The most interesting part of the [...]]]> This week the National Association of Women Lawyers (NAWL) released its Survey on the Retention and Promotion of Women in Law Firms, which compiles data on the professional progress of women in the nation’s 200 largest firms. Most of the reporting on NAWL’s survey results has focused on the decrease in the number of female first and second year associates.  While the decline is only slight—47 percent of first and second year associates are women, compared to 48 percent a year ago—it is the first decrease since NAWL began reporting survey results in 2006.   NAWL speculates that the decline is attributable to changes in law school enrollments, where there have also been slight decreases in the percentage of female students.

The most interesting part of the report, however, discusses where women find themselves in the hierarchal complexities of today’s law firms.  As the NAWL survey points out, large law firms are no longer comprised of simply partners, associates, and a few of counsel.  Instead, firms are a mix of equity and non-equity partners, associates, staff attorneys, and of counsel.  Read on after the jump for sobering highlights about how women tend to fit into organizationally-complex large law firms.

*      In the firms surveyed, 55 percent of staff attorneys are women—the single largest percentage of women in any category of attorney practice.  By definition, staff attorneys usually are not eligible for partnership.  NAWL notes that most staff attorneys are not recent graduates whose job prospects have been affected by the recession, but that instead almost all staff attorneys graduated prior to 2007 and nearly half graduated prior to 2000.

*     Women constitute 34 percent of of counsel attorneys at the typical firm.  The NAWL survey confirms that the of counsel position has lost the prestige it once had.   Instead, firms tend to use the position for experienced associates who have insufficient business or are otherwise not considered “suitable” to become parter.  Of counsel is also increasingly a position that is occupied by former partners who have been de-equitized.

*     The survey discussed three partnership structures: one-tier, two-tier, and three-tier.  One-tier firms do not distinguish between partners; two-tier firms have income and equity partners; and three-tier firms have income and equity partners, as well as  “mixed” income-equity partners.  Individuals in this third category of partner are required to make a capital contribution to the firm but are compensated with an annual salary and a performance-based bonus instead of a share of the profits.  In addition, income-equity partners lack the governance rights or business authority of a true equity partner.   Of the firms surveyed, 28 percent were one-tier; 60 percent were two-tier; and 13 percent were three-tier.   Women comprise 18 percent of equity partners in one- and two-tier firms and 14 percent of equity partners in mixed-tier firms.  In the typical three-tier firm, five out of six income-equity partners are women.  When all three-tier firms are considered together, women comprise almost 80 percent of all income-equity partners.  NAWL notes that two-thirds of the lawyers in the income-equity category have been practicing between 12 and 31 years and thus are in what should be the prime of their careers.

* In the majority of firms surveyed, there are at most two women on the highest governing committee.   Nearly half of the firms have one or no women on the highest committee.

You can read the full NAWL report here.

For comparison, here are a few snippets from the facts of some court opinions in actual recent sexual harassment cases. (major trigger warning — these cases contain some extremely disturbing fact patterns)

Plaintiff began working for CCA in 2001 as a Correctional Officer at the Correctional Treatment Facility (“CTF”) in Washington, D.C. Am. Compl. ¶ 10. The District contracts with CCA for CCA to manage [...]]]> As noted in earlier discussions, conservative pundit John Derbyshire recently wrote: “Is there anyone who thinks sexual harassment is a real thing? Is there anyone who doesn’t know it’s all a lawyers’ ramp, like “racial discrimination“? You pay a girl a compliment nowadays, she runs off and gets lawyered up.” (Some other pundits have expressed similar views.)

For comparison, here are a few snippets from the facts of some court opinions in actual recent sexual harassment cases. (major trigger warning — these cases contain some extremely disturbing fact patterns)

Plaintiff began working for CCA in 2001 as a Correctional Officer at the Correctional Treatment Facility (“CTF”) in Washington, D.C. Am. Compl. ¶ 10. The District contracts with CCA for CCA to manage CTF. Id. ¶ 5. Within a year of her employment at CTF, plaintiff’s superior, Captain McNeil, began to sexually harass her. Id. ¶ 11. Ms. Brown filed many complaints against McNeil with her supervisors and the union, but the sexual harassment continued. Id. ¶¶ 12-14.

*77 On December 7, 2004, McNeil allegedly followed plaintiff home and raped her. Id. ¶ 20. Plaintiff reported the rape to the warden at CTF, to her superiors, and to the union. Id. ¶¶ 22-23. She was prescribed treatment for the rape, which prevented her from returning to work immediately. Id. ¶ 24. Soon thereafter, the warden “commenced retaliatory acts against [plaintiff] by writing her up” and threatening to fire her if she did not return to work. Id. ¶¶ 25-26.

Another case:

July 2005-Nacrelli hosted a pool party at his house to celebrate the recent promotion of Ladonia’s assistant principal, Brenda Coley (“Coley”), to principal of another elementary school. (Jeffers Aff. ¶ 8.) At least some of the party was planned at school, and invitations were sent to teachers, counselors, and administrators of Ladonia. ( Id.) During the course of the party, Nacrelli squeezed the buttocks of Jeffers and another teacher “on more than one occasion.” ( Id.) Later, as Jeffers sat next to Nacrelli’s wife on the pool steps, Nacrelli came up behind Jeffers and sat down with his legs around her. ( Id.) When she pushed his legs away, he stood up, and Jeffers realized he was naked. ( Id.) As she screamed, a nude Nacrelli “leap-frogged [her] into the pool, pushing [her] head down as he went.” ( Id.; Jeffers Dep. 280:1-14.) Although she did not witness it, Jeffers heard that Nacrelli also pulled the top and bottom of another female teacher’s bathing suit down, and put his hand down another female teacher’s shirt. (Jeffers Aff. ¶ 8.) Nacrelli claims he does not remember any of these events because he was drunk. (Nacrelli Dep. 55:16-57:11.) . . .

September 9, 2005-Nacrelli picked Jeffers up, rolled her toward him, and “bit [her] on the right breast.” (Jeffers Aff. ¶ 15.) Nacrelli acknowledges he picked her up and that her breast made contact with his lips, but he denies “chomping down on her” and writes it off as “one of those, oh-crap type of things.” (Nacrelli Dep. 76:4-77:3.) However, he admits to the possibility that he “could have nipped at her shirt.” ( Id. at 76:12-13.) . . .

2002-While riding with Craig to inspect a bus stop location, Nacrelli told her she had “nice legs,” and then proceeded to rub them and tell her how soft they were. (Craig Aff. ¶ 3.) Even though she pushed his hand away and said, “Don’t even go there,” Nacrelli “kept talking about how he would like to get with me.” ( Id.) After they arrived back at Ladonia, she tried to open the door, but he closed it, saying they could “go somewhere else.” ( Id.) He began to rub her hair and “kept rubbing up toward [her] crotch.” ( Id.) She continued to push his hands off, but he just laughed and said she “wanted him.” ( Id.) . . .

Both plaintiffs were subjected to numerous instances of inappropriate conduct at the hands of their principal. Jeffers alleges she heard at least twenty-five offensive comments, and specifically identifies at least ten of them. There is further evidence that comments were so pervasive that they “were of general knowledge at the school.” (Chaparro Aff. ¶ 4.) Jeffers was also subjected to at least four instances of offensive physical contact: Nacrelli bit her breast, grabbed her buttocks, wrapped his legs around her while he was nude, and pushed her head down while jumping over her head in the nude. While his comments occurred throughout his tenure as principal, it appears his behavior intensified during 2005, and almost all of Jeffers’s allegations occurred during a three-month period of that year.

