Law and Gender Commons^™

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Setting The Stage: A Quick Glance Back At The Journal's History, Julia L. Ernst

Michigan Journal of Gender & Law

This symposium, organized by the Michigan Journal of Gender & Law, explored several cutting-edge topics related to its over-arching theme, "Rhetoric & Relevance: An Investigation into the Present and Future of Feminist Legal Theory." When the journal editors invited me to provide a few opening remarks, they informed me that: the goal of this symposium is to have a series of discussions about current happenings in the field of feminist legal scholarship, so that we may start to answer the question, "What's next?" These discussions will take place in the form of panels that focus on particular areas of the …

Situations, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald

Michigan Journal of Gender & Law

A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain's intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality.

Defining Sex: On Marriage, Family, And Good Public Policy, Mark Strasser

Michigan Journal of Gender & Law

Transgendered individuals and their families face legal risks that most families do not, at least in part, because state laws are often unclear about whether or under what conditions transgendered individuals are permitted to marry the individuals whom they love. Challenges to the validity of marriages involving the transgendered may arise under a variety of circumstances, ranging from cases in which individuals may have hidden or may not even have known that they were transgendered until after their marriages, to cases in which the individuals had already transitioned and had explained their personal histories to their partners before they were …

Rethinking Consent In A Big Love Way, Cheryl Hanna

Michigan Journal of Gender & Law

This Article is based on a presentation at the Michigan Journal of Gender and Law as part of their symposium "Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory." In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a …

Welcoming Women: Recent Changes In U.S. Asylum Law, Jillian Blake

Michigan Law Review First Impressions

The Statue of Liberty, which has been called the "Mother of Exiles," stands as a reminder of one of the foundational ideals of U.S. immigration policy-providing refuge to the vulnerable. Women worldwide have new reason to believe in this promise, because victims of domestic violence may now have a better chance of being granted asylum in a U.S. immigration court.

Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy

Michigan Journal of Gender & Law

Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis …

Beyond The Binary: What Can Feminists Learn From Intersex Transgender Jurisprudence, Julie Greenberg, Marybeth Herald, Mark Strasser

Michigan Journal of Gender & Law

Our panel will be discussing recent developments in the intersex and transsexual communities. The transsexual community began to organize in the 1970s, but did not fully develop into a vibrant movement until the 1990s. The intersex movement was born in the mid-1990s and has rapidly developed a strong and influential voice. Recently, both movements have undergone profound changes and each has provided new and unique theoretical perspectives that can potentially benefit other social justice groups. The purpose of our dialogue today is to describe these developments and explore how feminists could potentially benefit from the theoretical frameworks that are being …

Sex Education And Rape, Michelle J. Anderson

Michigan Journal of Gender & Law

In the law of rape, consent has been and remains a gendered concept. Consent presumes female acquiescence to male sexual initiation. It presumes a man desires to penetrate a woman sexually. It presumes the woman willingly yields to the man's desires. It does not presume, and of course does not require, female sexual desire. Consent is what the law calls it when he advances and she does not put up a fight. I have argued elsewhere that the kind of thin consent that the law focuses on is not enough ethically and it should not be enough legally to justify …

Past As Prologue: Old And New Feminisms, Martha Chamallas

Michigan Journal of Gender & Law

Each "stage" of feminist legal theory-and each brand or strand of feminism- stays alive and is never completely replaced by newer approaches. When I first attempted to synthesize the field of Feminist Legal Theory for a treatise I was writing at the end of the twentieth century, I thought it would be useful to think chronologically and to analyze the major developments of the 1970s, 1980s, and 1990s. I crudely divided feminist legal theory into three stages roughly corresponding to the preceding decades: the equality stage of the 1970s, the difference stage of the 1980s, and the diversity stage of …

The Basic Law At 60 - Equality And Difference: A Proposal For The Guest List To The Birthday Party, Susanne Baer

Articles

The German constitution, named "Basic Law", has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed "far too slowly and [some] has even gone completely wrong." ' Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was "anything but regal, but very difficult and full of obstacles. '' 2 Former Chancellor Willy Brandt famously called the constitution "a snail on thin ice." So what is missing when we analyze the Basic Law, and what should be finally …

