Law and Gender Commons^™

Introduction To The Symposium Issue Sexuality And Gender Law: The Difference A Field Makes, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

For a very long time, issues of sexuality and gender remained outside the boundaries of what was considered important legal scholarship. Indeed, the very presence in the legal academy of the concepts of sexuality and gender was viewed as barely legitimate, certainly not respectable, and, in intellectual terms, at best facetious-or, to let Justice White rest in peace, at best frivolous.

One result of this now dying worldview was a series of categorical exclusions and erasures-exemplified by the exclusion of sexual speech from the First Amendment, the exclusion of nonreproductive kinship networks from the definition of family, the exclusion of …

Using Law And Education To Make Human Rights Real In Women’S Real Lives, Nancy Chi Cantalupo

Georgetown Law Faculty Publications and Other Works

Three courses involving gender, human rights and global laws that the author teaches to two different groups (women’s/gender studies and international affairs undergraduates; and law students) demonstrate methods of making international human rights law and principles real to women’s real lives, as both an educational and activist project. By focusing on the linkages between “thinking globally” and “acting locally” in the area of gender and human rights, these courses suggest some ways of to educate and encourage students to actualize human rights laws and principles in their own communities and lives. The topics, methods and materials used in these courses …

Sex In And Out Of Intimacy, Laura A. Rosenbury, Jennifer E. Rothman

UF Law Faculty Publications

The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, most often marriage and procreation. Although Lawrence v. Texas altered some aspects of that vision, it reinscribed others by suggesting that sexual activity should be protected from state interference only …

The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet

All Faculty Publications

In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. This change was motivated, in part, by several high profile cases of internet “luring” of younger teenagers. This article considers whether raising the age of consent has had any benefits. It begins by discussing the history and development of age of consent laws in Canada. The justification for a statutory age of consent has shifted from one based on the age at which a girl is deemed to be sexually available to one based on her capacity to give …

Forced Marriage As A Harm In Domestic And International Law, Catherine Dauvergne, Jenni Millbank

All Faculty Publications

This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages …

Forced Marriage And The Exoticization Of Gendered Harms In United States Asylum Law, Jenni Millbank, Catherine Dauvergne

All Faculty Publications

While claims of forced marriage or pressure to marry represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. This paper presents results from our study of 168 refugee decisions from Australia, Canada, the United Kingdom and the United States where part of the claim for refugee protection concerned actual or threatened forced marriage. In the present discussion, we highlight our findings from …

Close Encounters Of Three Kinds: On Teaching Dominance Feminism And Intersectionality, Kimberlé W. Crenshaw

Faculty Scholarship

I am pleased to be a part of this symposium honoring Catharine MacKinnon's groundbreaking work as a feminist theorist, legal advocate, and global activist. This invitation not only presents the opportunity to examine the interface between dominance theory and intersectionality, but also the occasion to delve further into the vexed rhetorical politics surrounding feminism and antiracism.

By now the fact that there has been a contested relationship between antiracism and feminism is almost axiomatic.1 Yet as with most things that have become matters of common knowledge, there is a risk that generalizations can metastasize into hardened conclusions that obscure rather …

Penetrating The Silence In Sierra Leone: A Blueprint For The Eradication Of Female Genital Mutilation, Chi Adanna Mgbako, Meghna Saxena, Anna Cave, Nasim Farjad, Helen Shin

Faculty Scholarship

The African grassroots movement to eradicate female genital mutilation (also known as “female genital cutting” and “female circumcision,” hereinafter “FGM”) is widespread. While many African countries and grassroots organizations have made great strides in their efforts to eliminate FGM, Sierra Leone lags behind. In Sierra Leone, FGM is practiced within the bondo secret society, an ancient, all-female commune located in West Africa and also known as the sande. The bondo society’s traditional role was to direct girls’ rites of passage into adulthood. In order to become a member of the bondo, a girl or woman must undergo various rituals, the …

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens, Berta E. Hernández-Truyol, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

Eve Sedgwick, Civil Rights, And Perversion, Katherine M. Franke

Faculty Scholarship

It is hard to imagine where queer theory would be without Eve Sedgwick. Indeed, I can't imagine where my own thinking would be had it not been informed, enriched, challenged, repulsed, and seduced by Sedgwick's writing. Between Men: English Literature and Male Homosocial Desire and The Epistemology of the Closet, the early work, gave me the tools to think about the fundamental landscapes of my intellectual world in ways that decoupled and reconfigured the binaries of male/ female, heterosexual/homosexual, friend/lover, and public/private. Sedgwick gave us the idea of homosociality and a critique of identity and identification that exploded the …

Probable Cause From Probable Bonds: A Genetic Tattle Tale Based On Familial Dna, Jessica D. Gabel

UC Law SF Journal on Gender and Justice

DNA represents the "gold standard" of evidence that solves crimes and obtains convictions. Law enforcement agencies increasingly turn to national and local DNA databanks to generate possible suspects. These searches may "hit" upon databank samples that only partially match the DNA left at a crime scene. The value in a partial match is that it might identify a relative of the perpetrator. Some states have embraced this technique - called familial DNA testing - as a harmless additive to traditional or routine investigatory methods, but at least one state has explicitly banned its use. This Article examines the scientific, legal, …

