active duty will be forced to leave the service. The loss of 15,000 military personnel would be significant.
The trans community is among the most disadvantaged in our society. Trans and other sexually non-conforming individuals face a higher rate of sexual assault and other abuse than the general population. Housing, employment and other opportunities are limited due to discrimination. Now the president has banned trans individuals from one path to earning a living that was open to them. Further, the move implies that trans people are not capable of defending our country and of participating in work that is open to others. The pronouncement, and the public shaming that it triggers, is cruel.
This latest presidential move points out the ever expanding need for human rights advocacy at home.
To read more, here is commentary from the New Yorker
UPDATE- Military chiefs are refusing to implement Trump's edict unless ordered to by the Secretary of Defense.
Sunday, July 2, 2017
June was filled with international Pride events. Let's not lose perspective and forget that public Pride demonstrations still require courage of the LGBTI community. Marriage equality success can present sexual identity freedom and acceptance as a false norm.
Being anything but "straight" remains unsafe.
The criminalization of HIV-AIDS exists in the majority of US jurisdictions, with many of those making it a crime for an individual living with HIV to have sex with another without disclosure of the HIV status and that person's informed consent. These statutes often do not require proof of intent to transmit the disease; and actual inability to transmit the disease due to effective medical intervention presents no defense. The enforcement of these laws primarily against people of color is not unnoticed.
Members of the LGBT community are more likely to be the targets of US hate crimes than any other minority.
While we celebrate the expansion of legal equality, let's remember that the specific "equalities" recognized are more along the path of joining heterosexual norms, rather than a celebration of sexual minorities as respected individuals who may equally participate in our society upon their terms. Those "equalities" remain, in fact, narrow. We must exlore whether what our culture encourages is more than demanding conformity with heterosexually based cultural institutions.
Let's try to correct and avoid heterosexuality as the norm. Whiteness as the norm in fashioning race based remedies has resulted in the endurance of bias, implicit and explicit. We are early in the journey of ensuring effective remedies for members of the LGBTI community. Will we avoid the mistakes of the past in forcing alignment with false norms? We will have some indication from SCOTUS next term.
Sunday, May 21, 2017
During a recent Boston demonstration against forced marriage of minors, word came that Governor Christie vetoed a bill overwhelmingly passed by the New Jersey legislature that would restrict marriage to those who are age 18 and older - no exceptions. Among the reasons Christie cited for his veto was that the bill was contrary to some "religious customs". Those religious customs are part of the silencing of females and undermining their autonomy.
Forced marriage is something Americans associate with foreign countries. And when the topic is raised in the US, citizens associate the practice with some immigrant cultures. While the practice may be more common with certain cultural and religious groups, forced marriage of children is not limited to those born outside of the United States. "Shotgun" weddings have a long history in US Christian tradition and resulted in no fewer forced marriages than other religions and cultures.
Unchained At Last was founded by Fraidy Reiss, herself a survivor of forced marriage. Hers
was arranged in a conservative religious community and, like the majority of teen marriages, was to an older man who abused her. After several years, Fraidy was able to escape the abusive marriage with her children. She attended Rutgers University against her husband's demands and became an investigative journalist. Fraidy graduated first in her class. She recognizes that most women are limited in their ability to escape abusive forced marriages due to lack of "finances, religious law and social customs." She founded Unchained at Last to assist women in escaping from and resisting forced marriages. Unchained is leading forced marriage prevention legislation demonstrations across the county
Representative Kay Khan and Senator Harriet Chandler filed a Massachusetts bill that would restrict marriage to those age 18 and older, without exception. Parents would no longer have the ability to assent to a minor's marriage, judges would have no ability to waive the age requirement and pregnancy would no longer provide justification for underage marriage. Currently in Massachusetts, there is no minimum age for children to marry with judicial and parental consent.
Thursday, March 30, 2017
by Jeremiah Ho
Today the North Carolina state legislature voted to repeal HB2, the infamous bathroom bill from 2016 that restricted transgender individuals from using the public restrooms that reflected their gender identities. The repeal was completed with a compromise bill that was signed this afternoon by the new governor, Roy Cooper. The repeal was sought, in part, because of the economic threats resulting from big business boycotts in reaction to last year's bill. Observe that North Carolina still does not have antidiscrimination laws protecting LGBTQ individuals.
