Wednesday, September 23, 2020
By Guest Blogger Robin Runge, Adjunct Professor, George Washington University School of Law
It is difficult for me to articulate the significance of Justice Ginsburg’s life and her work as a woman, a lawyer, law professor and an advocate for gender rights in the workplace. Quite literally, my life and career were made possible in large part because of her advocacy. Judge Ginsburg created the legal theories that have formed the basis of my advocacy for the employment rights of victims of gender-based violence and harassment in the world of work for the last 23 years.
I moved to Washington, DC in 1993 to work for the Women’s Legal Defense Fund (now the National Partnership on Women and Families) as a program assistant in the Work and Family Program. My work was to assist women who were experiencing sexual harassment at work and who called our office looking for legal advice. Not long after my arrival, in August 1993, Justice Ginsburg was appointed to the U.S. Supreme Court by President Clinton. One of the first assignments I worked on was coordinating the mooting of the attorney representing Teresa Harris for oral argument in her sexual harassment case before the Supreme Court. The case was heard on October 13, 1993 and was one of the first oral arguments that Justice Ginsburg participated in as a Supreme Court Justice. The issue in the case was whether sexual harassment must seriously affect the survivor’s psychological well-being in order to establish an abusive work environment in violation of Title VII of the Civil Rights Act of 1964. The act prohibits, inter alia, discrimination based on sex in the workplace. If this was to be made a requirement to establish a claim of sexual harassment it would significantly limit the number of employees who would be able to obtain protection and redress from sexual harassment. The case arrived at the Court only two years after Anita Hill’s testimony during the Justice Thomas confirmation hearings and was the most important case before the Court regarding sexual harassment at the time.
I was privileged to attend the oral arguments and observe firsthand the critical role that Justice Ginsburg would continue to play on the Court over the next 27 years. During oral argument, Justice Ginsburg asked a series of questions indicating her concern that requiring sexual harassment to seriously affect the survivor’s psychological well-being in order to establish a claim would punish strong women. I remember chills running down my back and tears forming in my eyes as I sat in the back of the room listening to her speak.
For much of my life, there had been no women on the Court and then there were two. And here was Justice Ginsburg explaining to men the experiences of women, as she had when she argued before this very Court. Justice Ginsburg questioning demonstrated her belief that just because some women did not experience psychological trauma nor allowed demeaning sexist conduct to detrimentally impact their work performance, it did not mean that it was not creating an abusive work environment in violation of the law. Justice Ginsburg successfully made the point that women experience sexual harassment in a variety of ways and that we should not have to prove injury in order for the court to find sexual harassment occurred. In a unanimous opinion issued in November 1993 written by Justice O’Connor, the Court held that the lower court should focus on whether the sexual harassment was hostile or abusive, not whether Ms. Harris had experienced “concrete psychological harm”. Justice Ginsburg authored a concurring opinion in which she emphasized that a plaintiff does not have to prove that their productivity has been detrimentally impacted as a result of sexual harassment in order to establish a claim referring to a holding from a lower court involving racial harassment in the workplace.
As a young woman considering applying to law school, this moment changed the direction of my life. I heard and saw how Justice Ginsburg was able to apply not just her brilliant mind but also her experience as a woman worker to ensure that the law be interpreted in a way that reflected those experiences. I witnessed how critical it is that women be in all places where decisions are made.
I went to law school the following year and began a career representing low income women workers who experience sexual harassment. I made sure that I and the women I serve were and are in the places where decisions are made about their lives. I went on to become a professor of law and last year, I was a technical advisor during negotiations where the International Labor Organization adopted the first ever global binding labor standard defining and addressing gender-based violence and harassment in the world of work. I am but one of many examples of how Justice Ginsburg inspired a generation of women and women lawyers to believe in and fight for equality in the workplace. And we are not done yet. Thank you does not seem strong enough to express my appreciation.
Monday, August 17, 2020
Women's national right to vote is 100 years old. Those women who led and supported the movement to change the law so that women could vote were brave. Katy Cady Stanton,Susan B. Anthony, Lucy Stone, Alice Paul and Margaret Fuller are the names most Americans associate with the suffrage movement. Who can name the leading Black women who promoted suffrage?
