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Suffering In Search Of A Methodological Frame: Interdisciplinarity In The Context Of The Gendered Impact Of Climate Migration, Becky Jacobs Oct 2023

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.


Dobbs' Sex Equality Troubles, Marc Spindelman Oct 2023

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 …


Death After Dobbs: Addressing The Viability Of Capital Punishment For Abortion, Melanie Kalmanson Apr 2023

Death After Dobbs: Addressing The Viability Of Capital Punishment For Abortion, Melanie Kalmanson

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

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that deeply conservative states will seek to criminalize abortion and impose extremely harsh sentences for such crimes, up to and including death. This Article addresses that reality. Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics. After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the …


Menstrual Justice In Theoretical Context, Vivian E. Hamilton Apr 2023

Menstrual Justice In Theoretical Context, Vivian E. Hamilton

Faculty Publications

This Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In …


Dispelling Sex Trafficking Conspiracy Theories: The Truth Behind Who Is Recruited By Traffickers And How, Mirelle Raza, Kyleigh Feehs Apr 2023

Dispelling Sex Trafficking Conspiracy Theories: The Truth Behind Who Is Recruited By Traffickers And How, Mirelle Raza, Kyleigh Feehs

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

Through an analysis of the 1,954 sex trafficking cases prosecuted federally from 2000 to 2020, this Article aims to provide insight into how sex traffickers commonly operate in the United States. Part I explains the damaging consequences of misinformation on an effective anti-trafficking response. The Article then details how traffickers within sex trafficking schemes across the country intentionally target individuals with particular vulnerabilities and recruit them for exploitation. Part II outlines the vulnerabilities that sex traffickers commonly target, highlighting that many of the children that traffickers exploit have run away from home, were experiencing homelessness, were part of the foster …


Justice Alito's Laundry List: Highlights From Appendix C Of Bostock And A Roadmap For Lgbtq+ Legal Advocates, Peter Quinn Feb 2023

Justice Alito's Laundry List: Highlights From Appendix C Of Bostock And A Roadmap For Lgbtq+ Legal Advocates, Peter Quinn

William & Mary Law Review

After a brief background on Bostock [v. Clayton County] in Part I, the bulk of this Note seeks to examine Justice Alito’s Bostock dissent and its potential future usefulness for LGBTQ+ advocates. Part II will analyze Justice Alito’s dissent and Appendix C, arguing that his concerns about Bostock’s consequences across other federal statutes fall into three primary categories of usefulness. The remaining Parts will survey these categories, including the “small potatoes” in Part III, the “blockbusters” in Part IV, and the “under-the-radar” areas in Part V. Part V takes particular notice of potential applications of Bostock’s …


Constitutional Memories, Jack M. Balkin Dec 2022

Constitutional Memories, Jack M. Balkin

William & Mary Bill of Rights Journal

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions …


Making Hazelwood Age-Appropriate: How Viewpoint Neutrality And Recontextualizing The Age-Appropriate Standard Might Save School-Sponsored Lgbt Speech, Rebecca Girardin Oct 2022

Making Hazelwood Age-Appropriate: How Viewpoint Neutrality And Recontextualizing The Age-Appropriate Standard Might Save School-Sponsored Lgbt Speech, Rebecca Girardin

William & Mary Bill of Rights Journal

Younger people are identifying as lesbian, gay, bisexual, or transgender (henceforth “LGBT”) more than any previous generation. Likewise, there has been a proliferation of free-speech litigation involving student speech that discusses LGBT issues. Beyond just LGBT speech in school, there has been a recent resurgence in the discussion around the relationship between parents, students, school administrators, and school boards when it comes to regulating school-sponsored speech.