Craig’s allegations took place over a longer period of time than Jeffers, but the harassing conduct occurred on a fairly continual basis, contained much unwanted physical contact that was overtly sexual in nature and involved numerous direct sexual propositions. It included Nacrelli rubbing her legs, and closing the bus door and suggesting they could go somewhere alone in order to have sex-all despite her many times removing his hand forcibly and demanding that he stop his behavior. In addition to the detailed instances of harassing conduct, Craig also alleges generally that Nacrelli made over two dozen harassing remarks and gestures between 2002 and his suspension in 2005.

Much of Nacrelli’s conduct toward both plaintiffs occurred in the presence of other colleagues, and in one instance a family member, thereby amplifying the humiliation. Craig was concerned that others would think she was having an affair because of the way he touched her and stood with his crotch close to her face in staff meetings. Nacrelli also grabbed her buttocks in front of her nephew. The conduct to which Jeffers was subjected at the pool party was not only in front of her co-workers, but also Nacrelli’s wife. Although Nacrelli’s conduct does not appear to be physically threatening, it goes far beyond a “mere utterance” and would greatly humiliate any objectively reasonable person.

Another case:

Almost immediately after Neal started his job with the City, he began harassing Griffin. He summoned her to work with him on the first day by demanding that the “big tit” or “big breasted” girl be sent to his office. Immediately, he began asking her a series of personal questions regarding where she lived, who she lived with, who cared for her child, whether she was married, whether she had a boyfriend, and where was her child’s father. The next day, Neal telephoned Griffin and asked her to guess what the “P” in his name stood for. Griffin testified that Neal was referring to his penis and that he would not get off of the phone until she guessed. Neal told her that he was looking for a girlfriend and wondered whether she could help him with that. He also told her that he did not like where she was sitting and wanted her to sit in front of him so that he could see her. . . .

After she tendered her resignation but before her job with the City ended, Griffin attended a Rotary Club function where she was scheduled to sing. The Rotary Club was very important in the workplace culture of the City and was attended by the Mayor, Commissioners, Neal, and several City department heads. Although Griffin arranged for a ride home with the City’s police chief following the event, Neal told her and the police chief that he would take her home instead. Upon arriving at her apartment, Neal grabbed Griffin’s music equipment and began carrying it upstairs, despite her telling him that she could take care of it herself. He followed her into her apartment uninvited and asked her to get him a drink. While she was getting him water or juice, Neal came up behind her in the kitchen and raped her.

And another:

At the December 5 dinner, all of the participants consumed alcohol. Tomka claims that Lucey encouraged his subordinates to drink, and that he directed the conversation to “vulgar accounts of his exploitation of women.” Pl.Resp. at p. 8. Tomka consumed two glasses of wine at the meal, while each of the men continued to drink after the meal ended. See Tomka Dep at p. 216; Conroy Dep. at p. 56. At the end of the evening, Lucey gave Tomka a ride to her hotel in his rented car.

The next day, Tomka contends that Lucey again convened a business dinner and ordered that she join him, Conroy and Polonsky at the Holiday Inn Airport bar in Rochester. See Complaint at ¶ 18. Although Tomka was “physically afraid” of Lucey and Polonsky, she attended this December 6 dinner because Lucey had instructed her to and she understood “it would be an early evening because Lucey had said he had a seven *1302 o’clock flight the next morning.” Tomka Dep. at p. 496. At the Holiday Inn, Lucey repeatedly ordered drinks for Tomka and insisted that she drink with the others. See Pl.Resp. at p. 9. Tomka consumed six glasses of wine, and the bar tab—which lists approximately forty drinks and only a small quantity of food—indicates that the others had even more to drink. See Tomka Dep. at p. 561; Exh. 62 to Tomka’s Statement of Facts.

As the evening wore on, the conversation apparently took a turn for the worse: Tomka alleges that the defendants repeatedly made vulgar remarks about women and talked of past sexual exploits. See Pl.Resp. at p. 9. The men teased Tomka about wearing her hair in a bun until she took it down, and Lucey brought a women’s garter to the table and placed it in front of Tomka, who put it around her arm. Id. at pp. 9–10. By the end of the evening, Tomka admits that she felt intoxicated and had difficulty walking.

After leaving the bar at approximately 11:30 p.m., Tomka “want[ed] to get away from Lucey and Polonsky.” Tomka Dep. at p. 496. She initially climbed into an Airport courtesy van, but Conroy assisted her out and helped her into the back seat of Lucey’s rental car. Tomka alleges that each of the three men raped her in Lucey’s car, an allegation that defendants deny. Pl.Resp. at p. 10. Conroy and Polonsky then drove Tomka, who was inebriated and semiconscious during the assaults, back to her hotel in Conroy’s car. At the hotel, Tomka claims that Polonsky directed her to his hotel room, where he raped her again. Complaint at ¶ 24. Tomka, passing in and out of consciousness, was able to eventually free herself and went back to her hotel room. Id.

I could go on, because there are a lot of reported opinions, and they’re all awful. But I really hope that’s not necessary.

Is there anyone who doesn’t think sexual harassment is a real thing?

And, so, predictably, some critics of feminism, “men’s rights” blogs, and the like have assembled lengthy lists of female privilege. (Women get their dates paid for — it isn’t fair!) And it’s true that there are areas where, taken on a stand-alone basis, male and female treatment appears to [...]]]> You mention male privilege in a blog post, and it’s inevitable: Someone else (usually male) will start asking about female privilege. If men have privilege, don’t women have privilege too? And does that undercut the idea of male privilege as a type of gender subordination which is built into society? (Because, the implication goes, we all have privilege — and so feminists should stop complaining about male privilege.)

And, so, predictably, some critics of feminism, “men’s rights” blogs, and the like have assembled lengthy lists of female privilege. (Women get their dates paid for — it isn’t fair!) And it’s true that there are areas where, taken on a stand-alone basis, male and female treatment appears to favor women. As we’ll see, I don’t think these areas really provide an analogue to male privilege.

We’ll start with the obvious, descriptive matter: Some areas exist in which women have some advantages. For one obvious example, some bars offer free drinks to women on some evenings. (Ladies night.) Looked at in isolation, these could be viewed as areas of female privilege. However, in context, it seems evident that this apparent female privilege fills one of two roles.

First, in many cases, the alleged privilege is actually a thinly disguised direct benefit to men. Why do women get free drinks on Thursday nights? Because many men see women as sexual objects. And so the apparent female privilege there is actually a smoke screen, to conceal the fact that women are being objectified and held out as bait to attract men to the bar, a script which is built on assumptions about male earning power, and norms of sexual interaction which cast men as subjects and women as objects. Tracy Clark-Flory at Salon notes how this plays out:

The women of New York get to continue to enjoy “Ladies Night” specials, thanks to a judge who earlier this week struck down a lawsuit alleging that attempts to attract chicks with discounted drinks are unconstitutional. It’s a decision plenty will no doubt be toasting tonight — but I fail to see this as a victory for femalekind.

In the past, judges have ruled in similar cases across the country that “Ladies Nights” are A-OK. The legal argument is one thing — and a very complicated thing at that — but just how okay is it politically and philosophically?

Clubs promote drink discounts to attract more women — because that means more men will show up. I believe the technical term for this is: Sex sells.

Commenter allgoodtees makes a similar point in an excellent comment:

Just about anything that can be put forth as so-called female privilege has roots in misogyny.

Commonly Cited Female Privilege: When custody arrangements are made during a divorce, rarely does a woman have to fight for the right to be with her children.

Misogynist Roots: Women have always been considered the primary caretakers of children, and are pressured from every side to do so to the point where men who are observed publicly tending to their own children are often asked if they’re “babysitting” them until their wife gets home. If men and women were equally considered to be caretakers, custody arrangements would more than likely be equally considered.

