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Bathroom Bias: Making the Case for Trans Rights under Disability Law
Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note will look at the role of bathroom access in the fight for trans civil liberties and how disability law might be used to affirm trans people's access in the workplace to gendered bathrooms that accord with their lived sex.Flexible Scheduling and Gender Equiality: The Working Families Flexibility Act Under the Fourteenth Amendment
The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman as the basis for analyzing how the WFFA might be upheld under the Enforcement Clause. It also argues that, in order to advance workplace equality, the WFFA should be reframed to target “work-life” balance, rather than specifically “work-family” balance. Because caregiving is so frequently viewed as a women’s issue, as long as flexible scheduling is understood as a policy for caregivers, it will be seen as a policy for women and carry the burden of stereotypes associated with working mothers. To make fundamental improvements in workplace gender equality, we need to decouple the link between flexible scheduling and caregiving.The Scarlet Letter: The Supreme Court and the Language of Abortion Stigma
Why does the Supreme Court refer to the woman who is seeking an abortion as "mother"? Surely the definition has not escaped the attention of a Court that frequently relies on the dictionary to define important terms or principles. And why does the Court choose to describe the fetus as a child? What message does this language send about abortion and the woman who seeks an abortion? The Court's abortion decisions embody an ongoing debate on the legitimacy of constitutional protection of the right to choose. This debate unfolds most obviously as a discourse on constitutional interpretation; disagreements within the Court are reflected in the language of constitutional principles and standards. This debate also plays out, hidden in plain view, in the vocabulary used by the Court to describe the woman who stands at the center of the constitutional controversy and the life within her. The opinions of the Court, beginning with Roe, mediate abortion stigma through both language and legal standards. The Court's framing of the abortion procedure, of the woman and physician, and of prenatal life has contributed to the ascendancy of abortion stigma. Casey, in particular, marks a turning point, where the Court's overt expression of moral disgust with abortion correlates with diminished constitutional protection. This article examines how the abortion decisions contribute to abortion stigma. It argues that several narratives emerge from the vocabulary deployed by the Court to describe both the woman who seeks an abortion and prenatal life. These narratives serve a potent expressive function. Most display considerable ambivalence about the moral authority of women, particularly women who decide, even temporarily, not to become mothers. From Roe onward, the Court has reinforced abortion stigma through discourse as well as constitutional standards. This stigma marginalizes both the abortion procedure and the woman who seeks an abortion. This marginalization, in turn, provides justification for increasing restrictions on a woman's access to abortion.The Exit Myth: Family Law, Gender Roles, and Changing Attitudes toward Female Victims of Domestic Violence
This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims ofintimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth. While the situation that gave rise to the battered womens movement in the 1970s is often presumed to be part ofa long history of state tolerance or even approval of violence against women, the real history is actually much more complicated. Indeed, at least until 1930, wife beaters were routinely brought to criminal court and fined or sentenced to a jail term. Whereas wife killers often faced life imprisonment or even the death penalty, juries acquitted many women who used lethal violence against their abusive husbands. What happened between the 1920s and the later decades of the twentieth century that changed how the public and the criminal justice system responded to domestic violence? This Article offers the following hypothesis: As women gained the vote and sought easy access to divorce, and as mothers of minor children began to compete for jobs formerly held exclusively by men, society and the criminal justice system less often saw abused wives as frail beings who needed protection against their violent husbands. Changes in employment opportunities, family and property law, and psychosocial understandings of intimate relationships combined to create a false sense of the ease with which women could exit an abusive marriage. This overestimation ofwomen ' ability to leave, paired with the new view that women did not need to be protected in paternalistic ways, contributed to waning sympathy for female victims of intimate-partner violence. In the second half of the twentieth century, such women were presumed-often unfairly and incorrectly-to be capable of safely leaving their relationships and supporting themselves. As gender roles changed to allow greater female autonomy, the criminal justice response may have become more punitive and less sympathetic toward women trapped in violent intimate relationships.Surrender and Subordination: Birth Mothers and Adoption Law Reform
