All content categorized with: Uncategorized
Filter
Post List
Gender and Corporate Crime: Do Women on the Board of Directors Reduce Corporate Bad Behavior?
Public debate on mandating gender representation on boards of directors in the United States is close to a boiling point. California introduced a mandatory quota in 2018 only to see it constitutionally disqualified in 2022, and the Nasdaq Stock Market followed suit with new diversity rules in 2021 for all corporations listed on the exchange. While public discourse focuses on corporate performance, not much is known about the link between gender diversity and corporate normative obedience. In this study we explore the relationship between boardroom gender representation and corporate compliance with the law. We examine the impact of gender diversity on corporate obedience in a sample of 660 public corporations. Our findings indicate that gender diversity has a substantial positive impact on corporate compliance. Notably, every one percent increase in female representation on the board is associated with at least a four percent decrease in the probability that the corporation will be associated with a violation of the law. The key contributions of this Article to the literature are threefold: First, the findings of this Article call for an empirical reevaluation of gendered theories of female white-collar offenders. Second, this Article adds a unique perspective to the broad discussion of environmental, social, and governance (ESG) aspects of corporate purpose. Third, this Article sheds innovative light on the discussion about corporate social responsibility (CSR) and the means to enhance it.Critical Race Feminism, Health, and Restorative Practices in Schools: Centering the Experiences of Black and Latina Girls
Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in education practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the empirical evidence that has been gathered on school-based restorative justice has framed and named RP as a behavioral intervention aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is central to dismantling discriminatory systems, we argue it reflects an unnecessarily limited understanding of its potential and has generated unintended consequences in the field of RP research. First, the reactive RP model of analysis focuses more exclusively on behavioral change, rather than systemic improvement, to address discipline disparities. Second, RP research has insufficiently examined the potential role of RP in achieving health justice. Third, RP research too rarely engages in intersectional analyses that critically examine gendered racism. This study is intended as a course correction. Building on the work of legal scholars, public health researchers, sociologists, restorative justice practitioners, and our own prior work, this original study is the first to examine non-disciplinary RP through a critical race feminist lens, and—just as importantly—a public health praxis. Our findings reveal that the interplay between RP and adolescent health, race, and gender can no longer be overlooked. Proactive non-disciplinary RP was found to promote supportive school environments that enhance five key protective health factors for Black and Latina girls. Additionally, results indicate that RP improved the mental health and wellbeing of Black and Latina girls, building fundamental resilience skills that can help overcome the complex array of social structures that serve to disempower and disenfranchise girls and harm their educational and health outcomes.Litigation, Referendum or Legislation? The Road to Becoming the First in Asia to Institutionalize Same-Sex Marriage
In the pursuit of same-sex marriage, advocates in each country evaluate the appropriate decision-making process for addressing this highly disputed issue—litigation, legislation, or referendum. The choice may be partially based on the institutional advantages of each approach, but more importantly, the choice is also conditioned by the legal and political context of each country, such as the authority of the court, the framing of public opinion, and the dynamics between movement and countermovement. Uniquely, all three decision-making processes are involved in the course of the institutionalization of same-sex marriage in Taiwan. This Article, focusing on the experience in Taiwan, examines the approaches and factors that influence the conceptualization and realization of marriage equality, and to what extent the court can be involved in the process of major social reforms. At first glance, the polarizing events subsequent to the Taiwan Constitutional Court’s (TCC) decision seem to reflect the judicial backlash thesis, which suggests that court intervention is counterproductive, as it engenders political resistance. However, this Article argues that the way the TCC adjudicated may actually be a workable alternative approach for other courts to introduce same-sex marriage. In particular, the combination of a “remedial period” for the legislature and “supplemental judicial law-making” allows the courts to facilitate substantial social change while ensuring more democratic deliberation.Defining Sexual Orientation: A Proposal for a New Definition