Disrupting Sexual Categories Of Intimate Preference, Luke A. Boso

UC Law SF Journal on Gender and Justice

The Article first explores what "discrimination" in the intimate realm may mean, and it discusses the ineffective application of traditional legal antidiscrimination measures in favor of Professor Vicki Shultz's "disruption" model. The disruption model looks at institutional practices rather than individual intent, explaining that discrimination occurs when institutions create differential categories and apply hierarchical meanings to those categories. The Article then critically examines "sexual orientation" as an incoherent and oppressive social construct in need of disruption. Finally, the Article demonstrates the ways in which the law has created rigidly defined categories of sex, gender, and sexual identity (all inextricable components …

Poems By Richard Krech, Richard Krech

UC Law SF Journal on Gender and Justice

No abstract provided.

All Carrots And No Sticks: Moving Beyond The Misapplication Of Burlington Industries, Inc. V. Ellerth, E. Jacob Lindstrom

UC Law SF Journal on Gender and Justice

In pair of 1998 cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the U.S. Supreme Court crafted a new framework for employer liability in sexual harassment cases. Thenceforth, employers were to be strictly liable for the harassment of employees by supervisors, but employers would also be able to employ an affirmative defense if (a) the employer acted reasonably in preventing and correcting harassment and (b) the employee acted unreasonably in avoiding or stopping the harassment. The Court marketed this new framework as a compromise between the competing values of eliminating harassment (hence, strict liability) and …

Still Pioneers: Special Social And Economic Hardships For Elderly Gays And Lesbians, Annick Persinger

UC Law SF Journal on Gender and Justice

This Note will first discuss the social factors that make accessing retirement and support services problematic for lesbian and gay elders, such as ageism in the gay and lesbian community and heterosexual-focused retirement institutions. Part II will investigate how federal law and policy affects lesbian and gay elders' ability to obtain health care benefits and save for retirement. Part III will examine state and municipal solutions for same-sex couples, in the face of federal discrimination. Part IV will illustrate the necessity of acquiring an attorney because of the challenges in preparing for a lesbian or gay elder's incompetence, and the …

Use Of Female Interrogators: The Analysis Of Sexualized Interrogations The Detainee Interrogation Working Group Did Not Conduct, Celia Rumann

UC Law SF Journal on Gender and Justice

In the years following the Abu Ghraib scandal, it has become apparent that Lynndie England was punished for the crime of providing the world with photographic evidence of a government policy of using sexuality as a weapon of war. Ms. England's actions were not, as has been asserted, borne of whole cloth out of the sexually deviant minds of young soldiers bent on exploiting prisoners for their own amusement. Rather, they embodied the arguably extreme end of the systematic work of the United States government to engage in sexually deviant exploitation of prisoners purportedly for the collective safety and well-being …

Am I That Race - Punjabi Mexicans And Hybrid Sensitivity, Or How To Do Theory So That It Doesn't Do You, Faljuni A. Sheth

UC Law SF Journal on Gender and Justice

This paper explores the conceptual and racial status of "Punjabi Mexicans" at the turn of the twentieth century. In the literature, this group appears to be a "given," i.e., it is portrayed as a coherent identity that emerges from a simple set of circumstances. Yet, it is anything but a given; its existence and its collective and individual consciousness is created out of a complex nexus of legal, political, social, and natural environments that spurred the migration of East-Indian men and Mexican women from their homelands and to their adopted lands. By understanding human beings as subjects rather than as …

Alma Mater: Clara Floltz And Hastings College Of Law, Barbara Babcock

UC Law SF Journal on Gender and Justice

No abstract provided.

Reduced Hours, Full Success: Part-Time Partners In U.S. Law Firms, Cynthia Thomas Calvert, Linda Bray Chanow, Linda Marks

UC Law SF Journal on Gender and Justice

When the Project for Attorney Retention ("PAR") was founded a decade ago, part-time partners were rare. Most associates who reduced their hours were taken off the partnership track either expressly or de facto; regardless of what the policy said, in most firms no part-time associate had ever been elevated to partner. Recognizing reduced hours work could not be a real option as long as it was a career ender, PAR developed a best practice balanced-hours policy, which helps eliminate the stigma associated with part-time and keeps those associates who work reduced hours developing professionally toward partnership. As the number of …

Crimes Without Punishment: Violence Against Women In Guatemala, Karen Musalo, Elisabeth Pellegrin, S. Shawn Roberts

UC Law SF Journal on Gender and Justice

In Guatemala, impunity for the battering and killing of women is at such levels that perpetrators rightly feel confident that there is no price to pay for their unrestrained violence. Each year the number of women murdered rises precipitously, and there is general consensus that the impunity enjoyed by those responsible is a significant factor in the escalating numbers of killings in Guatemala. As a result, victims are fleeing persecution to the United States, seeking, with little success, asylum. One of the main factors contributing to the delay in deciding asylum cases is the government's fear of "opening the floodgates," …