Law and Gender Commons^™

Skrmetti And The Problem Of Incidental Intent, Martin J. Katz

Sturm College of Law: Faculty Scholarship

The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question …

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

Menstrual Justice After Dobbs, Margaret E. Johnson

All Faculty Scholarship

This Article identifies and analyzes the category of state and private regulation that is invisible and subordinates women and other menstruators in ways that impact their privacy, liberty, and equality. Because this category of regulation is pervasive, bringing it to light is critical for considering how best to curb its harm. This Article considers potential legal strategies to counter such menstruation regulation and argues that Dobbs v. Jackson Women’s Health Organization offers some promise—but more cause for pessimism—regarding the U.S. Constitution’s power to do so. This Article therefore explains how subconstitutional law offers greater potential, while cautioning that political science …

Policing Gender: The Interest Convergence Of Women's And Transgender Rights, Michael Ulrich

Faculty Scholarship

The social, political, and legal landscape has seen a resurgence of gender fundamentalism, seeking to reinforce archaic notions of what it means to be a woman. Social media movements run in tandem with this resurgence of gender fundamentalism. For instance, the “tradwife” phenomenon that romanticizes a domestic, subservient role for women.¹ Alabama Senator Katie Britt most infamously reflected the convergence of these trends when she delivered her response to the State of the Union from a kitchen table and proclaimed that her message was “a direct appeal” to her “fellow moms.”² Meanwhile, executive orders and state laws have …

Challenging Florida’S Parental Rights In Education Act, Aka The “Don’T Say Gay” Law: Finding Equality Through Equal Protection Doctrine, Nelson Garcia

University of Miami Race & Social Justice Law Review

No abstract provided.

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

Reflection On Progress Without Equity: Title Ix K-12 Athletics At Fifty, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only …

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

Scholarly Works

Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Brief Amici Curiae Legal Scholars Of Sex And Gender In Support Of Plaintiff-Appellant, Kyle Velte, Ezra Young, Jeremiah A. Ho, M. Dru Levasseur, Nancy C. Marcus, Dara E. Purvis, Eliot Tracz, Ann E. Tweedy

All Faculty Scholarship

This amicus brief was filed in Griffith v. El Paso County, Colorado, case no. 23-1135 (10th Circuit) in support of appellant Darlene Griffith. Amici curiae are legal scholars of sex and gender. They offer expertise in their personal capacities to assist the Court of Appeals for the Tenth Circuit in assessing whether the El Paso County Sheriff officials violated Ms. Griffith’s Fourteenth Amendment right to equal protection when they refused to house Ms. Griffith, a transgender woman, in the women's unit of the El Paso County Jail as a pretrial detainee.

Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman

St. Mary's Law Journal

There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of …

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …

Federal District Court Refuses To Dismiss Challenge To West Virginia Law Banning Trans Girls From Scholastic Athletic Competition, Arthur S. Leonard

Other Publications

No abstract provided.

Before Equal Protection: The Fall Of Cross-Dressing Bans And The Transgender Legal Movement, Kate Redburn

Faculty Scholarship

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms – for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, …

Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper

All Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Rbg And Gender Discrimination, Eileen Kaufman

Touro Law Review

No abstract provided.

The Gender Pay Gap, In Relation To Professional Sports, Bryan Ramdat

Journal of Race, Gender, and Ethnicity

No abstract provided.

Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas

Journal of Race, Gender, and Ethnicity

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Rbg And Gender Discrimination, Eileen Kaufman

Scholarly Works

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Redefining Sex Offenders: The Fight To Break The Bias Of Female Sex Offenders, Norma Hamilton

Journal of Race, Gender, and Ethnicity

No abstract provided.

Identity: Obstacles And Openings, Osamudia R. James

Articles

Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward "identity politics," the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims.

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration's open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people's continued …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Against Women’S Sports, Nancy Leong

Sturm College of Law: Faculty Scholarship

This Article challenges the longstanding assumption that sports should be segregated by sex. Imposing sex segregation on sports is problematic for many reasons. It reflects and reinforces a long-disproven binary view of both sex and gender. It communicates that women are physically unable to compete against men, even though research indicates considerable variation among individual athletes and different sports, and further reveals that attributes other than sex are more important determinants of athletic ability. It reinforces unfounded gender stereotypes that harm both women and men. And sex segregation uncritically prioritizes athletic activities involving strengths typically associated with male bodies, without …

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins

Maine Law Review

The focus of today’s annual Constitution Day lecture at the University of Maine School of Law is on the Fourteenth Amendment and specifically how the Equal Protection Clause relates to tort law. First, I will talk about the Equal Protection Clause in general—what it says, and some of what it has been held to mean—particularly where government makes distinctions based on race and gender. Second, I will discuss two historical tort cases that violate equal protection on the basis of race. In doing so, I uncover the racial history of tort law that has been hidden in plain sight. I …