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Women, Vulnerability, and Humanitarian Emergencies
The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from the devastating consequences of humanitarian emergencies. There is also recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are overrepresented in the refugee and internally displaced communities that typically result from many humanitarian crises. Women bear acute care responsibilities in most societies and also disproportionately bear familial and communal care responsibilities in communities affected by disaster, war and natural emergencies. Given their disparate social and legal status in many jurisdictions, women may have less access to capital, social goods, and other legal means to protect themselves when crises arise. Across jurisdictions, women possess differential legal capacity to contract, face systematic discrimination in their access to employment, receive differential payment once employed, and cannot own or transfer property. These myriad and interlocking discriminations and the need to combat them are articulated in the International Convention on the Elimination of All Forms of Discrimination Against Women. While tacit acknowledgement of this reality increasingly permeates academic and political discourses, the depth of the descriptive often fails to capture and fully grasp the extent of gender harms and gender insecurity. Moreover, as experts and policymakers calculate how best national and international communities should respond to such emergencies, women are frequently substantively and procedurally sidelined. This follows from the dual effects of a dearth of women decision makers in the relevant high-level fora and the failure of these bodies to meaningfully imagine and include solutions to the particular issues affecting women in communities and societies emerging from emergencies. As other scholars have noted, disaster-related research suffers from considerable prejudices, revealing an asymmetrical distribution of gender themes, an absence of data on women's lives and a male bias in identifying the channels from which information is sought. With that background, this Article offers some preliminary assessment of the intersection of women's experiences with situations of humanitarian crisis, probing the causality and patterns that have been identified across a range of interdisciplinary scholarly research and policy-oriented analyses. It advances understanding by a survey of three important but frequently marginalized issues, namely vulnerability, masculinities, and security in situations of crisis. The goal is, in part, to give greater traction to a feminist analysis of women's experiences in situations of extreme crisis. Some preliminary observations are made to help frame the way in which legal and policy solutions are articulated in such crisis contexts.Setting the Stage: A Quick Glance Back at the Journal’s History
This symposium, organized by the Michigan Journal of Gender & Law, explored several cutting-edge topics related to its over-arching theme, "Rhetoric & Relevance: An Investigation into the Present and Future of Feminist Legal Theory." When the journal editors invited me to provide a few opening remarks, they informed me that: the goal of this symposium is to have a series of discussions about current happenings in the field of feminist legal scholarship, so that we may start to answer the question, "What's next?" These discussions will take place in the form of panels that focus on particular areas of the law. The hope is that as the symposium progresses, the focused panels can shed light on larger patterns of development in feminist legal theory. The organizers of the event did a marvelous job in putting together exceptional panels of experts to discuss three distinct and ground-breaking areas within current feminist legal theory: cyber-privacy, intersex and transgender jurisprudence, and meanings of consent. "Rhetoric & Relevance: An Investigation into the Present and Future of Feminist Legal Theory" That is an incredibly broad and profound topic. I must admit that I was initially at a loss about how even to begin to scratch its surface with a few brief introductory remarks let alone come up with a crystal ball through which to divine the future. Thankfully, one of the conference organizers subsequently clarified that they would like me to lay the foundation for the symposium through the story of the founding of the Michigan Journal of Gender & Law itself. Therefore, I will reflect upon the creation of the journal and its subsequent contributions in order to help set the stage for the scholarship generated by the symposium's panelists. This background is especially pertinent to the topic of the symposium-investigating the present and future of feminist legal theory-in light of the adage that in order to understand where you are and to know where you are going, you must also know where you have been and understand the past.Past as Prologue: Old and New Feminisms
Each "stage" of feminist legal theory-and each brand or strand of feminism- stays alive and is never completely replaced by newer approaches. When I first attempted to synthesize the field of Feminist Legal Theory for a treatise I was writing at the end of the twentieth century, I thought it would be useful to think chronologically and to analyze the major developments of the 1970s, 1980s, and 1990s. I crudely divided feminist legal theory into three stages roughly corresponding to the preceding decades: the equality stage of the 1970s, the difference stage of the 1980s, and the diversity stage of the 1990s. It is much more difficult to describe feminist legal theory in this century. For this essay, I have borrowed from Rosalind Dixon's terrific 2008 article in which she canvasses the last four decades and divides legal feminism into "older" femninisms and "newer" feminisms. The older feminisms-which I will call the "Big Three"-are liberal, dominance, and cultural feminism. The newer femninisms also come in threes: partial agency (or sex-positive) feminism, intersectional (or anti-essentialist) feminism, and postmodern/poststrucrural feminism. I will call them the "New Three." The major difference between Dixon's taxonomy and my three stages of feminist legal theory is Dixon's astute positioning of the Big Three feminisms as foundational theories that have been taken up by mainstream scholars beyond feminist circles. Dixon also presents a more refined description of contemporary legal feminist thought, going beyond intersectional feminism to add two new strands of feminist theory, sex-positive feminism and postmodern feminism, that have come into their own in this century. I use Dixon's taxonomy as a map to locate the scholarly contributions of todays panelists and to theorize a bit about the present state of feminist legal theory. At the end of this essay, I will briefly glimpse into the future of feminist legal theory and mention two promising lines of emerging scholarship, masculinities theories and social justice feminism, that demonstrate the capacity of feminist legal theory to generate new insights for a new generation.Situations, Frames, and Stereotypes: Cognitive Barriers on the Road to Nondiscrimination