Besides the growing number of students identifying as LGBT, protecting LGBT speech in school is of particular importance because the manner in which a school deals with LGBT speech directly influences the mental health …


Title Ix In Historical Context: 50 Years Of Progress And Political Gamesmanship, Helen Drew, Marissa Egloff, Josie Middione Oct 2022

Title Ix In Historical Context: 50 Years Of Progress And Political Gamesmanship, Helen Drew, Marissa Egloff, Josie Middione

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

On the fiftieth anniversary of Title IX, it is important to recognize both its historic nature and how it has evolved in political and social context. This Article will begin by examining the history of women’s athletics pre–Title IX, focusing on what activities women participated in, why, and how societal norms shaped their ability to do so. Next, the Article will examine the status of women’s athletic opportunities as Title IX was first proposed, with an emphasis upon its nexus to the women’s rights movement and the Equal Rights Amendment initiative. The Article will then provide historical background for key …


Title Ix's Trans Panic, Deborah L. Brake Oct 2022

Title Ix's Trans Panic, Deborah L. Brake

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

Sport has long been a site of struggle over competing conceptions of social justice, with no cultural flashpoint more contested than gender. A key site of contention has been the meaning and application of Title IX. With June of 2022 marking the law’s fiftieth anniversary, Title IX has been lauded as the law that launched girls’ and women’s sports from the shadows to their present, more celebrated posture. As these anniversary tributes often emphasize, female athletic participation has soared to new heights in all levels of sports. But Title IX also houses tensions and dilemmas for gender justice that were …


Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn Oct 2022

Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn

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

Shaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women …


Title Ix & Disparate Impact: The Harmful Effects Of Abstinence-Centric Education, Olivia S. Lanctot May 2022

Title Ix & Disparate Impact: The Harmful Effects Of Abstinence-Centric Education, Olivia S. Lanctot

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

Throughout the United States, schools are failing to provide students with comprehensive sex education that equips student with the life skills necessary for healthy relationships. This shortcoming has numerous psychological, emotional, and physical health consequences for the American youth. This Note will focus on how abstinence-centric curricula can influence sexual and teen dating violence. Presently, only one state requires instruction on consent, leaving most students to first encounter consent education or anti-harassment training in higher education institutions or the workplace. In light of the high rates of violence many young people experience before turning eighteen, this instruction often comes too …


Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray Apr 2022

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …


280 Characters To § 230 Immunity: Protecting Individual Sexual Assault Allegations On Twitter From Defamation Liability, Elizabeth Profaci Feb 2022

280 Characters To § 230 Immunity: Protecting Individual Sexual Assault Allegations On Twitter From Defamation Liability, Elizabeth Profaci

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

One in four female undergraduate students has been sexually assaulted. These students are three times more likely to experience sexual violence than any other group. Frustrated with the Title IX process on their campuses and the lack of discipline for their assailants, these students are unlikely to report their assault. Instead, they quietly tell their friends and other students, and in some cases, anonymously share their stories online. But instead of receiving support, these survivors are often faced with lawsuits. Accused assailants are using, or threatening to use, defamation lawsuits in an attempt to silence survivors who speak out, even …


Curing Corrective Rape: Socio-Legal Perspectives On Sexual Violence Against Black Lesbians In South Africa, Waruguru Gaitho Feb 2022

Curing Corrective Rape: Socio-Legal Perspectives On Sexual Violence Against Black Lesbians In South Africa, Waruguru Gaitho

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

Corrective rape can be defined as a hate crime that entails the rape of any member of a group that does not conform to gender or sexual orientation norms, where the motive of the perpetrator is to “correct” the individual, fundamentally combining gender-based violence and homophobic violence. In the South African context, these biases intersect with systemic racism, producing a disproportionate impact on Black, queer, womxn. While the legal framework has evolved to better address sexual violence crimes, Black lesbians remain prone to falling through the legal cracks, and South African society continues to sanction the homophobia and misogyny that …


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 Jun 2021

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 Jun 2021

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 Jun 2021

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.


