Archive for the ‘Feminism and Gender’ Category
posted by Richard Storrow
Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, tending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.
The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.
An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.
It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.
November 19, 2013 at 9:41 am Tags: abortion, assisted reproduction, reproductive rights, reproductive technology Posted in: Bioethics, Family Law, Feminism and Gender, Health Law Print This Post 9 Comments
Moving Targets: A new blog from Mary Anne Franks discusses revenge porn, feminist theory, and social media
posted by Kaimipono D. Wenger
Former Concurring Opinions guest blogger Mary Anne Franks (an expert on “revenge porn,” cyber civil rights, and feminist theory) has just launched her own blog at Moving Targets. As expected, it’s fantastic.
Concurring Opinions readers are familiar with Professor Franks’ writings on topics like masculinity, consent, and social media. Professor Franks is a popular figure in the news as well — in a recent Huffington Post panel discussing gender roles, she thoroughly beat up poor anti-feminist internet writer Gavin McInnes. Her new blog provides a space for further follow up and conversation, and she’s already using it in that role. In a legal blogosphere which has been sometimes limited in its engagement with feminist legal theory, Professor Franks’ voice is a very welcome addition.
Welcome to the blogosphere, Mary Anne!
posted by Kaimipono D. Wenger
A handful of state legislatures have recently passed or considered some different proposed bills to address the harm of non-consensual pornography (often called ‘revenge porn’). The topic of revenge porn raises important questions about privacy, civil rights, and online speech and harassment.
Law professor Mary Anne Franks has written previously on the topic in multiple venues, including in guest posts at Concurring Opinions. We were pleased to catch up with her recently to discuss the latest developments. Our interview follows:
Hi, Mary Anne! Thanks so much for joining us for an interview. This is a really interesting topic, and we’re glad to get your take on it.
I am delighted to be here! Thank you for having me.
Okay, some substantive questions. First, what is ‘revenge porn’? Read the rest of this post »
posted by Kimberly Mutcherson
Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.
The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.
posted by Kimberly Mutcherson
In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.
As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.
posted by Frank Pasquale
Suzanne Kim’s post below on the economic and social pressures for “smile surgery” reminds me of Jonathan Crary’s excellent book, 24/7: Late Capitalism and the Ends of Sleep. Reviewing developments ranging from military use of modafinil to the rise of energy drinks, Crary concludes that “Time for human rest and regeneration is now simply too expensive to be structurally possible within contemporary capitalism.” Might the same be said for unsmiling faces in hypercompetitive service industries?
The key questions here are: who’s in charge, and what are their values? A recent story on gender dynamics at Harvard Business School offers some clues:
The men at the top of the heap worked in finance, drove luxury cars and advertised lavish weekend getaways on Instagram, many students observed in interviews. Some belonged to the so-called Section X, an on-again-off-again secret society of ultrawealthy, mostly male, mostly international students known for decadent parties and travel. Women were more likely to be sized up on how they looked. . . .
Image Credit: book by Robin Leidner on the commodification of affect.
posted by Kimberly Mutcherson
It is a pleasure to spend a month blogging on Concurring Opinions, and I am looking forward to some wonderful exchanges over the next four weeks. This is my first extensive blogging experience and because we have only a short time together, I thought it prudent to jump in with both feet by offering an early confession. Here it is: I am loyal reader of the New York Times Vows column, which chronicles the love stories of newly married couples. This confession may seem off topic, but I assure you that it is relevant to my work as a scholar and teacher focused on family law, health law, and bioethics with a significant interest in reproductive justice issues. If you read the words reproductive justice and immediately thought, “That’s just a fancy way of talking about abortion,” your understanding of reproductive justice is too narrow. Reproductive justice (RJ) refers to a movement founded by women of color activists who wanted to work within a movement that focused on the right to have children, to not have children, and to parent children in safe and healthy environments. The framework’s roots are in the human right to make fundamental personal decisions related to procreation, family formation, and parenting. Importantly, the RJ framework explicitly recognizes a societal and governmental obligation to support individual decision making and create the conditions that allow individuals to implement their core life decisions, including decisions about how, when, and with whom to become pregnant or give birth to a child. During my time as a blogger on this site, I am going to focus primarily on RJ issues, which run the gamut from childbirth decision making, to forced sterilizations, to restrictive abortion regulation.