Only with BLM has the general white populace become aware of Black women's leadership in the suffrage movement. This week brought articles on Black women who not only advanced suffrage but did so effectively. The New York Times this week included information on how black women, including Ida B. Wells, documented the Black suffrage movement through photography. Black suffrage organizers argued that racism and sexism could not be separated. Today's BLM women recognize that intersectionality as the #Say Her Name movement represents.
For a time, Alice Paul was persuaded by racists who felt that Southern women would not support Northern suffrage movement if Black women were permitted to march with White women. The Guardian wrote about this choice in describing an incident documented in PBS' "The Vote". Once again racism was permitted to influence decision making, which only postponed US reckoning with race. While ultimately Alice Paul agreed that Black women would not march separately, her initial opposition and continued failure to give equal status to the Black leaders caused harm.
Some of the many Black suffrage leaders' names to remember: Ida B. Wells, Mary Church Terrell, May Howard Jackson, Harriet Gibbs Marshall, Drs. Amanda Gray and Eva Walsh, Anna Evans Murray, Georgia Simpson, Harriet Shad, Lulie Niles Fisher, Lucretia A. Freeman, Minnie Gaines, Florence Henderson, Nettie Johnson, and Carrie Clifford. #SayTheirNames.
Thursday, May 7, 2020
By Prof. Justine Dunlap
It was the worst of timing.
The Trump Administration’s Title IX regulations governing sexual misconduct were issued in draft form in November 2018. A year later, word came that they would be released in final form in December 2019, along with leaked drafts of what the final regs would contain. This allowed a sneak peek into which of the more than 120,000 comments proffered during the notice and comment period were considered and incorporated, and which failed to budge the regulators. So those of us who follow these things were waiting for the regs to drop. Some waited with anticipation, some with dread, others perhaps with mere curiosity.
Then the coronavirus hit and the resulting COVID-19 illness required schools across all learning levels and ages to become vehicles of remote learning. Schools, including IHE, are continuing this mode of remote learning through the summer and are now considering what the Fall term will look like on campus—or whether it can even be on campus. Further, institutions of higher learning are undergoing significant financial challenges due to coronavirus closures. Layoffs and furloughs are inevitable.
Amidst this, on Wednesday, May 6th, the Title IX final regulations were released, with an implementation date of August 14, 2020 attached. So merits aside for a moment, the timing is abysmal. These regulations constitute a major shift in Title IX law in numerous ways. They require significant changes in how schools conduct hearings on alleged sexual misconduct. It will be extremely hard for IHEs to plan for the regs’ implementation from—quite literally—afar. Moreover, the staff needed to implement these new regs may be unavailable, perhaps because they have been redirected to deal with student COVID-19 related crises. The American Council on Education, eighteen state attorneys general, and at least three senators had asked the DOE to delay the already delayed final regulations until the COVID pandemic abated. Somehow, Secretary of Education Betsy DeVos’s response that “civil rights really can’t wait” is supremely unsatisfying.
Tuesday, December 10, 2019
SCOTUS has declined to hear a challenge to a Kentucky law that requires details of ultrasounds be given to women seeking abortions. Among other details, the ultrasound law requires that the "fetal heartbeat" be played for the pregnant woman.
Could there be any clearer message that SCOTUS supports abortion restrictions that are unrelated to health law? The requirement reinforces the distrust of women's decisions and efforts to control those choices. Playing sounds of a "heartbeat" has no relevance to medical safety, leaving the rationale for the requirement to dissuade women from completing abortions. Emotional manipulation should find no cover in the law. But it has.
Thursday, September 26, 2019
Following up on last week's post on an article advocating for free menstrual products in schools, we report that the issue has taken on some national publicity.
CBS News reported recently that actress Sophia Bush has taken up the cause against "period poverty". As reported "Bush is partnering with Always which makes period products, to raise awareness about just how widespread the issues is. She plans to help them surpass last year's donation of 20 million products to girls across the country."
The numbers of girls who have missed school due to inability to afford products is astounding. CBS reports the following numbers: 143,000 girls in New York City; 88,000 in Los Angeles; 65,000 in Chicago; 57,000 in Atlanta; and 38,000 in Houston.
