Law Commons^™

“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier

Michigan Journal of Gender & Law

Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the …

Valuing All Identities Beyond The Schoolhouse Gate: The Case For Inclusivity As A Civic Virtue In K-12, Sacha M. Coupet

Michigan Journal of Gender & Law

Increasing social and political polarization in our society continues to exact a heavy toll marked by, among other social ills, a rise in uncivility, an increase in reported hate crimes, and a more pronounced overall climate of intolerance—for viewpoints, causes, and identities alike. Intolerance, either a cause or a consequence of our fraying networks of social engagement, is rampant, hindering our ability to live up to our de facto national motto, “E Pluribus Unum,” or “Out of Many, One” and prompting calls for how best to build a cohesive civil society. Within the public school—an institution conceived primarily …

Putting The Fetus First — Legal Regulation, Motherhood, And Pregnancy, Emma Milne

Michigan Journal of Gender & Law

The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or …

Me Too? The Invisible Older Victims Of Sexual Violence, Ruthy Lowenstein Lazar

Michigan Journal of Gender & Law

A review of legal research on violence against women and elder abuse reveals a disturbing picture. There is hardly any American legal research examining sexual abuse of older women and its conceptualization in legal literature and treatment in the legal system.

This Article attempts to fill the abovementioned gap and to bring the hidden issue of sexual violence against older women to light. Scholars writing on rape, violence against women, and elder abuse tend to analyze age and gendered sexual violence separately from each other, without accounting for their interplay. This Article proposes a conceptual framework of sexual abuse of …

Born Free: Toward An Expansive Definition Of Sex, Laura Palk, Shelly Grunsted

Michigan Journal of Gender & Law

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety …

Draft Of A Letter Of Recommendation To The Honorable Alex Kozinski, Which I Guess I'M Not Going To Send Now, Yxta Maya Murray

Michigan Journal of Gender & Law

This legal-literary essay engages the current social and jurisprudential moment, encapsulated by the hashtag #metoo. It focuses on the allegations, made in the first week of December 2017, that Ninth Circuit Court of Appeals Judge Alex Kozinski verbally sexually harassed former law clerks Emily Murphy and Heidi Bond. I wrote the lioness’s share of the piece during December 10–11—that is, in the days before news outlets reported that other women complained of Kozinski touching them on the thigh or breast while propositioning them for sex or discussing recent sexual encounters—and concluded that Kozinski was unlikely to face impeachment or meaningful …

Customer Domination At Work: A New Paradigm For The Sexual Harassment Of Employees By Customers, Einat Albin

Michigan Journal of Gender & Law

This Article introduces a novel legal paradigm—customer domination at work—to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer liability than other instances where employers are liable for the sexual harassment of their employees. The protection for workers is also limited. The same is true of two other legal regimes discussed in the Article: Germany and Britain. More importantly, I argue that the prevailing paradigm precludes a true understanding …

Title Ix And Social Media: Going Beyond The Law, Emily Suran

Michigan Journal of Gender & Law

The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a law, it …

Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt

Michigan Journal of Gender & Law

Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Situations, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald

Michigan Journal of Gender & Law

A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain's intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality.

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris

Michigan Journal of Gender & Law

This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment …

Student Gladiators And Sexual Assault: A New Analysis Of Liability For Injuries Inflicted By College Athletes, Ann Scales

Michigan Journal of Gender & Law

This Article will focus on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, including educational and sexual harms. The author’s theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and bad; …

The Evolution Of Same-Sex Marriage In Canada: Lessons The U.S. Can Learn From Their Northern Neighbor Regarding Same-Sex Marriage Rights, Christy M. Glass, Nancy Kubasek

Michigan Journal of Gender & Law

The broad differences between the United States and Canadian cases raise important questions about the social, political and legal factors that have promoted the extension of marriage rights in Canada while retarding similar efforts in the U.S. This article will compare the recent history of same-sex marriage laws in the United States and Canada. We argue that proponents of same-sex marriage as well as lawmakers could learn important lessons from the recent legalization of same-sex marriage in Canada. Section II develops a framework for comparing the U.S. and Canadian experience with same-sex marriage law. The next section traces Canada's recent …