***

Commonly Cited Female Privilege: Women can be around large groups of young children and not be suspected of being a sexual predator.

Misogynist Roots: See above; if men and women were equally assumed to be caretakers of children, a man wanting to be involved with childrens’ activities (as anything other than “coach”) more than likely wouldn’t be viewed with suspicion.

***

This hurts men too, in very detrimental ways.

Commonly Cited Male Issue: Men are far more likely to commit suicide than women.

Misogynist Roots: “Big boys don’t cry”, “Man up” – Expressing emotions is something routinely coded as female (less than), so men are more likely to bottle them up and less likely to seek therapeutic help if bottling them up fails to work. If being emotional were a human thing instead of a woman thing, I’m willing to be those statistics would level out in time.

***

Commonly Cited Male Issue: Men are sexually assaulted, but there is far less attention paid because they are even less likely to report it than women.

Misogynist Roots: Because sexual assault is overwhelmingly a crime that happens to women at the hands of men, men who are raped have been “made the woman” (less than). Because of this, not only are they less likely to report it, but because of this attitude, they are less likely to be taken seriously by the police.

If men were truly concerned with raising awareness of this issue, the best way to do it would be to form their own organizations and fight for the recognition of this crime. They would seek out funding to form shelters for men who have been victims of sexual assault or domestic violence instead of routinely coming into discussions of the victimization of women and, politely or otherwise, ask that they be given equal consideration.

***

I think that covers a few of the bases.

It’s a point that has been made before on feminist blogs, and I agree entirely. It’s often the case that alleged female privilege merely repackages male privilege; the alleged benefits to women are extremely limited and subject to caveats, and don’t really help women very much.

I’ll go further, though, because I don’t think that all instances of female privilege are so directly linked to patriarchy. I think it’s possible that some instances of female privilege actually do award some benefits to women, without a direct and immediate tie to male privilege. That is, I think that in some cases, we could say that female privilege is “real.” But, as I’ll explain, I think those cases are probably even more pernicious.

Let’s take an asserted case of female privilege — for instance, draft immunity — and assume arguendo that it is a real instance of privilege. (I realize there are arguments that this is not a real privilege, but let’s assume it is for the moment.) Why would a real female privilege exist in society, and what might it mean?

First, an instance of female privilege would have significant potential masking effects on male privilege. There are hundreds of examples of minor societal norms — men paying for the date, men taking the combat roles in the military — which potentially give a small tangible benefit to women. These little trifles may create a perception that privilege is available to everyone: “Men get some privileges, and women get others. Hey, I guess it’s all just a wash!”

So the first negative consequence of a “real” female privilege would be to muddy or blunt arguments about male privilege. (And we’ve seen it happen, on the recent male privilege post.) This would be an incredibly misleading perception, because male privilege is the real prize, and any female privilege (such as it is) is a ragtag collection of shitty consolation prizes. Women don’t get to be CEO or President or Senator or general — but hey, they get their dinner paid for on that date. Go, female privilege! And yet the existence of any potential privilege can be a distraction from the reality that every important real privilege is reserved for men.

So in fact, a “real” female privilege could be even more pernicious than an obvious false female privilege (like Ladies Night), because it could have this masking effect.

It doesn’t stop there, though. I think there’s an even worse effect, which is the real dark side of female privilege: Female privilege (or the perception of it) is the primary reason used to convince women to buy in to and support the patriarchal system.

If women as a group truly felt like they got nothing from the patriarchy, there would be revolution in the streets. Women would not stand for a system that was stacked 100 to 0. But when it’s stacked 90 to 10, suddenly there’s the possibility that women will start to feel _ownership_ of their small plot of land. (Commenter PrometheeFeu compared it to a caste system, and that’s a great comparison. If society can convince the subordinated group that they’re lucky and blessed to have the special caste privileges of the lower caste, they’re much less likely to fight the system.)

Does it work? Frighteningly well. Because it turns out that many women don’t support feminism or gender equality. In fact, they’re often the most active voices against equality. Who opposed the ERA? Phyllis Schlafly, that’s who — a woman, and tens of thousands of other women who she mobilized. Fast forward thirty years, and the same struggle plays out, as a surprisingly large number of women today decide that they would rather not be feminists.

Why do women fight against gender equality? There are a variety of reasons; but if you spend any time reading Phyllis Schlafly or Helen Andelin or their blog successors today, it seems clear that many women believe that feminism or gender equality will undermine their special role as women. That is, they are attached to the benefits that their patriarchy-provided role provides — a type of cultural validation for some women who accept existing gender norms — and they don’t want feminists to take that away.

This desperate attempt to retain the perceived benefits of female privilege drives much of the (shockingly common) anti-feminist women’s writing. (And given the overall power structure, it’s easy to understand the desperation that drives that kind of writing. Members of subordinated groups may be understandably desperate to hang on to the few benefits that they do have — the things that they see as privilege.)

I have to think it would be different if we were selecting rights from behind a Rawlsian veil of ignorance. Door number one is membership in a group with a 90%+ chance of being on the Supreme Court, a 100% chance of being President, a 90% chance of being CEO or major business leader, an overwhelming majority in generals and scientists and the wealthy and powerful. Door number two is membership in a group that gets free drinks on Thursday, draft immunity, occasional compliments about being pretty, and affirmation and validation about the importance of the feminine role. No one in their right mind would choose Door Number Two.

But that’s not how it goes. Instead, women are given a bundle of disadvantage at birth, with a few shiny trinkets thrown in, and then patriarchal institutions tell those women, “your feminine role as women is so special.” And many women — especially women who don’t work or go to school, and so may lack some other common avenues of validation — buy into that idea. And like the prisoners in Plato’s cave, they will then fight to the death against their own liberation.

Female privilege, if it exists, is a ragtag combination of consolation prizes to keep the women quiet and content in a system which subordinates them. Real power remains in the patriarchal power structure. The existence of possible female privilege in areas like the draft doesn’t disprove this; the pitifulness of female privilege simply reinforces the original point.

Meanwhile, female “privilege” is employed as a tool to keep women from challenging their own subordination. And it’s frighteningly effective.

As an initial descriptive matter, it’s pretty clear that women and men are often treated differently in online discussion. (Quick, name a case in which someone was harassed online. Was the person you thought about a woman? I thought so.)

A few months ago, John Scalzi noted that:

In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn’t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects [...]]]> A familiar theme comes up frequently in internet discussions: Women who complain about online harassment are just missing the joke.

As an initial descriptive matter, it’s pretty clear that women and men are often treated differently in online discussion. (Quick, name a case in which someone was harassed online. Was the person you thought about a woman? I thought so.)

A few months ago, John Scalzi noted that:

In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn’t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects (politics, sexuality, etc) will get more abusive responses than ones who write primarily on other topics, but even in those fields, women seem more of a target for abusive people than the men are. And even women writing on non-controversial topics get smacked with this crap. I know knitting bloggers who have some amazingly hateful comments directed at them. They’re blogging about knitting, for Christ’s sake. . .

I can contrast this with how people approach me on similar topics. When I post photos of processed cheese, I don’t get abused about how bad it is and how bad I am for posting about it. People don’t abuse me over my weight, even when I talk explicitly about it. I go away from my family for weeks at a time and never get crap about what a bad father that makes me, even though I have always been the stay-at-home parent. Now, it’s true in every case that if I did get crap, I would deal with it harshly, either by going after the commenter or by simply malleting their jackassery into oblivion. But the point is I don’t have to. I’m a man and I largely get a pass on weight, on parenting and (apparently) on exhibition and ingestion of processed cheese products. Or at the very least if someone thinks I’m a bad person for any of these, they keep it to themselves. They do the same for any number of other topics they might feel free to lecture or abuse women over.