Now back to the Vows column. If you are not a loyal Vows reader, you should know that the Vows column is not a run-of-the-mill wedding announcement. Vows is a full-length article written by a Times reporter. The column tends to highlight people who are interesting because of who they are (i.e., famous or related to famous people) or because of the uniqueness of their stories. This weekend’s column focused on Udonis Haslem, a very successful NBA player who is captain of the Miami Heat (there’s your fame), and his new wife, Faith Rein, who is a stay-at-home parent to their two young children. What is striking about the description of the couple’s long path to marriage, they met 14 years before they wed, was that it referenced an abortion that Ms. Rein had while she was a junior and Mr. Haslem was a senior at the University of Florida in Gainesville where they met.
As Maggie Little has written, “To be pregnant is to be inhabited. It is to be occupied. It is to be in a state of physical intimacy of a particularly thorough-going nature.” (Abortion, Intimacy and the Duty to Gestate). To become a parent is to choose to be forever changed often in inestimable ways. As college students, Ms. Rein and Mr. Haslem felt unable to move forward with having a child. Citing their age, their athletic commitments, and the lack of wherewithal to cover the cost of caring for a child, they decided, as a couple, to end that early pregnancy.
The discussion of abortion is just a few paragraphs in a lengthy story that follows the young couple over more than a decade, during which they endured extended periods of separation, the death of his mother, and the birth of their two children. Yet, it is their willingness to discuss abortion that is probably most striking for many readers. In discussing her abortion, Ms. Rein emerges from what Pam Karlan has called the abortion closet. Despite the fact that abortion is a ubiquitous medical procedure that at least 30% of women will experience by the age of 45, many women avoid ever publicly admitting that they have had abortions.
As soon as I read this part of the Vows column, I knew that it would spark letters to the editor and plenty of Internet chatter. Jezebel.com, a feminist website, posted about the column, sparking many commenters to express disgust that this couple shared such a personal matter in a public forum, and in particular a public forum discussing a wedding celebration. The Vows column is all about sharing a couple’s journey. It’s not a short recounting of where the wedding took place, how many guests attended, and what kind of food they served at the sit down dinner that followed, although it does incorporate that critical information. Rather, it is about how two people decide to share their lives together and overcome challenges and obstacles. It makes sense, then, that this couple chose to talk about abortion in their Vows column. Past Vows columns reflect on military deployments, cancer diagnoses, dying parents, and relationships that started as extra-marital affairs. As Ms. Rein says of her now husband during the time when the couple decided to end her pregnancy, “I found him caring, supportive, nurturing and all over me to be sure I was O.K. I saw another side of him during that difficult time and fell deeply in love. He had a big heart and was the whole package.” For this couple, deciding how to respond to an unplanned pregnancy was a defining moment in their relationship and was therefore worth recounting and sharing as a pivotal part of who they are as a marital unit.
I am unconvinced that those complaining about the talk of abortion in a column about a wedding would take offense if the couple had chosen to speak about a struggle with infertility (a subject that the New York Times chronicles with intense interest), or a miscarriage, or an early pregnancy that they chose to carry to term and then put the child up for adoption. Had they discussed one of these other private matters, I doubt that anyone would be decrying their failure to keep private things private. It is the sense that abortion should be a shameful experience not talked about in polite company that leads to shock and disgust at this couple’s willingness to speak openly about a topic that affects so many and about which it is almost impossible to have conversations that do not degrade into arguments filled with name calling.
I did not plan to start my blogging time here with a story about abortion, a topic that so quickly divides people, but the Vows column, my own reaction to it, and the reaction that I saw beginning to bubble up on the Internet grabbed my attention. I am curious to see what backlash awaits this young couple when they return from their honeymoon. I hope they will receive significant support for their candor about an experience that shaped and strengthened their relationship and that deserves to be out of the closet.
Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities
posted by Zvi Triger
Gender segregation on buses is becoming increasingly conspicuous in the Hassidic community in New York. Should society tolerate seating arrangements which mandate women to sit at the back of the bus? Is it analogous to racial segregation? Or are there valid considerations that make gender segregation legitimate? The ultra-Orthodox cite multiculturalism, and demand tolerance of their traditions. But what is tradition, and how old should a practice be in order to be recognized as a tradition?
