Law and Gender Commons^™

What Does It Take To Be A (Lesbian) Parent - On Intent And Genetics, Sanja Zgonjanin

UC Law SF Journal on Gender and Justice

This Note analyzes KM v. E.G., 13 Cal. Rptr 3d 136 (Cal. Ct. App. 2004), the first case brought in front of any court of appeals in the U.S. where the lesbian egg donor (the genetic mother) who raised her children for six years together with her partner (the gestational mother) was denied parental rights after the couple separated. The application of the intent based determination of parentage originally devised to solve competing parental claims in surrogacy case is criticized as inappropriate, unnecessary and unjustified. The absence of legal protections for lesbian parents and standards addressing issues unique to lesbian …

Aligning Or Maligning - Getting Inside A New Idea, Getting Behind No Child Left Behind And Getting Outside Of It All, Stephen A. Rosenbaum

UC Law SF Journal on Gender and Justice

The pending reauthorization of the Individuals with Disabilities Education Act (IDEA) alters the landscape of special education for parents and advocates of children with special needs. The proposed modifications are based on an effort to reduce the bureaucracy associated with the current procedural safeguards and to incorporate the concept of accountability embodied in the No Child Left Behind Act. Many advocates are waiting with apprehension for the final version of the bill due to the philosophical changes that it will bring to special education federal law. This article gives an overview of the pending legislation and urges advocates to adapt …

Introduction And Congratulations, Mary Kay Kane

UC Law SF Journal on Gender and Justice

No abstract provided.

The Criminalization Of Survival Attempts: Locking Up Female Runaways And Other Status Offenders, Alecia Humphrey

UC Law SF Journal on Gender and Justice

To control and help runaway children, courts have classified them as "status offenders" without getting to the real source of their runaway behavior, such as physical or sexual abuse at home. Instead, confining runaway children to the judicial system through the use of status offenses has further entrenched these runaways' behavior without helping them develop more effective copings skills; children often run away again, commit substantive crimes, once again become victims, or else are institutionalized or incarcerated on down the road. Indeed, girls are especially prone to this cycle, since their numbers are disproportionately higher than those of boys in …

A New Image In The Looking Glass: Faculty Mentoring, Invitational Rhetoric, And The Second-Class Status Of Women In The U.S. Academia, Carlo A. Pedrioli

UC Law SF Journal on Gender and Justice

Despite earning more than 40% of doctorates awarded in the United States, women hold one third of the tenure-track teaching positions in higher education. Moreover, the women who enter U.S. academia still earn less than their male counterparts. This article maintains that Title VII of the Civil Rights Act of 1964 offers an inadequate solution for encouraging the presence and equal standing of women in U.S. academia. This article presents the slow progress of equality in academia achieved by Title VII and the limitations of traditional rhetoric. It then offers models of faculty mentoring and introduces the concept of invitational …

Human Trafficking Private Right Of Action: Civil Rights For Trafficked Persons In The United States, Kathleen Kim, Kusia Hreshchyshyn

UC Law SF Journal on Gender and Justice

Human Trafficking Private Right of Action: Civil Rights for Trafficked Persons in the United States addresses a 2003 addition to the Trafficking Victims Protection Act allowing for a private right of action for persons trafficked to the United States. The article discusses civil litigation as a strategy for trafficked persons to obtain a remedy that specifically addresses the injury that they sustained: enslavement. The discussion situates this remedy within the broader purposes of anti-trafficking legislation.

"[N]Ot A Story To Pass On": Constructing Mothers Who Kill, Susan Ayres

UC Law SF Journal on Gender and Justice

Society is horrified and shocked when mothers kill their children. While this reaction may be justified, the reasons behind infanticide are never fully explored. Motherhood has very specific definitions in our society which makes it difficult to understand the motivations behind infanticide. Social institutions, such as the legal system and the media, are responsible for constructing motherhood in such a way that we view mothers who kill their children as simply insane and deficient. This article asserts another possible viewpoint regarding infanticide. Instead of specularizing women, the author urges people to view mothers who kill their children within the context …