It’s this sort of thing that reminds me that the Internet is not the same experience for me as it is for some of my women friends. (Emphasis added.)

That bears repeating: The Internet is not the same experience for men as it is for women. (No wonder women are numerically underrepresented in prominent internet discussion spaces.)

Why is the internet a different place for men than for women? There are doubtless a number of contributing causes, but one of the major factors is that the internet is largely a male-constructed discursive space, and internet discussion norms often build on assumptions of male privilege.

Men build discursive spaces and discursive norms based on their own experience. And for instance, in a male-built discursive space, a threat of sexual violence may be viewed by male participants as an obvious joke. After all, the vast majority of men will never experience sexual violence in their lifetime. (Fewer than 4% of men will be sexually assaulted.) And so within the context of a male discussion on a World of Warcraft forum, for instance, it may seem entirely innocuous to use ideas of sexual violence to express one’s views on the game, or to use “rape” as a verb to describe one’s gameplay skills.

Women as a group have a vastly different experience with the idea of sexual violence. One in six women will be a victim of sexual assault during her lifetime. (Yes, some men are also sexual assault victims. But the numbers are overwhelmingly female — about 90% of sexual assault victims are women.) Rape is not an abstract idea or an obvious joke. For thousands of women, it is an immediate and extremely painful reality.

At one point during class I was talking about male privilege, and one student asked me to explain. He noted that he is a man and he doesn’t feel particularly privileged. In response, I noted my own privilege: “When I leave the building late at night, I don’t give a second thought to my safety as I walk to my car. If it’s ten at night, if it’s dark, I just assume that I’ll be fine. But for many women, there is a constant thought process: Do I find someone to walk me to my car? Is it safe at this hour? What are my options?” And then I asked, “who has gone through that train of thought recently?,” and every woman in the class raised her hand. And then they told stories: About avoiding parts of town; about setting their schedule in certain ways; about making sure that they had someone to walk them out; about being on their guard, all the time. The need to guard against the possibility of sexual assault is simply not part of most men’s everyday thought process, while it is a major part of many women’s everyday lived experience.

And the fact that as a man I don’t have to spend mental energy thinking about protecting myself from sexual assault is itself part of male privilege. One part of male privilege is that you never have to notice the ways in which you benefit from male privilege.

The same goes for statements about violence in general. In a male-dominated discursive space, it may be viewed as normal to make aggressive, threatening statements. However, men’s and women’s experiences with violence are also vastly different. One in four women in the United States has been a victim of domestic violence. Suddenly, the joke about wanting to punch somebody else isn’t so funny.

Women face these kinds of microaggressions on a daily basis, in all sorts of environments ranging from the workplace to the public sphere. And they seem to be especially prevalent (surprise) in discursive spaces built by and dominated by men. (It’s true that not all women struggle to express themselves in male-built discursive spaces, and some women develop real facility for the kind of bullying that sometimes passes for dialogue on the internet. But, as Danielle’s work makes clear, many don’t.)

And then when someone (almost always female) stands up against the male-constructed discursive norms in which threats of violence and sexual violence can be characterized as merely a joke, she is attacked for being oversensitive. These attacks are another instance of denying of the reality of women’s experiences. Male commenters discount women’s experiences as irrelevant if when those experiences don’t conform to male discussion norms. Feminist blogs have a term for this: Mansplaining, where a male interlocutor explains to a female writer that she ought to ignore her own experience and bow before his superior wisdom.

This discounting of women’s experience echoes equally problematic discussions that happen in the political arena, where male writers incredibly feel comfortable opining that sexual harassment probably doesn’t even exist, it’s all just something made up by overreacting women. For instance, here’s a direct quote from prominent male conservative writer John Derbyshire: “Is there anyone who thinks sexual harassment is a real thing? Is there anyone who doesn’t know it’s all a lawyers’ ramp, like ‘racial discrimination’? You pay a girl a compliment nowadays, she runs off and gets lawyered up.” Yes, Derbyshire is arguing that sexual harassment does not exist. Of course, this is a topic about which he has a vanishingly small likelihood of having any personal experience, since sexual harassment is overwhelmingly targeted at women. But I’ve never personally seen a zebra; therefore, they probably don’t exist.

Male privilege on the internet — or in law, or in society at large — isn’t going away any time soon. But let’s call it out, and let’s label it for what it is. When male interlocutors tell a female writer that she is overreacting and just isn’t getting the joke, they are speaking from a starting place of male privilege. They are assuming that casual threats of violence are something which can easily be shrugged off, and are ignoring the vast difference between lived experiences of men and women in America. And they are denying the reality of something which, in all likelihood, they don’t even understand.

Which Scalzi explains well in a follow-up post:

Underlying all of that is the basic set of advantages I get unearned by being what I am, i.e., a white male. I became aware of this fact only over time, by having this advantage set pointed out to me repeatedly by those who are not what I am. Which is a bad deal for those folks, to be sure — the highest life crisis of everyone else in the world is not, in fact, making the White Male understand what he gets unearned.

I suspect in my case it would have been even more work for the rest of the world if I hadn’t had the experience of growing up poor, which meant that every time I saw or read someone who’d never been poor expound obliviously on what was really going on with poor people, I had to fight back the urge to beat them to death with a hammer. The experience of having to deal with people wealthsplaining poverty, and then trying to get them to listen to someone who had spent actual time in poverty, made it possible for me to more easily conceptualize the idea there were lots of subjects about which I had great potential to show my ass simply by opening my mouth.

There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy. So sit back. Calm down. Pay attention. Take notes. Learn. And stop denying the reality of women’s experience.

U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. [...]]]> Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:

U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.

The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Although unpaid FMLA leave can be used for either purpose, for employees who are lucky enough to have paid leave, pregnancy disability leaves are often much longer than caretaking leaves. Moreover, the presumptive length of disability leave related to pregnancy is often independent of either the individual woman’s condition or the physical demands of her job. For example, in the Krill case, Kara Krill was allowed 13 weeks of paid maternity leave when she gave birth to her first child. When her second and third children (twins) were born by a surrogate, she was allowed only five days of caretaking leave, under the company’s policy for adoptive parents.By drawing a sharp distinction between pregnancy leave and caretaking leave, the law is trying to treat men and women similarly when they are similar (becoming parents) and differently, in an appropriate way, when they are different (giving birth, or not). The problem is that the physical facts of pregnancy, birth, and recovery cannot be so sharply separated from caretaking. Women who are on leave to recover from childbirth are also taking care of, bonding with, and generally getting to spend time with their children. This means that, as long as caretaking leave is measured in days rather than weeks, even a leave policy that strictly limits pregnancy leave to the period of physical necessity will perpetuate gender differences in infant care. Looked at from the perspective of the family, it means that families who have children by adoption are deprived of the chance to have either parent spend substantial amounts of time with the new child. Extra baby time for birthing mothers is an inevitable side effect of extra time for physical recovery.

The National Association of Women Judges is hosting their annual international conference in Newark, New Jersey on October 12-16. On October 14th, there will be a symposium at Rutgers Law School entitled Promoting Global Equality for Women Through the Law and on the 15th Seton Hall Law School will host break-out sessions on various topics including domestic violence, urban revitalization, immigration, forensic evidence, cross-cultural issues in the courts and leadership training. Seton Hall Law student Megan Altman will be receiving the Justice Ruth Bader Ginsburg scholarship which will be presented at the NAWJ Gala Saturday night at the Newark Club with Justice Ginsburg delivering the keynote address.

