Law and Gender Commons^™

Freedom On Paper: Reforms To Women’S Rights In Saudi Arabia Will Not Be Effective Until Male Guardianship Is Abolished, Mackenzie Kramer

Brooklyn Journal of International Law

Male guardianship, a societal custom derived from Islamic law, renders women in Saudi Arabia second class citizens. The country’s preservation of male guardianship has broken its agreement to adhere to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the leading international women’s rights treaty. Throughout the past decade the country’s Crown Prince, Mohammed bin Salman al Saud (“MbS”), has issued rulings that work to slowly dismantle the apparatus of male guardianship. These developments have been both meaningful and restrained; MbS attempts to tread lightly into human rights reforms to garner the support of western allies, …

The Gospel Of Federalism: How The Deification Of Political Ideology Impedes The United States’ Abortion Law Scheme, Nicole Jakobson

Brooklyn Journal of International Law

In 2022, the United States Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which ended the federal abortion protection established under Roe v. Wade. The Court reasoned that abortion restriction is properly regulated by state governments, and thus a federal abortion law scheme is unconstitutional. In substance, the Court was safeguarding the enduring political and legal principle of federalism. This Note draws a comparison between the United States’ treatment of federalism and foreign jurisdictions’ treatment of religion within the context of abortion. This Note argues that the United States’ preoccupation with federalism is analogous to appeals to religion in …

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Washington and Lee Law Review Online

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim

BYU Law Review

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …

Reclaiming Sacred Homelands: Asserting Treaty Rights And The Path Towards Restoration Of The Badger-Two Medicine, Sarah Greenberg

American Indian Law Journal

“In order for law to have an influence in the lives of ordinary people, it must have something to do with the emotional feelings of justice, it must speak to our basic humanity, and it must give us common sense directions as to what behavior and beliefs are right and wrong"

Locating The 'Nanny' In Legal Theory, Akshat Agarwal

National Law School Journal

Paid domestic workers pose a challenge to legal theorists since they occupy the unique intersection of the market and the home. While being paid for the ‘care’ they provide, their work is characterised by a high degree of informality and is usually also considered emotive. I use India as a case study to show how attempts to include paid domestic workers within formal labour law protections have been consistently unsuccessful, which demonstrates the unique nature of paid domestic work. At the same time, academic arguments for the inclusion of such workers in family law frameworks raise several practical concerns and …

The Quick And The Dead (And The Transported), Manushag N. Powell

ABO: Interactive Journal for Women in the Arts, 1640-1830

In most nations that still execute prisoners—including the U.S.—it is illegal to execute a pregnant person. In English common law, women have been permitted to “plead the belly” in one form or another since the 14^th century, and this fact is sometimes misconstrued by anti-choice and forced-birth advocates as evidence of a long legal tradition of protection for the lives of fetuses. In fact, it is merely evidence of a long history of legal inconsistencies in the ways laws were applied and sentences carried out against women, for whom there were fewer options for clemency than for men. This …

Challenging Florida’S Parental Rights In Education Act, Aka The “Don’T Say Gay” Law: Finding Equality Through Equal Protection Doctrine, Nelson Garcia

University of Miami Race & Social Justice Law Review

No abstract provided.

Methodological Gerrymandering, David Simson

Cleveland State Law Review

The U.S. Supreme Court has come to decide many of the most consequential and contentious aspects of social policy via its interpretations of the U.S. Constitution. Institutional features of the Court create significant pressure on the Justices to justify their decisions as applications of “law” rather than the practice of “politics.” Their perceived failure to do so calls forth criticism sounding in a variety of registers—ranging from allegations of a lack of neutrality, lack of impartiality, or lack of “principle,” to allegations of opportunism, disingenuousness, and hypocrisy. Analyzing the Justices’ choices in relation to interpretational “methodology”—choosing one lens through which …

The Current State Of Abortion Law In Virginia Leaves Victims Of Domestic And Sexual Violence Vulnerable To Abuse: Why Virginia Should Codify The Right To Abortion In The State Constitution†, Courtenay Schwartz

University of Richmond Law Review

All people must have access to safe and legal reproductive health care—especially victims of sexual and domestic violence who can and do become pregnant because of the violence they experience. This year, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey in Dobbs v. Jackson Women’s Health Organization. In doing so, the Supreme Court held that the Constitution does not protect the right to an abortion. Though abortion access is currently protected in Virginia, this could change with each new General Assembly session. To guard against the danger that this poses to …