Here is the New York Times coverage.
This is the second time that threatened economic consequences have been effective in changing North Carolina policy that discriminated against members of the LGBT community. See our prior coverage.
Monday, March 20, 2017
Over the course of the past few weeks, women's organizations have reviewed Judge Gorsuch's record in an attempt to determine his understanding of the myriad legal issues women face. Judge Gorsuch by and large has not appreciated the difficulties of women's lives and how laws and policies can have a disparate impact on them.
The National Association of Women Lawyers found Judge Gorsuch to be "not qualified" on women's issues. The organization's Supreme Court Committee members, of which the author is one, review candidates' opinions and other writings and conduct interviews with a wide number of people who have interacted with the candidate in various capacities. While the committee found that Judge Gorsuch generally treated litigants and lawyers with respect, and that he has the intellectual capacity for the position, his record on issues important to women displays a lack of understanding. In a press release containing the committee's findings, the committee noted concerns around the Judge's giving religious freedom rights deference over women's reproductive rights. Likewise, the committee noted "Judge Gorsuch's writing also exhibits a reluctance to recognize precedent that applies substantive due process to protect the rights of women." The committee further noted concern in other areas, including his failure to recognize transgender women as women thus denying them rights that are afforded to other women.
The National Women's Law Center also issued their report on Judge Gorsuch. Concerned with Judge Gorsuch's lack of support for regulatory authorities, the Center's press release stated: "Judge Gorsuch has explicitly praised Justice Scalia's approach to the law. While he has not opined on Roe v. Wade, he voted to override a woman's coverage of contraception if her boss objected. Justice Scalia was highly skeptical that courts should defer to the interpretations of laws by expert government agencies - and Judge Gorsuch would go even further, making it harder for agencies to implement the laws that have literally opened doors of opportunity for women and girls."
Tuesday, January 24, 2017
Over the past few decades, I wondered what it would take for women to mobilize. Increasingly, we have been disrespected. "Bitch" has come into conversational use. Music is often disrespectful toward us and we continue to bear the brunt of familial care-giving and then penalized for it in the workplace. Why were women being so passive? We failed to pro-actively and collectively use our power.
Donald Trump's election as president mobilized women in a way unseen in the history of this country, if not all of the world? Did the election of a sexual predator clarify women's vision of the future for us and our planet? We were able to mobilize to protect the next and future generations of daughters and sons. Because the next generation is in danger of living in a regressive and more repressive culture, women rose.
Solidarity among sisters world wide informs us of the power of women. Women are out of the closet in a way unseen in America. Never before has the international sisterhood organized so effectively.
Trump is not the only one threatening our rights. Government supports institutional oppression while the media mostly portrays women in ways that diminish their autonomy and existence, whether you are a presidential candidate or a single mom trying to make it through the day.
Our obligation to future generations and to the planet is to keep our power in play for good. The out of sync patriarchal world has resulted in violence, corruption and spiritual decline. The time is now for women to restore the world to balance, not eliminate the masculine, but bring the masculine and feminine into balance.
None of this would have happened but for the actions of Mr. Trump.
Tuesday, January 17, 2017
Russia has taken the first step to de-criminalize much of domestic violence. The pending bill would de-criminalize acts of abuse that do not result in "serious injury" and would apply not only to intimate partners but to children. Such matters will be treated administratively for first offenses.
The bill was introduced by attorney and member of parliament Yelena Mizulina who in the past has
sponsored anti-gay legislation and other legislation preserving "traditional" family norms. Traditional, of course, should be interpreted as anti-human rights.
While there is no central data base in Russia tracking domestic violence, one source estimates that domestic violence happens in 40% of Russian households with 36,000 women beaten daily by intimate partners. 12,000 Russian women die from domestic violence each year.
Women in the US are experiencing more than a backlash. Women report dramatically increased sexual harassment and sexual assaults post election. This is not a climate where women can expect legal protections to be either maintained or enforced. The incoming U.S. government has expressed admiration for Russia. Will this include promoting and mimicking the pending Russian anti-female legislation? You know how friends can influence friends.