Law's Expressive Value In Combating Cyber Gender Harassment, Danielle Keats Citron

Michigan Law Review

The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women's home addresses alongside suggestions that they are interested in anonymous sex, and technological attacks that shut down blogs and websites. It impedes women's full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women's experiences, deeming the harassment harmless teasing that women should expect, and tolerate, given the internet's Wild …

Gender-Related Violence And International Criminal Law And Justice, Christine Chinkin

Book Chapters

The treatment of gender-related violence within ICL is inextricably tied up with the recognition of women's rights as human rights, and the growing jurisprudence recognizing violence against women in non-armed conflict situations as human rights violations. Following from the Third World Conference on Women in Nairobi in 1985 women's NGOs campaigned to have gender-based acts of violence against women recognized as abuses of human rights, a goal that was achieved at the Vienna World Conference on Human Rights in 1993. That Conference was held against the backdrop of the 'massive, organized and systematic detention and rape of women that were …

An Agenda For The Obama Administration On Gender Equality: Lessons From Abroad, Adrien K. Wing, Samuel P. Nielson

Michigan Law Review First Impressions

President Barack Obama came into office with a wealth of good will after winning the historic 2008 presidential election to become the first African-American commander-in-chief. Among the many daunting issues we hope he will tackle is one that Abigail Adams mentioned to her husband John in 1776: remember the ladies. How should our President and his new administration affect social justice for women?

Passions We Like… And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan

Michigan Journal of Gender & Law

This Article proceeds as follows. In Part II, the author catalogs the history of anti-gay hate crime laws in the United States, describing the rapid spread of state-level laws extending race- and religion-based hate crime laws to LGB people. The Article also provides an overview of federal legislation addressing anti-gay hate crime. In Part III, it examines the policy environment within which anti-gay hate crime laws have been, and continue to be, considered. Specifically, the jurisprudential frameworks that shape, define, and constrain discourses of equality, rights, and social identity are analyzed. The argument is made that the policy environment of …

Migration, Development, And The Promise Of Cedaw For Rural Women, Lisa R. Pruitt

Michigan Journal of International Law

Part I of this Essay provides an overview of the rural-to-urban migration phenomenon, a trend the author calls the urban juggernaut. This Part includes a discussion of forces compelling the migration, and it also considers consequences for those who are left behind when their family members and neighbors migrate to cities. Part II explores women's roles in food production in the developing world, and it considers the extent to which international development efforts encourage or entail urbanization. Part III attends to the potential of human rights for this population, analyzing the Convention on the Elimination of All Forms of Discrimination …

Of Sexual Bondage: The 'Legitimate Penological Interest' In Restricting Sexual Expression In Women's Prisons, Joanna E. Saul

Michigan Journal of Gender & Law

Despite its prevalence, sexual expression among inmates is currently prohibited in United States prisons. Recent scholarship, however, has advocated allowing certain types of sexual expression in women's prisons. The advocates of such a position differentiate between different types of sex within the correctional system: sexual expression that the system has no interest in prohibiting and should not bar, and sex acts that the system does have an interest in prohibiting and should continue to regulate. This position is based on the dual assumptions that, first, women in prison as a collective unit would benefit from some types of sexual expression, …

Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris

Michigan Journal of Gender & Law

This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment …

Pursuing The Perfect Mother: Why America's Criminalization Of Maternal Substance Abuse Is Not The Answer- A Compartive Legal Analysis, Linda C. Fentiman

Michigan Journal of Gender & Law

In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in …

Competences Of The "Union" And Sex Equality: A Comparative Look At The European Union And The United States, Barbara Havelková

Michigan Law Review First Impressions

The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers ("competences" in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.

Can Equality Survive Exceptions?, Daphne Barak-Erez

Michigan Law Review First Impressions

The meaning of the exception vis-à-vis the general rule is primarily discussed in the context of emergency powers (following Cart Schmitt and Giorgio Agamben). But the complicated relationship between the norm and its exceptions is also relevant to other legal contexts. This Commentary is dedicated to the following question: What are the implications of considering equality a fundamental legal principle while recognizing exceptions to its application? More concretely, how does the existence of exceptions influence the understanding and viability of equality as the norm?

