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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.Reproduction and Gender Self-Determination: Fertile Grounds for Trans Legal Advocacy
Current medical constructions of trans identities reflect heterosexist understandings of gender expression—understandings that deny access to gender-affirming healthcare to those who fail to perform normative binary genders. As medical providers establish norms for how to “properly” be trans, the state codifies these norms, basing trans existence on rigidly defined and harshly enforced understandings of binary gender. When this construction of transness is codified on an institutional level, such as with gender reclassification rules for government identification, it forces trans people to conform their bodies to cisgender norms, and dangerously disrupts trans people’s bodily autonomy and diminishes their control over their reproductive choices. This Article contends that the gender conformity that the state requires of trans people parallels the violence that the state has inflicted on low-income non-trans women of color. As welfare policies have sought to constrain indigent Black women’s reproductive and sexual autonomy, courts use legal gender determination to force trans people to conform to heterosexist sexual and family structures—a project that works to constrain their reproductive freedoms. This Article connects the decades-long struggle of non-trans women of color for reproductive justice with that of trans people’s right to self-identify without medical intervention. In doing so, this Article calls for legal trans advocates to coalition build with existing reproductive justice movements to nurture a trans jurisprudence that rejects heterosexist notions of trans identity and instead embraces the multiplicity of trans embodiment and queer family structures that we, as trans people, can create.The Home of the Dispossessed
The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them—the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups—usually excluded from the realm of property ownership along lines of gender, race, and ethnicity—live on an axis of property precarity, persistently subject to the anxieties as well as the realities of dispossession. This Article’s launching point to explore these dispossessions is Henry James’ novel, The Spoils of Poynton, which involves a dispute about the settlement of a father’s estate and describes the battle between mother and son over the furnishings of the family home, Poynton. On a descriptive level, The Spoils of Poynton is a novel about a wife’s dispossession and the gendered nature of inheritance. The novel is also, however, about the exclusions built into property theories of labor and personhood. Accordingly, this Article explicates tactics of dispossession inherent in traditional theories of property ownership, explores the legal claims made to property ownership by those who have been dispossessed, and analyzes the ways in which the meaning of property for these individuals and communities is reconstituted within the political imaginary. The novel therefore tells the story not only of a property conflict between mother and son but also of how individuals who straddle the fragile boundary between personhood and objecthood both experience property as liminal fragments of the rightsholder they could have been and perform their property ownership as a political declaration. In this way, the novel tells the story of what it is like to live in the home of the dispossessed.Black Women & Women’s Suffrage: Understanding the Perception of the Nineteenth Amendment Through the Pages of the Chicago Defender
Susan B. Anthony once famously stated, “I will cut off this right arm of mine before I will ever work for or demand the ballot for the Negro and not the woman.” The racism of many early suffragettes has been well documented and discussed; Black suffragettes and other suffragettes of color were, at best, relegated to the margins of the movement and, at worst, scorned and turned away by white suffragettes. Moreover, part of white suffragettes’ strategy for passage of the Nineteenth Amendment was based on racist appeals to white men; white suffragettes claimed that passage of the Nineteenth Amendment would help keep white voters in the majority and, ultimately, would help uphold white supremacy. Against this backdrop, Black women—and much of the Black community more generally—still supported and fought for the passage of the Nineteenth Amendment. Recent legal and historical scholars have been dedicated to studying the often-overlooked and instrumental role that Black women played in the Suffrage Movement and Black enfranchisement. This Article seeks to look at the coverage by Black—largely male—journalists at the Chicago Defender in the ten years preceding and proceeding the passage of the Nineteenth Amendment. In doing so, this Article hopes to better understand the ways that some Black community members understood and viewed the Nineteenth Amendment and how that perception changed. Although in hindsight we understand that the Nineteenth Amendment was not the liberating feat for Black women that it was for white women, what does Black journalistic coverage in the period immediately before and after its passage tell us about the perception of the Nineteenth Amendment and Black women’s enfranchisement at the time? The methodology of this research differs from those used in other historical research regarding Black women’s suffrage. Many historians have focused on understanding Black women’s suffrage through studying individual women’s stories: In her groundbreaking and well-received book Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All, legal historian Martha Jones says that “by recounting the lives of some of the many Black women who engaged in political fights, the picture of a whole comes into view.” These histories rely on a large variety of historical documents left behind by, and about, individual suffragists and events to gain an understanding of “the picture of a whole.” This Article takes a different approach: it looks deeply at only one set of primary documents—articles printed in the Chicago Defender— to better understand the changes and patterns in community perception revealed through journalistic coverage. This is not counter to the important work of these other historians, who have helped recover the overlooked stories of suffragists of color. Instead, this Article seeks to further our understanding of these stories through a different medium.World Peace and Gender Equality: Addressing UN Security Council Resolution 1325’s Weaknesses