The movement is gathering support. The Pacific Standard reported on a group of activists demanding the elimination of taxes on menstrual products and free products in school, prison and shelter restrooms as well as those in public spaces. Boston established a pilot program to devote $100,000 to stock products with school nurses.
This is the time for advocacy to accelerate. With more school systems acknowledging the need, this is the time to bring the same demands to institutions of higher learning and all government buildings.
Tuesday, March 12, 2019
Recently we wrote on the administration's consideration of de-funding the Inter-American Commission on Human Rights. As reported, nine senators requested the defunding. Eight white men and one white woman comprised the group seeking to erase funding from the budget because they are unhappy with the Commission's positions on abortion. They claim that the Commission's efforts amount to "lobbying" for reproductive rights that is prohibited for those receiving US funds.
While we have focused on the Inter-American Commission on Human Rights, the Inter-American Commission of Women is impacted, as well, and identified in the letter. (Both are under the umbrella of the Organization of American States.) The Commission on Women has a rich history of investigating and obtaining resolutions that clarify and enhance laws that impair women's rights. When the Commission was first formed in 1928, it took on the task of addressing laws that interfered with women's statehood. Some countries removed original citizenship from women when they married a native of another country. Sometimes the country of the husband's citizenship would not grant citizenship to the foreign-born wife, leaving those married women stateless. The Commission took on universal suffrage for women and other issues impacting women's liberty. When the organization became permanent in the 1930s, it was the first international organization devoted to studying the needs of women in the Americas. In 1994, the Commission presented the first resolution on violence against women, which was passed as the Convention of Belém do Pará. Violence against women remains one of the Commission's priorities. The Commission's visibility has been more limited during the past year, experiencing the financial stressors of the IACHR.
Two of the Commission's goals are to
- Contribute to the development of international and inter-American jurisprudence on women’s human rights and gender equity and equality
- Foster the formulation and adoption of inter-American instruments for the recognition of women as rights holders and agents of democracy
Since the beginning of the Trump Administration, women's rights and agency have been eroding. We need the Inter-American Commission on Women more than ever. As women in the US fight to maintain fundamental freedoms, we turn to international women's organizations for assistance. The international community of women may be one of the few effective voices in reminding that world that indeed, women's rights are human rights.
Sunday, January 27, 2019
As reported by RT earlier this month, one in three employees of the United Nations reported being sexually harassed at work over the past two years. The rate for over-career harassment is even higher. In an anonymous on-line survey employees reported harassment in many forms from inappropriate "jokes" to attempts to engage the employee in sexual conversation. Others reported unwanted touching and offensive gestures.
Only one third of the reporters said that they took action. Men constituted two-thirds of the harassers. Only 17% of the workforce responded to the survey, which according to the UN Secretary General Antonio Guterres noted reflects an atmosphere of distrust. The survey results were enough for Secretary-General Guterres to send a letter to staff endorsing the survey as pointing out what needs to change in the UN workplace. He acknowledged that the UN must lead the change.
Last year at least two UN employees resigned following complaints of a hostile work environment due to sexual harassment.
Tuesday, January 22, 2019
In the wake of the third Women's March, Women Lawyers On Guard has announced that it will conduct a survey on sexual harassment in the profession. The survey will include women lawyers in a wide range of legal fields, including academia.
WLG made the following announcement:
WLG, together with our research partner, Nextions, is about launch a nationwide experiential survey of sexual harassment and misconduct in the legal profession. The survey will cover all employment settings: law firms, government, in house, law schools, associations, non-profits, etc. It aims to capture men's and women's experiences, lawyers and staff. It will explore a spectrum of behaviors (not just the legal definition of sexual harassment) that negatively impact the careers and lives of the survivors. The launch is scheduled for February 6th.
Women Lawyers On Guard is a national non-partisan organization harnessing the power of the law and lawyers in coordination with other non-profit organizations to preserve, protect and defend the democratic values of equality, justice and opportunity for all.
Sunday, October 28, 2018
On Monday October 29th at 6:30 p.m. City University of New York will host a discussion by women of color who are leading the effort to pass the Equal Rights Amendment.
Speakers are women of color in political life and include several state senators. The discussion will be moderated by Carol Robles-Roman, co-president and CEO of the ERA Coalition and the Fund for Women's Equity. For those who cannot attend the live event, the discussion will be live streamed. You are encourage to host a party to watch this event. Encourage your students to do the same. As the website states:
For more information on live streaming and registration, click here.