For more than thirty years, adoption law reform advocates have been seeking to restore for adult adoptees the right to access their original birth certificates, a right that was lost in all but two states between the late 1930s and 1990. The advocates have faced strong opposition and have succeeded only in recent years and only in eight states. Among the most vigorous advocates for access are birth mothers who surrendered their children during a time it was believed that adoption would relieve unmarried women of shame and restore them to a respectable life. The birth mother advocates say that when they surrendered their children, their wishes were subordinated and their voices silenced. They say they want to be heard now as they raise their voices in support of adult adoptees' rights to information in government records about their birth mothers' original identities. Opponents of restoring access, in "women-protective rhetoric" reminiscent of recent anti-abortion efforts, argue that access would harm birth mothers, violating their rights and bringing shame anew through unwanted exposure of out-of-wedlock births. Opponents say they must speak for birth mothers who cannot come forward to speak for themselves. Birth mother advocates respond that the impetus historically for closing records was to protect adoptivefamiliesfom public scrutiny and from interference by birth parents, rather than to protect birth mothers from being identified in the future by their children. They maintain that birth mothers did not choose and were not legally guaranteed hfelong anonymity. They point out that when laws that have restored access have been challenged, courts have found neither statutory guarantees of nor constitutional rights to, anonymity. They also offer evidence that an overwhelming majority of birth mothers are open to contact with their now grown children. As a means of assessing these competing claims, this article analyzes the provisions in a collection of birth mother surrender documents assembled by the author-seventy-five mid-twentieth century documents executed in twenty-six different states. In order to establish the significance of the surrender document provisions with respect to these claims, the article first relates depictions by birth mothers of ajourney from silence to legislative advocacy. The article then examines the conflicting claims about birth mothers that pervade legislative contests over adult adoptee access to original birth certificates. Finally, the article analyzes the provisions of the surrender documents. The analysis of the provisions definitively supports birth mother advocates' reports that women were neither offered a choice of nor guaranteed lifelong anonymity. Their opponents' contentions to the contrary, whether motivated by concern for birth mothers or other interests, reinscribe an earlier culture ofshame and secrecy, subordinating women own wishes and silencing their newly raised voices.Beyond Seduction: Lessons Learned about Rape, Politics, and Power from Dominique Strauss-Kahn and Moshe Katsav
n the last decade, two influential international political figures, Dominique Strauss-Kahn, former head of the International Monetary Fund, and Moshe Katsav, former President of Israel, were accused of engaging in extreme and ongoing patterns of sexual violence. The collection of formal charges against the two men included rape, forcible indecent assault, sexual harassment, and obstruction of justice. The respective narratives surrounding the allegations against Katsav and Strauss-Kahn have their own individual characteristics, and each of the cases unfolded in diverging ways. Yet, the actions of these two men taken together, and the corresponding response of the legal systems in France, Israel, and the United States, offer an opportunity to evaluate contemporary issues of rape and power from a comparative perspective. This Article begins by telling the stories of how Strauss-Kahn and Katsav engaged in systematic patterns of sexual violence. It provides important background and context against which the two men are evaluated, offering a comparative analysis of the laws under which they faced accusations, formal charges, and in some instances, convictions. It is difficult to understand the ways in which the legal system and even the media responded to these allegations of sexual violence. This Article considers the victimization of women by the politically powerful by utilizing a framework created originally by Norwegian sociologist Nils Christie that identifies a set of characteristics describing the “ideal victim.” It next examines some of the legal issues impacted by stereotypes of “ideal” victims that conflict with the reality of “real” victims, making recommendations for expanding Christie’s framework to include an equally comprehensive evaluation of perpetrators and more importantly, the power differential that exists between victim and perpetrator. Midway through this Article, I explore the connection between sexuality, seduction, and sexual violence, and argue for a disentangling of these constructs. Finally, this article concludes by considering how the allegations against these powerful international political figures might advance the conversation on the intersection of sexual violence and power.Does the Constitution Protect Abortions Based on Fetal Anomaly?: Examining the Potential for Disability-Selective Abortion Bans in the Age of Prenatal Whole Genome Sequencing