Refusal To Dispense Emergency Contraception In Washington State: An Act Of Conscience Or Unlawful Sex Discrimination?, Dana E. Blackman

Michigan Journal of Gender & Law

This Article will demonstrate that a pharmacist's refusal to fill a valid prescription for emergency contraception constitutes sex discrimination and violates the WLAD. Part I explains the nature and function of emergency contraceptive pills (ECPs) as well as their role in basic health care for women and the importance of their accessibility. Part II addresses federal civil rights protections and the failure of these protections to provide relief for women facing refusals. Focusing on the WLAD, Part II also explains how state public accommodation statutes protect women from discrimination in places of public accommodation. It further sets forth the prima …

Sex-Separation In Public Restrooms: Law, Architecture, And Gender, Terry S. Kogan

Michigan Journal of Gender & Law

This Article challenges the common assumption that legally mandated sex-separation of public restrooms is a benign recognition of natural anatomical differences between men and women. Relying on legal history, gender history, and architectural theory, my central thesis is that, contrary to common intuitions, there was nothing benign or gender neutral about the social and historical origins of the first laws adopted at the end of the nineteenth century that mandated such separation.

"Has The Millennium Yet Dawned?": A History Of Attitudes Toward Pregnant Workers In America, Courtni E. Molnar

Michigan Journal of Gender & Law

This Article will focus on what might be considered the "prehistory" of the PDA in an attempt to shed new light on the equality/difference debate. Beginning as early as the nineteenth century, pregnant workers have been forced into either the equality approach or the difference approach depending mostly on race and class. This Article will show that, at times, both approaches restrained the autonomy of women and even caused harm to individual women and society by contributing to the development of the stereotypes and social attitudes that continue to permit pregnancy discrimination today.

Expanding Gender And Expanding The Law: Toward A Social And Legal Conceptualization Of Gender That Is More Inclusive Of Transgender People, Dylan Vade

Michigan Journal of Gender & Law

In Part I, the article first describes the many different ways in which one can be transgender. Many transgender women and men defy gender stereotypes. Part I next suggests a non-linear view of gender. Often, when we get past the binary gender system, the notion that there are only two genders, female and male, we do so by seeing gender as a spectrum or line running from female to male. In Part II, the article argues that the sex-gender distinction is not part of the new conceptualization of gender, the gender galaxy. In Part III, after a brief overview of …

"Just Like One Of The Family": Domestic Violence Paradigms And Combating On-The-Job Violence Against Household Workers In The United States, Kristi L. Graunke

Michigan Journal of Gender & Law

This Article argues that the immense problem of on-the-job abuse experienced by domestic workers demands a multifaceted plan of attack. The proposed responses specifically draw upon the capacities, strengths, and resources of women, particularly comparatively privileged women, as both activists and employers of domestic workers. By describing the circumstances of domestic work in the United States from the nation's inception to the present, Part I demonstrates the prevalence and intractability of on-the-job physical and sexual abuse and argues that other women, as employers of domestic workers, have historically played a complex role in participating in, condoning, or failing to acknowledge …

The Customer Is Always Right… Not! Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn

Michigan Journal of Gender & Law

This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?

Brief For The Plaintiff-Appellant Lucas Rosa In The United States Court Of Appeals For The First Circuit Lucas Rosa V. Park West Bank And Trust Company On Appeal From The United States District Court For The District Of Massachusetts, Jennifer L. Levi, Mary L. Bonauto

Michigan Journal of Gender & Law

The District Court fundamentally misconceived the law as applicable to the Plaintiffs claim by concluding that there may be no relationship, as a matter of law, between telling a bank customer what to wear and sex discrimination. It also misapplied Rule 12(b)(6) to the extent that it resolved any factual questions beyond the allegations of the Complaint regarding the basis of the Bank's different treatment of the Plaintiff. Finally, because the District Court incorrectly dismissed the single federal claim in Plaintiffs Complaint, it improperly dismissed Plaintiffs pendant state claims for want of federal court jurisdiction.

