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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.The Sexual Misconduct of Donald J. Trump: Toward a Misogyny Report
The numerous allegations of sexual misconduct—unwanted, unwelcome, often aggressive sexual behavior—levied against Donald Trump merit attention and redress. Despite obstacles to civil remedies, there has been some litigation, but it has mostly been unsatisfactory. The many allegations reported in the media have not been amenable to judicial, legislative, executive, or political resolution. Women, including women who allege Trump committed sexual misconduct against them when they were minors, have generally not been afforded the remedies to which they are entitled. Because litigation and media accounts have proven inadequate to the task of addressing Trump’s sexual misconduct, there should be a government inquiry and resulting Report. Such a Report—a Misogyny Report focused on Donald Trump—would assist the nation in assessing and contextualizing the troubling and persistent allegations of his sexual misconduct. An inquiry and Report could provide a forum for considering each individual woman affected and as part of a pattern of Trump’s conduct. Further, an inquiry and Report could ameliorate the silencing of women—through isolation, threats, and nondisclosure agreements— and propose remedies to empower these women as well as other women. A Misogyny Report could also suggest specific correctives to obstacles in the path of bringing and completing litigation that could address the alleged sexual misconduct of Trump and ultimately of others. A government Misogyny Report initiated by Congress or some other governmental body could provide a much-needed reckoning.Putting the Fetus First — Legal Regulation, Motherhood, and Pregnancy
The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. This Article provides a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where the fetus has been granted legal recognition in most states, but also in England and Wales, where the fetus continues to have no legal personality. The Article will conclude that the application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while doing little to protect fetuses.The Plight of Women in Positions of Corporate Leadership in the United States, the European Union, and Japan: Differing Laws and Cultures, Similar Issues
Gender diversity in corporate governance is a highly debated issue worldwide. National campaigns such as “2020 Women on Boards” in the United States and “Women on the Board Pledge for Europe” are examples of just two initiatives aimed at increasing female representation in the corporate boardroom. Several European countries have adopted board quotas as a means toward achieving gender diversity. Japan has passed an Act on Promotion of Women’s Participation and Advancement in the Workplace to lay a foundation for establishing targets for promoting women. This Article examines the status of women in positions of leadership in the United States, several major countries in the European Union, and Japan. We focus on the legal backdrop in each jurisdiction regarding gender discrimination and studies tending to demonstrate the economic benefits of gender diversity. We conclude that although important steps have been taken in the direction of narrowing the gender gap in all jurisdictions examined, progress has been slow and difficult across the board. The issue of too few women at the top will not be resolved until there is a wider acceptance that female leaders can benefit their organizations and contribute to social and economic progress. Moreover, the presence of women on corporate boards is valuable in and of itself and the status quo ought to be further challenged in international business.Me Too? The Invisible Older Victims of Sexual Violence
A review of legal research on violence against women and elder abuse reveals a disturbing picture. There is hardly any American legal research examining sexual abuse of older women and its conceptualization in legal literature and treatment in the legal system. This Article attempts to fill the abovementioned gap and to bring the hidden issue of sexual violence against older women to light. Scholars writing on rape, violence against women, and elder abuse tend to analyze age and gendered sexual violence separately from each other, without accounting for their interplay. This Article proposes a conceptual framework of sexual abuse of older women that integrates age and gender in the analysis. To achieve this end, this Article examines 109 publicly available American cases involving sexual violence against women over the age of 60, between the years 2000 and 2018, which are based on a search of 1,308 American cases. Based on this new empirical database, this Article offers an opportunity for analyzing the social and legal “taboo” regarding sexual abuse of older women. Despite findings indicating that sexual abuse of older women (and older people in general) is a significant issue creating serious consequences for victims, the Article shows that legal actors, social workers, health professionals, family members, and society miss its signs. Sexual abuse of older women is being noticed and treated by the criminal justice system only when it reflects a “real rape” 1 scenario. The obstacles to effective prosecution and to full access to the criminal justice system are distinctive in the case of older victims because of the effect of age, the way age shapes the experience of older victims of sexual violence, the effects of sexual violence on the victims, and its interplay with gender. Although sexual violence against older women is a form of elder abuse, it should be viewed separately from other forms of elder abuse and should be understood as part of a wider context of gender-based violence. There is a need for a holistic approach to sexual violence of older women, which perceives the sexual violence as a unique phenomenon and provides older women with legal and social mechanisms that fit their needs and experience both as women and elderly people.Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-Based Analysis and Reform Proposal
Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide effort to reform the custody laws to create a presumption of equal parenting time, with no exception when one of the parents has engaged in domestic violence. Domestic violence survivors and their advocates, however, claim that the needs of survivors of domestic violence and their children to be safe and free from further abuse are not being met in custody cases, that their claims of abuse are not being believed, and that the harm when a parent commits domestic violence against the other parent is not being recognized and addressed by judges and the family law professional upon whom they rely. This Article first presents a literature review, with articulated scientific standards applied to each of the pieces of research cited in this review, on what is happening outside of court and in court relating to domestic violence and best practices for taking domestic violence into account in these child custody cases. Among the key findings from this literature review are: (1) when a parent commits domestic violence against the other parent, this can cause serious long-term harm to children, (2) custody judgments tend to favor fathers over mothers because greater weight is placed on claims of alienation than on domestic violence claims, (3) long-term harms can be mitigated by evidence-based best practices, most notably, supporting non-abusive parents in their efforts to protect themselves and their children from further domestic violence, (4) family law judges and professionals must be trained on domestic violence and its nuances, as well as how to screen for domestic violence, to adequately support them, and (5) a component of this training is learning how to distinguish mutual “situational couple violence” for which “parallel parenting” custody arrangements might be feasible, from a pattern of “coercive abuse,” where sole decision-making and primary parenting time should be ordered to the non-abusive parent, and protective restrictions on parenting time should be ordered to the abusive parent. The Article then reports on a fifty-state review of custody-related laws (laws determining which parent makes major decisions relating to the child, who is allocated primary parenting time, and whether protective restrictions shall be placed on the parenting time of a parent who has engaged in domestic violence). This review found serious gaps between what evidence-based best practices suggest, and what is currently required by law in many states. These gaps in the law, including the failure of the law to require domestic violence screening and training for judges and other family law professionals, contribute to poor custody decision-making by them that compromises the safety and welfare of domestic violence survivors and their children. The Article then proposes nuanced law reforms that would align custody-related laws with evidence-based best practices for taking domestic violence into account in custody cases, including creating rebuttable presumptions, burdens of proof, and definitions of domestic violence that conform with these evidence-based best practices.Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya’s Marital Asset Division
Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, it provides that monetary contribution and non-monetary contribution are the only factors for dividing marital property on divorce. The Kenyan courts have issued contradictory decisions on the weight of nonmonetary contribution in long-term and short-term marriages. Without guidance on the weight of non-monetary contribution during divorce proceedings, the courts have left potential litigants, especially women, to navigate the unsettled waters of marital disputes in the legal system. Kenya’s Parliament should take steps to clarify the legislation, develop regulations on the weight of non-monetary contribution, and provide statutory factors for consideration during division of marital property. This will ensure that courts meet the overriding objective of achieving a fair outcome in marital property disputes. Because of the constitutional guarantee of equality, the courts must begin analysis of property division by assuming each spouse is entitled to half of the marital property.Born Free: Toward an Expansive Definition of Sex
The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety of contexts. However, several obstacles have emerged to jeopardize true equality for the LGBTQIA community, including (1) inconsistent judicial opinions regarding the meaning of “sex,” (2) the increased ability of employers to utilize religion or “any other factor” as a defense to discrimination claims, (3) regressive executive policies regarding the definition of “sex,” and (4) uncertainty about the extent to which transgender individuals may remain in the military. Although each of these issues warrants thorough analysis and has sparked scholarly debate, in this Article we focus on another critical inequality: wage disparity. Specifically, we are concerned with the problem posed for DSD and transgender individuals, given the Equal Pay Act’s requirement that plaintiffs demonstrate they are paid differently from the “opposite sex” for a wage disparity claim. The Equal Pay Act (EPA) is outdated and discriminatory in its application, and it unnecessarily subjects an entire segment of the workforce—LGBTQIA individuals—to continued discrimination. The EPA requires that plaintiffs prove their cases through reference to an opposite sex comparator, but then defers to the employer’s subjective definition of who “the opposite sex” is. This makes LGBTQIA plaintiffs’ cases essentially unwinnable. Uncertainty for the LGBTQIA community is further compounded by the expansion of the employer’s right, under both the Equal Pay Act and Title VII, to invoke religion, conscience, or “any other factor” as an affirmative defense to discrimination claims. In this Article, we discuss the interplay between a plaintiff’s sex-specific protections (against sex-based employment discrimination under Title VII and against wage disparity under the Equal Pay Act) and an employer’s affirmative defenses (under Title VII, the EPA, and current interpretations of the Religious Freedom Restoration Act). Our discussion concludes with recommendations for an expansive definition of the word “sex” and the adoption of the recently proposed Equality Act to help alleviate all forms of sex-based discrimination in the employment context.The Strange Pairing: Building Alliances Between Queer Activists and Conservative Groups to Recognize New Families
This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.” The central claim of this Article is thus that new families should build alliances with conservative fringe groups and capitalize on their common interest in creating legal alternatives to marriage. Section I of the Article will provide a primer on the legal remedies available to non-normative relationships. Section II will engage in a comparative analysis of conservative reforms in the United States and Canada that ended up extending eligibility requirements to new families, or that, although currently restricted to conjugal couples, could constitute a viable model for protecting all new families, if their eligibility requirements were amended. Section III tries to operationalize legal recognition by analyzing the potential paths to gain it. I will first anticipate and respond to criticism surrounding recognition of new families, and then will lay the foundation for rethinking queer activists’ political action. I will then offer some recommendations (a) on the best model for implementation and (b) on forming alliances with conservative groups.