Gender-Based Violence In International Human Rights Law: Evolution Towards A Binding Post-Binary Framework, Tatsiana Ziniakova Jun 2021

Gender-Based Violence In International Human Rights Law: Evolution Towards A Binding Post-Binary Framework, Tatsiana Ziniakova

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

The present Article seeks to analyze the notion of gender-based violence, in light of the evolving gender discourse, and identify the problems associated with effectively addressing it in international human rights law. It analyzes the definitions of gender, enshrined in various human rights documents, and suggests using performative theory of gender to form a comprehensive view on gender-based violence. It also critically addresses three aspects of regulating gender-based violence: inclusivity, patriarchy, and normativity. It concludes that, in the long term, the commitment to eradicate gender-based violence should be strengthened by framing it as a binding treaty obligation on the universal …


Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty Jun 2021

Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty

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

COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century developed …


Confronting Eugenics Means Finally Confronting Its Ableist Roots, Robyn M. Powell Jun 2021

Confronting Eugenics Means Finally Confronting Its Ableist Roots, Robyn M. Powell

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

In September 2020, a whistleblower complaint was filed alleging that hysterectomies are being performed on women at an immigration detention center in alarmingly high rates. Regrettably, forced sterilizations are part of the nation’s long-standing history of weaponizing reproduction to subjugate socially marginalized communities. While public outrage in response to the whistleblower complaint was swift and relentless, it largely failed to acknowledge how eugenic ideologies and practices, including compulsory sterilizations, are ongoing and deeply entrenched in ableism. Indeed, a conversation that recognizes the ways in which eugenics continues to target people with disabilities is long overdue.

This Article contextualizes how eugenics …


Accelerating The Gains Of The Free Maternity Care In Kenya's Urban Informal Settlements, Juliet K. Nyamao May 2021

Accelerating The Gains Of The Free Maternity Care In Kenya's Urban Informal Settlements, Juliet K. Nyamao

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

The 2010 Constitution of Kenya recognizes the special group of women living in urban informal settlements, and provides for their access to the highest attainable standards of health care, including reproductive health care. The Health Act, which was enacted in 2017, recognizes the significant challenges of accessing maternal health services among the poorest populations. Pursuant to the resolutions of the African Union, the Health Act abolished user fees for pregnant women. The Health Act instructs the county and national governments to expand free maternity care and childhood immunizations through funding. Despite Kenya’s commitment to increase the national budget for health …


The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy A. Thomas May 2021

The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy A. Thomas

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

This Article delves into the life and work of Judge [Florence] Allen to provide insight to the contributions and jurisprudence of the first woman judge. For history questions what difference putting a woman on the bench might have made. Part I explores Allen’s early influences on her intellectual development grounded in her progressive and politically active family, and her close network of female professional friends. Part II discusses her pivotal work with the women’s suffrage movement, working with the national organizations in New York and leading the legal and political efforts in Ohio. This proactive commitment to gender justice, however, …


Unduly Burdening Abortion Jurisprudence, Mark Strasser Apr 2021

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …


You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell Jul 2020

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note concludes …


Consent In Marriage: A Radical Feminist Analysis Of Pakistani Law, Iqra Saleem Khan Jul 2020

Consent In Marriage: A Radical Feminist Analysis Of Pakistani Law, Iqra Saleem Khan

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

In Abdul Kadir v. Salima, Mahmood J summarised the nature of a Pakistani wife’s duties under Islamic Law. The nikkah contract “imposes submission on the wife when summoned to the couch and confers on him the power of correction when she is disobedient or rebellious.” Earlier, a similar pronouncement was made across the ocean in the United Kingdom by Sir Matthew Hale that through the marriage contract the “wife hath given herself to the husband, consent of which she cannot retract.” Marital rape was later recognised as an offence in the UK by the House of Lords in R …


Women's Quotas: Making The Case For Codifying Syrian Women's Political Participation, Jomana Qaddour Jul 2020

Women's Quotas: Making The Case For Codifying Syrian Women's Political Participation, Jomana Qaddour

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

No abstract provided.


A Fair Process Matters In Alleged Sexual Assault Cases, Cynthia V. Ward May 2020

A Fair Process Matters In Alleged Sexual Assault Cases, Cynthia V. Ward

Popular Media

No abstract provided.


Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper May 2020

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.


Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball May 2020

Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball

William & Mary Bill of Rights Journal

This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …