Law and Gender Commons^™

Death After Dobbs: Addressing The Viability Of Capital Punishment For Abortion, Melanie Kalmanson

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

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that deeply conservative states will seek to criminalize abortion and impose extremely harsh sentences for such crimes, up to and including death. This Article addresses that reality. Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics. After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the …

Freeing Females From Toplessness Bans: A Strict Scrutiny Analysis, Colleen Marron

Dickinson Law Review (2017-Present)

Males may exhibit their bare chests on outdoor public property their entire lives. In many locations, this fundamental right to bodily autonomy afforded to men is denied to women. This Comment examines the Equal Protection Clause of the Fourteenth Amendment in conjunction with the fundamental right to bodily autonomy and focuses on the regulations forbidding female breast exposure. The assumption that female breasts require coverage due to their provocative nature normalizes and entrenches problematic issues, particularly the objectification of women, into law. The fundamental right to bodily autonomy requires protection over arbitrary and capricious social norms. This Comment stresses courts …

Abortion, The Underground Railroad, And Evidentiary Privilege, Tom Lininger

Washington and Lee Law Review

Building on my recent article in the Minnesota Law Review proposing reforms of evidentiary privilege law, this Article focuses on the unique context of communication about abortion. There is an urgent need to protect such communication in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to recriminalize abortion. Now abortion seekers, providers, and third parties who aid and abet abortion could face significant exposure to both criminal penalties and civil suits in many states. Those states are attempting to extend the reach of their bans by sanctioning out-of-state travel and …

Centring The Black Muslimah: Interrogating Gendered, Anti-Black Islamophobia, Rabiat Akande

Articles & Book Chapters

No abstract provided.

Gender, Violence, And The Death Penalty, Sandra L. Babcock, Nathalie Greenfield

Cornell Law Faculty Publications

This article is the first in a series that will systematically explore how gender has affected the criminal proceedings of women currently on death row. For this inaugural article, we have undertaken the first—and, to our knowledge, only—comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row, examining the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution. Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV. Indeed, the great majority have …

When The Victim Is Male: An Organizational Approach To Combat Gender Bias Within The Criminal Justice System, Shelby Hobbs

Senior Capstone Papers

The National Intimate Partner and Sexual Violence Survey estimates that over 226.1 million people have been victims of domestic violence (DV) throughout their lifetimes. This violence can present itself in physical abuse or emotional turmoil, all with the ultimate goal of a perpetrator maintaining power over their victim(s). Rates of victimization across men and women are similar—44.2% and 47.3% respectively; however, this is not reflected in the current research and service provisions for victims. For example, male-identifying victims within the criminal justice system have reported their innocence must be proved before their claims of abuse are taken seriously, and that …

Gender Registration And International Law: Are Gender Markers Necessary?, Mika D'Angelo

Cardozo International & Comparative Law Review

The note critically examines the necessity and implications of gender markers on identification documents under international law, arguing that current practices disproportionately burden transgender and gender-diverse individuals. It contends that the registration of gender often fails to align with international human rights standards, perpetuating discrimination and administrative violence. The analysis advocates for a reevaluation of gender registration to ensure it respects self-determination and privacy rights while addressing practical concerns.

Lipstick & The Law: An Exploration Of The American And French Statutory Protections Against Makeup Mandates In The Workplace, Kira Dennis

Cardozo International & Comparative Law Review

The note argues that the U.S. legal system, particularly Title VII, fails to adequately protect employees from discrimination based on physical appearance, such as grooming policies. It advocates for adopting a framework similar to France's DDD, which offers more comprehensive protections, to address these gaps and promote gender equality.

An Examination Of U.S. And U.K. Procedures Governing Sexual Misconduct Investigations In Universities, Marc Siegel

Cardozo International & Comparative Law Review

The note critiques the lack of a unified regulatory framework for addressing sexual misconduct in U.K. universities, contrasting it with the structured, albeit controversial, Title IX system in the U.S. It argues that the U.K.'s voluntary approach has led to inconsistent, unjust outcomes and advocates for the adoption of a comprehensive regulatory regime similar to Title IX to ensure fairness, accountability, and consistency in handling such cases.

Gender-Based Religious Persecution, Pooja R. Dadhania

Faculty Scholarship

People fleeing gender-based violence in the home face an uphill battle when seeking asylum in the United States. Through the lens of public and private spheres, this Article explores the underutilized religion ground for asylum for cases involving gender-based violence in the home—i.e., the private sphere. This Article argues that if an individual imposes a patriarchal practice on an asylum seeker in the private sphere and justifies that practice using religion, the asylum seeker’s resistance to that practice should constitute religious expression.

The religion ground protects individuals who are persecuted because of their religious beliefs and religious expression. It typically …

License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer

Fordham Law Review

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.

Lower courts …

Introduction: Access To Healthcare Symposium, Yvonne F. Lindgren

Faculty Works

The four Articles in this Access to Healthcare symposium edition address the different ways that the U.S. healthcare delivery system is failing marginalized communities, including individuals who are disabled, who are birthing, who are women of color or represent another marginalized group, or who live in poverty. The result is a rich conversation that uncovers the complex systems that contribute to unequal access to health care and unjust disparities in health outcomes in the United States.

Menstrual Justice In Theoretical Context, Vivian E. Hamilton

Faculty Publications

This Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In …

Startup Biases, Jennifer S. Fan

Articles

This Article provides an original descriptive account of bias in the startup context and explains why litigation is eschewed and what happens when it is used as a mechanism to combat bias in the venture capital ecosystem. Further, this Article identifies two particular phenomena in the startup context that exacerbate gender and racial bias. First, homophily—the idea that like attracts like—abounds and has been part of the DNA of venture capital since its inception. The thick networks that developed as venture capital made its way from the East Coast to the West Coast were limited to an elite group that …

Sanak Value In Women’S Land Inheritance Rights: Case Study On Women Inheritance Land Rights In Karangpakuan, Sumedang, West Java, Patricia Beata Kurnia

The Indonesian Journal of Socio-Legal Studies

Karangpakuan Village is one of the villages in Sumedang, West Java, which territory was broken up into multiple parts by the government, as part of its land was submerged in the framework of the creation of the Jatigede Reservoir. Karangpakuan Village is one of the traditional Sunda Priangan villages, in which traditional customary inheritance norms based on bilateral kinship values are still practiced – despite the Islamic background of the community. These bilateral kinship values influence inheritance practices as these are not based on gender, but divided equally while considering other criteria, such as the number of children in the …

The Pitfall Of Child Marriage Dispensation: A Study Of Court Judgments In East Java (Dispensasi Perkawinan Anak Yang Menjerumuskan: Studi Putusan Hakim Di Jawa Timur), Iklilah Muzayyanah Dini Fajriyah, Siti Marhamah, Septiani Anggriani

The Indonesian Journal of Socio-Legal Studies

This article conducted study on court decisions on dispensation for marriage that occurred during the COVID-19 pandemic (June 2020 to February 2021) from the children’s rights perspective. The library research method was chosen to dissect 19 marriage dispensation decisions (12 decisions from religious courts and seven decisions from district courts) in Kraksaan and Sumenep districts, East Java. Child married couples were randomly selected with one or both parties under the age of 18. Three important findings in this study are: 1) the perspective of the best interests of the child has not been the main consideration for judges; 2) judges …

The Gloria And Stanley Plesent Lecture: “Parents’ Rights” And Transgender Children With Professor Dara E. Purvis Penn State Law, Gertrud Mainzer Program In Family Law, Policy And Bioethics, Cardozo Outlaw, Cardozo Family Law Society

2023 Event Invitations

This year’s Gloria and Stanley Plesent Lecture will be given by Professor Dara E. Purvis, a scholar of family law, feminist legal theory, sexuality, gender identity and the law who teaches at Penn State Law. Her work examines gendered impacts of the law and proposes neutralizing reforms, most recently in the context of how the law defines parenthood. Professor Purvis will be discussing the recent spate of state bills and laws related to transgender children.

4th Annual Women In Law Leadership Lecture, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

Dean's Desk: Recognizing Iu Maurer Alumnae Who Have Made A Difference, Christiana Ochoa

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

A couple weeks ago, I had the opportunity to welcome future law students as part of our annual Admitted Student Day. From their seats in the Kathleen and Ann DeLaney Moot Court Room, they look to the front of the room where they see the portraits of four trailblazing alumnae who have made indelible marks on the judiciary. Juanita Kidd Stout ’48, Sue Shields ’61, Linda Chezem ’71 and Loretta Rush ’83 all face out into the sea of newly admitted students who one day hope to forge paths of their own.As we celebrate Women’s History Month, I wanted to …

First, Do No Harm: Prioritizing Patients Over Politics In The Battle Over Gender-Affirming Care, Greg Mercer