More information here at the NAWJ [...]]]> I just wanted to make this announcement about an extraordinary conference:

The National Association of Women Judges is hosting their annual international conference in Newark, New Jersey on October 12-16. On October 14th, there will be a symposium at Rutgers Law School entitled Promoting Global Equality for Women Through the Law and on the 15th Seton Hall Law School will host break-out sessions on various topics including domestic violence, urban revitalization, immigration, forensic evidence, cross-cultural issues in the courts and leadership training. Seton Hall Law student Megan Altman will be receiving the Justice Ruth Bader Ginsburg scholarship which will be presented at the NAWJ Gala Saturday night at the Newark Club with Justice Ginsburg delivering the keynote address.

More information here at the NAWJ website. According to an email I received, “There are more than 50 international judges registered for the conference from countries including Argentina, Canada, China, Gambia, Guam, Haiti, Honduras, India, Jordan, Korea, Lagos, Malawi, Moldova, Navajo Nation, Nepal, Philippines, Sarajevo, South Korea, Taiwan, Tanzania, and Uganda.”

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get [...]]]> Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”

Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.

My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.

In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and [...]]]> In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”

In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.

In contrast, application of anti-discrimination laws like the ADA never requires that kind of direct grappling with religious doctrine or beliefs. Indeed, anti-discrimination cases may present no religious issues at all. To the extent they might, courts need not resolve theological disputes such as what role music or schoolteachers play in the church. Instead, they would be deciding whether a legitimate religious reason or an illegitimate secular reason (discrimination) motivated an employment decision. For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes she engaged in forbidden conduct. The only question to be decided falls well within the court’s competence: determining whether the plaintiff’s evidence establishes that men and women were treated the same on this issue. In other words, the court judges the credibility of a religious reason, rather than whether something is religiously true. Judging the credibility of a proffered reason is within the court’s role and expertise. Resolving religious questions is not.

Further reading

For a more complete treatment of the ministerial exception, including explanations on why the courts would not delve into doctrinal issues when resolving discrimination claims even when defendant offers a more subjective religious justification for its adverse employment action, please check out my article: Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law.

Several other law professors have written interesting blogs about Hosanna-Tabor and the ministerial exception, including: Thomas Berg, Howard Friedman, Marci Hamilton, Rick Garnett, and Chris Lund. Most disagree with me.

Special thanks to Danielle Citron for letting me return to Concurring Opinions!

Unfortunately, we won’t learn for a while whether Wal-Mart actually discriminated against its female employees.   The issue before the Court is one that civil procedure, specifically [...]]]> Today the Supreme Court will hear argument in Wal-Mart Stores v. Dukes, potentially the largest employment class action case in U.S. history.  The plaintiffs allege that Wal-Mart paid male employees more and promoted them over women with more seniority and that it maintained a culture of gender stereotyping where women were called “Janie Q’s,” told to wear make-up and “doll-up,” and meetings were held at Hooters.   They also rely on statistical data to establish discrimination.  They claim that women comprise 80% of hourly supervisors, but only one-third of store managers.  The percentage of women in higher positions is even lower.

Unfortunately, we won’t learn for a while whether Wal-Mart actually discriminated against its female employees.   The issue before the Court is one that civil procedure, specifically class action, junkies should find titillating—whether the six plaintiffs should have been certified to bring a class-action that could potentially include 1.5 million employees in thousands of stores across the country.   Wal-Mart claims that there is no commonality among the plaintiffs’ claims and that the “named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent.”  If the term “class-action certification” is making you yawn, you might be missing the potential impact of this issue for employment discrimination plaintiffs going forward.  If the Supreme Court adopts the view of the dissenters in the Ninth Circuit opinion and requires plaintiffs seeking class certification to show “significant proof that an employer operated under a general policy of discrimination,” plaintiffs (including the EEOC) are also likely to find it much more difficult to prove that the entity should be held liable when the case is heard on its merits.   I didn’t understand these implications until I read Professor Tristin Green’s article exposing the impact of Dukes for the future of systemic disparate treatment law.   She also argues that the current individualistic model of disparate treatment (one bad actor or as one Wal-Mart executive put it, “some bosses may have gone astray”) has made it difficult for scholars to think critically about entity responsibility for systemic disparate treatment in the workplace.  You can read the abstract and article here.

This is not 2011, it is not Tahrir Square, and the victim is not a female CBS reporter. It’s 1991, it’s the Las Vegas Hilton, and the victim is a female Navy lieutenant. Perhaps most importantly, the crowd of men is not made up of Egyptian protesters, but of U.S. naval aviators and sailors.

In September 1991, the Tailhook Association, a nonprofit group of retired and active naval officers, held its annual convention in [...]]]> A woman is suddenly set upon by a mob of aggressive, excited men who tear at her clothes, groping and fondling her as they pass her through the crowd. When the incident comes to light, the woman is blamed for being somewhere she shouldn’t have been and for bringing the assault upon herself.

This is not 2011, it is not Tahrir Square, and the victim is not a female CBS reporter. It’s 1991, it’s the Las Vegas Hilton, and the victim is a female Navy lieutenant. Perhaps most importantly, the crowd of men is not made up of Egyptian protesters, but of U.S. naval aviators and sailors.

In September 1991, the Tailhook Association, a nonprofit group of retired and active naval officers, held its annual convention in Las Vegas. As Lieutenant Paula Coughlin stepped off the elevator of the third floor, she was met by a crowd of more than 200 drunken officers. “I got attacked by a bunch of men that tried to pull my clothes off,” she said. “I fell down to the floor and tried to get out of the hallway, and they wouldn’t let me out. They were trying to pull my underwear off from between my legs.” Lt. Coughlin implored one of the aviators to help her; he responded by grabbing her breasts. When she reported the incident to her superior officer, he replied, “That’s what you get for going down a hallway of a bunch of drunken aviators.” After Lt. Coughlin went public with her story, more than 80 other women came forward with similar stories of being sexually assaulted by the crowd that night. Lt. Coughlin reported being harassed by her Navy colleagues for speaking out, and the media response was similarly harsh. Pundits and late-night comedians trivialized the incident as little more than fraternity antics, and Lt. Coughlin and other women who came forward were criticized for unfairly tarnishing the Navy’s reputation. The response of conservative figures was particularly extreme, denouncing attempts to reform the Navy in the wake of the Tailhook allegations as attempts to “feminize” the military. David Horowitz, in an article for the National Review titled “The Feminist Assault on the Military,” complained that “a drunken party at which crotches were grabbed in a gauntlet ritual ha[s] fueled a national hysteria about ‘sexual harassment’ that is threatening to deconstruct the military.”

Lara Logan, CBS News’ chief foreign affairs correspondent, was attacked by a group of as many 200 male protesters while reporting from Tahrir Square in Cairo. The men stripped her of her clothes, beat, slapped, and punched her with their hands and with flag poles. Reports indicate that she was spared further attack by a group of women and guards who moved to protect her. The all-too-predictable victim-blaming and trivialization began almost immediately, and came from individuals of every ideological stripe: Nir Rosen took to Twitter to tell the world that he was “rolling his eyes at all the attention she’ll get.” On her self-named blog, Debbie Schlussel wrote, “So sad, too bad, Lara. No one told her to go there. She knew the risks. … Hope you’re enjoying the revolution, Lara!”