Amicus Curiae Brief Of Now Legal Defense And Education Fund And Equal Rights Advocates In Support Of Plaintiff-Appellant And In Support Of Reversal In The United States Court Of Appeals For The First Curcuit Lucas Rosa V. Park West Bank And Trust Company On Appeal From The United States District Court For The District Of Massachusetts, Katherine M. Franke

Michigan Journal of Gender & Law

By dismissing the plaintiffs complaint under the Equal Credit Opportunity Act ("ECOA") on the ground that "the issue in this case is not [Rosa's] sex, but rather how he chose to dress when applying for a loan" (Bench Order at 1), the lower court erroneously established that there are no set of facts in which clothing-based sex stereotyping can form the basis of a legitimate claim of sex discrimination in access to credit. This view of the meaning and scope of the ECOA runs contrary to well-established Supreme Court precedent which prohibits, inter alia, the adverse treatment of a …

Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke

Michigan Journal of Gender & Law

In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application on …

Epilogue, Jennifer L. Levi

Michigan Journal of Gender & Law

The First Circuit reversed the district court's order dismissing Lucas Rosa's claim against Park West Bank. The appeals court's reversal seems to be part of an emerging nationwide rejection of cases from the 1970s and 1980s in which courts summarily dismissed sex discrimination claims brought by transgender plaintiffs, no matter how squarely the facts appeared to present a clear-cut case of discrimination based on sex. Creating what appeared to be a "transgender" exception to sex discrimination law, those earlier courts ignored what the First Circuit recognized here-that a bank officer who tells an applicant to go home, change, and return …

The Freedom To Marry For Same-Sex Couples: The Opening Appellate Brief Of Plaintiffs Stan Baker Et Al. In Baker Et Al. V. State Of Vermont, Mary Bonauto, Susan M. Murray, Beth Robinson

Michigan Journal of Gender & Law

As the first state to prohibit slavery by constitution, and one of the few states which, from its inception, extended the vote to male citizens who did not own land, the State of Vermont has long been at the forefront of this nation's march toward full equality for all of its citizens. In July 1997, three same-sex couples challenged Vermont to act as a leader yet again, this time in affording full civil rights to the State's gay and lesbian citizens. Stan Baker and Peter Harrigan, Nina Beck and Stacy Jolles, and Holly Puterbaugh and Lois Farnham were denied marriage …

What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner

Michigan Journal of Gender & Law

This article is aimed at the general question: whether having a woman judge would make a difference in sexual harassment cases. This article is aimed at this general question, the response to which has been elusive: Does the race, gender, or other background characteristics of a judge make a difference in the outcome of cases? The effects of diversity on the bench are just becoming measurable. Many legal scholars have assumed diversity will make a difference. While this conclusion may seem commonsensical, it is important to be able to support such assertions with actual data. The supposition has been that …

The Triumph Of Hate Speech Regulation: Why Gender Wins But Race Loses In America, Jon Gould

Michigan Journal of Gender & Law

On March 30, 1995, newspaper headlines declared that hate speech regulations were dead. After six years of litigating over university hate speech codes, Stanford University's rule, one of the most modest and cautiously drafted, had been declared unconstitutional by a California Superior Court. Hate speech regulation is far from over. To the contrary, hate speech rules not only continue to exist, but the courts regularly enforce their provisions. The difference is that these cases are largely restricted to a single category-sexual harassment. Under Title VII of the Civil Rights Act of 1964, and with the regulatory support of the Equal …

Naming The Grotesque Body In The "Nascent Jurisprudence Of Transsexualism", Richard F. Storrow

Michigan Journal of Gender & Law

After a description of an analytical framework constructed of theories drawn from the writings of Mikhail Bahktin, Roland Barthes, and Sigmund Freud, this Article discusses the discrepancies in courts' use of medical authority in cases considering the rights of transsexuals and then analyzes courts' ultimate refusal to recognize transsexuals' psychological sex. The thrust of this Article is an examination of the forces compelling such inconsistencies. The result is an analysis which interweaves medical, juridical, psychological and mythic perspectives to disclose the underpinnings of courts' antipathy toward transsexuals.