Laws prohibiting discrimination based on sexual orientation are becoming more common in all parts of the world. Few of these laws provide useful definitions of the term sexual orientation. As a result, the meaning and impact of these laws remains unclear. This Article reviews past and current definitions of sexual orientation according to how well they incorporate current empirical knowledge of sexual orientation, and how their use in human rights laws impacts the dignity, right to equality, and human development of sexual minorities. The Article gives particular attention to the definition of sexual orientation found in the Yogyakarta Principles which has been adopted by a number of jurisdictions throughout the world. Because this definition views sexual orientation through a heteronormative lens, its use restricts sexual freedoms and undermines the dignity of individuals with non-confirming sexual orientations. The Article proposes a multidimensional definition of sexual orientation grounded in current scientific knowledge of how sexual orientation is manifested in the lives of sexual minorities.Pregnant Transgender People: What to Expect from the Court of Justice of the European Union’s Jurisprudence on Pregnancy Discrimination
Pregnant transgender people’s experiences vary: they may identify as male or non-binary and may seek gender-affirming medical care to different degrees. This variety in gender identities and bodies puts additional pressure on CJEU’s pregnancy discrimination case law—a case law that is, as this Article argues, already flawed. Building on a critique of the CJEU’s decision in Dekker, this Article discusses three alternative approaches to addressing pregnancy discrimination in EU law. The first two approaches are different ways of construing pregnancy discrimination as sex discrimination. First, the Article discusses a gender-stereotyping approach to direct sex discrimination, and, second, an indirect sex discrimination analysis. The third approach is to introduce a separate provision on pregnancy discrimination in EU legislation. This Article argues that this third approach provides the fullest protection for all types of pregnancy discrimination—including the pregnancy discrimination that pregnant transgender people experience.Cruel Dilemmas in Contemporary Fertility Care: Problematizing America’s Failure to Assure Access to Fertility Preservation for Trans Youth
Transgender youth are increasingly able to access gender-affirming healthcare. Because gender-affirming care such as hormone therapy is clinically shown to reduce gender dysphoria and ease physical and social transition, every major U.S. medical association recognizes that gender-affirming healthcare is medically necessary for the treatment of dysphoria. However, an important dimension of gender-affirming care remains under-insured and overpriced: fertility preservation (FP). Several studies indicate that hormone therapies and certain gender-affirming surgeries can have negative, long-term impacts on future fertility. Although these impacts can be mitigated through approved FP methods such as sperm cryopreservation and oocyte cryopreservation, such methods are rarely affordable for those who need them. These cost barriers largely exist because fertility care (including FP) remains excluded from most public and private insurance plans. Even though states have the regulatory authority to remedy this, only seventeen have taken steps to do so. This paper will demonstrate how the failure to provide coverage for fertility care forces young people into cruel dilemmas. Because gender-affirming care is, itself, expensive, paying additional out-of-pocket fees for FP is often not in the cards for many young people. Section I will delve into the landscape of FP coverage in the U.S. and the barriers that prevent people from accessing FP services. Section IV will then connect the lack of insurance coverage to a broader pattern of state efforts to withhold and eliminate child-bearing capacity, either directly or indirectly, from marginalized communities. Finally, Section III will offer legal and policy recommendations that could disrupt this history of reproductive oppression, and secure greater access to bodily autonomy for trans youth.Surrogacy and Parenthood: A European Saga of Genetic Essentialism and Gender Discrimination