The similarities between what happened to Paula Coughlin and Lara Logan are striking both in terms of the assault itself and the media response. But there is an important difference as well. The aforementioned Schlussel didn’t blame only Logan for the assault; she also blamed Islam: “she should have known what Islam is all about.” Responding to criticism of her statements, Schlussel went further, ridiculing her critics for failing to admit that “THIS. IS. ISLAM. Lara Logan was among the chief cheerleaders of this “revolution” by animals. Now she knows what Islamic revolution is really all about.” Gary Bauer used Logan’s assault to repudiate Nicholas Kristof’s claim that “we are all Egyptians”: “there is ample evidence that millions of Egyptians are sympathetic to the worst elements of radical Islam, including [,] … as the sexual assault of Logan demonstrated, hatred of, and hostility toward, women.” Andrew McCarthy, in an article titled “Who Attacked Lara Logan, and Why?” – in the very same publication in which Horowitz trivialized the sexual assault of Paula Coughlin and deemed the attempt to reform the Navy’s attitudes towards women a threat to national security – first makes the implausible claim that “coverage of the attack has been muted,” and then asserts that what happened to Logan simply doesn’t happen “here”: “it doesn’t happen in Madison. It happens in Egypt. It happened in Indonesia, the world’s most populous Muslim country… It happens in Muslim countries and in the Muslim enclaves of Europe and Australia, perpetrated by Islamic supremacists acting on a sense of entitlement derived from their scriptures, fueled by the rage of their jihad, and enabled by the deafening silence of the media.”

In the wake of the assault on Paula Coughlin and the revelation that as many as 83 women in total had been similarly attacked by U.S. military officers during the Tailhook Convention, there were no suggestions, to say nothing of outright assertions, that radical Christianity was responsible for the incident. No pundits went diving into the Bible to find passages declaring women’s inferiority to men (passages that one can assuredly find there, as one can find them in the Koran). One is hard pressed to find claims that responsibility for the attack lay in U.S. cultural norms encouraging violence towards and objectification of women. Statistics on the high rate of sexual assault and harassment of women in the U.S., and the inequalities women face in employment and health rights, were not trotted out as proof that American men manifest hostility and hatred towards women.

It is an obvious, but apparently not obvious enough, truth that those who genuinely care about violence against women care about it all the time, everywhere it happens. They understand that violence against women crosses all borders, all religions, all cultures.  We should care deeply about what happened to Lara Logan, and in caring about it we should educate ourselves about the shockingly high rates of sexual harassment in Egypt and explore the possibility that there may be cultural and religious factors that encourage hatred and hostility towards women. And we should likewise care about Paula Coughlin, and interrogate the cultural and religious factors that might be at play in an incident in which close to a hundred women are assaulted by men affiliated with the U.S. military (to say nothing of the epidemic of rape in the U.S. military that continues to this day). The struggle against inequality is poorly served by selective and self-serving outrage.

Rep. Louie Gohmert (R-TX) is worried about women. Specifically, he is worried about their equal rights under U.S. law, and is baffled that women are not up in arms about the sinister force that poses the greatest threat to them in our time. Is it the distressingly high rates of sexual violence in this country? Domestic abuse? Unequal working conditions? Recurring waves of legislation aimed at undermining women’s bodily integrity? None of these, according to Rep. Gohmert: the true threat is “creeping sharia law.”

Rep. Gohmert recently added his voice to the call for Congressional hearings on sharia’s supposed infiltration of U.S. society. During an interview on Frank Gaffney’s radio show, Gohmert said, “The biggest [...]]]> “Evil resides (also) in the innocent gaze which perceives Evil all around.”

Rep. Louie Gohmert (R-TX) is worried about women. Specifically, he is worried about their equal rights under U.S. law, and is baffled that women are not up in arms about the sinister force that poses the greatest threat to them in our time. Is it the distressingly high rates of sexual violence in this country? Domestic abuse? Unequal working conditions? Recurring waves of legislation aimed at undermining women’s bodily integrity? None of these, according to Rep. Gohmert: the true threat is “creeping sharia law.”

Rep. Gohmert recently added his voice to the call for Congressional hearings on sharia’s supposed infiltration of U.S. society. During an interview on Frank Gaffney’s radio show, Gohmert said, “The biggest shock out of all of this is that the women’s liberation groups have not just gone berserk over this creep into our society that diminishes women as it does. … it does diminish the Constitution when you bring any law in that doesn’t allow women to be full equal citizens of the United States.” Gohmert’s rhetorical move here is perversely clever: he highlights a legitimate harm (here, the unequal treatment of women), attributes it exclusively to a foreign source (sharia law), and insinuates that those who fail to do the same are complacent and/or hypocritical (why aren’t “women’s liberation groups” more upset about this horrible threat?). This is a not a new tactic (anti-feminists like Christina Hoff Sommers have been doing it for years), but it is falling on particularly receptive ears.

At least thirteen states have recently introduced bills aimed at keeping sharia law out of U.S. courts. Oklahoma’s dramatically-named “Save Our State Amendment,” which explicitly listed sharia law as a forbidden source of authority, was recently held by a federal judge to violate the Establishment clause. The sponsors of many of the newer bills have learned to be less specific in their language, but most are quite comfortable admitting that sharia is their real target. Georgia Rep. Mike Jacobs (R-Atlanta), who introduced “The American Laws for Georgia Courts Act” (House Bill 45, which states that “it will be the public policy of this state to protect its citizens from the application of foreign laws when the application … will result in the violation of a right guaranteed by the Constitution of this state or of the United States”), told the Fulton County Daily Report that the bill would “ban the use of Sharia law in Georgia courts.” Admitting that he did not know of a single instance of any Georgia court ever being asked to apply sharia law, Rep. Jacobs expressed the belief that it had happened elsewhere: “We’re seeing more of a feeling that Sharia law should be applied in domestic cases.”

Advocates of anti-sharia measures frequently point to a lone New Jersey case – a case that did not, in fact, take sharia law as a source of legal authority, and that was overturned on appeal – as proof of the danger that sharia poses to U.S. courts. In that terrible case, a man beat and raped his wife, telling her that “this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.” The woman sought a restraining order against the man, whereupon the judge, while finding that the defendant had sex with his wife against her wishes, stated: “This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.” This opinion, while plainly stupid and wrong, did not look to Islamic law as a legitimate source of authority. The court indicated that it was allowing a form of “cultural defense” with regard to criminal intent – that is, it took into account the defendant’s particular cultural beliefs to assess whether he had the requisite intent to commit a crime. It is worth noting, however, that the court failed to apply its own controversial analysis correctly. The defendant’s cultural beliefs should only have been relevant insofar that they prevented him from forming the intent required to be guilty of the crime of sexual assault – namely, from recognizing that his wife did not consent to sexual contact. Here, the court found that husband was fully aware that his wife did not consent, which meant he did in fact have the requisite mens rea, in contrast to the famous “reasonable Hmong” case, in which the defendant’s cultural beliefs supposedly led him to mistake a woman’s protests for consent. The court seems to have been confused about the distinction between “cultural defense” (sometimes valid) and “mistake of law defense” (rarely valid).

The fact that a single, overturned opinion that did not actually apply sharia law is used as evidence of sharia law’s deadly influence is troubling enough in itself. It is made all the more troubling by the fact that the actual harm at work in the overturned New Jersey opinion – the law’s indulgent treatment of male violence – needs no exotic diagnosis. If this case had come up in this country before 1976, the husband would have been found not guilty of rape based not on some exotic religious law, but on the laws of every state in the U.S. Before 1976, a husband could rape his wife with impunity in all fifty U.S. states. Until 1996, more than half of all U.S. states maintained some form of the marital rape exemption. Even today, thirty-three states treat marital rape as a less serious crime than rape of a non-spouse. And with regard to specious and offensive “cultural defenses” more generally, the leniency given to men who claim “provocation” as a defense to murders of their intimate partners is both tragically common and thoroughly homegrown. The notion that men may be driven to kill merely by actual or perceived infidelity, or by the attempts of their partners to leave, has deep roots in American soil. As I discussed in a previous post, Jacobs’ fellow Representative, Bobby Franklin, is trying to change Georgia laws so that individuals (mostly women) who report being raped, beaten by their partners, or stalked must be called “accusers” instead of “victims,” while those reporting other crimes may maintain their “victim” status.  A long history of unjust rape laws, asymmetrically applied provocation defenses, and measures that make it even more difficult for victims of rape, domestic violence, and stalking to come forward arguably “diminish women” and undermine their ability to “be full equal citizens of the United States.”

