Category: Feminism and Gender

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Moving Targets: A new blog from Mary Anne Franks discusses revenge porn, feminist theory, and social media

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!

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Legal Developments in Revenge Porn: An Interview with Mary Anne Franks

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 More

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Who’s Your Daddy?

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.

Read More

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What It Means to Talk about Reproductive Justice

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.

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No Margin for Error

FastSmileSuzanne 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. . . .

As a a recent discussion on the problem of “Second Generation” gender bias showed, emphasis on appearance may be a key “unseen barrier” to equity.

Image Credit: book by Robin Leidner on the commodification of affect.

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Coming out of the Abortion Closet

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.

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Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities

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.

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)

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.

Part I of this post.

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Injured Kids, Injured Parents and Tort Law

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.

 

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)

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.