The Voice Of The Unheard: An Evaluation Of And Proposed Solution To The Special Educational Needs Of Hearing Children Of Deaf Parents, Julie Ruschin

UC Law SF Journal on Gender and Justice

Spoken language acquisition depends on aural exposure to the language. A child must hear a language spoken. But more than this, the child must have the language directed at her in conversational context. Because spoken language acquisition requires something that may be beyond the capabilities of the State, and because language acquisition is an educational issue, the responsibility for providing a program to ensure that hearing children of deaf parents master spoken English rests on the State. The State should create programs to ensure that these children are properly exposed to spoken English during the brief period in life in …

Founder's Remarks Commemorating The 15th Anniversary, Deborah Kochan

UC Law SF Journal on Gender and Justice

No abstract provided.

Stoning Single Nigerian Mothers For Adultery: Applying Feminist Theory To An Analysis Of Gender Discrimination In International Law, Sarah Crutcher

UC Law SF Journal on Gender and Justice

In 2003, an Islamic Sharia court in northern Nigeria sentenced Amina Lawal to death by stoning for having sex outside of marriage. After the man Lawal named as the father of her baby was acquitted for lack of evidence, the international community pressured Nigeria to oppose the ruling by adhering to its own constitutional provisions, and international law prohibiting torture and gender discrimination. This article explores the fundamental conflicts between international human rights law and Islamic law as implemented by Sharia courts. The author cites the UN Charter, the Universal Declaration of Human Rights, jus cogens and customary international law, …

The Admissibility Of Tape Recordings In Criminal Trials Involving Domestic Disputes: California's Proposition 8 And Title Iii Of The Federal Omnibus Crime Control And Safe Streets Act, Lee Ashely Smith

UC Law SF Journal on Gender and Justice

Domestic cases of eavesdropping and wiretapping pose a special problem for laws that were initially meant to govern police misconduct and espionage. California voters passed Proposition 8 but its passage led to many additional questions including whether the law truly champions victims' rights and whether it protects innocent defendants. Federal law, by comparison, sets a minimum standard of one-party consent for the admissibility of wiretap or eavesdropping evidence in criminal trials. This standard has been shown to permit parental wiretaps without allowing purely clandestine recording of another's activities, including spouses and domestic partners. In short, privacy rights are protected to …

Consent Engendered: A Feminist Critique Of Consensual Fourth Amendment Searches, Dana Raigrodski

UC Law SF Journal on Gender and Justice

This essay examines the inherent power imbalances that characterize police-individual encounters and questions the notion of consensual searches. Albeit feminist challenges to the notion of consent in other areas of the law, there has not been a feminist scrutiny of consent and agency as employed within search and seizure law. Therefore, this essay builds on feminist critique of rape laws and domestic violence to challenge the Court's dichotomized view of coercion and consent in its search and seizure cases and to offer a feminist concept of agency under conditions of subordination.

Lighting The Lantern: Visions Of A Virtual All-Women's Law School, Nancy E. Shurtz

UC Law SF Journal on Gender and Justice

"Lighting the Lantern: Visions of a Virtual All-Women's Law School" is a fictional narrative of a hypothetical all women's law school. It is written in non-traditional form in the hope that it will prompt the reader to view the law, academic institutions and societal constructs in ways more consistent with an evolving society that should embrace all differences, whether those differences are gender or racially based.

The mission of the All Women's Law School is threefold: "First, to teach specific lawyering skills and disseminate knowledge in a context designed to help students function effectively in the existing culture while working …

The Child Status Protection Act: Does Immigration Math Solve The Family Unity Equation, Shane Dizon

UC Law SF Journal on Gender and Justice

This note focuses on the Child Status Protection Act, passed by Congress in 2002 to allow individuals who turn 21 while their permanent residence paperwork is pending to preserve their eligibility as children. The note addresses the various reactions of the enforcing government authorities, practitioners, and courts since the Act's passage. In addition, the author explores the Act's place among other recent legislation and government agency policies purporting to advance the theme of family unity in immigration. Ultimately, the author suggests that the statutory stop-the-clock approach embodied by the Act seems not only inconsistent with its predecessors, which have expanded …