This paper tells a story of shifting normativities, from tradition to modernity and back, regarding the recognition of legal parenthood in non-traditional families created through crossborder surrogacy. The cross-border nature of the surrogacy is often forced as most domestic legal frameworks in Europe still restrict the creation of non-traditional families through assisted reproductive technologies. Once back home, these families struggle to have birth certificates recognized and establish legal parenthood. The disjuncture between social reality and domestic law creates a situation of legal limbo. In its recent case law, the European Court of Human Rights has pushed for domestic authorities to rectify this situation but, at the same time, has filled the legal limbo with genetic essentialism and allowed for gender discrimination when recognizing legal parenthood. While giving full effect to a genetic father’s foreign birth certificate based on identity and best interests arguments, the Court accepts that a genetic mother must adopt to establish a legal parent-child relationship. The paper critically addresses this intriguing imbalance. It deconstructs the Court’s genetic essentialism encouraging a biologically determined view of parenting, which sidelines the social (i.e., non-genetically related) parent and contradicts the purpose of assisted reproduction to overcome biological barriers. The paper concludes by rejecting the gender-discriminatory element of power and control over legal motherhood imposed by the procedural step of adoption.Advancing Reproductive Justice in Latin America Through a Transitional Justice Lens
Reproductive autonomy is a pivotal part of women’s access to equal citizenship, yet it has not been included in any international nor regional human rights treaty. In the past decades, the U.N. Committees, notably the CEDAW Committee, and regional human rights bodies, particularly the Inter-American System for the Protection of Human Rights, have timidly advanced reproductive justice through their jurisprudence, including through the use of reparations. Drawing from the standards of reparations developed in the field of transitional justice, human rights bodies increasingly rely on reparations to enhance the transformative effects of their decisions. These reparations intend to include a gender-perspective in their design and aim to ensure the non-repetition of human rights violation, not only to the victim, but to society. Constitutional courts in Latin America are increasingly relying on the standards of reparations in their own decisions, including in those on reproductive justice. In this Article, I analyze two recent rulings from Latin American constitutional courts–one from Colombia and one from Ecuador–to understand how courts can use reparations to advance reproductive justice. I analyze these particular rulings for two reasons: (1) Both rulings have the potential to develop reproductive jurisprudence in the region where high courts have traditionally imported international and comparative law to resolve legal debates over reproductive rights; and (2) Both rulings challenge the traditional concept of reparations and offer an opportunity to rethink how the remedy can be deployed in a human rights context.Trek to Triumph
I was screaming in the stairwell of my home, holding a dead baby. The air was so thick that I could barely breathe. Tears were racing down my face as her twin sister, Zola, was screeching at the top of her lungs. “WHY LORD, don't take my baby!” Every emotion, every word, and every second after that moment felt black. All the sweet memories from just eight days of being able to hold her, kiss her, and love her fell in a black pit along with the dreams I had for my life. As I looked down at my sweet Zaina, I could not help but see at that moment that we were the same—lifeless. I rode to the hospital in the front of the ambulance while EMS performed CPR on her in the back. I kept repeating “breathe baby, please, just choose to live,” hoping that she would hear me and fight for her life. As the double doors to the emergency room swung open, the doctor took one look at her, and I could tell it was not good. My knees gave out and I fell onto the floor. It was so cold. There was nothing left that I could do. As I struggled to gather the strength to pick myself up from the cold ground, I realized something: nothing that could happen to me for the rest of my life is worse than this. Nothing is worse than losing a child. This was my biggest fear, and I was staring face-to-face with it at age twenty-three.Title IX and the Alleged Victimization of Men: Applying Twombly to Federal Title IX Lawsuits Brought by Men Accused of Sexual Assault
This Note provides a survey of the current state of Title IX law as applied to anti-male bias lawsuits and suggests how courts should apply Twombly’s plausibility standard to anti-male bias claims going forward. Part I of this Note provides an overview of sexual violence on college campuses and the history of Title IX regulations and jurisprudence. Part II offers a brief history of Title IX anti-male bias lawsuits, examines the structure of anti-male bias lawsuits, and analyzes the various pleading standards applied by courts. Part III lays out the types of facts pled by Title IX anti-male bias plaintiffs and discusses what facts should be viewed as sufficient to meet Twombly’s plausibility standard. In Part IV, this Note looks at the future of Title IX anti-male bias lawsuits in light of new federal regulations and discusses the implications of these lawsuits for claimants and respondents in campus Title IX proceedings.