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Articles 61 - 90 of 208
Full-Text Articles in Law and Gender
A Relational Feminist Approach To Conflict Of Laws, Roxana Banu
A Relational Feminist Approach To Conflict Of Laws, Roxana Banu
Michigan Journal of Gender & Law
Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers …
Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck
Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck
Michigan Journal of Gender & Law
This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of …
The Tax Definition Of "Medical Care:" A Critique Of The Startling Irs Arguments In O'Donnabhain V. Commissioner, Katherine Pratt
The Tax Definition Of "Medical Care:" A Critique Of The Startling Irs Arguments In O'Donnabhain V. Commissioner, Katherine Pratt
Michigan Journal of Gender & Law
This Article critiques the startling arguments made by the Internal Revenue Service (“IRS”) in O’Donnabhain v. Commissioner, a case in which the issue was whether a person diagnosed with gender identity disorder (“GID”) could take a federal tax deduction for the costs of male-to-female medical transition, including hormone treatment, genital surgery, and breast augmentation. Internal Revenue Code § 213 allows a deduction for the costs of “medical care,” which (1) includes costs incurred for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body,” but (2) generally …
Gender Discrimination And Statelessness In The Gulf Cooperation Council States, Betsy L. Fisher
Gender Discrimination And Statelessness In The Gulf Cooperation Council States, Betsy L. Fisher
Michigan Journal of Gender & Law
Using the Gulf Cooperation Council countries as a case study, this Article outlines the ways in which gender and birth status discrimination create new cases of statelessness. These occur when women are legally unable to convey their nationality to their children. This Article studies gender and birth status discrimination in nationality laws and in civil registration, family, and criminal law in each GCC state: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. Ending statelessness will require these states to end discrimination against women and non-marital children in all of its forms in law and practice.
R-Egg-Ulation: A Call For Greater Regulation Of The Big Business Of Human Egg Harvesting, Danielle A. Vera
R-Egg-Ulation: A Call For Greater Regulation Of The Big Business Of Human Egg Harvesting, Danielle A. Vera
Michigan Journal of Gender & Law
When it comes to young healthy women “donating” their eggs, America has a regulation problem. This Note explains the science behind the harvesting of human eggs, focusing on potential egg donors, and describes the specific factors that make egg donation a unique type of transaction. It describes the current regulatory status of the assisted reproductive technology industry in the United States and highlights the ways in which this scheme fails to protect egg “donors.” This Note concludes with a call for comprehensive regulation of the assisted reproductive technology industry.
Gender And Non-Normative Sex In Sub-Saharan Africa, Johanna Bond
Gender And Non-Normative Sex In Sub-Saharan Africa, Johanna Bond
Michigan Journal of Gender & Law
This Article argues for the adoption of a gender-based framework to supplement rights promotion strategies and campaigns based on LGBTI identity. The Article draws upon feminist, queer, and trans theory to develop an expansive understanding of gender within international human rights law. An analysis incorporating such theory will catalyze more systematic promotion of LGBTI rights. Although the approach is applicable across a variety of geographic contexts, this Article uses sub-Saharan Africa as an illustrative case study. A focus on gender rights as supplementary to and interrelated with LGBTI rights offers both conceptual and pragmatic benefits in the struggle to promote …
Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey
Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey
Michigan Journal of Gender & Law
This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the …
Prosecuting Rape Victims While Rapists Run Free: The Consequences Of Police Failure To Investigate Sex Crimes In Britain And The United States, Lisa Avalos
Michigan Journal of Gender & Law
Imagine that a close friend is raped, and you encourage her to report it to the police. At first, she thinks that the police are taking her report seriously, but the investigation does not seem to move forward. The next thing she knows, they accuse her of lying and ultimately file charges against her. You and your friend are in shock; this outcome never entered your minds. This nightmare may seem inconceivable, but it has in fact occurred repeatedly in both the United States and Britain—countries that are typically lauded for their high levels of gender equality. In Britain, where …
Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko
Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko
Michigan Journal of Gender & Law
In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there …
The Incest Horrible: Delimiting The Lawrence V. Texas Right To Sexual Autonomy, Y. Carson Zhou
The Incest Horrible: Delimiting The Lawrence V. Texas Right To Sexual Autonomy, Y. Carson Zhou
Michigan Journal of Gender & Law
Is the criminalization of consensual sex between close relatives constitutional in the wake of Lawrence v. Texas and Obergefell v. Hodges? Justice Scalia thought not. The substantive due process landscape has changed dramatically in response to the LGBTQ movement. Yet, when a girl in a sexual relationship with her father recently revealed in an anonymous interview with New York Magazine that they were planning to move to New Jersey, one of the only two states where incest was legal, the New Jersey legislature introduced with unprecedented speed a bill criminalizing incest. But who has the couple harmed? The very …
Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Michigan Journal of Gender & Law
In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …
Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus
Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus
Michigan Journal of Gender & Law
LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …
Teen Pregnancy In Charter Schools: Pregnancy Discrimination Challenges Under The Equal Protection Clause And Title Ix, Kaylee Niemasik
Teen Pregnancy In Charter Schools: Pregnancy Discrimination Challenges Under The Equal Protection Clause And Title Ix, Kaylee Niemasik
Michigan Journal of Gender & Law
Until three years ago, a policy at Delhi Charter School in Louisiana required that any pregnant student be effectively expelled. A pregnant sixteen-year-old student’s expulsion caught the attention of national media in 2012. The ACLU sued and the school quickly rescinded the policy. Although the policy was revoked, the un-adjudicated nature of the resolution leaves teen girls at the school and nationwide without any final court order to protect them against the (re)enactment of similar discriminatory policies. This Article analyzes the Delhi Charter School policy in order to make three related arguments. First, the Court should adopt a rebuttable presumption …
Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles
Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles
Michigan Journal of Gender & Law
Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers. Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …
Sexual Assault And Rape In The Military: The Invisible Victims Of International Gender Crimes At The Front Lines, Stella Cernak
Sexual Assault And Rape In The Military: The Invisible Victims Of International Gender Crimes At The Front Lines, Stella Cernak
Michigan Journal of Gender & Law
In the past several years in particular, intra-military sexual assault and rape in the U.S. armed forces have been the focus of frequent media attention and intense congressional debate. Despite reforms, the rate of intra-military sexual crimes continues to remain high, as does soldiers’ wariness to report instances of sexual violence to military commanders. These problems and others have invigorated the position taken by some that outside judicial review of intra- military sexual crimes is necessary to provide justice to victims and lower the rate of intra-military sexual assault and rape. This Note argues that one of the primary contributors …
Liberating Sexual Harassment Law, Lua Kamál Yuille
Liberating Sexual Harassment Law, Lua Kamál Yuille
Michigan Journal of Gender & Law
Sexual harassment law and the proposed solutions to that paradigm’s deficiencies teach a disheartening and peculiar lesson to women and gender performance minorities: “You may be disadvantaged at work because of your gender or your gender performance nonconformity. Discrimination against you is okay.” This albatross has inexplicably burdened sexual harassment law for the more than thirty-five years since it emerged as a redressable form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. This Article coherently explains the reason for it. It makes a simple claim: Sexual harassment law has failed to eradicate workplace gender discrimination, …
A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy
A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy
Michigan Journal of Gender & Law
Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the …
Title Ix And Social Media: Going Beyond The Law, Emily Suran
Title Ix And Social Media: Going Beyond The Law, Emily Suran
Michigan Journal of Gender & Law
The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a law, it …
How Feminist Theory Became (Criminal) Law: Tracing The Path To Mandatory Criminal Intervention In Domestic Violence Cases, Claire Houston
How Feminist Theory Became (Criminal) Law: Tracing The Path To Mandatory Criminal Intervention In Domestic Violence Cases, Claire Houston
Michigan Journal of Gender & Law
Our popular understanding of domestic violence has shifted significantly over the past forty years, and with it, our legal response. We have moved from an interpretation of domestic violence as a private relationship problem managed through counseling techniques to an approach that configures domestic violence first and foremost as a public crime. Mandatory criminal intervention policies reflect and reinforce this interpretation. How we arrived at this point, and which understanding of domestic violence facilitated this shift, is the focus of this Article. I argue that the move to intense criminalization has been driven by a distinctly feminist interpretation of domestic …
Fighting The Establishment: The Need For Procedural Reform Of Our Paternity Laws, Caroline Rogus
Fighting The Establishment: The Need For Procedural Reform Of Our Paternity Laws, Caroline Rogus
Michigan Journal of Gender & Law
Every state and the District of Columbia use voluntary acknowledgments of paternity. Created pursuant to federal law, the acknowledgment is signed by the purported biological parents and establishes paternity without requiring court involvement. Intended to be a “simple civil process” to establish paternity where the parents are unmarried, the acknowledgment is used by state governments to expedite child support litigation. But federal policy and state laws governing the acknowledgments do not sufficiently protect the interests of those men who have signed acknowledgments and who subsequently discover that they lack genetic ties to the children in question. A signatory who learns …
