Law and Gender Commons^™

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

Revitalizing The Ban On Conversion Therapy: An Affirmation Of The Constitutionality Of Conversion Therapy Bans, Logan Kline

University of Cincinnati Law Review

No abstract provided.

The Haunting Of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape, Jordan S. Miceli

Washington and Lee Law Review Online

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction …

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

Notre Dame Law Review

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, …

Corporations Without Representation: The Constitutionality Of Gender Diversity Mandates, Talley Ransil

Utah Law Review

Biases and structural barriers contribute to the glacial pace at which women are represented on corporate boards. Even though companies with at least one female board of director outperform companies with no female directors, women only held 20% of board of director positions in 2019. Companies nationwide would not reach gender equality in the boardroom for decades without legally enforceable gender diversity requirements. In response, California Senator Jackson proposed SB 826—requiring California-based publicly held corporations to include at least one woman on their board of directors. However, conservative legal organizations filed lawsuits claiming California’s gender diversity mandate violates the California …

Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace

Northwestern University Law Review

Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and …

Failed Interventions: Domestic Violence, Human Trafficking, And The Criminalization Of Survival, Alaina Richert

Michigan Law Review

Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant’s history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements …

The Dangers Of Doxing And Swatting: Why Texas Should Criminalize These Malicious Forms Of Cyberharassment, Hannah Mery

St. Mary's Law Journal

Abstract forthcoming.

In Honor Of Professor Bonita K. Roberts, Linda L. Schlueter, Faye M. Bracey

St. Mary's Law Journal

A tribute to Professor Bonita K. Roberts of St. Mary's University School of Law.

Professor Bonita K. Roberts—A Colleague And A “Conscience”, Victoria Mather

St. Mary's Law Journal

A tribute to Bonita K. Roberts, a professor at St. Mary's University School of Law.

Overcoming Obstacles To Reentry Panel, Mackenzie Hobbs

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Rose Lecture, Mackenzie Hobbs

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Front Matter, Mackenzie Hobbs

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Man Camps And Bad Men: Litigating Violence Against American Indian Women, Ana Condes

Northwestern University Law Review

The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.

This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation …

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan

Northwestern Journal of Law & Social Policy

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.

This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the …

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver …

Shifting Antitrust Laws And Regulations In The Wake Of Hospital Mergers: Taking The Focus Off Of Elective Markets And Centering Health Care, Maya Inka Ureño-Dembar

Brooklyn Law Review

Access to health care requires access to a care center and access to comprehensive health care services. Rampant hospital mergers are uniquely poised to reduce both the number of hospitals, requiring patients to travel further, and the services provided within a newly merged hospital, namely reproductive health services. This phenomenon is clearly seen through the merging of secular and nonsecular hospitals, which often result in patients being forced to travel much further for reproductive health care. In the United States’ current model, health care is not a right, but is treated as a commodity. As such, it is governed by …

Constructing The Yellow Brick Road: Preventing Discrimination In Financial Services Against The Lgbtq+ Community, Cyrus Mostaghim

Michigan Business & Entrepreneurial Law Review

The Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (“LGBTQ+”) community lacks explicit statutory protections from discrimination in financial services. After the Supreme Court held in Bostock that employment discrimination based on sexual orientation or gender identity was illegal, the Consumer Financial Protection Bureau (CFPB) issued an informal interpretive rule for the Equal Credit Opportunity Act (ECOA) and Regulation B that made discrimination in the access to credit based on sexual orientation or gender identity illegal.

However, this article argues that an informal interpretive rule is easily rescinded and does not provide sufficient protection. Thus, alternative action is needed to create …

“That Name Is Dead To Me”: Reforming Name Change Laws To Protect Transgender And Nonbinary Youth, Sarah Steadman

University of Michigan Journal of Law Reform

Content warning: this Article discusses suicidality.

For transgender and some nonbinary youth, living under a chosen name is a first step toward becoming their authentic selves. For these youth, a name change is powerful; it allows them to choose a name that matches their gender identity. They consider their birth name to be a distressing “dead” name—one that they cannot relate to and need to bury.

Using one’s chosen name decreases suicidality among transgender youth who face many challenges, including family rejection and other severe mental health stressors. Transgender and nonbinary youth can only require others to use their chosen …

The End “Goal” To The U.S. Women’S Soccer Team Equal Pay Lawsuit: Proposing A Resolution For Gender Equality By Examining The Equal Pay Laws For Male And Female Sports, Veronica Adams

University of Miami Business Law Review

In March 2019, on International Women’s Day, 28 women on the U.S. Women’s Soccer Team filed a lawsuit against The U.S. Soccer Federation claiming gender discrimination, specifically in unequal payment between the men’s team and the women’s team. Players based the lawsuit on two grounds: (1) that U.S. Soccer violated the Equal Pay Act by paying the WNT less than the MNT; and (2) that the federation discriminated against the WNT under Title VII of the Civil Rights Act in regard to workplace conditions. The Federation claims that the men and women are paid equally and the discrepancy in pay …

