Law Commons^™

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld, Emily Gold Waldman

Michigan Journal of Gender & Law

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist, or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal …

Getting To Equal: Resolving The Judicial Impasse On The Weight Of Non-Monetary Contribution In Kenya's Marital Asset Division, Benedeta Prudence Mutiso

Michigan Journal of Gender & Law

Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, …

Baring Inequality: Revisiting The Legalization Debate Through The Lens Of Strippers' Rights, Sheerine Alemzadeh

Michigan Journal of Gender & Law

The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if …

Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen

Michigan Journal of Gender & Law

In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

Civil Marriage: Threat To Democracy, Jessica Knouse

Michigan Journal of Gender & Law

This Article argues that civil marriage and democracy are inherently incompatible, whether assessed from a transcultural perspective that reduces them to their most universal aspects or a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than selfdetermining based on their own preferences; they effectively deprive their citizens of equality by establishing insidious status …

The Devil Comes To Kansas: A Story Of Free Love, Sexual Privacy, And The Law, Charles J. Reid Jr.

Michigan Journal of Gender & Law

On Sunday, September 19, 1886, Moses Harman, the editor of the radical newspaper Lucifer the Light-Bearer, presided over an inherently contradictory event-a free-love marriage ceremony between his associate editor, the thirty-seven-year-old Edwin Walker, and Moses' own daughter, the sixteen-year-old Lillian. The case that the two Harmans and Walker wished to present aimed to transform marriage from a public to a private relationship and from a permanent and exclusive one to a temporary one that permitted potentially many partners. State v. Walker and its parties have received some scholarly notice, but the truly radical quality of the arguments Moses, Edwin, and …

Against The New Maternalism, Naomi Mezey, Cornelia T. L. Pillard

Michigan Journal of Gender & Law

Parenting is a major preoccupation in law and culture. As a result of efforts of the American women's movement over the past forty years, the legal parent is, for the first time in history, sex-neutral. Our law has abandoned restrictions on women's education, employment, and civic participation that sprang from and reinforced beliefs about the primacy of motherhood as women's best destiny. On the flip side, U.S. law now also generally rejects formal constraints on men's family roles by requiring sex-neutrality of laws regulating custody, adoption, alimony, spousal benefits, and the like. The official de-linking of presumptive parenting roles from …

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 …

Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ni Aolain

Michigan Journal of Gender & Law

The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from the devastating consequences of humanitarian emergencies. There is also recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are overrepresented in the refugee and internally displaced communities that typically result from many humanitarian crises. Women bear acute care responsibilities in most societies and also disproportionately bear familial and communal care responsibilities in communities …

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.

Taxing Civil Rights Gains, Anthony C. Infanti

Michigan Journal of Gender & Law

This Article is divided into four parts. In Part I, the nature of the levy that the DOMAs impose on same-sex couples is explained. In Part II, how this levy can be classified as a "tax" is explained. In Part III, the federal- and state-level ramifications of classifying the levy that the DOMAs impose as a "tax" are discussed. Finally, brief concluding remarks are provided that discuss how this Article might pave the way for making similar arguments with respect to other nontraditional families and, concomitantly, how it demonstrates the transformative potential of same-sex marriage.

Passions We Like… And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan

Michigan Journal of Gender & Law

This Article proceeds as follows. In Part II, the author catalogs the history of anti-gay hate crime laws in the United States, describing the rapid spread of state-level laws extending race- and religion-based hate crime laws to LGB people. The Article also provides an overview of federal legislation addressing anti-gay hate crime. In Part III, it examines the policy environment within which anti-gay hate crime laws have been, and continue to be, considered. Specifically, the jurisprudential frameworks that shape, define, and constrain discourses of equality, rights, and social identity are analyzed. The argument is made that the policy environment of …

The Gay Agenda, Libby Adler

Michigan Journal of Gender & Law

This Article is designed to illuminate options that the author believes have been difficult for advocates of gay rights to imagine due to an incessant culture war and the hard work of anti-gay forces that have kept pro-gay advocates under persistent fire. The culture war, this paper argues, while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run.

