Law and Gender Commons^™

Changing, Not Balancing, The Market: Economic Politics And "Social" Programs, Martha T. Mccluskey

Contributions to Books

Published in Progressive Lawyering, Globalization, and Markets: Rethinking Ideology and Strategy, Claire Dalton, ed.

Pregnancy Discrimination And Social Change: Evolving Consciousness About A Worker's Right To Job-Protected, Paid Leave, Patricia Shiu, Stephanie Wildman

Faculty Publications

This Article examines the change over the past few decades in U.S. law and societal attitudes concerning a worker's right to job-protected, paid leave. Though common around the world, job-protected, paid leave eludes the U.S. workforce. The authors begin by considering the concept of work, its relation to identity, and the construction of safety nets for workers when they need income replacement. The Article considers the movement to establish job-protected, paid leave that encompasses and values a worker's work, family, and personal life.

The modern movement originated with pregnant workers' need for time away from work during pregnancy. Women who …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford, Lolita Buckner Inniss

Publications

In early 2009 the airwaves came alive with sensational stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother's well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long history …

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Faculty Scholarship

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor.

This mundane story of the legislative process in action stands in sharp contrast to the political tale of …

There Is No Single Field Of Law And Development, Katharina Pistor

Faculty Scholarship

Let me begin – following Ohnesorge following Trubek and Santos – with the notion that the concepts of “law and development” and “rule of law” are closely intermingled with the process of legal reform in developing countries and the role foreign advisers and multilateral institutions play in that undertaking. Describing the “field” in this fashion reveals that the glue that holds together a set of disparate activities by disparate actors (for under what other circumstances do we assume common ground between family and securities lawyers, or professors and world bankers?) is a shared belief in the virtue of law.

Virginity Testing And South Africa's Hiv/Aids Crisis: Beyond Rights Universalism And Cultural Relativism Toward Health Capabilities, Erika George

Faculty Scholarship

In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African government's recent efforts to prohibit the practice. This Article argues that the current debate over virginity testing, which focuses on abolition or accommodation of the practice, is misguided and polarizing. It argues that these perspectives on the debate increase the likelihood that the problem causing …

"No Cherries Grow On Our Trees": A Social Policy Research Paper For The Take Action Project, A Public Policy Initiative To Address Women’S Poverty And Violence Against Women, Wendy Komiotis, Nora Currie, Janet Mosher

Commissioned Reports, Studies and Public Policy Documents

This is a project about women, not as a homogeneous and objectified category, but about women as agents whose lives are shaped by the multiple dimensions of their identities, including their Aboriginal status, age, class, disability, race, sexual orientation, gender identity and status (be it family, immigration, or health). It is a project that speaks to the realities of women’s lives, in particular the harsh realities of poverty and violence. It is also a project about you. Given the high rates of both poverty and violence, many of you will share these experiences. Many of you may be one job, …

Michelle Obama: The "Darker Side" Of Presidential Spousal Involvement And Activism, Gregory S. Parks, Quinetta M. Roberson, Phd

Cornell Law Faculty Working Papers

Pundits and commentators have attempted to make sense of the role that race and gender have played in the 2008 presidential campaign. Whereas researchers are drawing on varying bodies of scholarship (legal, cognitive and social psychology, and political science) to illuminate the role that Senator Obama’s race and Senator Clinton’s gender has/had on their campaign, Michelle Obama has been left out of the discussion. As Senator Clinton once noted, elections are like hiring decisions. As such, new frontiers in employment discrimination law place Michelle Obama in context within the current presidential campaign. First, racism and sexism are both alive and …

Mothers, Babies And Jail, Rebecca Johnson

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The First (Black) Lady, Verna L. Williams

Faculty Articles and Other Publications

Part I examines the role of First Lady, which has been undertheorized in legal scholarship, and how it promotes privileged white femininity, and in so doing, upholds patriarchy. Part II builds upon that discussion, explaining that the gender and racial norms that contribute to the traditional First Lady trope exemplify the intertwined nature of racism and sexism, which have been used to justify Black subordination. This section also examines how African Americans have embraced gender conformance as a way of attaining acceptance and status within the existing social order, specifically through the "Black lady" construct, which the campaign invoked to …

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Verna L. Williams

Faculty Articles and Other Publications

This article examines how race and educational equity issues shape women's sports experiences.