All these questions have been asked in Israeli, where gender segregation in public transportation to and from ultra-Orthodox communities began in the late 1990’s. In a recently published article I argue that gender segregation is a self-defeating practice. Its motivation is to erase female sexuality from the public sphere, but by being so preoccupied with women’s “modesty” it in fact puts their sexuality at the center of attention. The paradoxical obsession with female sexuality is also, in a way, a form of sexual harassment. Gender segregation on buses is not part of Jewish tradition; not even the ultra-Orthodox tradition. It is a very new product of a rising Jewish religious fundamentalism, which I believe is a reaction to women’s demand for equal rights and their exposure to the outer world (thanks to technology). in Israel segregation on buses is sometimes enforced by passengers violently.
The leaders of the ultra-Orthodox communities, both in New York and in Israel, have been very astute in their enlistment of multicultural discourse and political correctness to promote their misogynist agenda. The majority should not be confused by this. There are plenty of strong voices from within the ultra-Orthodox community who object to this trend. In Israel, for example, a group of ultra-Orthodox women and men petitioned the Supreme Court against segregation on public transportation. These people are part of the ultra-Orthodox community as well, and have as strong a claim to their traditions as any of the Rabbis who have decided all of the sudden to send women to the back of the bus.
August 31, 2013 at 6:13 pm Tags: gender segregation, Jewish law, public tranportation, ultra-orthodox, women's rights Posted in: Civil Rights, Constitutional Law, Culture, Current Events, Feminism and Gender, Race Print This Post No Comments
The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)
posted by Zvi Triger
In my article Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine Heterophilia I introduced the concept of law’s inherent heterophilia. One can see it as a new generation of homophobia, more politically correct perhaps, in which the goal of eradication has been substituted by the goal of assimilation. The need to cover, which almost every LGBT individual has experienced and which has been so shrewdly identified by Kenji Yoshino in his book “Covering: The Hidden Assault on Our Civil Rights,” is a typical product of social and legal heterophilia that seeks to encourage such assimilation. Because of its benign nature, legal heterophilia, as opposed to legal homophobia, is much harder to detect, and therefore it is much harder to fight.
How can we distinguish law’s homophobia from law’s heterophilia? To be sure, it is not easy to draw the line between homophobia and heterophilia, and many heterophile actions can be interpreted as unconsciously homophobic. However, generally speaking, laws that privilege predominantly heterosexual institutions, such as marriage, are heterophile in nature, while laws that restrict LGBT individuals, discriminate against them, or punish them as such, would be labeled as homophobic. Thus, laws privileging married couples and awarding them forms of protection that unmarried couples cannot receive are heterophilic as long as LGBT individuals cannot get married, and probably as long as they do not extend those privileges to all couples, married and unmarried, gay or straight. The Mayo Clinic’s policy demanding same-sex couples to marry or else the employees’ spouses will lose their health benefits, instead of extending the benefits to all partner regardless their marital status and their sexual orientation is a product of socio-legal heterophilia.
Indeed, the very demand to marry, which is a consequence of the Windsor case, is heterophilic even when it does not involve the carrot of benefits or the stick of their denial. As a recent New York Times article demonstrates, such social requirement is becoming more and more conspicuous in the wake of the Windsor ruling. And what is fascinating, is that heterosexuals are the ones who nudge same-sex partners to marry most.
While not using the term “heterophilia” or its derivatives, Janet Halley has exposed some of the most heterophilic strands of the institution of marriage in her 2010 article Behind the Law of Marriage (I): From Status/Contract to the Marriage System. Marriage law, however, is not only heterophilic; it also has homophobic qualities, as many scholars have rightly observed. It remains to be seen if society and the courts will be able to release themselves of all forms of prejudice and discrimination concerning marriage and marital status. Getting rid of the homophobic Section 3 of DOMA was only the first step in this direction.
August 12, 2013 at 4:06 am Tags: discrimination, homophobia, same sex marriage, sexuality, United States v. Windsor Posted in: Constitutional Law, Culture, Current Events, Family Law, Feminism and Gender, Supreme Court, Uncategorized Print This Post One Comment
posted by Karen Czapanskiy
When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.
Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.
I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.
In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.
I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.
August 8, 2013 at 2:02 pm Tags: Caregiving, children, Disability, gender, torts Posted in: Disability Law, Feminism and Gender, Health Law, Law and Inequality, Race, Tort Law Print This Post 6 Comments
The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)
posted by Zvi Triger
Hello everyone, and thanks Solangel and the other regulars for hosting me here. I thought I would begin with some thoughts on the aftermath of United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). June 26, 2013, the day in which the case was decided, will no doubt be one of those days that many will reminiscent about, ask and will be asked “where were you when the decision was published?” As someone who studied is Constitutional Law class when the 1986 Bowers v. Hardwick was still the law, the day Windsor was decided was a truly wonderful day for me. Indeed, this day marked a significant decline in legal homophobia, and we should all celebrate that. But is it the end of marriage-based discrimination?