"Just" Married?: Same-Sex Marriage And A Hustory Of Family Plurality, Judith E. Koons

Michigan Journal of Gender & Law

To contribute to a full moral deliberation about same-sex marriage, this Article inquires into the meanings of marriage, sexuality, and family from historical and narrative perspectives that are situated at the intersection of religious and political domains.

Hands Off Policy: Equal Protection And The Contact Sports Exemption Of Title Ix, Jamal Greene

Michigan Journal of Gender & Law

The disparity between what the Constitution permits of public schools and what Title IX permits of private ones is unquestionably stark. This Article calls this disparity into question. First, it asks under what circumstances, if any, allowance for sex discrimination in athletics may be justified under constitutional standards. Then, it considers the practical relevance of the disparity between how a school may lawfully discriminate under Title IX and how it may do so under the Equal Protection Clause. Finally, it offers a prescription for bringing into balance the gender equity messages sent by Title IX and the Constitution.

Domestic Violence And The Jewish Community, Stacey A. Guthartz

Michigan Journal of Gender & Law

In Part I of this Article, Guthartz defines the problem of domestic violence as it relates to the Jewish community. Specifically, Jewish texts and history and community understanding and exposure, that contribute to Jewish domestic abuse are examined. In Part II, the author explores Jewish solutions to domestic violence by focusing on religious remedies, community pressure, and the use of civil law. In this Article, it is submitted that it is only through an understanding of the uniqueness of "Jewish" domestic violence by domestic violence and law enforcement organizations, coupled with an understanding about domestic violence within American society by …

Restructuring The Marital Bedroom: The Role Of The Privacy Doctrine In Advocating The Legalization Of Same-Sex Marriage, Nadine A. Gartner

Michigan Journal of Gender & Law

Part I of this paper examines the reasons underlying queer rights advocates' reluctance to insert privacy arguments into the case for legalizing same-sex marriage. Part II illustrates that, due to such disinclination, advocates transformed notions of privacy into concepts of liberty. Part III argues that, after the Lawrence decision, proponents of same-sex marriage can and should use privacy-based arguments to fortify their claims.

Feminist Voices In The Debate Over Single-Sex Schooling: Finding Common Ground, Rosemary C. Salomone

Michigan Journal of Gender & Law

This article examines the deep divide within feminist ranks with an eye toward proposing a constructive and essential role for feminist understandings as single-sex schooling inches its way toward legal acceptability and into the mainstream of educational reform. In doing so, the forces that have shaped competing perspectives on women's equality are examined, especially disagreements over sameness and difference. In the end the article looks to the Court's decision in United States v. Virginia as a road map for feminists to follow in reaching common ground on the approach, despite seemingly profound ideological differences among them.

The Use Of Human Rights Discourse To Secure Women's Interests: Critical Analysis Of The Implications, Renu Mandhane

Michigan Journal of Gender & Law

This article highlights the significant theoretical constraints of universalism, the tendency of human rights advocates to ignore the underlying cause of rights violations, as well as problems associated with the concept of and informal hierarchy between rights. The article suggests that there are certain circumstances in which INGOs that rely primarily on human rights language in their advocacy efforts may wish to supplement their analysis with explicit reference to feminist legal theory in order to more effectively secure women's interests globally. These ideas will be developed with ongoing reference to the recent and successful campaign initiated by Nepali women to …

The Marriage Dower: Essential Guarantor Of Women's Rights In The West Bank And Gaza Strip, Heather Jacobson

Michigan Journal of Gender & Law

This Article evaluates the impact that eliminating or reducing the marriage dower would have on the well-being of Muslim women in the West Bank and Gaza Strip. Although Palestinian women's rights organizations seek to eliminate dower on the grounds that it is a "burdensome custom" that is "inconsistent with the intifada's stated goal of improving women's status," in fact, the interaction between dower and other laws relating to marriage and divorce is such that the majority of women would be materially harmed by its discontinuance. Therefore, while the movement to eliminate dower may benefit the financially secure upper class women …