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.
Tuesday, July 18, 2017
Last week, Education Secretary Betsy DeVos, met with selected groups to hear from stakeholders on Title IX processes when sexual assault is alleged. First she met with those who feel Title IX discriminates against males who are accused. The following day she met with survivor advocates who want the current state of hearings to continue. The controversy revolves around the "Dear Colleague" letter sent in 2011 to colleges and universities outlining a list of standards to be employed, and in some cases, aspired to, when universities deal with sexual assault complaints. Among other things, the letter instructed campuses to use the "preponderance of the evidence" language when deciding whether or not the accused student is responsible for the alleged behavior.
The letter gave other instructions, however, use of the lower standard of proof is the one most challenged by those who advocate for the accused. Criminal lawyers often demand that the "beyond a reasonable doubt" standard should be used at Title IX hearings. Title IX hearings are civil in nature and can have different goals than either the civil or criminal justice systems. The safety of the complaining students as well as the community, is paramount, as is education of the student found responsible in an attempt to avoid future troubling behavior. The process views itself as more remedial than punitive.
There is no doubt that some results of Title IX hearings are bewildering, and others have denied basic due process rights for the responding student. Those deficiencies must be corrected. But the problem is not the standard of proof. Nor is the answer to turn a quasi-civil proceeding into a criminal one. The answer to those deficiencies is to enforce training standards and have access to an effective appeals system. To raise the standard of proof to the criminal one is to revert to a system where the complaining student will rarely succeed.
So what do we expect from Secretary DeVos? We know that the Obama administration's guidance on transgender students was withdrawn. We know that DeVos initially opposed withdrawal of the regulation but ultimately ceded to Attorney General Sessions. We have a president who admits to sexually assaulting women. We cannot expect an objective assessment of what a fair Title IX decision making process would look like.
We can expect additional barriers to successful Title IX claims. Whether that will be accomplished through raising the standard of proof, creating a new one, or some other change, we can expect diminished rights for complaining witnesses. After all, before the ink was dry on his presidential appointment to head an education task force, Chairman Falwell announced that one target of his work will be to limit the federal government's reach into higher education's handling of Title IX obligations.
Secretary DeVos deserves credit for her defense of transgender policies and for any empathy she might have for survivors of campus assault. The predominant criticism of her is that she does not fundamentally understand Title IX. But no matter, the boys are in charge.
Wednesday, May 31, 2017
The rights guaranteed in the Universal Declaration of Human Rights are quickly being eroded in the United States.
In an assault on women, the Trump Administration has announced proposed changes that will severely curtail women’s autonomy.
The administration announced that it is reviewing rolling back a rule that mandates employers who provide health insurance to cover birth control. Closely held businesses employers were found exempt from the mandate in the Hobby Lobby decision based upon religious freedom. This executive order expands the exemption to all employers who decline to cover birth control upon grounds of conscience, that is religious grounds. This action, under cover of religious freedom, greatly expands employer choice while further limiting women's reproductive choices. The disdain and disregard in which this administration holds women has never been subtle. This latest assault particularly affects poor women. In completing the cover sheet that will accompany the rollback, the administration responded “no” to the query as to whether the change would be economically significant.
The administration has demonstrated its inability to understand circumstances of those who live outside of the white, wealthy circles in which the president confines himself. Women of the 1% are unlikely to experience adverse consequences of this rollback. While wealthy women are more likely to enjoy expansive health benefits, the out of pocket cost of birth control will not force them to make difficult budget choices. Forcing lower income women to choose between food and birth control or transportation to work and birth control, removes from them one of the few “choices” they have. The economic impact is significant.
While attending the January Women’s March, I saw an older woman carrying a sign pronouncing “I’m too old to be demonstrating against this *s__t* ” I get it. We thought we had won this battle in the 70’s. Mad Men is back.
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.