A professed concern for women’s rights that focuses exclusively on “foreign” or external threats is deeply suspect. If Gohmert and Jacobs et al are genuinely concerned about the rights of U.S. women, the many troubling laws and practices of this very country would seem a better object – or at the very least, an object -  for their concern.

A Wikileaks cable involving the U.S. contracting firm DynCorp (a company that is no stranger to scandal) has received relatively little attention so far.  DynCorp employees apparently hired bacha bazi, also called “dancing boys,” to perform at a party for Afghan police officers. While the details of the party are not yet clear, the practice of bacha bazi, which literally means “boy for play,” is a 300-year old Central Asian tradition that the State Department has called a “widespread, culturally sanctioned form of male rape.” The practice was banned under the Taliban but has re-emerged in recent years.  The dancers, who are often abused children disowned by their families, wear makeup, women’s clothing, and bells on their feet [...]]]> “she laughed his joy she cried his grief”

A Wikileaks cable involving the U.S. contracting firm DynCorp (a company that is no stranger to scandal) has received relatively little attention so far.  DynCorp employees apparently hired bacha bazi, also called “dancing boys,” to perform at a party for Afghan police officers. While the details of the party are not yet clear, the practice of bacha bazi, which literally means “boy for play,” is a 300-year old Central Asian tradition that the State Department has called a “widespread, culturally sanctioned form of male rape.” The practice was banned under the Taliban but has re-emerged in recent years.  The dancers, who are often abused children disowned by their families, wear makeup, women’s clothing, and bells on their feet when they perform for audiences of older men. According to the New York Times, “boys as young as 9 are dressed as girls and trained to dance for male audiences, then prostituted in an auction to the highest bidder.” When bachas turn 19, they are released and allowed to “reclaim their status as ‘male,’ though the stigma of having lived as a bacha is hard to overcome.” Some social scientists posit that the popularity of bacha bazi stems from the strict gender segregation that characterizes Afghan society even after the fall of the Taliban. There are few opportunities for men to interact with women, or boys with girls. While women are no longer required to wear the burqa since the Taliban were taken out of power, many still do out of local custom or fear for their safety. As one Afghani man put it, “How can you fall in love if you can’t see her face? We can see the boys, and we can tell which are beautiful.”

A short time ago, the New York Times ran a story about girls in Afghanistan who dress as boys until they reach puberty.  The practice of bacha posh, which means “dressed as a boy,” allows families to avoid the perceived stigma of having no sons. It has the added benefit of granting girls freedom of movement and education that they would not otherwise have. A bacha posh can go to school, work outside the home, or be seen in public without a male chaperone much more easily than if she were visibly female.  The freedom is temporary, however. When the girls approach marrying age or reach puberty, they are usually forced by their families to change back. Many of these girls resist this reversion.  Sexual harassment and sexual assault of girls and women remains common in Afghanistan, and the restrictions on their movement and education make for difficult adjustments. “People use bad words for girls,” said one fifteen-year-old. “They scream at them on the streets.  When I see that, I don’t want to be a girl.  When I am a boy, they don’t speak to me like that.”  Changing back into a girl also presents other challenges; women speak of the difficulties of having to learn how to interact with other women, how to speak like a woman, and how to walk in a floor-length covering after years of wearing loose trousers.

The twinned drag practices of bacha bazi and bacha posh reveal how much the consequences of feminization differ from those of masculinization. In bacha bazi, boys are feminized and consequently experience sexual exploitation and a lowering of social status. In bacha posh, girls are masculinized and experience the benefit of increased physical security and social freedom. To be feminized is to be punished; to be masculinized is to be liberated.  It is tempting to locate the harm of these practices in the transposition: boys should not be forced to be girls, and girls should not be forced to be boys (this is how the harms of male prisoner sexual abuse is often characterized, i.e., men should not be treated as women). But to do so implies that there is some natural essence of “boyness” or “girlness” that childhood drag perverts. It would imply that the harm could be cured by simply ensuring that boys were allowed to be boys, and girls to be girls. That is, when these boys and girls reach adulthood and “switch back” (if they can do so successfully), the world is righted on its axis.  But the fact that childhood drag is possible – that boys can meaningfully be thought of as girls, and vice versa -  supports Judith Butler’s insight that drag has the potential to “enact and reveal the performativity of gender itself in a way that destabilizes the naturalized categories of identity and desire.” If so, it would be exactly wrong to draw from bacha bazi/bacha posh the lesson that we should not force boys and girls to be something they are not; rather, the lesson is that “girlhood” and “boyhood” can be put on or taken off.  As constructs, they can be evaluated for their relative harms or benefits, and doing so exposes a significant asymmetry. To be considered male in Afghanistan means physical security and social freedom, whereas being considered female means abuse and oppression. Perhaps what the practices of bacha bazi/bacha posh illuminate most starkly, then, is how the construct of femininity can rob both boys and girls of childhood.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.”

Leeds will join a remarkable national assemblage [...]]]> It is my pleasure to invite you to Thomas Jefferson School of Law’s upcoming 10th Anniversary Women and the Law Conference, “Gender Justice and Indian Sovereignty: Native American Women and the Law,” on Friday, February 18, 2011.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.”

Leeds will join a remarkable national assemblage of about two dozen speakers, all deeply experienced leaders of Indian Nation Tribal courts, governments, business, law practice, and academia. They will address a wide range of issues affecting American Indian women, including gender-related violence and Indian Country law enforcement, development of Tribal courts, governments, and businesses, and the intersection of Native identity, civil rights, sexism, and racism.  The conference will combine nationally known speakers with strong local community involvement, reflected in several speakers who are leaders in San Diego County and Southern California Indian Nation communities.

More information and a registration link may be found at http://www.tjsl.edu/wlc2011. There will be a free shuttle service between the conference hotel, The Handlery (a conference rate is available for rooms there), and the law school.  The full conference program is pasted below.  For further information, you should please feel free to contact the faculty organizer:

Bryan H. Wildenthal
Professor of Law
Thomas Jefferson School of Law
bryanw@gmail.com

I hope to see some of you there!

–

Thomas Jefferson School of Law

10th Anniversary Women and the Law Conference

Friday, February 18, 2011  — 1155 Island Avenue, San Diego, CA 92101

Gender Justice and Indian Sovereignty:

Native American Women and the Law

Sponsored by the TJSL Women and the Law Project

Co-Sponsored by the California Indian Law Association

Program Schedule

8:00-8:30 am: Continental Breakfast (provided) and Social Gathering

Conference registration from 8:00 am to 12:00 noon; CLE available for all panels

8:30-8:40 am: Call to Order and Welcoming Remarks

Bryan H. Wildenthal, Professor, Thomas Jefferson School of Law; Conference Organizer; and
Board Member, California Indian Law Association

Julie A. Greenberg, Professor, Thomas Jefferson School of Law, and Co-Founder, Thomas Jefferson
School of Law Women and the Law Project

Rudy Hasl, Dean and President, Thomas Jefferson School of Law

8:40-9:40 am: Panel 1, Intersectionality and Civil Rights, Part One

This panel will address the intersection of Native, Tribal, and gender identities, including a focus on gender as a factor in Tribal citizenship.