I’m afraid that the answer to this question is “not yet.” It seems that the campaign for same-sex marriage has been almost too successful, and that the right to marry is rapidly becoming a requirement to do so. Postbulletin.com reports that the Minnesota Mayo Clinic is requiring its LGBT employees to marry their same-sex partners in order to continue their eligibility for health benefits. The previous policy was introduced in order to remedy the discrimination against LGBT employees who could not marry their partners. Now when they can do so, they must, if they wish to continue to be eligible for the benefits. There will even be a deadline for these couples to get married. What a charged idea, a deadline to get married, and one that is created by one of the partners’ employee!
On the face of it, there is nothing wrong with this change: Under this policy, unmarried heterosexual partners of employees are ineligible for health benefits. The update is necessary in order not to create a new form of discrimination, this time against unmarried heterosexual couples. But this is only one way of looking at this policy.
The updated policy which requires same-sex couples to marry in order to keep their health benefits exposes what I call law’s heterophilia, a concept which I have introduced in a recent article. Much has been written about law’s homophobia, past and present. Various forms of discrimination against LGBT individuals have been labeled “homophobic” and in most cases, justly so. But law sports an additional, more insidious prejudice—namely, heterophilia.
Homophobia works “against” LGBTs. Criminalization of sex between men or between women is homophobic. But what are we to make of legal norms that do not work directly “against” gays, but “for” heterosexuals? Such norms do not consciously discriminate against LGBT individuals, but privilege heterosexuals (not all of them, as I explain below). The underlying result is discrimination. These norms are not homophobic in the sense that unlike sodomy laws, they were not designed with the specific aim of persecuting sexual minorities.
I borrow the term “heterophilia” from psychoanalyst David Schwartz, who argued in the early 1990s that in addition to homophobia—a well-explored prejudice which is rooted in devaluation—there can be another form of prejudice against LGBT individuals which is rooted in “philia,” namely in the idealization of heterosexuality. Heterophilia, argued Schwartz, is an “unarticulated belief in a particular sexual ideology,” rather than an objection to an alternative sexual ideology. By the absence of phobia, and in many cases by actual acceptance of LGBT individuals in several respects, heterophiles “immunize their ideological commitments against articulation and scrutiny.”
Now, let’s return to the Mayo Clinic’s revised spousal health benefit policy. Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other. Marriage is the quintessential heterophile institution. This is why heterophilia can discriminate not just against LGBTs, but also against heterosexuals who refuse to get married. They too are ineligible for health benefits for their partners, if they are employed by a company who has a similar policy in place.
While the Windsor Court’s ruling is just and humane, it exists within a context, and is subject to interpretation (or misinterpretation and even abuse) within that context. One such misinterpretation is the quick evolution of an equal right to marry for LGBTs into a requirement. Critics of the campaign for same-sex marriage have warned against this consequence. But I believe that the critique was misdirected. The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.
Part II of this post.
August 5, 2013 at 5:15 am Tags: discrimination, homophobia, same sex marriage, sexuality, United States v. Windsor Posted in: Civil Rights, Constitutional Law, Culture, Family Law, Feminism and Gender Print This Post 7 Comments
posted by UCLA Law Review
Volume 61, Discourse
|After the Choice: Challenging California’s Physician-Only Abortion Restriction Under the State Constitution||Jennifer Templeton Dunn & Lindsay Parham||22|
posted by Kaimipono D. Wenger
I saw this post from a few weeks back, and I agree with Professor Bainbridge that there appears to be a highly problematic quota at play in Harvard hiring. But I think we might disagree on the details. Here’s the Bainbridge post in its entirety:
Gender quotas at Harvard Law
The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report: Read the rest of this post »
posted by William McGeveran
In the hubbub surrounding this week’s acquisition of the blogging platform Tumblr by born-again internet hub Yahoo!, I thought one of the most interesting observations concerned the regulation of pornography. It led, by a winding path, to a topic near and dear to the Concurring Opinions gang: Section 230 of the Communications Decency Act, which generally immunizes online intermediaries from liability for the contents of user-generated content. (Just a few examples of many ConOp discussions of Section 230: this old post by Dan Solove and a January 2013 series of posts by Danielle Citron on Section 230 and revenge porn here, here, and here.)