Wednesday, March 8, 2017
As millions of women around the globe celebrated International Women's Day, most were encouraged to take the day off. In Australia, for example, child care workers left their jobs at 3:20 pm, the time of day at which they begin working for free in comparison with what men are paid. In Dublin, women protested the Catholic Church's control over their bodies through anti-abortion policies. In Dakar women demonstrated their solidarity while planning a larger demonstration on July 31, African Women's Day. While women did leave their jobs in many instances, some could not afford either financially of professionally to abandon their jobs. Particularly, caregivers. But their voices were heard nonetheless.
What women could do was show up and be counted. Whether marching or wearing red at work, women gave witness to ongoing oppression. Since the Women's Marches in Washington, DC and around the world, women have been active in ways not seen since the '70s. And there is much to protest.
President Trump tweeted that he respects women (a la Billy Bush). Yesterday Trump demanded that planned parenthood agree to stop performing abortions or lose its federal funding and a threat was made to women and children at the borders. And let's not forget the global gag rule, prohibiting any overseas organization from receiving federal funding if abortion is offered as an option. The President respects the role that women play in our economy. One is hard pressed to find a women in a significant role in this administration. If the women in Trump world took the day off, the male team would hardly notice. BFF Vladimir Putin praised women for their "beauty and vitality" and for that apparently remarkable yet underappreciated ability to show up on time. Meanwhile, seven women were arrested outside of the Kremlin for demonstrating against 200 years of male leadership.
Women protested around the world "for equal rights and in the United States against Donald Trump." Their mobilization is not a fluke. It is a sustained effort to protect women's rights globally. The movement, like their members, has staying power.
Tuesday, February 7, 2017
Editor's note: Prof. Cynthia Soohoo brings this post by her student Megan Lynch
In August 2014, a Wisconsin woman named Tammy Loerscher went to her local services agency because she believed that she was pregnant, but had serious medical conditions and could not afford health care. She was referred to the emergency room of a nearby hospital, where her urine was collected to test for pregnancy and for controlled substances. When the results returned “unconfirmed positive,” she was reported to child protective authorities. A temporary order of custody was issued to detain Tammy in the hospital. The next day a hearing was held over the phone. There was a lawyer representing the child protective agency, and a legal guardian to represent Tammy’s fetus, but Tammy herself was not given a lawyer, and the judge refused to delay the hearing to permit Tammy to find one. The judge ordered her to report to an inpatient treatment facility after being discharged from the hospital. No assessment was ever completed as to whether Tammy had a substance use disorder or needed inpatient treatment. When Tammy refused to enter inpatient treatment, she was ordered to serve 30 days in jail. While incarcerated she was denied medical care, held in solitary confinement, and threatened to be tased. Tammy was released after 18 days in jail subject to drug monitoring for the duration of her pregnancy. All subsequent drug tests were negative.
Last October, Tammy told her story to Seong-Phil Hong of the United Nations Working Group on Arbitrary Detention during the Working Group’s visit to the United States. An expert on arbitrary detention, Mr. Hong recognized that Wisconsin’s actions violated Tammy’s human rights and that there are better ways for the state to address concerns about fetal health. Late last year, the Working Group issued a statement emphasizing that confinement of pregnant women suspected of drug is inappropriate and that involuntary detention should be used only as a last resort, for the shortest period of time needed, and with appropriate due process protections. The group emphasized that “confinement should be replaced with alternative measures that protect women without jeopardizing their liberty.”
Despite the Working Group’s statement, every year, hundreds of pregnant women are involuntarily detained in the United States because they are suspected of drug use. Wisconsin is one of 5 states with laws that permit pregnant women to be detained for the supposed benefit of a fetus. These statutes were designed in the 1990s amid fears of the effects of in utero exposure to cocaine. Despite decades of research undercutting the belief that use of criminalized drugs is certainly and uniquely harmful to fetal health, these laws continue to be used to issue protective custody orders against pregnant women.
In addition to lacking scientific basis, laws that punish people who use drugs during pregnancy threaten the public health. As the American College of Obstetricians and Gynecologists has stated: “Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” Instead, threats of arrest and incarceration harm fetal and maternal health because they discourage women from seeking medical advice and prenatal care. The medical community in the United States and around the world universally condemn punitive approaches, recommending support and voluntary treatment where appropriate.