Does Ec Pregnancy And Maternity Legislation Create Equal Opportunities For Women In The Ec Labor Market? The European Court Of Justice's Interpretation Of The Ec Pregnancy Directive In Boyle And Lewen, Petra Foubert

Michigan Journal of Gender & Law

This article discusses the EC's legal accommodation of pregnancy in the workplace and the interpretation thereof by the European Court of Justice. The leitmotiv is the question to what extent such accommodation enhances women's position in the labor market. The suspicion being that, in a well-intentioned attempt to fight discrimination of women, the EC institutions entrench gender discrimination. In other words, in their attempt to fight sex discrimination (by accommodating pregnancy), the EC often places women in a position that confirms the traditional perception of women as childbearers and caregivers.

United Nations Convention Documents In Light Of Feminist Theory, R. Christopher Preston, Ronald Z. Ahrens

Michigan Journal of Gender & Law

This article proposes that language identifying human rights of women in U.N. Conference documents has its origin in several different feminist theories. An understanding of these theories can help to clarify meaning, resolve inconsistencies, and predict the future direction of language in U.N. documents. Part I examines three prominent feminist theories and their relation to international law. Part II examines the history of women's rights in U.N. documents and examines the influence of feminist theory on the document language. Using the Women and the Economy section of the Fourth World Conference on Women, Platform for Action (Platform for Action), Part …

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 …

Foundations For 15(1): Equality Rights In Canada, Martha A. Mccarthy, Joanna L. Radbord

Michigan Journal of Gender & Law

The paper discusses a selection of important cases under section 15 of the Canadian Charter of Rights and Freedoms. It traces the development of equality jurisprudence from the introduction of section 15 to early approaches in Andrews, Hess, Weatherall, Symes, and McKinney. This review illustrates the persistence of formal equality analysis and the threats of biology, morality, and tradition to the realization of substantive equality. The May 25, 1995, trilogy of Egan, Miron, and Thibaudeau is critiqued in detail. Finally, we turn to more recent jurisprudence and offer a brief discussion of M. v. H.

Bisexual Jurisprudence: A Tripolar Approach To Law And Society, Rachel Haynes

Michigan Journal of Gender & Law

Part I of this Review will briefly assess the principal arguments in Colker's book. In Part II, Colker's book will be situated within the larger currents of the discussion concerning bisexuality and the arguments for a bisexual jurisprudence. Part III critiques Colker's concept of a bisexual jurisprudence as applied to sexual hybrids from the standpoint of an identity, as well as a legal, skeptic. Part IV will sketch out some important implications for the advancement of a bisexual jurisprudence as well as question the need for a bisexual jurisprudence. This review concludes that the addition of a bisexual jurisprudence, like …

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 …

The Marriage Mirage: The Personal And Social Indentity Implications Of Same-Gendered Matrimony, Linda S. Eckols

Michigan Journal of Gender & Law

This Article will examine why so much is at stake in the political, social, and legal debate over same-gender marriage. It will not address the constitutional questions of whether there is a fundamental right to marry, although persuasive arguments have been advanced from both sides of the debate." This Article will focus on a more introspective view of the potential effects of legalizing same-gender marriage on the identities of gay men and lesbians in committed relationships and on the interaction between same-gender couples and society. Marriage would provide the integration sought by gay men and lesbians, but at the expense …

Assesing The Family And Medical Leave Act In Terms Of Gender Equality, Work/Family Balance, And The Needs Of Children, Angie K. Young

Michigan Journal of Gender & Law

While recognizing that parental leave is only one aspect of the FMLA, this Article concentrates on the provision allowing leave to parents in order to care for their children. Before analyzing the FMLA in detail, it is helpful to explore what aims a parental-leave policy should have. The purpose of this Article is to propose and defend three goals that parental-leave legislation should strive to meet: equality of career opportunities for men and women, the right to participate in both work and family, and meeting the needs of children. After articulating what parental-leave legislation should aim for in theory, this …