Law and Gender Commons^™

'And Ain't I A Woman?': Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

This Article argues that feminist and other critical legal theories can address the profound inequalities that immigrant workers face. Part I draws from a body of feminist, political, and social science theories regarding social reproduction to assess the situation of immigrant domestic workers and their recent efforts to claim inclusion in workplace laws and protections. It locates the increasingly carceral dynamics that are expressed in the law and in state infrastructure and continuously undermine immigrant women's economic and social stability, as explained in further detail in Parts L.A and I.B.2, infra. Unbeknownst to many, the present period is the most …

Policing And The Clash Of Masculinities, Ann C. Mcginley

Scholarly Works

In 2014 and 2015, the news media inundated U.S. society with reports of brutal killings by police of black men in major American cities. Unfortunately, police departments do not typically keep data on police killings of civilians. The data that exist do show, however, that at least for a five-month period in 2015, there was a disproportionate rate of police killings of unarmed black men.

There is no question that race and class play a key role in the nature of policing that occurs in poor black urban neighborhoods. However, the relationship between police officers and their victims is not …

Domestic Violence And The Politics Of Self-Help, Elizabeth L. Macdowell

Scholarly Works

Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to …

From Victims To Litigants, Elizabeth L. Macdowell

Scholarly Works

This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources. Furthermore, problems identified with self-help service delivery and negative impacts on advocacy systems may be explained by the structure of work within self-help programs and the nature of partnerships to provide self-help services. The Author uncovers previously unseen impacts of self-help programs on survivors …

Introduction To The U.S. Feminist Judgments Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Scholarly Works

The U.S. Feminist Judgments Project turns attention to the U.S. Supreme Court. Contributors to this volume challenge the formalistic concepts that U.S. Supreme Court opinions are, or should be, written from a neutral vantage point and that they are, or should be, based on deductive logic or “pure” rationality. When the project’s authors brought their own feminist consciousness or philosophy to some of the most important (and supposedly “neutral”) decisions and assertions about gender-related issues, the judicial decisions took on a very different character. Feminist consciousness broadens and widens the lens through which we view law and helps the decision …

Inattentional Blindness: Psychological Barriers Between Legal Mandates And Progress Toward Workplace Gender Equality, Rachel J. Anderson

Scholarly Works

This Article uses a law and psychology approach to identify ways to strengthen the administration of justice in the corporate workplace. Essentially, a better understanding of human behavior provides insights that are useful in crafting effective laws and improving the implementation of existing laws. The analysis of perception gaps due to inattentional blindness uncovers an under-theorized factor contributing to an enduring problem. Part I sets out the workforce crisis at the individual, company, national, and international levels and the role of gender inequality in this crisis and the pace of change. Part II discusses perception gaps among demographic groups as …

Models Of Invisibility: Rendering Domestic And Other Gendered Violence Visible To Students Through Clinical Law Teaching, Elizabeth L. Macdowell, Ann Cammett

Scholarly Works

The proliferation of university courses about domestic violence includes clinical courses in law schools in which students represent victims in their legal cases. This essay advocates for a broader approach to teaching about the problem. Using examples from their clinic cases, the authors show how teachers can overcome pedagogical challenges and render domestic and other forms of gendered violence, including state and community violence, more visible to students by intentionally raising and placing it within larger frameworks of structural inequality. In this way, students learn to identify and address gendered violence even when it is not the presenting problem.

Fired Anti-Gay Atlanta Fire Chief Strikes Back In Lawsuit, Arthur S. Leonard

Other Publications

No abstract provided.

From The Editors, Anna M. Klobucka, Jeannette E. Riley, Catherine Villanueva Gardner

Journal of Feminist Scholarship

No abstract provided.

The Future Of Chicana Studies: An Intergenerational Conversation With Historian Vicki L. Ruiz And Filmmaker Virginia Espino, Lori A. Flores

Journal of Feminist Scholarship

No abstract provided.

A History Of Their Own: A Conversation With Vicki L. Ruiz, Anupama Arora, Laura K. Muñoz, Sandrine Sanos

Journal of Feminist Scholarship

No abstract provided.

Creating Consciousness, Creating A Legend: A Conversation With Virginia Espino, Historian And Producer Of No Más Bebés (2015), Anupama Arora, Laura K. Muñoz, Sandrine Sanos

Journal of Feminist Scholarship

No abstract provided.