Irrational Exuberance For Babies: The Taste For Heterosexuality And Its Conspicuous Reproduction, Jose M. Gabilondo

Faculty Publications

This article targets a flying buttress of normative heterosexuality: its physical reproduction via procreation and its symbolic propagation through parents' pre-natal preferences for heterosexuality in future children. While the parental "taste for heterosexuality" is often asserted for the sake of future children themselves, this justification overlooks the role of parental self-interest, including anticipated social gains to parents from heterosexuality in children. Hence the taste sets the stage both for sexual orientation-based abuse of future children and the devaluation of sexual minority adults. Courts too have a taste for heterosexuality, shown here in two state court cases denying gays and lesbians …

The Denial Of Emergency Protection: Factors Associated With Court Decision Making, Carol E. Jordan, Adam J. Pritchard, Pamela Wilcox, Danielle Duckett-Pritchard

Office for Policy Studies on Violence Against Women Publications

Despite the importance of civil orders of protection as a legal resource for victims of intimate partner violence, research is limited in this area, and most studies focus on the process following a court’s initial issuance of an emergency order. The purpose of this study is to address a major gap in the literature by examining cases where victims of intimate partner violence are denied access to temporary orders of protection. The study sample included a review of 2,205 petitions that had been denied by a Kentucky court during the 2003 fiscal year. The study offers important insights into the …

"Please Write 'E' In This Box" Toward Self-Identification And Recognition Of A Third Gender: Approaches In The United States And India, Jennifer Rellis

Michigan Journal of Gender & Law

Part I of this Article defines intersexuality and highlights the legal and societal complications that occur when the concept of the fixed male-female gender binary is challenged. Part II describes the unique role of the hijras in India, who are both revered and discriminated against, and suggests that India is beginning to legally recognize a third gender through the grassroots advocacy of the hijras. Part III contrasts the experience of intersexed individuals in the United States by describing the current protocol to deal with the "medical emergency" of the birth of an intersexed child. This section forecasts legal issues facing …

A Quest For Acceptance: The Real Id Act And The Need For Comprehensive Gender Recognition Legislation In The United States, Jason Allen

Michigan Journal of Gender & Law

This Article maintains that the Real ID Act highlights the need for U.S. federal gender recognition legislation in the mold of the GRA. Part II offers background into the psychology of transgender people, explaining how the medical community views and treats this "condition." Part III illustrates the fundamental value of gender recognition rights and examines the inadequacy of U.S. statutory and case law. This discussion then traces the evolution of the GRA in the United Kingdom as the culmination of a mandate from the European Court of Human Rights (ECHR). Part IV argues that the United States should adopt a …

Spotlights: Mayda Colon Tsaknis, The Honorable Jeannie J. Hong, And Jennifer Maree, Sabrina Khan

The Modern American

No abstract provided.

Unchaste And Incredible: The Use Of Gendered Conceptions Of Honor In Impeachment, Julia Simon-Kerr

Faculty Articles and Papers

This paper demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman's honor, and thus her credibility, with her sexual virtue. The idea that a woman's chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion …

Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink

Faculty Scholarship

Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family …

Note, Eugenic Feminism: Mental Hygiene, The Women's Movement, And The Campaign For Eugenic Legal Reform, 1900-1935, Mary Ziegler

Scholarly Publications

It is well for every woman, however, to think this matter through and to realize that any women’s movement that is correlated with sterility is doomed to fail and annihilation. What shall it profit us eugenically to have women delve in laboratories, or search the heavens, or rule the nations, if the world is to be peopled by scrubwomen and peasants? – Anna M. Blount, Eugenics, in Woman and the Larger Citizenship, 2847, 2904-05 (Shailer Mathews ed., 1913).

Part I of this article examines the evolution of eugenic thought and policy in the United States between 1880 and 1935, …

Rhetorical Atavism And The Narrative Of Progress In The Debate Over Marriage Equality, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Walking The Path Of The Law: How Law Graduates Navigate Career Choices And Tolerate Jobs That Fail To Meet Expectations, Deborah J. Cantrell, Elizabeth Levy Paluck, Heather Lord, April Smith

Cardozo Journal of Equal Rights & Social Justice

The article presents a longitudinal study of Yale Law School graduates from 1970 to 1999, analyzing their career paths, job satisfaction, and gender differences in professional experiences. It highlights the prevalence of career transitions, with many graduates moving from private practice to academia, government, or public interest roles. The study reveals significant gender disparities in job satisfaction and work-life balance, while challenging common assumptions about legal careers, such as the notion that women abandon private practice more frequently than men. The analysis underscores the importance of understanding career dynamics to improve support systems for law graduates.

Brain, Gender, Law: A Cautionary Tale, Carlin Meyer

NYLS Law Review

No abstract provided.