Georgia State University Law Review

The medical community’s move to reclassify gender dysphoria as a condition that results in distress rather than a mental disorder has been instrumental in destigmatizing transgender people. However, state laws that aim to strip physicians of their ability to prescribe gender-affirming care, along with physicians’ refusal to comply with federal regulations requiring access to gender-affirming care, threaten to undo those gains. Opponents of gender-affirming care attempt to wield the concept of medical judgment as both a sword and a shield—preventing physicians from exercising their medical judgment to provide gender-affirming care while simultaneously allowing physicians to abstain from providing it. Although …

Era Project Faq On The Court Of Appeals Decision In Illinois V. Ferreiro, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Illinois v. Ferriero is a lawsuit filed by the Attorneys General of the last three states that ratified the Equal Rights Amendment (ERA) — Nevada, Illinois, and Virginia — asking the court to require that the ERA be officially published by the U.S. Archivist as the 28th Amendment to the Constitution. On March 5, 2021, the District Court dismissed the lawsuit on standing grounds, meaning that the three states had not shown that they suffered a legally recognized injury. The court reasoned that the Archivist’s actions have no legal effect and, as such, the states were not harmed by the …

Deborah L. Rhode In Memoriam: Three Stories And Ten Life Lessons, Benjamin H. Barton

Fordham Law Review

In this Essay, Professor Benjamin H. Barton offers a heartfelt tribute to the late legal scholar, Professor Deborah L. Rhode. Professor Barton reflects on Rhode’s prolific career, which spanned areas including legal ethics, feminism and women in the law, and lawyers as leaders. He also examines Rhode’s later works, which delved into more personal topics such as character, ambition, and legacy. Through personal anecdotes and life lessons, Professor Barton honors Rhode’s legacy as a model academic, mentor, and transformative force in the legal profession.

2023 Ruth Bader Ginsburg Essay/Art Contest, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The First Amendment And The Second Sex, Cristina Carmody Tilley

Faculty Publications

Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing …

Law School As Straight Space, Swethaa S. Ballakrishnen

Fordham Law Review

In honoring Professor Deborah L. Rhode’s commitment to making space for the marginal in legal education and clarifying the “no-problem” problems in our midst, Professor Ballakrishnen’s Essay focuses on one strain of nonnormative experience—that of genderqueer persons—to clarify the ways in which law schools reinforce linear hierarchies of identity and performance. Professor Ballakrishnen catalogues ethnographic student interview data to highlight perspectives of genderqueer law students, the result of which suggests that “normal” professional practices in law school reinforce the rigidity of the gender binary. They conclude by suggesting that paying attention to these student subpopulations is crucial to reform legal …

Mentored: On Leaders, Legacies, And Legal Ethics, Renee Knake Jefferson

Fordham Law Review

Professor Renee Knake Jefferson shares insights on mentorship and legal ethics gleaned from her relationship with Professor Deborah Rhode. The Essay, written as part of the Fordham Law Review colloquium in Professor Rhode’s memory, argues that the stories of women and minority lawyers—regardless of whether one had a personal relationship with them—are an unrealized, valuable source of informal mentorship. It lays the groundwork for formalizing mentorship as an ethical obligation of leaders in the legal profession and beyond.

Gender Violence As A Penalty Of Poverty, Deborah M. Weissman

University of Miami Inter-American Law Review

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when …

Gender Mainstreaming At The European Court Of Human Rights: The Need For A Coherent Strategy In Approaching Cases Of Violence Against Women And Domestic Violence, Joanna Evans

University of Miami Inter-American Law Review

Any assessment of the jurisprudence of the European Court of Human Right’s (ECtHR) in the field of violence against women and domestic violence must start with an acknowledgement of the ECtHR’s landmark judgments in this area and the positive practical impact those judgments have had upon the protection of women.

However, much progress is still to be made. This article analyses three ECtHR cases from Russia and Georgia, and in so doing, highlights the need for greater transparency, proactivity, and coherency on the part of the Court. It considers in turn: a) the seemingly discriminatory impact of the ECtHR’s approach …

Hitting The Wall: The Next Step In Addressing The Pink Tax, Danielle A. Essary

Arkansas Law Review

For thirty-some-odd years, scholars and consumer advocates have called for the elimination of gender-based price discrimination, also known as the “Pink Tax.” Efforts to address this issue have included studies demonstrating the phenomenon’s existence, social movements incited to garner public support for the cause, consumer attempts to bring the issue before courts in hopes of judicial intervention, and legislative undertakings at both the state and federal level to craft legislation prohibiting the practice. Yet, gender-based price discrimination has proven evasive of regulation, outside the scope of judicial reach, and difficult to isolate in terms of hard proof. Even agreeing on …