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Constructing Race and Gender in Modern Rape Law: The Abandoned Category of Black Female Victims
Despite the successes of the 1960s Anti-Rape Movement, modern state rape statutes continue to prioritize white male perspectives and perceptions of race, ultimately ignoring the intersectional identity of Black women and leaving these victims without legal protection. This Note examines rape law’s history of allocating agency along gendered and racialized lines through statutory construction and other discursive techniques. Such legal constructions both uphold and cultivate the white victim/Black assailant rape dyad primarily by making the Black male the “ultimate” and most feared assailant. Rape law’s adherence to a white baseline sustains stereotypes of Black men as criminals and predators, which ultimately relegates Black women to a category of lesser and undeserving victims. Re-focusing rape reform and feminist movements on Black female experiences, as well as a rhetorical restructuring of rape laws, can improve rape law uniformity and remove white normativity standards. A departure from the current rhetorical and realized white baseline can eliminate rape law’s delineations of femininity that silence women of color.Making Mandates Last: Increasing Female Representation on Corporate Boards in the U.S.
A lack of female representation on corporate boards has plagued our country for decades. Until a few years ago, there was not a single state or federal regulation that required corporations to fill board seats with female directors. Instead, the federal government talked around the issue. In 2010, the SEC established an optional reporting structure for corporations to communicate their hiring practices, but did little else. With no national plan in place, many states implemented legislation that urged corporations to hire female directors. But this legislation barely moved the needle. The country needed a mandate. And in 2018, California implemented the first one – SB 826. SB 826 required each publicly held corporation with executive offices in California to place specific numbers of women on its board, depending on the board’s size. The private sector quickly followed, with institutions such as Goldman Sachs and Nasdaq announcing that in order to receive funding or list on its exchange, corporations must have at least one female director. After SB 826 was enacted, the number of women on California boards more than doubled. And many states are now using SB 826 as a model to enact similar bills. But while SB 826 saw few legal challenges overall, in May 2022, it was overturned under California’s Equal Protection Clause. Even if this decision is appealed, states looking to follow California’s lead should be cautious of another threat to such a mandate’s longevity – the internal affairs doctrine. The internal affairs doctrine is a conflict of laws principle that establishes that the state law of incorporation governs a company’s internal affairs. More than half of the corporations in the U.S. are incorporated in Delaware, leaving state statutes highly vulnerable to being rendered ineffective. It is clear that mandates work. But when mandates are put in place, they should stay in place. In this Note, I propose two alternative solutions [to the female representation problem] that would increase female participation on corporate boards. First, even if Equal Protection challenges ultimately fail, rather than relying on sporadic state statutes, stakeholders should pressure Delaware to enact a corporate code that would mandate female representation on corporate boards. Second, to circumvent Equal Protection challenges altogether, the private sector should expand its mandates to consider the number of female directors in relation to the size of each board, similarly to SB 826.Gentlewomen of the Jury
This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States: “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence of one on the other is among the imponderables.” Three-quarters of a century later, women’s legal and social status has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to their civic engagement, including jury service. Theoretical developments and research have produced new insights about how genderconforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of jurors’ gender on their decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and gender-nonconforming individuals might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which demonstrates substantial commonalities as well as significant areas of divergence in jurors’ attitudes and verdicts as a function of their gender, altogether underscores the importance of full and equitable participation on the jury.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.