Barriers To Access To Abortion Through A Legal Lens, Jocelyn Downie, Carla Nassar

Articles, Book Chapters, & Popular Press

In addressing whether the procedure for obtaining abortions was operating equitably across Canada, the 1977 Badgley Report concluded that for many women, access to abortion was “practically illusory.” Sadly, although abortion on request became legally permissible for Canadian women in 1988, access to a safe and legal abortion remains practically illusory for many women today. A woman seeking an abortion in Canada must overcome numerous barriers. She must find a way to secure for herself some of the limited resources that our health care system provides for abortion. She must also expend her own, often scarce, personal resources: her time, …

Reinventing Eugenics: Reproductive Choice And Law Reform After World War Ii, Mary Ziegler

Cardozo Journal of Equal Rights & Social Justice

The article argues that eugenic ideologies did not disappear from American law after World War II but instead evolved and were repackaged in response to shifting political and social norms. While the association with Nazi practices led to the decline of overtly coercive eugenic laws, eugenic principles persisted through new strategies, such as voluntary sterilization and population control initiatives. The article contends that the concept of reproductive choice became a key tool for redefining eugenic goals, allowing them to influence law and policy in more subtle ways.

Lesbian, Gay, Bisexual, And Transgender Youth In The Juvenile Justice System: Incorporating Sexual Orientation And Gender Identity Into The Rehabilitative Process, Heather Squatriglia

Cardozo Journal of Equal Rights & Social Justice

The note argues that the juvenile justice system must integrate the sexual orientation and gender identity of LGBT youth into their rehabilitative process. It emphasizes that these youth face unique challenges, including harassment, rejection, and discrimination, which often lead to their involvement in the juvenile justice system. The system's failure to address these issues undermines its rehabilitative goals, necessitating specialized programming and support to ensure these youth can develop into healthy, contributing adults.

(Mis)Appropriated Liberty: Identity, Gender Justice And Muslim Personal Law Reform In India, Cyra Akila Choudhury

Faculty Publications

This article argues that in order to emancipate Indian-Muslim women from an outdated family legal code, their position at the intersection of gender and a minority religion must be taken seriously. Proposals for reform that have been suggested by Western liberal, secular feminists that ignore the importance of women's religious affiliation fail to do this. Moreover, by making assumptions about the strength of secularism in India, the willingness of the state to enact legal reforms driven by gender concerns, and by failing to acknowledge the limits of formal rights alone in changing norms, these scholars do not account for the …

The Legacy Of Colonialism: Law And Women's Rights In India, Varsha Chitnis, Danaya Wright

Washington and Lee Law Review

The relationship between nineteenth century England and colonial India was complex in terms of negotiating the different constituencies that claimed an interest in the economic and moral development of the colonies. After India became subject to the sovereignty of the English Monarchy in 1858, its future became indelibly linked with that of England's, yet India's own unique history and culture meant that many of the reforms the colonialists set out to undertake worked out differently than they anticipated. In particular, the colonial ambition of civilizing the barbaric native Indian male underlay many of the legal reforms attempted in the nearly …

Tunisia At The Forefront Of The Arab World: Two Waves Of Gender Legislation, Mounira M. Charrad

Washington and Lee Law Review

Starting in the 1950s and ever since, Tunisia has implemented gender legislation expanding women's rights in family law. The ground breaking phase occurred with the promulgation of the Code of Personal Status in the mid-1950s during the formation of a national state in the aftermath of independence from French colonial rule. Another major phase occurred in the 1990s with citizenship law reforms as embodied in the Tunisian Code of Nationality. As a result of these two major phases, Tunisia has been at the fore front of "woman friendly" legislative changes in the Arab- Muslim world and is widely recognized as …

The Future Of Palestinian Women's Rights: Lessons From A Half-Century Of Tunisian Progress, Adrien Katherine Wing, Hisham Kassim

Washington and Lee Law Review

No abstract provided.

Dual Subordination: Muslim Sexuality In Secular And Religious Legal Discourse In India, Aziza Ahmed

Faculty Scholarship

Muslim women and Muslim members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community face a specific form of dual subordination in relation to their gender and sexuality. A Muslim woman might seek solace from India's patriarchal religious judicial structures only to find that the secular system's patriarchal structures likewise aid in their subordination and create a space for new forms of such subordination. Similarly, a marginalized LGBT Muslim might attempt to reject an oppressive religious formulation only to come to find that the secular Indian state might criminalize a particular form of sexuality. This analysis explores how Indian laws …