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Digashu And Another V Grn And Others; Seiler-Lilles And Another V Grn And Others (Sa 6/2022; Sa 7/2022) [2023] Nasc 14 (16 May 2023), Dunia P. Zongwe

SAIPAR Case Review

This controversy is about a powerful court that sided with a noble cause but that nonetheless decided the case so clumsily that it strengthened the adversaries’ otherwise weak counterarguments. In the groundbreaking Digashu case, the Supreme Court of Namibia recognized same-sex marriages contracted abroad. However, this decision relied so heavily on European and North American jurisprudence that it unintentionally fuels the impression and the accusations of those who claim that such recognition imposes Western values on the Namibian people. Moreover, in its efforts to recognize same-sex marriages, the Namibian apex court sacrificed the accuracy of its analysis by grossly distorting …

Sinyolo Muchiya V The People Appeal No 139/2021 [24 August 2023], O'Brien Kaaba, Ndindase Chirwa

SAIPAR Case Review

It is not often that female complainants of sexual assaults are readily believed by criminal justice institutions. Often, they are re-victimised and turned into suspects instead of being seen as victims. The law itself is often blind to their plight and unique needs. Poor and insensitive investigations, cautionary rules of evidence, insensitive cross examination, among others, combine to condemn them to secondary citizenship in the criminal justice system. Often, the criminal justice system in sexual assault cases unfairly tilts in favour of an accused without considering the needs of victims (and their families) and the public.

Fortunately, in this case …

Chapter One Foundation Limited And 2 Others V The Attorney General 2020/Ccz/0013 [2021], Florence Chumpuka, Mbaka Wadham

SAIPAR Case Review

If Zambia is to achieve gender parity and the representation of youth and persons with disabilities in politics, the Constitutional Court must be committed to: a) interpreting the Constitution in a manner which aligns with the principles and values set out in the Constitution, and b) Constitutional Court needs to offer extensive well-reasoned analysis of the Constitution within context of the laws’ purpose.

Baby ‘A’ And Another V Attorney General And Others [2014] Eklr, Samiselo Kayombo

SAIPAR Case Review

On or about 3rd May 2009, Baby A (1st Petitioner) was born as an intersex child.2 On 10th May 2009, Kenyatta National Hospital (2nd Respondent) conducted various medical tests on the 1st Petitioner and on one of the documents that captured the 1st Petitioner’s details, inserted a question mark ‘?’ in the column that indicated the child’s sex. The Petitioners claimed that the entry of a question mark to indicate the sex of Baby A violated the rights of the child to legal recognition, dignity and freedom from inhuman and degrading treatment. These rights were guaranteed in Section 4 of …

Privacy As Pretext, Susan Hazeldean

Cornell Law Review

The terms of the debate over LGBT rights have shifted in recent years, particularly since the Supreme Court made marriage equality the law of the land in Obergefell v. Hodges. Today, people against LGBT equality argue that curtailing LGBT rights is necessary to protect the rights of others. One potent rhetorical weapon used to oppose LGBT rights is the claim that antidiscrimination protections for LGBT people undermine privacy because they permit transgender people to use facilities that accord with their gender identity. This Article uses legal privacy theory to show that allowing transgender people into gendered facilities does not undermine …

On The Basis Of Sex(Ual Orientation Or Gender Identity): Bringing Queer Equity To School With Title Ix, Chan Tov Mcnamarah

Cornell Law Review

A transgender fourth-grader's teacher refuses to address her by her preferred name and gender. A lesbian high-school student's sexual education class does not teach her about topics relevant to her experience as a queer woman. A gay male college student's campus does not have LGBT-specific post-sexual assault care. Under aformal equality approach to Title IX, can any of these discriminations be remedied? Unfortunately not. And yet, recent victories for the LGBT community have been won on formal equality arguments-that LGBT persons should be treated the same as heterosexual, cisgender persons. In the shadow of marriage equality, the LGBT community has …

Gender Parity: The Increasing Success And Subsequent Effect Of Anti-Male Bias Claims In Campus Sexual Assault Proceedings, Weiru Fang

Cornell Law Review

Part I of this Note briefly discusses sexual assault and the legislative and legal history of Title IX. Part II of this Note provides an overview of "male bias" gender-discrimination suits and focuses in particular on the recent decisions by the Second Circuit and Sixth Circuit. In Part III, this Note explains the discrepancy behind the circuit split and illustrates the ramifications of applying one standard over another by pointing to similar arguments made within the Title VII employment context. This Note contends, further, that for the sake of maintaining consistency across jurisprudence and vindicating the goals of discrimination laws …