This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—-the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation of this new technology into clinical care will both invigorate anti-choice legislatures to pursue such legislation and cause the laws’ impact on women to be greater than initially anticipated. Using the undue burden standard announced in Planned Parenthood v. Casey, this Note concludes that federal and state disability-selective abortion bans are unconstitutional based on the Due Process Clause. The Note also questions whether the federal government has constitutional authority under its enumerated powers to even enact such a ban. Finally, the Note presents policy reasons for why such an abortion ban will degrade the right to a pre-viability abortion so significantly as to render it non-existent.The Case for Procedural Safeguards in the U.S. Refugee Admissions Program
The U. S. Refugee Admissions Program (“USRAP”) is a humanitarian program that resettles vulnerable refugees to the United States. Though these refugees have suffered from extraordinarily high rates of trauma, the refugee admissions process does not have formal statutory or regulatory safeguards to accommodate the vulnerable nature of many applicants for resettlement. Yet, the applicants who have suffered the most trauma, including victims of sexual and gender- based violence, are the refugees most likely to be impeded by a process that largely centers on proving the severity of their trauma. To promote accurate outcomes, and to decrease the risk of retraumatization during the resettlement adjudication process, Congress should enact procedural safeguards to govern USRAP. In applications for resettlement, refugees should be guaranteed access to counsel during their interviews, access to evidence used by USRAP against the refugee, written reasons for USRAP’s adverse decisions, the opportunity to appeal, and pre-screening for, and accommodation of, vulnerable traits that might impact the adjudication process.The North Carolina Woman’s Right to Know Act: An Unconstitutional Infringement on a Physician’s First Amendment Right to Free Speech
The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute that mandates that an individual speak alters the content of that speech and is, therefore, subject to strict scrutiny. Pursuant to current United States Supreme Court precedents on compelled and content-based speech, the relevant portions of the Act are unconstitutional. Further, the claim made by the Act’s proponents that the speech involved is commercial speech, subject to a lesser degree of First Amendment scrutiny, fails under the Court’s commercial speech precedents. The State may reasonably regulate the medical profession by mandating that physicians obtain informed consent and convey limited, truthful information to patients. However, the Act’s extensive and one-size-fits-all approach to informed consent is not a reasonable regulation of medical practice. What is left, therefore, is an unconstitutional attempt by the State to infringe on the First Amendment rights of physicians providing abortions in North Carolina.Victim Participation at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia: A Feminist Project
The question this Article poses is whether victim participation--one of the most recent developments in international criminal law--has increased the visibility of the actual lived experience of survivors of sexual and gender-based violence in the context of war, mass violence, or repression. Under the Rome Statute, victims of the world's most serious crimes were given unprecedented rights to participate in proceedings before the Court. Nearly a decade later, a similar scheme was established to allow victims to participate as civil parties in the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC or Extraordinary Chambers), a court created with UN support to prosecute atrocities committed by leaders of the Khmer Rouge during the period of 1975 to 1979. Although there are some significant differences in how the schemes work at the ICC and ECCC, both courts allow victims to participate in criminal proceedings independent of their role as witnesses for either the prosecution or defense. In other words, both have victim participation schemes intended to give victims a voice in the proceedings. Significantly, women's rights activists supported the creation of these victim participation schemes, particularly at the ICC, because, among other things, they thought that doing so might help address the under- or misrepresentation of women's experiences in those situations covered by the Court's jurisdiction. My aim is to explore whether these novel victim participation schemes, as implemented by the ICC and ECCC thus far, have actually allowed for greater recognition of victims' voices and experiences than was possible in proceedings before their predecessor tribunals. Have these schemes actually allowed women to communicate a fuller and more nuanced picture of their experiences than they would have been able to as victim-witnesses before the Yugoslav and Rwanda tribunals? Have they contributed to a richer understanding of the different and complex ways in which sexual violence and inequality are experienced by women in the context of war, mass violence, or repression? In other words, can the victim participation schemes at the ICC and the Extraordinary Chambers answer the feminist call for increased visibility of the actual lived experience of survivors of sexual and gender-based violence in the context of war, mass violence, or repression? Can they, in this sense, be considered "feminist projects"?