Institutional Liability For Sexual Violence In Prisons Based On Theaided-By-Agency Theory, Tori Klevan

Fordham Law Review

Sexual assault perpetrated by correctional officers in prisons and jails is a pervasive problem in women’s correctional facilities. However, victims who choose to pursue a civil action rarely recover damages for their injuries because our legal system fails to provide adequate options for relief. This failure leaves victims uncompensated and disincentivizes correctional institutions from implementing effective preventative measures. Part of the reason for this failure is that most U.S. courts refuse to hold employers liable for sexual violence committed by their employees. They find that employers cannot be held liable for the tortious conduct of their employees unless the conduct …

Don’T Say Gay Or God: How Federal Law Threatens Student Religious Rights And Fails To Protect Lgbtq Students, Stephen Mcloughlin

BYU Law Review

Federal law requires schools to protect students from discrimination based on their sexual orientation and gender identity. This protection is based on the principle that students must be free to explore their self-identity within the school environment as part of their intellectual development. Thus, schools must eliminate speech that threatens LGBTQ students based on their gender identity or sexual orientation. However, schools must also protect free speech and religious rights. Indeed, the expression of religious beliefs is also crucial to intellectual growth. Thus, schools must develop student speech policies that protect LGBTQ students from harmful speech while protecting controversial religious …

Enforcing Equity, Daiquiri J. Steele

Northwestern University Law Review

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women …

Transgender Law Center V. Ice: Ninth Circuit Rules Ice Failed To Meet Foia Requirements After Death Of Detainee, Kayla Hughes

Golden Gate University Law Review

This case summary details the decision in Transgender L. Ctr. v. Immigr. & Customs Enf’t, 46 F.4th 771 (9th Cir. 2022), in which the U.S. Court of Appeals for the Ninth Circuit analyzed whether the U.S. Immigration and Customs Enforcement Agency (ICE) had properly responded to a request for information pursuant to the Freedom of Information Act (FOIA) (5 U.S.C. § 552). The Transgender Law Center (TLC) had filed a complaint of an asylum-seeker who had died in the custody of ICE. In furtherance of its claim, TLC had submitted two FOIA requests regarding the circumstances of the complainant’s death. …

What Do We Do With You: How The United States Uses Racial-Gendered Immigrant Labor To Inform Its Immigrant Inclusion-Exclusion Cycle, Tori Delaney

University of Cincinnati Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Violation Of Transgender Prisoners: The Violent Impact Of Gender Discrimination Experienced By Incarcerated Trans People In The United States Of America, Brooklyn Jennings Mx.

Access*: Interdisciplinary Journal of Student Research and Scholarship

U.S prison reform policies such as the Prison Rape Elimination Act pacify the government and the public into believing that prisons are a less harmful place for vulnerable inmates. However, thousands of transgender inmates in the United States experience extraordinary rates of violence and discrimination for their gender identity. There are difficulties in determining exact statistics of gender-based incidents of assault due to dueling structures of legal power and questionable support from prison authorities. However, from available information, trans inmates report dehumanizing prison environments that severely impact their wellbeing. This literature draws upon the current status of incarcerated trans inmates’ …

Breast Ironing: Analyzing The Rights Of The Girl-Child In The Context Of Cameroon’S Obligation Under International Human Rights Law, Olusola Babatunde Adegbite, Olaitan Oluwaseyi Olusegun

Buffalo Human Rights Law Review

Among the various forms of sexual violence perpetrated against the girl-child, breast ironing remains largely obscured due to its underreporting. Yet thousands of girls, especially in Sub-Saharan Africa where it is most prevalent, continue to suffer in silence. These girls are not just exposed to the immediate violence of this act, but they also carry the scar of this human rights violation for life. With the scholarly focus on the practice rather scant, the necessary legal response has also been checkmated. The goal of this article is to bring international focus to this problem by examining the practice in the …

Suffering In Search Of A Methodological Frame: Interdisciplinarity In The Context Of The Gendered Impact Of Climate Migration, Becky Jacobs

William & Mary Environmental Law and Policy Review

In this essay, the author places the gendered impact of climate migration within the methodological frame of scholars such as geographers Sylvia Winters and Doreen Massey, historian Achille Mbembe, philosopher Gilles Deleuze, philosopher and psychoanalyst Félix Guattari, and anthropologist Tim Ingold. The author discusses the importance of interdisciplinarity and describes the gender-specific risks related to climate displacement before delving into theory.

