Civil Rights and Discrimination Commons^™

Pregnancy And The Carceral State, Khiara M. Bridges

Michigan Law Review

A Review of Policing the Womb: Invisible Women and the Criminalization of Motherhood. by Michele Goodwin.

The Scales Of Reproductive Justice: Casey’S Failure To Rebalance Liberty Interests In The Racially Disparate State Of Maternal Medicine, Mallori D. Thompson

Michigan Journal of Race and Law

Despite the maternal medicine crisis in the U.S., especially for Black women, legislatures are challenging constitutional abortion doctrine and forcing women to interact with a system that may cost them their lives. This Article proposes that because of abysmal maternal mortality rates and the arbitrary nature of most abortion restrictions, the right to choose an abortion is embedded in our Fourteenth Amendment right to not be arbitrarily deprived of life by the State. This Article is a call to abortion advocates to begin submitting state maternal mortality data when challenging abortion restrictions. The call for attention to life was central …

“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 …

Medical Violence, Obstetric Racism, And The Limits Of Informed Consent For Black Women, Colleen Campbell

Michigan Journal of Race and Law

This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic …

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 …

This Is What Democracy Looks Like: Title Ix And The Legitimacy Of The Administrative State, Samuel R. Bagentos

Michigan Law Review

Review of R. Shep Melnick's The Transformation of Title IX: Regulating Gender Equality in Education.

Redefining Reproductive Rights And Justice, Leah Litman

Michigan Law Review

Review of Reproductive Rights and Justice Stories edited by Melissa Murray, Katherine Shaw, and Reva B. Siegel.

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 …

This We’Ll Defend: Expanding Ucmj Article 2 Subject Matter Jurisdiction As A Response To Nonconsensual Distribution Of Illicit Photographs, Nicholas Karp

University of Michigan Journal of Law Reform

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent.

Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, …

Transparenthood, Sonia K. Katyal, Ilona M. Turner

Michigan Law Review

Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or …

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 …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Michigan Journal of Race and Law

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

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 …

The Fourth Trimester, Saru M. Matambanadzo

University of Michigan Journal of Law Reform

This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands …

It's Critical: Legal Participatory Action Research, Emily M.S. Houh, Kristin Kalsen

Michigan Journal of Race and Law

This Article introduces a method of research that we term “legal participatory action research” or “legal PAR” as a way for legal scholars and activists to put various strands of critical legal theory into practice. Specifically, through the lens of legal PAR, this Article contributes to a rapidly developing legal literature on the “fringe economy” that comprises “alternative lending services” and products, including but not limited to pawnshops, check cashers, payday lenders, direct deposit loans, (tax) refund anticipation loans, and car title loans. As importantly, this article also contributes to the related fields of critical race theory, feminist legal theory, …

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …

Tyrone Garner's Lawrence V. Texas, Marc Spindelman

Michigan Law Review

Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas has been roundly greeted with well-earned praise. After exploring the book's understanding of Lawrence v. Texas as a great civil rights victory for lesbian and gay rights, this Review offers an alternative perspective on the case. Built from facts about the background of the case that the book supplies, and organized in particular around the story that the book tells about Tyrone Garner and his life, this alternative perspective on Lawrence explores and assesses some of what the decision may mean not only for sexual orientation equality but also for …

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 …

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Michigan Law Review

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, landmark marriage-equality victories in a few states suggest that the law is …

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 …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Making Room For Sexual Orientation And Gender Identity In International Human Rights Law: An Introduction To The Yogyakarta Principles, David Brown

Michigan Journal of International Law

This Note evaluates the Yogyakarta Principles' legal and inspirational capacity to drive the development of human rights law. Part I describes the most common patterns of violence and discrimination suffered around the world on account of sexual orientation and gender identity, and the process by which the Principles' drafters sought to apply principles of international law to stem these outrages by developing a restatement of international human rights law that would leave no doubt as to their illegality. Part II assesses the Principles' claim to accuracy as a restatement of existing, binding international law. It shows that the most basic …

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; …