I Will Tell Your Story: New Media Activism And The Indian “Rape Crisis”, Rukmini Pande, Samira Nadkarni

Journal of Feminist Scholarship

This article analyzes the mediatized representations of the Indian “rape crisis” that gained global attention in the aftermath of the brutal gang rape of Jyoti Singh Pandey in New Delhi in 2012. While much attention was given to Leslie Udwin’s documentary on the incident, India’s Daughter (2015), which was subsequently banned by the Indian government, there were several other creative responses that attempted to negotiate with the meaning of the event. This article examines two such texts—the multimedia short story We Are Angry (2015) and the augmented-reality comic Priya’s Shakti (2014). Both these texts declare their intention to function as …

A Demographic History Of Federal Judicial Appointments By Gender And Race: 1789-2016, Jonathan K. Stubbs

Law Faculty Publications

This article briefly surveys the constitutional and statutory foundation for the creation of the federal judiciary. It also furnishes data, by sex and race, of the appointment of federal judges to courts of general jurisdiction during each presidential administration from September 24, 1789, through April 11, 2016. Thus, Part I describes the pace of diversification of the federal judiciary. While data regarding other attributes of judges (such as their socioeconomic status) exist, extensive analysis of such characteristics falls outside the parameters of this preliminary analysis. Nonetheless, the Article notes in passing that, since 1989, during each presidential administration, the majority …

Expanding The Core: Pregnancy Discrimination Law As It Approaches Full Term, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore was …

Feminism In The Age Of Trump, Jennifer Ching, Mai Ratakonda, Miriam Ticktin, Claudia Flores, Julie Suk, Jocelyn Getgen Kestenbaum, Susanna Mancini

Cardozo Journal of Equal Rights & Social Justice

The symposium explores the challenges and opportunities for advancing gender equality through legal reforms, particularly focusing on the Equal Rights Amendment (ERA) and the intersectionality of women's rights with other social justice movements. It emphasizes the need for a more inclusive and systemic approach to addressing gender inequalities, highlighting both the historical struggles within the feminist movement and the contemporary barriers to achieving substantive equality. The discussion underscores the importance of constitutional and legislative reforms, such as the ratification of the ERA, to address ongoing disparities in pay, representation, and access to reproductive rights.

Madonnas And Whores In The Workplace, Jessica K. Fink

Faculty Scholarship

Much has been written about “lookism” – the preferential treatment given to those who conform to societal standards of beauty. But in a recent case before the Iowa Supreme Court, a gender discrimination plaintiff alleged a sort of “reverse-lookism,” claiming that her male employer terminated her long-term employment because the employee was too physically attractive, thus tempting the employer to think about entering into an extramarital affair. To the great surprise of many who followed this case, the Iowa Supreme Court sided with the employer, declining to find him liable for gender discrimination. As one might expect, uproar ensued, with …

Beyond The Basketball Court: How Brittney Griner's In My Skin Illustrates Title Ix's Failure To Protect Lgbt Athletes At Religious Institutions, Leslie C. Griffin

Scholarly Works

Symposium: Playing with Pride: LGBT Inclusion in Sports.

Unlike schoolteachers, janitors, coaches, food-service directors, organists, and other workers, professional athletes usually command center stage in society. Their successes and failures loom larger than life. Sometimes their prominent lives highlight themes hidden from public discussion or neglected by the majority. Professional basketball player Brittney Griner's autobiography does just that, by illuminating how "religious freedom" can undermine equality, especially LGBT equality.

Rape Law Revisited, Aya Gruber

Publications

This essay introduces the Ohio State Journal of Criminal Law Symposium, “Rape Law Revisited” (Vol. 13(2)). The Symposium features articles by Deborah Tuerkheimer, Kimberly Ferzan, David Bryden and Erica Madore, Bennett Capers, and Erin Collins. The symposium provides fresh perspectives on the issues surrounding sexual assault law and policy in today’s environment. The introduction notes that the current rape reform redux is not just a rehashing of old arguments, but boasts many new features. Today’s rape activism occurs in a moment when feminist ideas about coerced sex no longer exist at the margins — they govern and enjoy cultural acceptance, …

Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran

Publications

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated, broadening the …

Schrodinger's Child: Non-Identity And Probabilities In Reproductive Decision-Making, Jennifer S. Hendricks

Publications

Derek Parfit's non-identity problem calls into question the claims of both the state and individuals when they purport to act for the benefit of future children. This paper discusses how adoption of the non-identity argument as a legal argument could affect reproductive and family policy, demonstrating that it undermines the child-centric approach to assigning legal parentage. The paper concludes, however, that these non-identity problems can be solved by the expected value approach, which demonstrates that efforts to benefit future people can be logically coherent even if those efforts also affect the genetic identities of the future people.

Zero-Tolerance Comes To International Law, Aya Gruber

Publications

No abstract provided.

From Rights To Dignity: Drawing Lessons From The Movements For Aid In Dying And Reproductive Rights, Yvonne F. Lindgren

Faculty Works

In Roe v. Wade the Supreme Court identified the abortion right as “inherently, and primarily, a medical decision” to be decided between doctors and their patients. Early abortion case law closely linked the right to the doctor-patient relationship and situated abortion within the context of healthcare. Over the last forty years, however, the abortion right has come to be viewed almost exclusively as a constitutional right of decision-making or “choice.” Under the Court’s current analysis, the abortion right is cabined exclusively as a constitutional right to decide to terminate a pregnancy and, as a result, the Court has upheld significant …

Debunking The Myth Of Universal Male Privilege, Jamie R. Abrams

University of Michigan Journal of Law Reform

Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military’s statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male …

Asian/American/Alien: Birth Tourism, The Racialization Of Asians, And The Identity Of The American Citizen, Mehera Nori

UC Law SF Journal on Gender and Justice

The challenges faced by Asians and Asian Americans are typically left out of the discussion when it comes to the media's depiction of the complexities behind immigration policies in the United States. Yet, behind the scenes, the rise of birth tourism as a major form of Asian immigration to the United States continues to grow. Birth tourism encompasses medical facilities that provide childbearing services to foreign women who wish to receive care in the United States, which results in the child having American citizenship. This note highlights the growing impact of birth tourism on Asian immigrants and the redefining of …

Comment: Transgender Employment Discrimination Equality In Wisconsin: The Demise Of A Former Lgbtiq+ Rights Trailblazer, Alexandra A. Klimko

Marquette Benefits and Social Welfare Law Review

Wisconsin, once known as “The Gay Rights State” and a

pioneer of the LGBTIQ+ civil rights movement, has

disappointingly failed to create transgender-inclusive

employment discrimination legislation, much like the majority of

American states. As a result, Wisconsin transgender employees

face shocking workplace discrimination with saddening

repercussions felt by transgender individuals who call Wisconsin

home. This Comment identifies the federal, state, and city

approaches that have extended equal employment

discrimination legal protections to transgender workers in the

United States. Further, this Comment urges the Wisconsin

legislature to incorporate “gender identity or expression” to

Wisconsin’s Fair Employment Act as a non-discrimination

category, …

Schools Are Employers Too: Rethinking The Institutional Liability Standard In Title Ix Teacher-On-Student Sexual Harassment Suits, Kathleen Mary E. Mayer

Georgia Law Review

To be entitled to any remedy under Title IX, students bringing private causes of action must show that their schools acted with actual knowledge and deliberate indifference. That liability standard is applied to both teacher-on-student and peer-on-peer harassment claims, without regard for an educational institution's relative control over the conduct of its employees versus its students. Schools should be held to a stricter standard in teacher-on-student cases than in peer-on-peer cases for numerous reasons of both law and policy. Considering that Title VII standards of liability do turn on relative control, a quirky imbalance results whereby a school is more …

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

Gendered Law In American History (2016), Richard Chused, Wendy Williams

Books

Gendered Law in American History is a remarkable compendium of over thirty years of research and teaching in the field. It explores an array of social, cultural, and legal arenas from the turn of the nineteenth to the middle of the twentieth centuries, including concepts of citizenship at the founding of the republic, the development of married women’s property laws, divorce, child custody, temperance, suffrage, domestic and racial violence before and after the Civil War, protective labor legislation, and the use of legal history testimony in legal disputes. It is both an invaluable reference tool and an important new teaching …

The Two Laws Of Sex Stereotyping, Noa Ben-Asher

Faculty Publications

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework—from equal opportunity to individual liberty—that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers, but not …