Exploring The African Regional Human Rights Standards As The Basis For An Enabling Environment For Self-Managed Abortion, Lucia Berro Pizzarossa, Michelle Maziwisa, Ebenezer Durojaye

Washington and Lee Journal of Civil Rights and Social Justice

Self-managed abortion holds great promise to save lives and promote reproductive autonomy, particularly in Africa. Indeed, the African region records very high numbers of unsafe abortions, and the burden of abortion-related mortality is the highest globally. Abortion remains generally criminalized in violation of numerous internationally and regionally recognized human rights standards. The advent of abortion medicines and the increased grassroots energy geared towards curbing the harms of unsafe abortion evince medical abortion holds great promise for revolutionizing people’s access to high-quality reproductive care. This study discusses regional human rights frameworks, policy, case law, and a few representative domestic legislative frameworks …

A Miscarriage Of Justice: How Femtech Apps And Fog Data Evade Fourth Amendment Privacy Protections, Rachel Silver

Washington and Lee Journal of Civil Rights and Social Justice

After the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog …

Dobbs' Sex Equality Troubles, Marc Spindelman

William & Mary Bill of Rights Journal

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social …

Connecting Nuclear Security To International Frameworks On Gender And Security, Kathleen A. Doty, Jessica S. Burniske

International Journal of Nuclear Security

The international community is slowly beginning to recognize the intersections between law and policy as it relates to international security—particularly arms control, nonproliferation, and disarmament—and the body of human rights law that addresses gender equality. Notably absent from this discussion is the field of nuclear security. Despite its historical underpinnings as an inherently domestic activity, nuclear security is thoroughly grounded in international treaty law. However, nuclear security is often overlooked in the international security context and has not been well-situated in international instruments that address gender equality. We argue that gender equality in nuclear security should be understood as an …

Title Seven Ate Nine? Extending Bostock's Meaning Of "Sex" From Title Vii To Title Ix, Julia L. Shea

St. John's Law Review

(Excerpt)

When JayCee Cooper walked out onto the platform at a women’s powerlifting competition for the first time, “everything else fell away: her years-long internal struggle over her gender identity, her decision to leave men’s sports when she began transitioning, her doubts that she would ever feel safe if she returned to competitions.” Powerlifting was JayCee’s way of feeling empowered in her own life, but after signing up for more competitions, she was told she could no longer compete because of a discriminatory policy that barred transgender women. Transgender athletes play sports for the same reasons as anyone else, including …

Staff Matters: Supporting Employees After A Maternity Leave, Jodi Schafer Sphr, Shrm-Scp

The Journal of the Michigan Dental Association

This article reviews federal law regarding employer obligations to new mothers, including the Fair Labor Standards Act and the Providing Urgent Maternal Protections for Nursing Mothers Act. The article contains suggestions for ways to support new mothers returning to work in a practice. This article is an installment of the MDA Journal’s monthly Staff Matters^® department.

Sexual Orientation At The Crossroads, Johan D. Van Der Vyver

Marquette Benefits and Social Welfare Law Review

The decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the …

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …

A Not-So Turkish Delight: The Implications Of Turkey’S Unprecedented Withdrawal From A Groundbreaking Women’S Rights Treaty And The Need For International Reform, Allyssa Myers

Brooklyn Journal of International Law

Domestic violence against women is one of the most pervasive and pressing international issues of our time. There have been multiple international human rights treaties enacted to address this issue and move to end gender-based violence—the Council of Europe Convention on Preventing and Combatting Violence Against Women and Domestic Violence (Istanbul Convention) being one. Created in 2011, the Istanbul Convention sought to provide an international legal framework for how states should work toward eradicating gender-based violence. Turkey, the first country to sign and to subsequently ratify the Istanbul Convention, unprecedently withdrew from the Convention in 2021. Turkish President Recep Tayyip …

Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan

Northwestern University Law Review

Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive …

Introduction, Stephanie Durr

Mississippi College Law Review

The 2022 Mississippi College Law Review Symposium celebrated the 50th Anniversary of the Passage of Title IX. With the benefit of hindsight, the Symposium critically examined Title IX and its progeny, analyzing the benefits and the downfalls over the past fifty years. The 2022 Symposium celebrated Title IX for its accomplishments in eliminating sex-based discrimination in educational institutions but refused to let previous accomplishments overshadow the still-existing gender inequality. While history allows celebration, advocacy demands a commitment to work toward solutions for the persisting inequality. Armed with this intention, the Mississippi College Law Review set out to provide a forum …