Law and Gender Commons^™

Foreword: Law, Labor And Gender, Jennifer B. Wriggins

Maine Law Review

The theme of the conference, Law, Labor, & Gender, came out of a working group comprised of law students, lawyers, a judge, and myself. We thought that a number of issues deserved attention, ranging from current jurisprudence on employment discrimination to more theoretical issues having to do with work/family dilemmas. Professor Deborah Rhode kindly accepted our invitation to be the keynote speaker, and various other academic speakers also agreed to present papers. The working group, and the editors of the Maine Law Review, drafted and sent out a call for papers to approximately 1600 law professors and others. The Law …

Lessons For Legalizing Love: A Case Study Of The Naz Foundation's Campaign To Decriminalize Homosexuality In India, Preston G. Johnson

Capstone Collection

In 1860, British colonizers codified Section 377 into the Indian Penal Code. 377 is an anti-sodomy law based on Victorian/Judeo-Christian values which criminalizes homosexuality through judicial interpretation and the manipulation of ambiguous language. On August 15^th, 2017, India celebrated 70 years of independence from British control, yet 377 still exerts oppressive control over the safety and freedom of Indian LGBTQI communities. Defining queerness as perversion has caused LGBTQI individuals to become victims of false accusations, blackmail, harassment, housing and workplace discrimination, familial rejection, forced “conversion therapy”, assault, rape, torture, and even murder because of this power imbalance and …

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender & Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how …

Working Sex Words, Anita Bernstein

Michigan Journal of Gender & Law

Imagine yourself tasked to speak for a few minutes about legal controls on sex-selling in the United States, or any other country you choose. You need not have thought about the particulars. As someone willing to read a law review article, you have enough to say because sex-selling overlaps with the subject knowledge you already have. Criminal law, contracts, employment law, immigration law, tort law, zoning, commercial law, and intellectual property, among other legal categories, all intersect with this topic. In your brief remarks on how law attempts to mediate the sale and purchase of sex, you have only one …

Customer Domination At Work: A New Paradigm For The Sexual Harassment Of Employees By Customers, Einat Albin

Michigan Journal of Gender & Law

This Article introduces a novel legal paradigm—customer domination at work—to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer liability than other instances where employers are liable for the sexual harassment of their employees. The protection for workers is also limited. The same is true of two other legal regimes discussed in the Article: Germany and Britain. More importantly, I argue that the prevailing paradigm precludes a true understanding …

The Legacy Of British Rule On Lgbt Rights In Jamaica And The Cayman Islands, Zachary Stewart

Master's Theses

This thesis explores the relationship between British colonial influence and Lesbian, Gay, Bisexual, and Transgender (LGBT) rights in the Caribbean. Comparing the Cayman Islands, a British Overseas Territory, and Jamaica, an independent former colony of the United Kingdom, the situation for LGBT people is evaluated. While Jamaica has serious abuses and a concerning situation for the human rights of LGBT people, the Cayman Islands’ LGBT community’s position is far less concerning. Owing to its continued connection to the United Kingdom of Great Britain and Northern Ireland, the Cayman Islands’ LGBT rights situation is much less dire. Through British influence via …

Making Accessible Futures: From The Capitol Crawl To #Cripthevote, Faye Ginsburg, Rayna Rapp

Cardozo Law Review

The article examines the evolving recognition and integration of disability rights in American society, emphasizing the transformative impact of the Americans with Disabilities Act (ADA) and the cultural shift towards inclusivity. It highlights the growing demographic presence of individuals with disabilities, the role of activism, and the importance of inclusive design and representation in media and politics. The authors argue that while significant progress has been made, ongoing advocacy is crucial to address persistent challenges and ensure the full recognition of disability as a valued aspect of human diversity.

