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United Nations Convention Documents in Light of Feminist Theory
This article proposes that language identifying human rights of women in U.N. Conference documents has its origin in several different feminist theories. An understanding of these theories can help to clarify meaning, resolve inconsistencies, and predict the future direction of language in U.N. documents. Part I examines three prominent feminist theories and their relation to international law. Part II examines the history of women's rights in U.N. documents and examines the influence of feminist theory on the document language. Using the Women and the Economy section of the Fourth World Conference on Women, Platform for Action (Platform for Action), Part III shows how feminist theories can aid observers in understanding the documents and in making predictions about future trends. Comparison of the Platform for Action with a recent U.N. document titled Further Actions and Initiatives to Implement the Beijing Declaration and the Platform for Action supports predictions made based on the use of certain theories. Although language in U.N. documents still shows the influence of each of the three major theories, this article concludes that Dominance Feminist theory has the greatest impact.Faith in Justice: Fiduciaries, Malpractice & Sexual Abuse by Clergy
This article argues that perpetrators of sexual misconduct should not be granted refuge from the potential consequences of their actions by mere affiliation with a religious institution. Part I of this article examines the theories of malpractice and breach of fiduciary duty, and determines the appropriate cause of action for sexual misconduct and ascertains their capacities to withstand First Amendment scrutiny. Determining the cause of action is essential to the evaluation of the potential constitutional challenges. Part II demonstrates that sexual misconduct by clergy is well outside First Amendment constraints. It examines both the Free Exercise and Establishment Clauses, and evaluates the approaches of courts to the situation of clergy sexual misconduct. Part II then compares the judicial treatment of sexual harassment by clergy under Title VII as guidance for treatment of sexual misconduct by clergy. This Part also discusses a general theory of state intervention in the affairs of religious organizations. This article concludes with an application of the appropriate cause of action under tort law within First Amendment constraints.Lucas Rosa V. Park West Bank and Trust Company
In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application on that ground.Epilogue
The First Circuit reversed the district court's order dismissing Lucas Rosa's claim against Park West Bank. The appeals court's reversal seems to be part of an emerging nationwide rejection of cases from the 1970s and 1980s in which courts summarily dismissed sex discrimination claims brought by transgender plaintiffs, no matter how squarely the facts appeared to present a clear-cut case of discrimination based on sex. Creating what appeared to be a "transgender" exception to sex discrimination law, those earlier courts ignored what the First Circuit recognized here-that a bank officer who tells an applicant to go home, change, and return presenting a more masculine appearance may very well have engaged in sex discrimination, even where the applicant may fairly be characterized as transgender or "cross-dressing."Amicus Curiae Brief of Now Legal Defense and Education Fund and Equal Rights Advocates in Support of Plaintiff-Appellant and in Support of Reversal In the United States Court of Appeals for the First Curcuit Lucas Rosa V. Park West Bank and Trust Company on Appeal from the United States District Court for the District of Massachusetts
By dismissing the plaintiffs complaint under the Equal Credit Opportunity Act ("ECOA") on the ground that "the issue in this case is not [Rosa's] sex, but rather how he chose to dress when applying for a loan" (Bench Order at 1), the lower court erroneously established that there are no set of facts in which clothing-based sex stereotyping can form the basis of a legitimate claim of sex discrimination in access to credit. This view of the meaning and scope of the ECOA runs contrary to well-established Supreme Court precedent which prohibits, inter alia, the adverse treatment of a man or a woman for his or her failure to conform to traditional sex stereotypes- whether it be the expectation that men should be breadwinners, or that women should be feminine. Further, to rule, as did the lower court, that stereotypes associated with proper "men's" and "women's" clothing is a matter separate and apart from sex discrimination, is to ignore the significant role that dress reform has played in efforts to achieve gender equality for women from rejecting the wearing of corsets to demands to be permitted to wear trousers in the workplace. Further, the lower court's ruling denies a large body of psychological research that demonstrates the cognitive role that clothing plays in the use of sex stereotypes in the workplace and other market settings. Thus, the lower court erred in holding, as a matter of law, that there can be no relation between clothing-based sex stereotypes and sex discrimination under the ECOA.On the Road: Images of Truthtelling in Rural America
This narrative is a true story. It raises the same central issue as many of the core stories of race and gender that have haunted us over the last decade: the identification of truthtellers. Theoretical analysis of truth and bias abound. This story, like many of these other stories, nevertheless stands on its own, without the need for iterative analysis.“Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism
This Article first summarizes gender, transgendered identity, and legal issues facing transgendered people to contextualize the lives of transgendered prisoners. Parts II and III explore respectively the placement and treatment issues that complicate the incarceration of the transgendered. Corrections authorities, through indifference or incompetence, foster a shockingly inhumane daily existence for transgendered prisoners. In Part V, I examine the plight of transgendered prisoners through the metaphor of the miners' canary. Transgendered prisoners signal the grave dangers facing all of us in a wide array of social structures, elucidating the apparently intractable problems of gender. This Article simultaneously explores a human rights tragedy and proposes practical solutions while taking a critical perspective on the issues raised.Parens Patriae and a Modest Proposal for the Twenty-First Century: Legal Philosophy and a New Look at Children’s Welfare
This paper will turn to philosophy to seek material for limiting the exercise of parens patriae power. A significant reduction of the government's role will better serve the modern concern for child rearing which is this century's re-definition of best interests.An Emerging Ethical and Medical Dilemma: Should Physicians Perform Sex Assignment Surgery on Infants with Ambiguous Genitalia?
This article discusses the development of a surgical approach to treating intersex infants and others with genital anomalies that began in the late 1950s and 1960s and became standard in the 1970s. Although professional literature has recently questioned the surgical approach to the treatment of infants, controversy surrounding treatment persists and the medical community now is divided. How sex reassignment surgery for intersex infants became a routine recommendation of practitioners and how parents were persuaded to consent to such radical surgeries provide a cautionary tale that is relevant to both medicine and law.A Matter of Principle and Consistency: Understanding the Battered Woman and Cultural Defenses
To adequately explain and argue why feminists, as a matter of legal theory, must take both the BWS and cultural defenses seriously, these defenses need further elaboration. Section I details what these defenses are, how they developed, and how they work in the justice system. Section II enlarges the picture by revealing the similarities between the two defenses which share not only the same theoretical and practical goals, but also the same criticisms and flaws highlighted by scholars. Finally, Section III asserts that cultural evidence and evidence of battering must be admitted to show the absence of mens rea. However, because serious problems arise from the admission of these two defenses, Section III discusses one potential approach to mitigating or eliminating the resulting harms and urges the search for more alternatives. The Article concludes that feminists must accept the admission of cultural evidence and evidence of battering in domestic violence homicide trials. The proper response to the problematic aspects of each defense is the search for specific solutions and approaches to mitigate the harms, not the abandonment of either defense.