Apparently Tumblr has a very large amount of NSFW material compared to other sites with user-generated content. By one estimate, over 11% of the site’s 200,000 most popular blogs are “adult.” By my math that’s well over 20,000 of the site’s power users.
Predictably, much of the ensuing discussion focused on the implications of all that smut for business and branding. But Peter Kafka explains on All Things D that the structure of Tumblr prevents advertisements for family-friendly brands from showing up next to pornographic content. His reassuring tone almost let you hear the “whew” from Yahoo! investors (as if harm to brands is the only relevant consideration about porn — which, for many tech journalists and entrepreneurs, it is).
There is another potential porn problem besides bad PR, and it is legal. Lux Alptraum, writing in Fast Company, addressed it. (The author is, according to her bio, “a writer, sex educator, and CEO of Fleshbot, the web’s foremost blog about sexuality and adult entertainment.”) She somewhat conflates two different issues — understandably, since they are related — but that’s part of what I think is interesting. A lot of that user-posted porn is violating copyright law, or regulations meant to protect minors from exploitation, or both. To what extent might Tumblr be on the hook for those violations?
posted by Danielle Citron
Professor Mary Anne Franks and fantastic guest blogger makes an important contribution with her latest work “How to Feel Like a Woman, or Why Punishment Is A Drag” (forthcoming UCLA Law Review). Professor Franks focuses on the sexual abuse of men in prison to help us better understand sexual and domestic abuse more generally. As Franks writes:
If a man in prison claims he was made “to feel like a woman,” this is commonly understood to mean that was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison, but sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. This Article argues that feminization is punitive for both men and women: it is as unnatural and as wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced drag, this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and to form our social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting – where sexual abuse is overwhelmingly experienced by women and committed by men – are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but forces law and society to consider sexual abuse in a productively counter-intuitive way.
Also, as my co-blogger Kaimi notes in our Asides, there is a write up of Prof. Franks in Ocean Drive that captures the force of her intelligence and personal strength.
posted by Frank Pasquale
The media attention to Sheryl Sandberg’s Lean In has been extraordinary. Two reviews should not be missed. First, from Kate Losse, a former Facebook insider (employee #51) who felt exploited by the company:
[Why does Lean In focus] on the problem it does: women’s presumed resistance to their careers rather than companies’ resistance to equal pay[?] Why not focus on renovating the pay structure so that women aren’t denied raises[?] . . . The faster my career accelerated at Facebook, the more my financial returns diminished, until my workload was being elevated but not my salary or equity. Leaning in, then, starts to look like it can benefit companies more than it benefits workers. . . Women in tech are much more likely to be hired in support functions where they are paid a bare minimum, given tiny equity grants compared to engineers and executives, and given raises on the order of fifty cents an hour rather than thousands of dollars. . . . [W]hat if women, even in a company like Facebook, are still paying a gender penalty that nothing but conscious, structural transformation can cure?
posted by Mary Anne Franks
First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.
I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.
We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read the rest of this post »
posted by Mary Anne Franks
“I have also been a victim of violence and of burglaries before… I felt a sense of terror rushing over me … I was too scared to switch a light on.” Oscar Pistorius relating his state of mind before shooting his girlfriend Reeva Steenkamp four times through a bathroom door.
She “knew exactly how to press his buttons and make him angry.” Jovan Belcher complaining to his mistress about his girlfriend, Kassandra Perkins, before shooting Perkins nine times in front of their baby daughter.
“Like the spider and the fly. Wasn’t she saying, ‘Come into my parlor, said the spider to the fly?” Defense attorney Steve Taylor describing the 11-year old girl gang-raped by more than a dozen men in Cleveland, Texas.
“And it’s – all he sees are heavily tinted windows, which are up and the back windows which are down, and the car has at least four black men in it…” Defense attorney Robin Lemonidis explaining why her client, Michael Dunn, shot into a vehicle of unarmed teenagers eight times, killing 17-year-old Jordan Davis.
“Hurricanes. Tornadoes. Riots. Terrorists. Gangs. Lone criminals… These are perils we are sure to face — not just maybe. It’s not paranoia to buy a gun. It’s survival.” Wayne LaPierre, Executive Vice President of the National Rifle Association, objecting to the Obama Administration’s consideration of gun regulation.