Working While Mothering During The Pandemic And Beyond, Nicole Buonocore Porter

Washington and Lee Law Review Online

Although combining work and family has never been easy for women, working while mothering during the pandemic was close to impossible. When COVID-19 caused most workplaces to shut down, many women were laid off. But many women were forced to work from home alongside their children, who could not attend daycare or school. Mothers tried valiantly to combine a full day’s work on top of caring for young children and helping school-aged children with remote school. But many found this balance difficult, leading to women’s lowest workforce participation rate in over forty years. And even women who did not quit …

Legal Barriers To Tribal Jurisdiction Over Violence Against Women In Maine: Developments And Paths Forward, Nina J. Ciffolillo

Maine Law Review

After claiming title to the land now widely known as the United States, colonizers and settlers imposed a legal system that denies Indigenous nations agency. The United States government has launched a steady attack on attributes of Tribal sovereignty since its inception. The sexism entangled with colonialism encourages violence against women, and limitations on Tribal jurisdiction leave Indigenous nations without adequate recourse for violence against women on their land. Violence against women has become an epidemic in Indian Country, and most aggressors come from outside the territory. In 2013 when Congress granted tribes limited criminal jurisdiction over nonmembers on Tribal …

The Powers Of The Inter-American Court Of Human Rights Towards The Implementation Of Gender Justice Laws At The National Level In South America, Kiana Therrien-Tomas Miss

Bridges: An Undergraduate Journal of Contemporary Connections

Although South America is earning international attention as an innovative global leader in various fields, it currently remains a nation steeped in traditional beliefs and practices. Despite prevailing laws against domestic violence, countless Latin American women proceed to be failed by the legal system. As South American society produces its own theory of gender justice, apprised by local realities and universally accepted norms, women's rights advocates and the Supreme Court can represent a decisive role in forming the discourse. Throughout this work, I aim to contemplate the powers of the Inter-American Court of Human Rights (IACHR) towards the implementation of …

Sexual Harassment: A Doctrinal Examination Of The Law, An Empirical Examination Of Employer Liability, And A Question About Ndas— Because Complex Problems Do Not Have Simple Solutions, Michael Heise, David S. Sherwyn

Indiana Law Journal

The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia Sawicki

Indiana Law Journal

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article …

Deportation And Depravity: Does Failure To Register As A Sex Offender Involve Moral Turpitude?, Rosa Nielsen

Washington and Lee Law Review

Under U.S. immigration law, non-citizens are subject to deportation following certain criminal convictions. One deportation category is for “crimes involving moral turpitude,” or CIMTs. This category usually refers to crimes that involve fraud or actions seen as particularly depraved. For example, tax evasion and spousal abuse are CIMTs, but simple assault generally is not. For a crime to qualify as a CIMT, it must include depraved conduct and some level of intent.

The CIMT framework has been criticized for a variety of reasons. Not only is it defined ambiguously with outdated language, but the moral values it enshrines can sometimes …

Mommy, Baby And Rapist Makes Three? Amid Abortion Bans, The Pressing Need For A Nationwide Lower Standard To Strip Parental Rights, Regardless Of A Rape Conviction, Melanie Dostis

William & Mary Journal of Race, Gender, and Social Justice

Among the fundamental rights recognized in the Constitution are the rights of parents to raise their children. While never interpreted as an absolute legal privilege, courts have exercised wide discretion in preserving this right and historically ignored the reality that not all parents are deserving of this right. Even though the family law system has protections in place to terminate parental rights for atrocities like abuse, it largely neglects an uncomfortable area of parental origin: parental rights regarding children conceived by rape. This is not only to the detriment of children, but, as this Note argues, at the peril of …

Taking The Lead: A Strategic Analysis Of Stealthing And The Best Route For Potential Civil Plaintiffs To Recover, Mckenney Cornett

William & Mary Journal of Race, Gender, and Social Justice

A pervasive trend invading the sexual interactions between men and women, and homosexual men, is “stealthing” or “nonconsensual condom removal.” Stealthing garnered national and legal attention following Alexandra Brodsky’s article and study concerning the practice published in 2017. A typical stealthing case involves an initial, consensual sexual relationship between two parties predicated on the use of contraception. During the act, the partner removes the condom without the knowledge or consent of their sexual partner.

Despite its widespread impact, there has yet to be a criminal or civil case concerning nonconsensual condom removal brought in the United States, and the legislature …

Increasing Accountability For Rape In Liberia: The Need For A Forensic System To Increase The Success Rates Of Prosecution, Pela Boker Wilson

William & Mary Journal of Race, Gender, and Social Justice

The need for a fully functioning forensic system has been identified by the Liberian government and international partners, but it has not been addressed. This Article argues that despite a robust framework put in place to create accountability for rape, Liberia needs a system of collecting and processing forensic evidence to increase the success rate of prosecutions that currently fail due to the inadequacy of non-forensic evidence.