Moderator: Catherine Deane, Reference Librarian, Thomas Jefferson School of Law

Rina Swentzell, Author and Member, Santa Clara Pueblo

Gloria Valencia-Weber, Professor, University of New Mexico School of Law, and Board Member,
Legal Services Corporation

Joanne Willis Newton, Sole Practitioner (San Diego); Judge Pro Tempore, Intertribal Court of
Southern California; Member, Cree Nation of Chisasibi, Québec; and former President,
California Indian Law Association

9:40-9:50 am: Break

9:50-11:00 am: Panel 2, Intersectionality and Civil Rights, Part Two

This panel will address intersections of Native, Tribal, and other identities, focusing more broadly on racial, ethnic, and religious as well as gender identities, and considering ways in which struggles for Indian sovereignty and Native rights have played out within the broader context of civil rights movements and litigations.

Moderator: Kaimipono David Wenger, Assistant Professor, Thomas Jefferson School of Law

Kristen A. Carpenter, Associate Professor, University of Colorado Law School, and Chair,
Federal Bar Association Indian Law Conference, 2010 and 2011

Wenona T. Singel, Assistant Professor and Associate Director, Indigenous Law and Policy Center,
Michigan State University College of Law; Chief Appellate Judge, Grand Traverse Band of
Ottawa and Chippewa Indians; and Justice, Little Traverse Bay Bands of Odawa Indians

Linda Rose Locklear, Professor of Sociology and American Indian Studies, Palomar College

Lawrence R. Baca, Former President, Federal Bar Association (2009-10); U.S. Department of
Justice, Trial Attorney, Civil Rights Division (1976-2004), and Deputy Director, Office of
Tribal Justice (2004-08)

11:00-11:10 am: Break

11:10 am-12:20 pm: Panel 3, Gender-Related Violence and Indian Country Law Enforcement

This panel will address the epidemic of gender-related violence, including domestic violence, faced by many American Indian women, and the related challenges of Indian Country law enforcement, including the roles of Indian Nation governments, Tribal courts, Federal and State authorities, PL-280, and the Tribal Law and Order Act of 2010.

Moderator: Claire Wright, Associate Professor, Thomas Jefferson School of Law

Barbara Creel, Associate Professor, University of New Mexico School of Law

Sarah Deer, Assistant Professor, William Mitchell College of Law

Carole E. Goldberg, Jonathan D. Varat Professor and Faculty Chair, Native Nations Law and Policy
Center, UCLA School of Law; Director, UCLA Joint Degree Program in Law and American
Indian Studies; Justice, Hualapai Court of Appeals; Member, Indian Law and Order
Commission; and former Vice-President and Founding Board Member, California Indian Law
Association

Diane J. Humetewa, Attorney, Squire Sanders Public Advocacy LLC (Phoenix); former U.S.
Attorney, District of Arizona (2007-09); Chief Counsel, U.S. Senate Committee on Indian Affairs;
and Judge Pro Tempore, Hopi Tribal Appellate Court

12:20-1:00 pm: Break, Hot Buffet Lunch (provided), and Open Seating for Lunchtime Keynote Address

1:00-2:30 pm: Ruth Bader Ginsburg Lecture (Keynote Address) and Response (Panel 4)

The Ginsburg Lecture and response panel will address a wide range of issues affecting American Indian women, including gender-related violence and legal remedies, property law, economic development and the law, and the leadership roles of Native women in Indian law and Tribal courts and governments.

Ruth Bader Ginsburg Lecturer: Stacy L. Leeds, Interim Associate Dean, Professor, and Director,
Tribal Law and Government Center, University of Kansas School of Law; Chief Justice, Supreme
Court, Kickapoo Tribe of Oklahoma; Chief Justice, Supreme Court, Kaw Nation; and Chief
Judge, Prairie Band Potawatomi Nation District Court

Resistance, Resilience, and Reconciliation: Reflections on Native American
Women and the Law

Moderator: Marjorie Cohn, Professor, Thomas Jefferson School of Law

Angelique EagleWoman (Wambdi A. WasteWin), Associate Professor and James E. Rogers Fellow
in American Indian Law, University of Idaho College of Law, and Judge Pro Tempore, Coeur
d’Alene Tribal Court

Aliza Organick, Professor, Washburn University School of Law, and Chair, AALS Section on Indian
Nations and Indigenous Peoples

Angela R. Riley, Professor, UCLA School of Law; Director, UCLA American Indian Studies Center;
and Chief Justice, Supreme Court, Citizen Potawatomi Nation of Oklahoma

Rebecca Tsosie, Professor, Willard H. Pedrick Distinguished Research Scholar, and Executive
Director, Indian Legal Program, Arizona State University College of Law; Professor, University
of New Mexico School of Law (from Summer 2011); and Justice, Supreme Court, Fort McDowell
Yavapai Nation

2:30-2:40 pm: Break

2:40-3:40 pm: Panel 5, Building the Future: Indian Country Economic Development

This panel will address Tribal economic development, gaming, and other fields of business, the role of law in facilitating such development, and the leadership roles of American Indian women.

Moderator: Luz Herrera, Assistant Professor, Thomas Jefferson School of Law

Debora G. Juarez, Partner and Chair, Tribal Practice Group, Williams Kastner (Seattle)

Angela M. Medrano, Staff Attorney, California Indian Legal Services; President, Native American
Lawyers Association of San Diego County; former Lead Gaming Commissioner, Cahuilla Band
of Indians Tribal Gaming Agency, and Treasurer and Board Member, California Indian Law
Association

Kate Spilde, Associate Professor, San Diego State University School of Hospitality and Tourism,
and Chair, Sycuan Institute on Tribal Gaming

3:40-3:50 pm: Break

3:50-5:20 pm: Panel 6, Building the Future: Developing Tribal Governments and Courts

This panel will address the development of Tribal courts and judicial systems, as well as executive and legislative functions of Indian Nation governments, with a focus on both California and national perspectives and the leadership roles of American Indian women.

Moderator: Michele Fahley, Deputy General Counsel, Pechanga Band of Mission Indians, and
Board Member, California Indian Law Association

Abby Abinanti, Chief Judge, Yurok Tribe, and Commissioner, San Francisco Superior Court

Meredith D. Drent, Staff Attorney, San Manuel Band of Serrano Mission Indians; Justice, Supreme
Court, Osage Nation; and President, California Indian Law Association

Elizabeth Ann Kronk, Assistant Professor, University of Montana School of Law; Chief Judge,
Appellate Court, Sault Ste. Marie Tribe of Chippewa Indians; and Chair, Federal Bar
Association Indian Law Section

Devon Lee Lomayesva, Executive Director, California Indian Legal Services; Member, Steering
Committee, National Association of Indian Legal Services; Co-Founder and Board Chair,
American Indian Recruitment Programs; and former Tribal Councilmember and In-House Legal
Counsel, Iipay Nation of Santa Ysabel

Jill Elizabeth Tompkins, Clinical Professor and Director, American Indian Law Clinic, University of
Colorado Law School, and Appellate Justice, Mashantucket Pequot Tribal Nation,
Passamaquoddy Tribe, and Pokagon Band of Potawatomi Indians

Christine Williams, Sole Practitioner (Pleasanton, CA); Of Counsel, LaPena Law Corporation;
Chief Judge, Hopland Band of Pomo Indians; Appellate Judge, Northern California Tribal Court
Coalition; Consultant, California Court Appointed Special Advocates Association; Visiting
Professor of American Indian Studies, Mills College; and former President, California Indian
Law Association

5:20-5:30 pm: Closing Remarks

Bryan H. Wildenthal, Professor, Thomas Jefferson School of Law; Conference Organizer; and
Board Member, California Indian Law Association