Student Gladiators And Sexual Assault: A New Analysis Of Liability For Injuries Inflicted By College Athletes, Ann Scales

Michigan Journal of Gender & Law

This Article will focus on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, including educational and sexual harms. The author’s theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and bad; …

The Gay Agenda, Libby Adler

Michigan Journal of Gender & Law

This Article is designed to illuminate options that the author believes have been difficult for advocates of gay rights to imagine due to an incessant culture war and the hard work of anti-gay forces that have kept pro-gay advocates under persistent fire. The culture war, this paper argues, while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run.

Men And Women Of The Bar: The Impact Of Gender On Legal Careers, Kenneth G. Dau-Schmidt, Marc S. Galanter, Kaushik Mukhopadhaya, Kathleen E. Hull

Michigan Journal of Gender & Law

In the last three and a half decades, the legal profession has undergone a dramatic transformation in the gender composition of its members. During that time, the number of women applying to law school and entering the profession has gone from a few gallant pioneers to roughly equal representation with that of men. Between 1970 and 2000, the proportion of first-year law students who were female climbed from 8% to 49%. Because the existing bar consisted primarily of male lawyers, the percent of women in the legal profession changed more slowly, but still rose dramatically. Women, as a percent of …

Transnational Families In Crisis: An Analysis Of The Domestic Violence Rule In E.U. Free Movement Law, Adam Weiss

Michigan Journal of International Law

This Essay analyzes a concrete rule of European law that has emerged to address the problem of domestic violence within certain transnational families. The domestic violence rule is found in Article 13 of the European Community Free Movement Directive (the Directive), legislation that governs the rights of E.U. citizens and their family members to enter and reside in other E.U. Member States.6 The rule affects the rights of a discrete group: non-E.U. ("third-country national") family members of migrant E.U. citizens, that is, E.U. citizens who have moved to another E.U. Member State (the "host State") to exercise residence rights there. …

Leitprinzip Gleichstellung?: 10 Jahre Gender Mainstreaming In Der Deutschen Bundesverwaltung, Susanne Baer, S. Lewalter, J. Gebbert

Articles

Gender Equality as a Guiding Principle? – 10 Years of Gender Mainstreaming in the Federal Administration of Germany The implementation of gender mainstreaming in the German federal administration from 1999 to 2009 is described from the perspective of actors of scientific consultancy. From the beginning the process of implementation was focused on the change of administrative routines. Important and innovative results were achieved in this field. But this approach had obvious limitations, because the relevance of objectives of gender equality for the work of each ministry was rarely discussed. Making gender equality a principle that guides the work of the …

Starting Out: Changing Patterns Of First Jobs For Michigan Law School Graduates, Terry K. Adams, David L. Chambers

Articles

In the early 1950s, the typical graduate of Michigan Law began his career working as an associate in a law firm with four other lawyers and earned about $5,000 in his first year. Surprising to us today, in his new job he would have earned slightly less than other classmates whose first jobs were in government. Fifty years later, in the early 2000s, the typical graduate still started out as an associate in a law firm, but the firm she worked for had more than 400 lawyers. She earned about $114,000 in her first year, about three times as much …

Who We Were And Who We Are: How Michigan Law Students Have Changed Since The 1950s: Findings From 40 Years Of Alumni Surveys, David L. Chambers, Terry K. Adams

Articles

For 40 consecutive years, from 1967 to 2006, the Law School surveyed its alumni regarding their lives and careers. The project began in 1967 with the mailing of a questionnaire to the class of 1952 shortly before their 15th reunion. The results proved interesting enough that surveys were sent each year thereafter to the class 15 years out. In 1973, the classes 5 years out were added to the survey.

Judging Sex In War, Karen Engle

Michigan Law Review

Rape is often said to constitute a fate worse than death. It has long been deployed as an instrument of war and outlawed by international humanitarian law as a serious-sometimes even capital-crime. While disagreement exists over the meaning of rape and the proof that should be required to convict an individual of the crime, today the view that rape is harmful to women enjoys wide concurrence. Advocates for greater legal protection against rape often argue that rape brings shame upon raped women as well as upon their communities. Shame thus adds to rape's power as a war weapon. Sexual violence …