posted by Kimberly Mutcherson
In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.
As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:
The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.
Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.
Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.
October 10, 2012 at 10:30 am Tags: Constitutional Law, Criminal Law, Criminal Procedure, Education, feminism Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Education, Feminism and Gender, Law Rev (Stanford) Print This Post One Comment
posted by Leora Eisenstadt
Although I am somewhat hesitant to add another voice to an already loud debate about the work-family conflict that has arisen again in the last month or so, I am finding it difficult to stay quiet. As the working mother of a 3 ½ year old and a 3 month old, this is the legal and policy issue that affects me most these days.
When Anne-Marie Slaughter wrote her piece in the Atlantic, arguing that women in top government and business positions are leaving because of the difficulty of combining work and family, she predictably drew loud praise and equally loud critique (including an interesting post by Sherilyn Ifill, linked to from Concurring Opinions). But then, Marissa Mayer, Yahoo’s newly appointed CEO, added her voice to the debate (perhaps unwittingly) when she told Fortune that she was pregnant and that her maternity leave would be “a few weeks long, and I’ll work throughout it.” That comment brought a new onslaught of responses including criticism that she was doing a disservice to all working women whose employers would now expect them to “work throughout” their maternity leaves.
Whether this is a male/female issue or merely a parenting issue that cuts across gender, what is clear from the numerous opinions out there is that one size does not fit all. In fact, if I am any example, one approach might not even work throughout one person’s working/parenting life. As a first time mom and associate at a law firm, I took a 6½ month leave, made possible by a hefty pay check and 12 weeks of paid leave. Now that it’s my second time around and I am transitioning to academia, I chose to work from home through the first few months after my son was born and (mostly) don’t regret it.
The notion of privileging women or parents by building in options for them is not new and is, in fact, the dominant approach in many European countries and in Israel (which I have written about in the past). But it has not been the American way. Might we be changing? In my prior article, I wrote about the emergence of the Israeli approach as a function of the society’s overall collectivist culture and a national interest in promoting reproduction and the parent-child bond. I am wondering whether there is a chance that Americans could recognize this too.
Of course, that would not be the end of the debate. What would the privileging of women or parents mean for equality? If women (by law) gain options that men don’t have, do they come out equal, better, or worse? For example, if we mandate paid maternity leave as some countries do, will employers stop hiring fertile age women out of fear that they will exercise this option and be less productive than men? What if the option is non-gendered and open to all parents? Will men exercise the option or continue to feel pressure to return to work immediately after a child is born? Will women? While the answers to these questions remain unclear, one thing is obvious—this is not a problem that parents can solve on their own. Beyond the debate in the media, it is high time for a serious debate in government about remedies (beyond the Family Medical Leave Act) for working parents who are having trouble being good at both jobs.
August 9, 2012 at 1:09 pm Tags: feminism, gender, maternity leave, parenting, sex discrimination Posted in: Employment Law, Feminism and Gender, International & Comparative Law, Uncategorized Print This Post 3 Comments
posted by Kaimipono D. Wenger
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. Read the rest of this post »
posted by Kaimipono D. Wenger
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. Read the rest of this post »
posted by Kaimipono D. Wenger
Which factors might predict a country’s likelihood of going to war? Undemocratic government? Widespread poverty? Dare we ask — Islamic religious values?
According to a provocative new study from Valerie Hudson and WomanStats, there is another factor more closely correlated with national belligerence than any of the above: A country’s levels of violence against women. As summarized in the Deseret News:
Look closely at the way women are treated, says Valerie Hudson. Look at the nonchalance with which a nation’s men beat their wives, or the dismissive way a country condones genital mutilation. These are clues, she says, about that nation’s likelihood of waging war. . . .
It has been widely assumed that other factors are more predictive of whether a nation might be unstable or aggressive. The three most likely candidates were poverty levels, lack of democracy, and the nation’s adherence to Islamic values.
But the WomanStats project offers a fourth predictor of a nation’s instability. Violence against women (VAW, in the shorthand of WomanStats) trumps the other explanations, proving to be three times more predictive of a nation’s instability than whether a country is Islamic, and one-and-a-half times more predictive than whether a country is undemocratic, Hudson says.