The year 2020 marks the twentieth anniversary of the passage of United Nations Security Council Resolution (“UNSCR”) 1325, the most important moment in the United Nations’ efforts to achieve world peace through gender equality. Over the past several decades, the international community has strengthened its focus on gender, including the relationship between gender and international peace and security. National governments and the United Nations have taken historic steps to elevate the role of women in governance and peacebuilding. The passage of UNSCR 1325 in 2000 foreshadowed what many hoped would be a transformational shift in international law and politics. However, the promise of gender equality has gone largely unrealized, despite the uncontroverted connection between treatment of women and the peacefulness of a nation. This Article argues for the first time that to achieve international peace and security through gender equality, the United Nations Security Council should transition its approach from making recommendations and suggestions to issuing mandatory requirements under Chapter VII of the U.N. Charter. If the Security Council and the international community believe gender equality is the best indicator of sustainable peace, then the Security Council could make a finding under Article 39 with respect to ‘a threat to the peace’—States who continue to mistreat women and girls pose a threat to international peace and security. Such a finding would trigger the Security Council’s mandatory authority to direct States to take specific actions. In exercising its mandatory authority, the Security Council should organize, support, and train grassroots organizations and require States to do the same. It should further require States to produce a reviewable National Action Plan, detailing how each State will implement its responsibilities to achieve gender equality. The Security Council should also provide culturally sensitive oversight on domestic laws which may act as a restraint on true gender equality.The Stability Paradox: The Two-Parent Paradigm and the Perpetuation of Violence Against Women in Termination of Parental Rights and Custody Cases
Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable. This Article explores the legal system’s glorification of the nuclear family, its resistance to shifting away from the two-parent paradigm, and how this resistance creates a stability paradox and perpetuates violence against women and children. The harmful impact that the nuclear family paradigm has on families is further explored by an examination of the statutory constructs and judicial interpretations of termination of parental rights (TPR) and custody statutes in cases where a child is conceived as a result of rape or exposed to ongoing IPV. Cases are utilized to examine how courts have interpreted parental rights statutes where a child is conceived as a result of rape. Additionally, a hypothetical case is discussed to explore arguments that may be advanced in TPR cases where children are exposed to ongoing IPV. The Article finds that although there are inherent problems in enacting statutes to terminate parental rights in cases involving rape or IPV, legislation is also a necessary tool for survivors. Model legislation is proposed for termination of parental rights in cases where a child is conceived as a result of a sexual offense or when a child is exposed to ongoing IPV.A Feminist Economic Perspective on Contract Law: Promissory Estoppel as an Example
Economic analysis is a highly influential theoretical approach to contract law. At the same time, feminist analysis of contract law offers an important critical approach to the field. However, feminist economics, a prominent alternative approach to mainstream neo-classical economics drawing from both economic theory and feminist theory, has only been applied scarcely and sporadically to contract law. This Article seeks to bridge this gap and to apply the key features of feminist economics to an analysis of the doctrine of promissory estoppel. This Article uses promissory estoppel as an example to demonstrate a feminist economic analysis of contract law.“Champion Man-Hater of All Time”: Feminism, Insanity, and Property Rights in 1940s America
Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist. This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy.A Podcast of One’s Own
In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.Valuing All Identities Beyond the Schoolhouse Gate: The Case for Inclusivity as a Civic Virtue in K-12
Increasing social and political polarization in our society continues to exact a heavy toll marked by, among other social ills, a rise in uncivility, an increase in reported hate crimes, and a more pronounced overall climate of intolerance—for viewpoints, causes, and identities alike. Intolerance, either a cause or a consequence of our fraying networks of social engagement, is rampant, hindering our ability to live up to our de facto national motto, “E Pluribus Unum,” or “Out of Many, One” and prompting calls for how best to build a cohesive civil society. Within the public school—an institution conceived primarily for the purpose of inculcating civic virtues thought necessary to foster solidarity in a pluralistic society—the intolerance has contributed to increased bias-based bullying, particularly toward transgender and gender diverse students. The devastating impacts of intolerance and exclusion on transgender and gender-diverse students include disproportionate rates of psychological distress, physical ailments, increased risk of homelessness, and other negative outcomes. As schools ponder how best to meet their needs and create safe and supportive learning environments, some parents have attempted to assert exclusive authority in this domain, challenging practices such as the adoption of gender-complex and LGBTQ-inclusive curricula as well as gender-affirming policies and practices. Parents allege that attempts by schools to accommodate transgender and gender diverse students infringe on their parental rights and the privacy rights of their cisgender children. While some schools have yielded to parental objections, others have resisted. This Article presents a compelling approach for schools both to address the challenges posed by objecting parents and to carry out their original mission of inculcating an appreciation for democratic norms—namely, civility, tolerance, and equality— through the adoption of gender complex and LGBTQ-inclusive curricula. Relying on both long-standing limitations on parents’ ability to exercise curricular control and research on the benefits of inclusive and comprehensive curricula, this Article makes the case that the educational purposes served by gender complex and LGBTQ-inclusive curricula more than justify any alleged burden on parents’ free exercise of religion as protected by the First Amendment or any alleged infringement upon parents’ substantive due process rights as protected by the Fourteenth Amendment. It posits that although both parents and the state share responsibility for shaping our youngest citizens, parental interests should be subordinate to the interests of the state in promoting proteophilic competence—an appreciation for diversity—through public education. This critical educational mission holds the promise of reaching beyond the scope of gender to include the inculcation of civic virtues essential to the health of an increasingly demographically diverse nation: Respect for “other-ness” and the development of skills needed for effective democratic self-governance.