A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain's intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality.Sex Education and Rape
In the law of rape, consent has been and remains a gendered concept. Consent presumes female acquiescence to male sexual initiation. It presumes a man desires to penetrate a woman sexually. It presumes the woman willingly yields to the man's desires. It does not presume, and of course does not require, female sexual desire. Consent is what the law calls it when he advances and she does not put up a fight. I have argued elsewhere that the kind of thin consent that the law focuses on is not enough ethically and it should not be enough legally to justify sexual penetration. I advocate sexual negotiation, where individuals discuss sexual desires and boundaries and agree to engage in penetration before it occurs, except under circumstances in which the partners have a reasonable basis to assess one another's nonverbal behavior. I argue that not only is verbal consultation about desire ordinarily ethically necessary before most acts of sexual penetration, it should be legally required. Consultation to ascertain sexual desires and boundaries assures that both parties desire penetration. One challenge often posed by those who object to a legal requirement of negotiation before penetration is that people do not know how to engage in the required consultation. This Article attempts to address that challenge. Although teens and young adults increasingly do communicate about desires and boundaries, mainstream media offers few examples of sexual negotiation and sex education in schools rarely teaches it.Rethinking Consent in a Big Love Way
This Article is based on a presentation at the Michigan Journal of Gender and Law as part of their symposium "Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory." In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a private, intimate relationship. The tensions between individual autonomy and state interests are beautifully explored in Big Love. Drawing on themes presented in the series, this Article asks if there is any principled way to make the distinction between those relationships in which there is some physical or psychological harm inflicted and those in which the state has proscribed a relationship because of some moral or social harm it allegedly causes. Four case studies are presented to prompt readers to try to answer the question of when consent should be a defense to otherwise proscribed activity. I conclude that the future of feminist legal theory depends on its ability to remain ambivalent about the tensions presented in the consent doctrine as applied to contexts such as polygamy, prostitution, sadomasochistic sex, obscenity, and domestic violence. Big Love seeks to persuade us to accept ambivalence and to be open to changing our minds because of the complicated nature of women's (and men's) lives; feminist legal theory ought to persuade us to do the same.Contingent Equal Protection: Reaching for Equality After Ricci and Pics
This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.Defining Sex: On Marriage, Family, and Good Public Policy
Transgendered individuals and their families face legal risks that most families do not, at least in part, because state laws are often unclear about whether or under what conditions transgendered individuals are permitted to marry the individuals whom they love. Challenges to the validity of marriages involving the transgendered may arise under a variety of circumstances, ranging from cases in which individuals may have hidden or may not even have known that they were transgendered until after their marriages, to cases in which the individuals had already transitioned and had explained their personal histories to their partners before they were married. Where such marriages are contested, a number of issues may have to be resolved including the validity of the marriage, parental status, and who should have custody of or visitation with any of the children raised by the parties. This Article focuses on the spousal and parent-child relationships of transgendered individuals. Regrettably, much of the law is still unclear. While most states specifyr the conditions under which a transgendered individual can have his or her birth certificate modified to reflect his or her self-identified sex, states have been much less clear about how local marriage laws apply to transgendered individuals. In many states, there is no express policy with respect to whether a transgendered person will only be permitted to marry someone of the opposite sex of his or her self-identified sex or, instead, someone of the opposite sex of his or her birth sex. Current law in most states is intolerable, either because it fails to take into account the actual lives of the transgendered, or because it is simply indeterminate.Beyond the Binary: What Can Feminists Learn from Intersex Transgender Jurisprudence
Our panel will be discussing recent developments in the intersex and transsexual communities. The transsexual community began to organize in the 1970s, but did not fully develop into a vibrant movement until the 1990s. The intersex movement was born in the mid-1990s and has rapidly developed a strong and influential voice. Recently, both movements have undergone profound changes and each has provided new and unique theoretical perspectives that can potentially benefit other social justice groups. The purpose of our dialogue today is to describe these developments and explore how feminists could potentially benefit from the theoretical frameworks that are being advanced by the intersex and transsexual communities.Left Out in the Cold: Trafficking Victims, Gender, and Misinterpretation of the Refugee Convention’s “Nexus” Requirement
Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis of gender, whereas the vast majority of trafficking victims are targeted because they are female. The result is that many trafficking victims who substantively meet the requirements for refugee status, and are therefore deserving of international protection in the form of asylum, instead find themselves prosecuted and deported. Adjudicators justify their denials on the ground that trafficking victims fail to meet the so-called "nexus" requirement, which obliges an asylum seeker to establish that her persecution was for reasons of her civil or political status-a requirement that becomes difficult to establish in the context of trafficking.