Not only do these laws harm the people they purport to protect, they also violate women’s fundamental human rights. Detaining pregnant women based on suspected drug use unfairly deprives them of liberty based on their pregnancy status. While civil commitment is permitted under U.S. law, the laws used to detain pregnant women lack the stringent standards required for civil commitment in other contexts, including a risk of imminent harm and due process protections. These statutes set no requirement that the state prove that a woman has a substance use disorder, or that the substance she is alleged to use is harmful to fetal development before detaining her. Nor do they require that the state consider alternative, less invasive measures before authorizing involuntary confinement. Rather, in most cases, simply testing positive for a drug is grounds for confinement in a treatment facility, regardless of whether it is medically appropriate.
Even if state intervention could be justified under extreme circumstances, these overbroad laws fail to provide adequate procedural protections. Indeed, in Wisconsin, a woman is not entitled to an attorney until appeal, even if she explicitly requests one. Further, the proceedings are sealed, closed proceedings, preventing public scrutiny of the process. This places the onus on women who have undergone this process to come forward to tell their stories.
The UN Working Group made clear that these laws run contrary one of the most fundamental rights under international law: the right to liberty and to be free from arbitrary detention. The right to liberty is deeply embedded in the American psyche, dating back to our nation’s birth and the Declaration of Independence’s promise of the right to life, liberty and the pursuit of happiness. The right to liberty would later be emphasized in the UN Declaration of Human Rights, and the US reaffirmed its commitment to liberty and freedom from arbitrary detention when it ratified the International Convention on Civil and Political Rights.
Because freedom from arbitrary detention is a fundamental right, international human rights standards require that individuals only be detained as a last resort, for the shortest period of time needed, and with appropriate due process protections. Any use of detention must be necessary and proportionate. According to the Working Group, Wisconsin’s law failed to meet these standards.
The Working Group’s recognition that detaining pregnant women suspected of drug use violates their human rights, and the widespread agreement that this practice actually threatens maternal and infant health, should be a call to reconsider our approach to substance use in pregnancy. Instead of spending money on counterproductive punishment and coercive treatment, we should ensure that women like Tammy are able to trust that the people they turn to will provide help, not handcuffs.
Monday, November 28, 2016
Special Rapporteur on Violence Against Women, Dubravka Simonovic, spoke about global concerns of increased risks to women as fundamentalism and "populism" rise around the globe. A group of UN human rights experts including Simonovic, Alda Facio, Chairperson-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice; and Michel Forst, Special Rapporteur on the situation of human rights defenders, issued a joint statement expressing the concerns of many women around the globe.
“In the face of rising populism and fundamentalisms and deplorable setbacks on the women's human rights agenda, we need more than ever to unite our forces to preserve the democratic space in which women human rights defenders represent an essential counter-power and a colossal force of action.”
"The experts highlighted a host of specific challenges faced by women rights defenders – including misogynistic attitudes, threats of sexual assault, travel bans, lack of protection and access to justice, imprisonment, killings, laws which violate their rights, gender-based defamation questioning their “femininity” or sexuality, and gender stereotyping which questions their engagement in public life instead of sticking to their caretaker role in the family."
US women recognize the fragility of their advances in the post-Trump climate.
What supports the concerns of US women is the fact that there has been no general outcry from men denouncing the wave of misogyny that has let lose since the Trump campaign began. If men are not willing to risk the ridicule of other men by taking a public stand against misogyny, how can women be safe? Particularly silent are the men of Congress. Are all too busy worrying about how to get along with the incoming president? Or they are concerned with how to retain their seats and have Trump's support. This is no time for cowards to represent us. But bravery has not been a hallmark of many of our male representatives for some time. The few vocal male congressional supporters are insufficient to create change. There was some hope when Republican leadership publicly stated they could not support Trump because of his videotaped remarks. But that assessment seems to have diminished in the race to preserve their status. Respecting and accepting the process is very different from silence in the face of bias.
Tuesday, August 9, 2016
While struggles over equal pay continues in the federal forum, the Commonwealth of Massachusetts, in a bi-partisan action, passed legislation that vastly enhances the likelihood of women overcoming pay inequities within the Commonwealth. Signed into law by Governor Baker, the legislation was neither speedy nor innovative. Since 1998, some variation on the Equal Pay Act was filed in the Massachusetts legislature. In Massachusetts, the pay gap for women is only marginally better than the national average- 82 cents for every dollar earned by a man. And, that figure seems not to reveal the starkly lower pay earned by women of color.
