Law and Gender Commons^™

The Lgbtq Equality Gap And Federalism, Nancy J. Knauer

American University Law Review

LGBTQ people in the United States live with an Equality Gap that seems to grow wider with each legislative session. The majority of states do not have nondiscrimination protections in place for LGBTQ people. In the absence of blanket federal non-discrimination protections, a same-sex couple can be denied service by bakers, catering halls, and photographers while trying to exercise their constitutionally protected right to marry. A transgender person can be denied access to a public bathroom that matches their gender identity. A federally funded adoption agency can refuse to work with LGBTQ persons who wish to adopt. In addition, many …

State Action And Gender (In)Equality: The Untapped Power Of Washington's Equal Rights Amendment, Maria Yvonne Hodgins

Washington Law Review Online

Washington’s Equal Rights Amendment (ERA) is a powerful legal tool. Its sweeping, protective language triggers the application of an absolute standard of review—a level of review even higher than strict scrutiny. Yet the ERA is underutilized by litigants seeking protection against gender-based discrimination. This may be due to the inconsistencies in the Washington State Supreme Court’s state action jurisprudence. Though the ERA includes the phrasing “under the law,” its plain language does not necessarily support a finding of a state action requirement. The state action doctrine is grounded in federalism and separation of power concerns that are not present at …

From Nineteenth Amendment To Era: Constitutional Amendments For Women's Equality, Tracy A. Thomas

Akron Law Faculty Publications

A modern movement has renewed efforts to pass the ERA, still believing in the necessity of a constitutional guarantee of the broad legal and social equality of women first advanced 171 years ago. This essay traces the history of the women’s constitutional demands for equality, from its origins in Seneca Falls, the adoption of the Nineteenth Amendment, the proposed ERA, and modern efforts for a new amendment to secure gender equality.

The Economic Impact Of Access To Reproductive Healthcare: A New Constitutional Argument, Niyati Narang

Scripps Senior Theses

This thesis attempts to offer an alternative constitutional argument to Roe v Wade by focusing on the economic liberties granted by the 14th Amendment. By highlighting the connection between reproductive healthcare (abortion access, the pill) and women's economic development, this thesis presents an alternative argument to Roe.

While The Water Is Stirring: Sojourner Truth As Proto-Agonist In The Fight For (Black) Women’S Rights, Lolita Buckner Inniss

Publications

This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in …

Citizen Soldiers And The Foundation Fusion Of Masculinity, Citizenship, And Military Service, Jamie Abrams, Nickole Durbin

Scholarly Articles in Law Reviews & Journals

Sarah Livingston Jay famously toasted revelers in 1783: "May all our citizens be soldiers, and all our soldiers citizens." This toast conveyed "a foundational fusion" within our republican government tradition-coupling military service, citizenship, and masculinities.' The Akron Law School's conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration.

In …

More Than The Vote: The Nineteenth Amendment As Proxy For Gender Equality, Tracy A. Thomas

Akron Law Faculty Publications

This essay first details the origins of women's political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women's rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women. This long view of women's rights shows it was never only about the vote; rather, the vote stood as a shorthand for a complete revolution of …

Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

Publications

No abstract provided.

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

June Medical Services L.L.C. V. Gee: Brief For Constitutional Law Scholars Ashutosh Bhagwat, Lee C. Bollinger, Erwin Chemerinsky, Michael C. Dorf, Daniel Farber, Joanna L. Grossman, Pamela S. Karlan, Leah Litman, Martha Minow, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David A. Strauss, Laurence H. Tribe, And Mary Ziegler As Amici Curiae Supporting Petitioners, Leah Litman

Appellate Briefs

Amici are constitutional law scholars who teach and write in the field of constitutional law, including as it relates to regulation of abortion, and who have a shared interest in identifying the proper standards of review. This brief sets forth Amici's considered understanding of the framework governing abortion regulation, as established by the decisions of this Court, and how to preserve the undue burden test as established in this Court's precedents over the last two decades. It also explains why the decision below, if permitted to stand, would threaten the uniformity and supremacy of federal law.

Louisiana's Act 620 requires …

The Transgender Military Ban: Preservation Of Discrimination Through Transformation, Michele Goodwin, Erwin Chemerinsky

Northwestern University Law Review

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions, Mary Anne Franks, Ari Ezra Waldman

Maryland Law Review

No abstract provided.

Sexual Orientation Discrimination As A Form Of Sex-Plus Discrimination, Marc Chase Mcallister

Buffalo Law Review

This Article examines whether sexual orientation discrimination claims are a form of sex-plus discrimination under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment on the basis of “sex.” Until very recently, every United States Court of Appeals to have interpreted Title VII’s prohibition of sex discrimination had determined that it does not encompass claims on the basis of sexual orientation. Times, and judicial interpretations, are changing. In April 2017, the United States Court of Appeals for the Seventh Circuit overturned decades of precedent by holding that sexual orientation discrimination claims are indeed encompassed …

Roots Of Revolution: The African National Congress And Gay Liberation In South Africa, Joseph S. Jackson

Brooklyn Journal of International Law

South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that …

The Need To Codify Roe V. Wade: A Case For National Abortion Legislation, Kathryn N. Peachman

Journal of Legislation

No abstract provided.