Morning-After Decisions: Legal Mobilization Against Emergency Contraception In Chile, Fernando Muñoz León
Morning-After Decisions: Legal Mobilization Against Emergency Contraception In Chile, Fernando Muñoz León
Michigan Journal of Gender & Law
In Chile, the Criminal Code bans all forms of abortion. Furthermore, the Constitution—drafted and enacted by the Military Junta led by General Augusto Pinochet—was inspired by a conservative version of Catholic natural law championed by prominent Chilean constitutional law scholars. This Article traces the emergence, development, and ultimately the defeat of a persistent legal mobilization driven by natural law-inspired litigants, politicians, and scholars against levonorgestrel-based emergency contraception, also known as the morning-after pill. In their decade-long efforts at legal mobilization, these natural law litigants used every tool of the Chilean legal system to challenge the legality and the constitutionality of …
Aborted Emotions: Regret, Relationality, And Regulation, Jody Lyneé Madeira
Aborted Emotions: Regret, Relationality, And Regulation, Jody Lyneé Madeira
Michigan Journal of Gender & Law
Regret is a deeply contested emotion within abortion discourse. It is present in ways that we are both afraid of and afraid to talk about. Conventional pro-life and pro-choice narratives link regret to defective decision making. Both sides assert that the existence of regret reveals abortion’s harmfulness or harmlessness, generating a narrow focus on the maternal-fetal relationship and women’s “rights.” These incomplete, deeply flawed constructions mire discourse in a clash between regret and relief and exclude myriad relevant relationships. Moreover, they distort popular understandings of abortion that in turn influence women, creating cognitive dissonance and perhaps distress for those with …
Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited, Michael El-Zein
Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited, Michael El-Zein
Michigan Journal of Gender & Law
The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem …
Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt
Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt
Michigan Journal of Gender & Law
Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …
Does The Constitution Protect Abortions Based On Fetal Anomaly?: Examining The Potential For Disability-Selective Abortion Bans In The Age Of Prenatal Whole Genome Sequencing, Greer Donley
Michigan Journal of Gender & Law
This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—-the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation …
The Case For Procedural Safeguards In The U.S. Refugee Admissions Program, Betsy Fisher
The Case For Procedural Safeguards In The U.S. Refugee Admissions Program, Betsy Fisher
Michigan Journal of Gender & Law
The U. S. Refugee Admissions Program (“USRAP”) is a humanitarian program that resettles vulnerable refugees to the United States. Though these refugees have suffered from extraordinarily high rates of trauma, the refugee admissions process does not have formal statutory or regulatory safeguards to accommodate the vulnerable nature of many applicants for resettlement. Yet, the applicants who have suffered the most trauma, including victims of sexual and gender- based violence, are the refugees most likely to be impeded by a process that largely centers on proving the severity of their trauma. To promote accurate outcomes, and to decrease the risk of …
Modernizing State Vital Statistics Statutes And Policies To Ensure Accurate Gender Markers On Birth Certificates: A Good Government Approach To Recognizing The Lives Of Transgender People, Lisa Mottet
Michigan Journal of Gender & Law
Across the country, laws governing corrections to gender markers on birth certificates are relatively uniform, in large part because many states adopted the relevant provisions of the 1977 revision of the Model State Vital Statistics Act (MSVSA). The MSVSA, developed by the U.S. Department of Health and Human Services, guides states on the most efficient laws and procedures related to maintaining accurate birth, death, and other vital records at the state, local, and territorial level. At the time when the government promulgated the MSVSA provision related to gender corrections, it served as a forward-thinking model because it acknowledged that vital …
The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey
The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey
Michigan Journal of Gender & Law
This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims ofintimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth. While the situation that gave rise to the battered womens movement in the 1970s is often presumed to …
Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell
Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell
Michigan Journal of Gender & Law
The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …
Surrender And Subordination: Birth Mothers And Adoption Law Reform, Elizabeth J. Samuels
Surrender And Subordination: Birth Mothers And Adoption Law Reform, Elizabeth J. Samuels
Michigan Journal of Gender & Law
For more than thirty years, adoption law reform advocates have been seeking to restore for adult adoptees the right to access their original birth certificates, a right that was lost in all but two states between the late 1930s and 1990. The advocates have faced strong opposition and have succeeded only in recent years and only in eight states. Among the most vigorous advocates for access are birth mothers who surrendered their children during a time it was believed that adoption would relieve unmarried women of shame and restore them to a respectable life. The birth mother advocates say that …