“It’s a fear of the unknown… I’ve never seen a woman get killed or wounded. In my mind they may resemble my wife and I don’t know how I would react. It’s one thing to see a man injured or killed but a woman, now that’s a different story,” Staff Sergeant Alex Reyes, voicing his objection to lifting the formal ban on women in combat.
According to traditional gender stereotypes, men are supposedly stronger, braver, and less emotional than women. However unfair or inaccurate, this belief, along with the association of vulnerability, anxiety, and fear with women, has persisted throughout most of Western history. Once one scratches the surface of this myth, however, it becomes apparent that stereotypical “masculinity” (and “hyper-masculinity” even more so) is in fact defined by fragility. This fragility, moreover, is of a truly perplexing nature: it actually increases, rather than decreases, with power and privilege. Why did a world-renowned athlete who lives in a “fortified mansion surrounded by barbed wire” not even stop to turn on a light before shooting his girlfriend four times (if one takes seriously Pistorius’ claim that the shooting was an accident)? Because he was so intensely afraid of being victimized by burglars. Why did a popular NFL linebacker shoot the mother of their infant daughter nine times at close range? Because she did things that made him angry and scared, like staying out late at a concert. Why did more than a dozen men take turns raping an 11-year-old girl, one of them recording the rapes on his cellphone? Because they were so overwhelmed by her seductive clothes and makeup that they couldn’t control themselves. Why did a middle-aged white man with a gun in his glove compartment shoot eight times into a vehicle with four teenagers in it? Because he was so scared of the teenagers’ loud music and attitude that he imagined they must be pointing a gun at him. Why do American citizens – even those who live in gated, high-security enclaves complete with security guards, alarm systems, and identification checkpoints – need an infinite number of virtually unregulated, high-capacity weapons? Because hurricanes and terrorists threaten their very survival. Why should qualified women be denied the opportunity to be recognized and promoted for combat activity? Because some male soldiers – supposedly well-trained, experienced male soldiers – might become paralyzed by the sight of a woman in distress.
This is not the “New Age sensitive male” mocked by comedians and pundits. These men don’t ask questions or cry when they feel vulnerable: they kill, rape, and discriminate. And society largely allows, even encourages, them to do so. Instead of demanding that these men take responsibility for their own weaknesses, our society accommodates and excuses them. This is the flip side of blaming the victim: excusing (or justifying) the perpetrator. The time and energy spent criticizing a girlfriend’s supposed greediness, or an 11 year-old girl’s supposedly provocative clothing, or teenagers’ supposedly loud music could be spent challenging and marginalizing the inability of certain men to control themselves.
To acknowledge and reflect on one’s vulnerability is a good thing; to hold the world in thrall to it is not. Feeling vulnerable is often different from actually being vulnerable, and even actual vulnerabilities should not be used as a license for malicious or reckless behavior. With the supposed vulnerability of famous athletes, soldiers, and gun owners everywhere on display, perhaps we can also appreciate the vulnerability of those far more at risk.
posted by Kaimipono D. Wenger
In a comment to my earlier post suggesting that law review editors should seek out work from underrepresented demographic groups, my co-blogger Dave Hoffman asked an excellent question: Would blind review remedy these concerns? It seems to me that the answer here is complicated. Blind review would probably be an improvement on balance, but could still suffer from — err, blind spots. Here are a few reasons why.
The paradigmatic case for the merits of blind review comes from a well-known study of musician hiring, published about a decade ago by Claudia Goldin and Cecilia Rouse in the American Economic Review. Goldin and Rouse gathered data on symphony auditions, and found that blind auditions — that is, ones which concealed the gender of the auditioning musician — resulted in a significantly higher proportion of women musicians auditioning successfully. As Rouse commented,
“This country’s top symphony orchestras have long been alleged to discriminate against women, and others, in hiring. Our research suggests both that there has been differential treatment of women and that blind auditions go a long way towards resolving the problem.”
The Goldin-Rouse study shows that blind review can be a useful tool in combating bias. Would a similar review system work in the law review context?
Well, maybe. Read the rest of this post »
February 18, 2013 at 7:11 pm Tags: blind review, gender, law reviews, Race, unconscious bias Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race Print This Post 5 Comments
posted by Kaimipono D. Wenger
As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway.
But is it really the case that law review affirmative action would be a bad thing? Read the rest of this post »
February 16, 2013 at 2:07 pm Tags: gender, law reviews, Race, scholastica, unconscious bias Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race Print This Post 43 Comments