Sexual Orientation In Canada's Revised Refugee Determination System: An Empirical Snapshot, Sean Rehaag

Articles & Book Chapters

This is one of several articles in a special issue to celebrate Nicole LaViolette's research contributions relating to intersections between gender and sexual orientation in Canadian and international law of forced migration. Inspired by three aspects of LaViolette's research, the article offers a snapshot of how Canada's recently revised refugee determination system addresses refugee claims involving allegations of persecution due to sexual orientation. Using data obtained through access to information requests about 18,221 principal applicant refugee determinations from 2013 to 2015, the article examines patterns in outcomes in cases categorized by the Immigration and Refugee Board as involving sexual orientation. …

Reconstructing The Voice Of Authority, Susie Salmon

Akron Law Review

Notwithstanding the presence of three women on the Supreme Court of the United States, in terms of gender equality, surprisingly little has changed in the legal profession over the past 20 years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive …

Pink Hats And Black Fists: The Role Of Women In The Black Lives Matter Movement, Jessica Watters

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Dean's Desk: Past And Present, Women Play Key Roles At Iu Maurer, Austen L. Parrish

Austen Parrish (2014-2022)

Under first lady Laurie Burns McRobbie’s leadership, Indiana University founded Women’s Philanthropy as one way to celebrate alumnae leadership and to make the achievements of our most talented and trailblazing women graduates more visible. As the IU Maurer School of Law’s 175th year draws to a close, consistent with these larger University efforts, it’s an opportune time to celebrate some of the law school’s extraordinary women graduates. Their stories are powerful and inspiring, and I’m pleased to share just a few.

Walking While Trans: Profiling Of Transgender Women By Law Enforcement, And The Problem Of Proof, Leonore F. Carpenter, R. Barrett Marshall

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Reforming Prison Policy To Improve Women-Specific Health And Sanitary Care Conditions Of Prisons In Ethiopia, Behailu T. Weldeyohannes

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Nevertheless She Persisted: From Mrs. Bradwell To Annalise Keating, Gender Bias In The Courtroom, Chris Chambers Goodman

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

When Fame Takes Away The Right To Privacy In One's Body: Revenge Porn And Tort Remedies For Public Figures, Caroline Drinnon

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Violent State: Black Women's Invisible Struggle Against Police Violence, Michelle S. Jacobs

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

There And Back Again? Police Reforms Through The Prism Of The Recruitment Decisions In The High Court And The Court Of Appeal, Festus M. Kinoti

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Jespersen V. Harrah's Operating Co.: Employer Appearance Standards And The Promotion Of Gender Stereotypes, Hillary J. Bouchard

Maine Law Review

In Jespersen v. Harrah’s Operating Co., Harrah’s Casino (Harrah’s) gave Darlene Jespersen (Jespersen), a female employee, thirty days to comply with the new mandatory makeup requirement the business imposed on its female beverage service employees. Jespersen refused, thirty days passed, and Harrah’s immediately terminated her. After unsuccessfully seeking administrative relief with the Equal Employment Opportunity Commission (EEOC), Jespersen filed a lawsuit against Harrah’s in federal district court. The claim alleged “disparate treatment sex discrimination” by Harrah’s in violation of Title VII. Subsequently, Harrah’s moved for summary judgment, and the district court granted the motion. The court found that Harrah’s employee …

Agency, Equality And Courage: A Case Study Of Women On The Front Lines Of Egypt’S 2011 Revolution, Carol Gray

Biennial Conference: The Social Practice of Human Rights

How were women involved in Egypt’s 2011 revolution/uprising? What role did they play vis-à-vis male activists? To what degree were Egyptian women “equal” during those 18 days in Tahrir Square? These questions will be explored within the context of interviews conducted by this writer in Cairo during and following Egypt’s 18-day revolution (uprising). This essay will explore the public/private sphere split, political consciousness-raising, and gender equality within the context of the stories of Egyptian women on the front lines of protest.