Trans-Cending The Medicalization Of Gender: Improving Legal Protections For People Who Are Transgender And Incarcerated, Lindsey Ruff

Cornell Journal of Law and Public Policy

People who are transgender and incarcerated face a unique set of human rights challenges. Courts have made progress protecting transgender people who are incarcerated by relying on the psychiatric diagnosis, Gender Dysphoria (GD), as grounds for legal protections. However, reliance on a medical model of gender has practical limitations and adverse social consequences. This model fails to protect the most vulnerable people of trans experience and contributes to stigma against the transgender community overall. The social and legal interests of people who are transgender and incarcerated would be better served if their rights were protected on alternate legal grounds.

Part …

The Maternal Dilemma, Noya Rimalt

Cornell Law Review

When enacting the FMLA and setting a minimum standard of family leave for all eligible employees, Congress was particularly cautious about attacking the stereotype that all women are responsible for family caregiving. As Justice Rehnquist explained in Nevada v. Hibbs, the goal was to encourage men to assume more caretaking responsibilities at home, thus reducing employers' incentives to discriminate against women by basing hiring and promotion decisions on the stereotype of women as mothers. Indeed, the likely contribution of the gender- neutral parental leave legislation to the promotion of gender equality in the division of care-work at home, hence to …

Silent, Spoken, Written, And Enforced: The Role Of Law In The Construction Of The Post-Colonial Queerphobic State, Chan Tov Mcnamarah

Cornell International Law Journal

Debates over the origins of queerphobia in post-colonial African nations are legion. The conversation is dominated by opinions that paint Africans as inherently more violent towards, and less tolerant of sexual minorities than their Western counterparts. Less present in the conversation is the view that colonially-imposed laws have played a significant role in the creation of queerphobic, post-colonial African states. However, as this Note contends, neither perspective fully accounts for regional variations in levels of queerphobia throughout the African continent. In response, this Note presents a model that tracks the role of law in the production of queerphobic sentiment prior …

Questioning Market Aversion In Gender Equality Strategies: Designing Legal Mechanisms For The Promotion Of Gender Equality In The Family And The Market, Hila Shamir, Tsilly Dagan, Ayelet Carmeli

Cornell Journal of Law and Public Policy

This Article suggests that tax and welfare policies that promote gender equality require creative thinking about the design of social mechanisms for the promotion of women. It offers a framework for expanding the institutional imagination in order to recalibrate welfare state reforms to promote women. In particular, we advocate the creative use of legal tools and doctrine to dismantle existing dichotomies between private and public, understand the various goals different mechanisms can serve and reassemble them to promote different mixes of normative goals. We propose doing so by looking simultaneously at two fields of redistribution: welfare state benefits and services …

Women’S Rights In The Dprk: Discrepancies Between International And Domestic Legal Instruments In Promoting Women’S Rights And The Reality Reflected By North Korean Defectors, Jina Yang

Cornell International Law Journal

It is commendable that the DPRK has ratified the CEDAW and has established legislative measures to protect women from violence and guarantee equal protection. However short of internationally accepted human rights standard the DPRK may fall, such actions show that the DPRK is nonetheless trying to be a responsible member of the international community. However, many findings show that women’s rights are far from reaching the international standards, because of patriarchal traditions that are entrenched to the North Korean society and the national institutions related to women’s rights, which are used to mobilize women to work for the state, rather …

Lgbt Rights Are Human Rights: Conditioning Foreign Direct Investments On Domestic Policy Reform, Dara P. Brown

Cornell International Law Journal

No abstract provided.

The Dormant Clause: How The Failure Of The Repugnancy Clause Has Allowed For Discrimination Against Women In Zambia, Pamela Amaechi, Erica Mildner

Southern African Journal of Policy and Development

Zambia’s legal system combines unwritten customary law with post-colonial statutory law. However, select traditions clash with statutes promoting gender equality. Though the repugnancy clause promotes the supremacy of written law in discrimination cases, it has not been utilized effectively. This paper raises the sources behind the clause’s rare application and explores the possibility of utilizing the equal protection legal strategy employed by Botswana to prevent sex discrimination under customary law. This paper is based on a study of existing literature on the repugnancy clause in Southern Africa. Interviews were held with Boma and Chelstone Local Court Magistrates, as well as …