The law addressed concerns of both employers and female workers. For example, some definition is given to employers of what comparable work means. Additionally, the law provides that unequal pay cannot be remedied through a lowering of wages. Importantly, employers are prohibited from asking for an applicant's salary history during the interview process.
The Massachusetts Equal Pay law is a huge advancement for women. The law was promoted by a collaborative of women's associations and a partnership of public and private entities. As with most change, shifting local practices is essential. Perhaps the legislative success will spread beyond Massachusetts borders.
Wednesday, June 15, 2016
Yesterday the White House Summit, the United State of Women, was held in Washington, DC. The event was outstanding for many reasons. Bringing together five thousand (mostly female) advocates for women in one space was amazing. The line up of speakers was equally amazing. The list is too long to recreate here but here are some of the names of presenters you might recognize: Valerie Jarett, President Obama, Vice President Biden, Billie Jean King, Amy Poehler, Patricia Arquette, Sarah Jones, Warren Buffet and so many others whose names you may or may not recognize. To me, the highlight was listening to Oprah Winfrey interview the First Lady. As one colleague remarked, the experience felt like eavesdropping.
Many presenters began by highlighting the horrific events in Orlando with unexpected guest Attorney General Loretta Lynch addressing the events expansively in her talk. Bamby Salcedo, President and CEO of TransLatin@Coalition, made the Orlando slaughter both real and personal.
As participants moved to and from breakout sessions, they were accompanied by female musicians who played in drumming and mariachi bands, both of which historically have been closed to women. The drumming did provide a humorous moment. To the laughter and eye rolls of the women, a line of five men, presumably convention center employees, unabashedly walked between the drummers and those women watching the performers, unwittingly becoming a reminder of why we were gathered.
Significantly, participants commented on their freedom to unapologetically focus on women. Straight, lesbian, trans, queer, women of color, younger and older - all were freed. Any need to appease male supremacists with gender neutral language was unnecessary and would have been inappropriate, as it often is. In other words, minimization and denial of the special problems endured by women was absent from the room.
To the White House planners, thank you.
Editors' note: The event was recorded and may be watched on line at the Summit website.
Tuesday, May 17, 2016
by Margaret Drew
On Monday, the Supreme Court decided Zubik v. Burwell by not deciding. The court remanded the consolidated cases to their various intermediary courts. The Court suggested that the lower courts, all but one of which upheld the government mandate providing access to birth control even for those employed by religious organizations, might find that the parties are able to reach solutions that protect women's access to birth control in ways that do not infringe on religious rights. Thoughtful analyses have been written on this per curium decision, such as those noted on SCOTUSBlog.
My reflection focuses on process, rather than substance. While the Court suggests that in any settlement, women's right to birth control access must be protected, the court does not provide specific guidance on how the parties will reach settlement. The court has taken an approach more commonly found in trial courts. Encouraging settlement or engagement in ADR processes is common, if not required, in trial courts. Some appellate courts also recommend or demand settlement discussions prior to scheduling cases for argument.
In a time when angry philosophical divides inhibit discussion of finding common ground, the Court has effectively designed a plan for the parties to accommodate each other's concerns while preserving constitutional protections. The Court did so by first requiring the parties to submit written plans on what settlement might look like. Presumably the exercise informed the court on whether the parties could approach solution. This week's decision remands the cases with the knowledge that settlement is possible because the parties have already designed accommodating plans through their Court submissions.
More importantly, the court has shifted focus from divisiveness to compromise. Historically, this is the art of politics -- an art that has been rejected of late. Beyond finding resolution of the case in controversy, the Court is providing guidance to the public as well as to other government branches on how to find meaningful resolution. The Zubik controversy is an emotional one. The stakes are high for women as well as for religious employers. If common solutions can be found in this case, there is no reason why compromise should be rejected as a means of resolution in most political disputes. Even if the parties cannot accommodate the separate interests, the attempt is significant. The Justices may be best suited as leaders and teachers in demonstrating how reasoned collaboration protects interests while promoting cooperation. Indeed, the Court employed this process in reaching its per curium decision, modeling the art of reasoned cooperation.