Much of the recent literature on women's protests in Egypt has focused on women's victimization. Critical gender theorist Ann …

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

Oliari And The European Court Of Human Rights: Where The Court Failed, Vito John Marzano

Pace International Law Review

The European Court of Human Rights revisited the issue of legal recognition for same-sex partnerships on July 21, 2015 when it decided Oliari and Others v. Italy. This Note explores the implications of that decision and what it may mean for same-sex couples within Italy and throughout the Council of Europe. Through a careful analysis of the decision, this Note concludes that Oliari provides slight yet important movement on the issue of a Contracting State’s obligation to afford legal recognition for same-sex partnerships, but a practical implementation of the Court’s holding likely will yield little additional movement in more conservative …

Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission: Brief Of Amici Curiae Public Accommodation Law Scholars In Support Of Respondents, Samuel Bagenstos

Appellate Briefs

Amici are legal scholars with expertise in the historical and contemporary applications of the public accommodation laws. This brief argues that the First Amendment exemption Masterpiece claims would subvert the historic purpose of these laws: to promote equal dignity in the marketplace.

For more than half a century, state public accommodation laws across the country have protected against denials of dignity and equal treatment in the public marketplace. Throughout that period, this Court has consistently rejected arguments that businesses open to the general public have a constitutional right to provide less than the full and equal services required by such …

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

Maine Law Review

In considering the legal architecture of nation-building, we might most readily think of public law as our subject insofar as it governs the relationship between the individual and the state, and establishes the institutions of governance and the sources and limits of their power. The essays in this volume, in large part, track this instinct in that they concern themselves with fields such as constitutional law, criminal law, and public international law. Closer to the margin of public and private law are essays dealing with various dimensions of the modern regulatory state, including banking and commercial transactions. In each of …

Women In The Legal Profession From The 1920s To The 1970s: What Can We Learn From Their Experience About Law And Social Change?, Cynthia Grant Bowman

Maine Law Review

I work in a law school building that is named for Jane M.G. Foster, who donated the money for its construction. It’s a lovely building, and my office overlooks a gorge so that I can hear the water fall as I write. So I’m grateful to Jane Foster. And curious. Who was she? Jane Foster graduated from Cornell Law School in 1918, having served as an editor of the law review and being elected to the Order of the Coif. But no law firm wanted her services. She obtained employment not as a lawyer but as a legal assistant in …

All Employers Must Wash Their Speech Before Returning To Work: The First Amendment & Compelled Use Of Employees’ Preferred Gender Pronouns, Tyler Sherman

William & Mary Bill of Rights Journal

No abstract provided.

Let’S Talk About Sexual Assault: Survivor Stories And The Law In The Jian Ghomeshi Media Discourse, Dana Phillips

Osgoode Hall Law Journal

The recent allegations against former Canadian radio host Jian Ghomeshi catalyzed an exceptional moment of public discourse on sexual assault in Canada. Following public revelations from several women who described being attacked by Ghomeshi, many others came forward with accounts of sexual violence in their own lives. Affirming feminist critiques of sexual assault law reform, many survivors drew on their experiences to expose the criminal justice system’s ongoing flaws in processing sexual assault cases. While some held out hope for the criminal law’s role in addressing sexual violence, most rejected its individualizing and retributive aspects. Instead, survivors emphasized the need …

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 …

Gender Wage Inequality: Is More Legislation The Answer?, Nicole Michele Barnhart

Seattle University Law Review

This Comment examines the unfortunate truth of gender wage inequality, focusing primarily on the California Fair Pay Act—one of the toughest equal pay laws in the United States. Part I examines the gender pay gap and how it is calculated. Part II provides an overview of the different laws aimed at protecting women from wage inequality both at a federal and state level. Part III discusses the negative, unintended consequences that may arise from the California Fair Pay Act by closely examining the plain language of the legislation. Part IV analyzes the underlying factors that contribute to wage inequality between …

Book Review: Deborah Rhode, Women And Leadership, Vaughn Hokanson

ConLawNOW

In this essay, the student author reviews the book Women & Leadership by Deborah Rhode, which offers potential solutions to the all-too-common challenges faced by those seeking to increase the number of women in top leadership positions.

Lgbt Rights Are Human Rights: Conditioning Foreign Direct Investments On Domestic Policy Reform, Dara P. Brown

Cornell International Law Journal

No abstract provided.