A Hometown Dilemma: Addressing Th E Sexual Harassment Of Undocumented Women In Meatpacking Plants In Iowa And Nebraska, Amanda Clark

UC Law SF Journal on Gender and Justice

Sexual harassment of undocumented women workers continues to be a systemic problem within the meatpacking industry. In Iowa and Nebraska, the state legislature, the Equal Employment Opportunity Commission, labor unions, and local advocacy organizations are working to address the problem of sexual harassment within the meatpacking industry. This note addresses the ongoing issues facing women in the meatpacking industry in Iowa and Nebraska, in particular the unique concerns facing undocumented and immigrant women workers. It also looks to the Supreme Court holding in Hoffman Plastic Compounds, Inc. v. NLRB to determine the applicability of that case to Title VII sexual …

Child Laborers: The World's Potential Future Labor Resources Exploited And Depleted, Rupneet Sidhu

UC Law SF Journal on Gender and Justice

At this very moment, child laborers are working in unsuitable and hazardous conditions in both developed and developing nations. The adults, who are the main medium for giving voice to the concerns of the child laborers at the international and national levels, have failed. However, there are some promising international instruments whose full and sincere implementation can aid nations to eliminate at least the worst forms of child labor. Concurrently improving and enforcing national laws will help as well. Moreover, the non-governmental organizations should be recognized for being instrumental in keeping the child labor issues as a priority of the …

Foreword, Heather Kirlin, Dominique Tauzin

UC Law SF Journal on Gender and Justice

No abstract provided.

School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake

UC Law SF Journal on Gender and Justice

In this article, Professor Brake discusses the Supreme Court's decision in Davis v. Monroe County Board of Education, which recognized student-on-student sexual harassment as a form of actionable discrimination under Title IX, as part of a larger tension in discrimination law between intent and causation as the guiding principle for defining unlawful discrimination. She argues that the liability standard adopted by the Davis Court properly focused on the question of whether schools cause sex-based harm, rather than inquiring into the bias or subjective intent of school officials. Although the deliberate indifference requirement the Court adopted sets a tougher liability standard …

Combating Fetal Substance Abuse And Governmental Foolhardiness Through Collaborative Linkages, Therapeutic Jurisprudence And Common Sense: Helping Women Help Themselves, David C. Brody, Heidee Mcmillin

UC Law SF Journal on Gender and Justice

Annually thousands of babies are born exposed to alcohol or illicit drugs while in their mother's womb. While the government has addressed the problem by punishing pregnant women and their children, the number of affected infants continues to rise. This is largely due to states taking gendered, punitive and illogical actions, which are antithetical to the social, scientific and medical research that has shown that treatment, not punishment, is the appropriate means to deal with the problem. Instead of addressing the problem honestly in search of a practical solution, states have focused on casting blame and meting out punishment upon …

United States Asylum Law In The Context Of Sexual Orientation And Gender Identity: Justice For The Transgendered, Fatima Mohyuddin

UC Law SF Journal on Gender and Justice

This article examines the recognition given to sexual minorities through United States asylum law. This article begins with a general explanation of the evolution of asylum law and an overview of the different categories of persons eligible to apply for asylum, particularly persons facing persecution as a social group. Then the article discusses the traditional construction of gender and sexuality in lieu of persons who do not fit into the dimorphic, male/female, gender and sexual categories. These sexual minorities often face extreme hardship, government persecution and death in their home countries for stepping outside of culturally imposed sexual and gender …

Finding A Third Way: The Use Of Public Engagement And Adr To Bring School Communities Together For The Safety Of Gay Students, David S. Doty

UC Law SF Journal on Gender and Justice

On its face, the suggestion that gay and lesbian students, along with all other students, should be protected from violence and harm in public schools does not seem to warrant controversy. Yet, disputes over this issue threaten to consume school communities, as school officials wrestle with complicated legal requirements and emotional stakeholders. Contributing to the turmoil is the fact that school officials cannot begin to address the safety concerns of gay students strictly within a legal framework without finding themselves frustrated by a number of conflicting mandates. On the one hand, schools are obligated under Title IX and the Equal …

Response To Peer Sexual Harassment Of Lgbt Youth In Schools: Advocacy, Legislation And Litigation, Christine Hwang

UC Law SF Journal on Gender and Justice

No abstract provided.

Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner

UC Law SF Journal on Gender and Justice

The Supreme Court, in Davis v. Monroe County Board of Education, correctly held school districts liable under Title IX for deliberate indifference to known instances of student-on-student sexual harassment that is so severe, pervasive and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit. Professor Schaffner argues, however, that the majority failed to adequately address three concerns raised by the Davis dissent, that: (1) as a matter of federalism, this issue should be left to the states; (2) student peer sexual harassment does not constitute sex discrimination and (3) holding schools liable for student …

Boys Will Be Boys: Peer Sexual Harassment In Schools And The Implications Of Davis V. Monroe County Board Of Education, Tianna Mcclure

UC Law SF Journal on Gender and Justice

The recent Supreme Court decision finding that the failure of schools to address and remedy peer sexual harassment in Davis v. Monroe County Board of Education, appears to be a victory for students and feminists alike. However, the Davis decision does not go far enough to insure the emotional and physical well-being of America's school children. While as a result of this decision schools must begin to recognize the true nature and severity of peer sexual harassment or face the possibility of monetary damages, Davis is, nevertheless, flawed. The Supreme Court operates under the assumption that actual knowledge is the …

Students As Targets And Perpetrators Of Sexual Harassment: Title Ix And Beyond, Martha Mccarthy

UC Law SF Journal on Gender and Justice

This article address legal protections for public school students who are the victims of sexual harassment inflicted by school employees or their classmates. Constitutional and statutory remedies are explored, with particular attention given to the liability of school districts under Title IX of the Education Amendments of 1972 that bars gender discrimination in federal assisted educational programs or activities. The article discusses in some detail the Title IX standards for students to be awarded damages from school districts for sexual harassment that the Supreme Court announced in Franklin v. Gwinnett Public Schools, Gebser v. Lago Vista Independent School District and …

Peer Sexual Harassment In California After Davis, John F. Walsh

UC Law SF Journal on Gender and Justice

This article discusses, from a practice standpoint, the significance Davis v. Monroe County Board of Education will have for California schools and colleges. The article first discusses Ninth Circuit interpretations of peer harassment prior to Davis, then analyzes Davis from a practice standpoint, raising issues left open by the Davis decision. The article then discusses the interrelationship between Title IX and California law. Finally, the article addresses institutional and personal liability and immunity defense issues.

Foreword, Heather Kirlin, Dominique Tauzin

UC Law SF Journal on Gender and Justice

No abstract provided.

The Deterrent Effect Of Arrest In Domestic Violence: Differentiating Between Victim And Perpetrator Response, Johanna Niemi-Kiesilainen

UC Law SF Journal on Gender and Justice

The effects of arrest in domestic violence have been debated since Professor Lawrence Sherman et al. published their widely cited empirical studies in the 1980s and early 1990s. These studies, however, focused on the perpetrator and did not consider the effects of arrest on the victim's willingness to report repeat violence to the police. In this article, Professor Niemi-Kiesiliinen argues that the effect of arresting the perpetrator on the behavior of the victim is a crucial factor in determining the overall effectiveness of arrest. It is likely that the arrest of the perpetrator deters violence, but it is equally possible …

Peace Be With You, Mary E. Davis

UC Law SF Journal on Gender and Justice

No abstract provided.

In The Best Interests Of The Child: An Analysis Of Wisconsin Supreme Court Rulings Involving Same-Sex Couples With Children, Amy Persin Linnert

UC Law SF Journal on Gender and Justice

The children of same-sex couples are often the unintended victims of legal discrimination against homosexuals. This note examines the Wisconsin Supreme Court's approach to the issues of adoption, custody and visitation involving the children of same-sex couples. Wisconsin was chosen as the focus of this note because it is widely recognized as a legally progressive state and is one of the few states that prohibits discrimination on the basis of sexual orientation. This note urges the Wisconsin courts and legislature to reexamine the issue of same-sex marriage as a means of protecting the best interests of the children of same-sex …