Dean Melanie Leslie's Remarks For The Launch Of Women's Votes, Women's Voices: The 19th Amendment At 100, Melanie B. Leslie

Speeches & Presentations

On June 4, 2019, Benjamin N. Cardozo School of Law launched Women's Votes, Women's Voices: The 19th Amendment at 100. Women's Votes, Women's Voices is a year of celebration and scholarly discussion marking one hundred years of the 19th Amendment, which prohibited states from denying citizens the right to vote on the basis of sex, though not all women would have the same ability to vote or to make their voices heard. Bookended by the anniversaries of the passage of the amendment in June 1919 and its ratification in August 1920, #19at100 will commemorate these historical milestones with interactive …

The Equal Rights Amendment: Why All U.S. States Have Not Ratified, Gina Tan, Mirren Galway

CURCE Annual Undergraduate Conference

Currently, enacted legislation for the equality of men and women in the United States does not exist. Despite many advancements, as of 2018, the equality of men and women is not explicitly stated in the U.S. constitution. There is a long history of discrimination against women in the U.S., and for some time now, there have been pushes toward constitutionalizing equality based on Sex. One such push came in 1923, shortly after women were granted the right to vote and The Equal Rights Amendment (ERA) was introduced. This amendment mandates that the “Equality of rights under the law shall not …

The Case For Contraceptives: The Legislative History Of The Aca’S Birth Control Mandate, Julia Grant

Venture: The University of Mississippi Undergraduate Research Journal

This paper seeks to outline the legislative and judicial history of the Affordable Care Act’s contraception coverage mandate. It begins by explaining the justifications and specifications of the provision. It then highlights the three phases of litigation that have surrounded the mandate: closely held, for-profit companies; religious nonprofit organizations; and state attorney generals. This paper provides context for the litigation by describing the opposing stances towards the mandate of the Obama and Trump Administrations and the different modifications to the provision made under each administration. In the wake of last week’s finalization of the controversial rules the Trump Administration issued, …

Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), Roger Williams University School Of Law

RWU Law

No abstract provided.

Title Ix And Gender Stereotype Theory: Protecting Students From Parental Status Discrimination, Jocelyn Tillisch

Seattle University Law Review

This Comment asserts that students who experience discrimination on the basis of parental status have a cause of action under Title IX by using the gender stereotyping theory that is common in Title VII analysis as illustrated by Tingley-Kelley v. Trustees of the University of Pennsylvania. Part I will first provide an overview of the applicable law surrounding Title IX and Title VII. Part II will briefly summarize application of the gender stereotype theory and the applicable case law that provides the legal framework for this proposition. Part III will detail how the Title VII framework can be followed to …

Migrating Marriage Equality Without Feminism: Obergefell V. Hodges And The Legalization Of Same-Sex Marriage In Taiwan, Chao-Ju Chen

Cornell International Law Journal

In 2017, Taiwan’s Constitutional Court issued a decision ruling the same-sex marriage ban unconstitutional. Celebrated as a victory for marriage equality readying Taiwan to become “the first in Asia” to legalize same-sex marriage, the decision’s reasoning demonstrated a remarkable resemblance to Obergefell v. Hodges in that they both embrace formal equality, endorse marital supremacy, and render feminist critique of marriage irrelevant or insignificant. Through an investigation of social movement dynamics and constitutional politics, this Article explores the hidden histories of marriage equality and the rise of marital supremacy, revealing how marriage equality has served as a site of contestation where …

The Impact Of Prosecutorial Misconduct, Overreach, And Misuse Of Discretion On Gender Violence Victims, Leigh Goodmark

Dickinson Law Review (2017-Present)

Prosecutors are failing victims of gender violence as witnesses and when they become defendants in cases related to their own victimization. But it is questionable whether that behavior should be labeled misconduct. The vast majority of these behaviors range from misuses of discretion to things that some might consider best practices in handling gender violence cases. Nonetheless, prosecutors not only fail to use their discretion appropriately in gender violence cases, but they take affirmative action that does tremendous harm in the name of saving victims and protecting the public. The destructive interactions prosecutors have with victims of gender violence are …

Sex Segregation In Sports As A Public Health Issue, Nancy Leong, Emily Bartlett

Cardozo Law Review

This Article contributes to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has profound consequences for women's health. Engagement in athletics affects physical fitness, disease prevention, self-esteem, mental wellness, eating disorders, and many other health-related issues.

Sex segregation in sports reduces women's participation in sports and changes the nature of the sports in which women participate. Both of these issues have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection Clause of governmentally-imposed sex segregation …

But, Men And Women Are Equally Compensated, Right? An Examination Of Why An Equal Rights Amendment In New York's Constitution Will End The Wage Gap, Amanda B. Slutsky

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes an ERA for New York’s constitution to end the wage gap between men and women, and uses language from H.J. Res 52 and S.B. No. 1919. To demonstrate why New York needs the amendment, this Note will discuss Maryland’s and California’s ERAs and equal pay laws to establish the benefits of an ERA and how both ERAs and equal pay laws, together, help shrink the wage gap in those states. With an ERA, New York’s courts will analyze sex-based discrimination claims with strict scrutiny, which provides heightened protection because women will be considered a suspect class. …

Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson

2019 Symposium

As a complex, diverse and dynamic region with diverging, constantly changing constitutional and jurisprudential contexts as well as lasting legacies of patriarchy, South Asia’s traditions of public interest litigation are one of the most well-studied institutions by Western audiences due to their contradictory progressive and innovative nature. Particularly in India, where public interest litigation gives ordinary citizens extraordinary access to the highest courts of justice, questions have been raised as to the effectiveness of public interest litigation as a tool to address gender disparities across the region. Although Supreme Court justices have been a key ally in eliminating legal barriers …

Bloody Hell: How Insufficient Access To Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women, Lauren Shaw

Texas A&M Law Review

For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Washington and Lee Law Review

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …