Law and Gender Commons^™

Feminist Legal Scholarship: A History Through The Lens Of The California Law Review, Katharine T. Bartlett

Faculty Scholarship

This Essay describes the evolution of feminist legal scholarship, using six articles published by the California Law Review as exemplars. This short history provides a window on the most important contributions of feminist scholarship to understandings about gender and law. It explores alternative formulations of equality, and the competing assumptions, ideals, and implications of these formulations. It describes frameworks of thought intended to compensate for the limitations of equality doctrine, including critical legal feminism, different voice theory, and nonsubordination theory, and the relationships between these frameworks. Finally, it identifies feminist legal scholarship that has crossed the disciplinary bound-aries of law. …

Living Art, Jaime S. King

UC Law SF Journal on Gender and Justice

In this narrative, Professor Jaime King explores her personal experience as a patient undergoing in vitro fertilization after studying the procedure as part of her doctoral dissertation in Health Policy and Ethics. Professor King reveals the challenges of being a patient when faced with medical uncertainty and a more paternalistic minded physician. She then argues in favor of changing informed consent law and physician practice patterns to promote the use of shared decision-making in order to improve medical decision-making in the context of IVF.

Body Art On Children's Bodies: Should It Be Up To Parents To Decide, Inna Volkova

UC Law SF Journal on Gender and Justice

Legislation in certain states has placed limitations on children's ability to acquire piercings or tattoos until the age of 18-irrespective of parental consent. This note argues against this type of legislation and instead advocates for parental consent to be the authority in this process. Taking into account the modern trend of body piercings and tattoos, the path of educating minors about possible health risks would accomplish the government's objective of decreasing piercings and tattoos amongst youth, without banning their rights to self expression. It is important to acknowledge the exception carved out for soft ear lobe piercings which is based …

Fundamental Rights For Women: Applying Log Cabin Republicans To The Military Abortion Ban, Hillary Hansen

UC Law SF Journal on Gender and Justice

Controversial policies in the United States Armed Forces like the ban on abortions in military facilities and the discharge of openly homosexual service members under Don't Ask Don't Tell (DADT) have disproportionately deprived service women of the fundamental rights they fight to protect. These policies pose serious threats to the safety and efficacy of female military personnel forcing them to make impossible decisions regarding their health, intimate relationships, and military careers. While the 111th Congress successfully repealed DADT, efforts to repeal the abortion ban fell short. This note compares and contrasts the substantive details and legislative history of these two …

Don't Sleep - Be Firm - Listen, Rafe Posey

UC Law SF Journal on Gender and Justice

No abstract provided.

Grey Matters, Lois Schwartz

UC Law SF Journal on Gender and Justice

In this narrative, Professor Lois Schwartz discusses the experience of finding her first grey hair, which led to her life-changing decision to enroll in law school at the age of forty. She explores her personal experience as a law student, a mother, a woman, and member of a so-called "geriatric study group" during her three years of legal education. Now a law professor herself, she discusses how her experiences as a student helped to shape who she is as a professor. She also reflects on the changes that have occurred to the legal profession since her time as a student, …

The New Illegitimacy: Tying Parentage To Marital Status For Lesbian Co-Parents, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

Should a child be allowed two legal parents only if born into a marriage? For children of heterosexual parents, the answer, today, is definitively "no." Constitutional protection for parental rights does not permit the ties between an unwed father and his child to be severed simply because he is not married to the child's mother. But the answer is often different for the child of a lesbian mother. In a recent opinion, Debra H. v. Janice R., the New York Court of Appeals ruled that a lesbian co-parent- a woman who had participated in the conception, birth, and early rearing …

Sisters In Law: Black Women Lawyers' Struggle For Advancement, Carla Pratt

Faculty Articles

While the presence of women in law school and the legal profession has improved greatly, the uncomfortable reality is that women tend to occupy positions in the legal profession that subordinate them to men. This reality is even more glaring when the position of black women is examined. Black women carry the burden of multiple consciousness which influences every aspect of their professional lives. Multiple consciousness means that black women must be mindful of their professional identity, their gender and their race in navigating the pipeline to power. This paper will explore the multiple consciousness that intersecting identities invoke and …

A Betrayed Ideal: The Problem Of Enforcement Of Eu Sex Equality Guarantees In The Cee Post-Socialist Legal Systems, Goran Selanec

SJD Dissertations

The notion of equality between men and women has, for a long time, played a significant role in the societies of Central and Eastern Europe (CEE). The ideal was particularly important during the period of “real” or “really existing” socialism in CEE. For the CEE socialist regimes, the ideal of equality was an ideological banner that supposedly demonstrated their moral superiority to the “West”. The ideal has gained new importance in recent years, when the CEE post-socialist states had to commit to the protection of the notion of equality between sexes as a condition of their membership in the European …

Protecting Traditional Surrogacy Contracting Through Fee Payment Regulation, Dominique Ladomato

UC Law SF Journal on Gender and Justice

There is an outdated assumption that payment in exchange for traditional surrogacy services is equal to "baby-selling." Due to this assumption, there is an unrealistic expectation that altruism alone should sustain traditional surrogacy contracts in place of payment. While there is currently no uniform regulation on traditional surrogacy for-pay contracts in the United States, there is a wealth of conflicting state laws that make traditional surrogacy contracting a confusing area of the law. When it is unclear how a state will treat these surrogacy contracts, individuals enter into these unique contractual arrangements with little to no certainty about their enforceability. …

Breeding Incentives: Parental Leave In Japan And The United States, Talia Saypoff

UC Law SF Journal on Gender and Justice

More so than in any other area, law that involves family issues tends to lack international consensus. This is certainly the case for parental leave law. This Note examines parental leave and family care leave laws, within the broader context of women's employment, in the United States and Japan. First, this Note offers an overview of the evolution of parental leave laws in the United States and Japan. Next, this Note looks at how many people take advantage of the leave offered and seek to understand parents' underlying motives. The United States, which has arguably the worst parental leave laws …

Unsportsmanlike Conduct: Female Sportswriters As Targets For Sexual Harassment, Aishlin P. Hicks

UC Law SF Journal on Gender and Justice

Professional sports are big business in the United States, and so perhaps it is no surprise that reporters from magazines, newspapers, and television shows and networks flock to pro locker rooms and practice fields to interview the players and coaches. The situation can become a bit more complex when the person on the other end of the microphone is a woman. Female sportswriters often find themselves as targets for sexual harassment and lewd behavior. This Note considers the possible legal options that sportswriters may have when they are victimized by the athletes and coaches they are charged with reporting on. …

From Gender To Genomics: Achievements And Challenges In Sex-Specific Science, Marianne J. Legato

UC Law SF Journal on Gender and Justice

Dr. Legato's keynote speech, delivered at the Journal's Symposium, covered the evolution of gendered approaches to medical examination and research from the early 1900s up to today. This issue features a transcribed version of that address. In the early 1900s, doctors and medical researchers focused solely on men as normative subjects representative of the population at large. Since then, the focus has shifted; first, to a dual approach, considering both sexes, and then, to a greater emphasis on women, to the detriment of the male community. The classic debate of nature versus nurter has been a recurring theme throughout these …

Hey, What About Me: Why Sexual Education Classes Shouldn't Keep Ignoring Lgbtq Students, Sarah Camille Conrey

UC Law SF Journal on Gender and Justice

This Note discusses the issue of public school sexual education classes that do not discuss LGBTQ-specific issues. I look at the history of sexual education in public schools in the United States, and the evolving purposes behind such curricula. Next I discuss the social implications of omitting LGBTQ-specific information in sexual education classes, which include the reinforcement of heteronormative beliefs among students. I examine how the failure to inform students of protective measures when having same-sex sexual encounters can have health implications by potentially reinforcing the mistaken belief that such sexual encounters are relatively risk free because there is not …

The Intriguing Potential Of Postnuptial Contract Modifications, M. Neil Browne, Katherine S. Fister

UC Law SF Journal on Gender and Justice

An ugly reality faced by many couples is the prospect of an impending divorce. Regardless of this fact, there is a longstanding opposition to the creation of marital contracts that is routed in history and enforced by popular opinion. This Article contends that marriage contracts drafted during the marriage, known as postnuptial contracts, can be effective in providing cleaner ways for marriages to dissolve and for saving marriages that are on the brink of collapse. These contracts allow couples to address marital disagreements that were unanticipated prior to the marriage. Unlike prenuptial contracts, however, postnuptial contracts are difficult to enforce …

Hormone Therapy For Postmenopausal Women: A Brief History Of Time, Cynthia A. Stuenkel

UC Law SF Journal on Gender and Justice

All women who live long enough with ovaries intact will experience the menopause transition. This nearly universal, natural physiological event transcends mere biology, however. In our culture, the menopause also connotes a marker of aging. Margaret Meade considered menopause as the portal to a season of postmenopausal zest. Others, such as the infamous gynecologist Robert Wilson, approached menopause as an endocrine deficiency disorder with only negative sequelae in a woman's appearance, sexuality, and health. In an effort to relieve women's symptoms and to ward off the vagaries of aging, hormone therapy entered midstream medicine over fifty years ago. In an …

The "M Word" Symposium: An Interdisciplinary Adventure, Lisa Faigman

UC Law SF Journal on Gender and Justice

No abstract provided.

Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala

University of Michigan Journal of Law Reform Caveat

One in three Native American women has been raped or has experienced an attempted rape. Federal officials also failed to prosecute 75% of the alleged sex crimes against women and children living under tribal authority. The Senate bill to reauthorize the 1994 Violence Against Women Act (VAWA) could provide appropriate recourse for Native American women who are victims of sexual assault. This bill (S. 1925), introduced in 2011, would grant tribal courts the ability to prosecute non-Indians who have sexually assaulted their Native American spouses and domestic partners. Congress has quickly reauthorized the Violence Against Women Act twice before. But …

Unsex Mothering: Toward A New Culture Of Parenting, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

In this Article, I observe that “mothering” and “fathering” have been inappropriately tethered to biosex. “Mothering” should be unsexed as the primary parental relationship. “Fathering,” correspondingly, should be unsexed from its breadwinner status. In an ideal world, people now considered “mothers” and “fathers” would be “parents” first, a category that includes all forms of caretaking. One could even imagine an androgynous world in which parenting has no sexed subcategories, whether attached to biosex or not. I doubt our world is anywhere near that; I also wonder whether universal androgyny is a utopian ideal worth pursuing. I instead focus in this …

Motherhood And The Constitution: (Re)Thinking The Power Of Women To Facilitate Change, Angela Mae Kupenda

Journal Articles

Women face many barriers in the journey toward equality. Participants at American Association of Law Schools' ("AALS") recent "Workshop on Women Rethinking Equality" addressed the structural, and perhaps sometimes intentional, barriers constructed by societal forces and by the law against women's struggles for various types of equality. At the workshop, many of us pointed to all of the things "they," meaning others, should do to help dismantle these barriers and to help women forge equality. I agree many barriers remain that must be dismantled, and there is much "they" should do to rectify the generations of obstacles and limitations placed …

Revisiting Mothering? – A Mother's Thoughts: A Response To Darren Rosenblum's Unsex Mothering: Toward A Culture Of New Parenting, Berta E. Hernández-Truyol

UF Law Faculty Publications

I came to motherhood (“am2”?) late in life. Mothering is the most complex, difficult, challenging work in which I have ever engaged. It also is the most rewarding, exciting, frightening, all consuming work that I will ever do. I would not trade this life for anything.

The night before this essay was due, I was up late (well, late for me, the mother of a seven-year-old boy Nikolai and six-month-old twins Natalia Luz and Nadal Sergio) working on the last set of edits — putting the finishing touches, if you will — on the draft of my musings on Rosenblum’s …

Comparative Pragmatism, Rachel Rebouché

UF Law Faculty Publications

Although several commentators have previously suggested that the United States and Germany now share more commonalities than differences, this Article challenges the conventional wisdom by suggesting that the United States and Germany have moved in the opposite direction on a spectrum of available abortion services. In the United States, the constitutional right to an abortion is unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas. In Germany, by contrast, despite the country’s formal recognition of fetal rights, early abortion is widely available and often funded by the government. In short, …

Mixed Messages: The Intersection Of Prenatal Genetic Testing And Abortion, Rachel Rebouché, Karen Rothenberg

UF Law Faculty Publications

This article, prepared for the 2011 Wiley A. Branton Symposium at Howard Law School, provides a snapshot of how current law and practice generate mixed messages about prenatal genetic testing and abortion. The ability to screen and to test for genetic conditions prenatally is expanding, not only because of technological innovations but also because of increased legal and financial incentives. At the same time that prenatal genetic testing is expanding, abortion – one option pregnant women have after testing – is contracting. Federal and state legislation restricts abortion services, for example, by reducing or prohibiting funding; banning the types or …

Subordinate Bias Liability, Theresa M. Beiner

Law Faculty Scholarship

No abstract provided.

Study Guide For United In Anger: A History Of Act Up, Matt Brim

Open Educational Resources

The United in Anger Study Guide facilitates classroom and activist engagement with Jim Hubbard’s 2012 documentary, United in Anger: A History of ACT UP. The Study Guide contains discussion sections, projects and exercises, and resources for further research about the activism of the New York chapter of ACT UP (AIDS Coalition to Unleash Power). The Study Guide is a free, interactive, multimedia resource for understanding the legacy of ACT UP, the film’s role in preserving that legacy, and its meaning for viewers' lives.

The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein

UF Law Faculty Publications

This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg's litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women's Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished-not solely the minority status of women. The same sex-based stereotypes that kept women out …

Sexual Harassment 2.0, Mary Anne Franks

Articles

Sexual harassment is a complex and evolving practice. The rise of sexual discrimination in cyberspace is only one of the most recent and most striking examples of the phenomenon's increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately "updated" to address new and amplified practices of sex discrimination. Its two principal limitations are (1) it treats only sexual harassment that occurs in certain protected settings (e.g. the workplace or school) as actionable and (2) it assumes that both the activity and the resulting harm of sexual harassment occur in the …

The Challenge Of Domestic Implementation Of International Human Rights Law In The Cotton Field Case, Caroline Bettinger-López

Articles

No abstract provided.

If It’S Broken, Let Them Fix It: Why The Gebser Pre-Litigation Notice Requirement Should Apply To Title Ix Athletics Lawsuits, Zachary Swartz

Catholic University Law Review

No abstract provided.

Female Law Students, Gendered Self-Evaluation, And The Promise Of Positive Psychology, Dara Purvis

Faculty Scholarship

For the last several decades, studies and surveys have shown that female law students perform worse and feel worse about their experiences in law school than do male students. Hidden in average figures, however, is a subgroup of female students who thrive. Positive psychology, focusing on what traits make people happy rather than how to alleviate depression, provides novel ideas of how to improve legal education for women without making accommodations specifically targeting gender.