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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.Trek to Triumph
I was screaming in the stairwell of my home, holding a dead baby. The air was so thick that I could barely breathe. Tears were racing down my face as her twin sister, Zola, was screeching at the top of her lungs. “WHY LORD, don't take my baby!” Every emotion, every word, and every second after that moment felt black. All the sweet memories from just eight days of being able to hold her, kiss her, and love her fell in a black pit along with the dreams I had for my life. As I looked down at my sweet Zaina, I could not help but see at that moment that we were the same—lifeless. I rode to the hospital in the front of the ambulance while EMS performed CPR on her in the back. I kept repeating “breathe baby, please, just choose to live,” hoping that she would hear me and fight for her life. As the double doors to the emergency room swung open, the doctor took one look at her, and I could tell it was not good. My knees gave out and I fell onto the floor. It was so cold. There was nothing left that I could do. As I struggled to gather the strength to pick myself up from the cold ground, I realized something: nothing that could happen to me for the rest of my life is worse than this. Nothing is worse than losing a child. This was my biggest fear, and I was staring face-to-face with it at age twenty-three.Title IX and the Alleged Victimization of Men: Applying Twombly to Federal Title IX Lawsuits Brought by Men Accused of Sexual Assault
This Note provides a survey of the current state of Title IX law as applied to anti-male bias lawsuits and suggests how courts should apply Twombly’s plausibility standard to anti-male bias claims going forward. Part I of this Note provides an overview of sexual violence on college campuses and the history of Title IX regulations and jurisprudence. Part II offers a brief history of Title IX anti-male bias lawsuits, examines the structure of anti-male bias lawsuits, and analyzes the various pleading standards applied by courts. Part III lays out the types of facts pled by Title IX anti-male bias plaintiffs and discusses what facts should be viewed as sufficient to meet Twombly’s plausibility standard. In Part IV, this Note looks at the future of Title IX anti-male bias lawsuits in light of new federal regulations and discusses the implications of these lawsuits for claimants and respondents in campus Title IX proceedings.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 Intersection of Wrongful Convictions and Gender in Cases Where Women Were Sentenced to Death or Life in Prison Without Parole
This Note examines National Registry of Exonerations data and discusses the prevalence of false confessions and presence of a child victim in cases of women who were convicted of murder, received a serious sentence, and were later exonerated. After looking at the cases of women exonerated after receiving death sentences or life without parole sentences in light of the prevalence of these factors, this Note argues that examination of the cases reveals that the presence of a false confession or a child victim may have contributed to some of the wrongful convictions where these factors may have led to the women being viewed as having failed to conform to society’s expectations for women. This Note then discusses why evidence that portrayed the women as having violated society’s expectations could not have been excluded at trial and why exclusion in future cases through the rules of evidence or new legislation is challenging. This Note concludes by arguing that an awareness of how gender can contribute to wrongful convictions or the imposition of harsher sentences can help attorneys and judges guard against gender affecting the outcomes of criminal proceedings.Resolutions Without Resolve: Turning Away from UN Security Council Resolutions to Address Conflict-Related Sexual Violence
In 2008, the United Nations first recognized rape as a war crime with the passage of U.N. Security Council Resolution 1820. Since then, the fight against conflict-related sexual violence has become a frequent subject of Security Council Resolutions. But what, if anything, has changed? Wartime sexual violence is still prevalent today and shows no signs of slowing down. This Note argues that Security Council Resolutions are not an effective method to prevent conflict-related sexual violence. The procedural weaknesses in passing Security Council Resolutions and the structure of the Security Council itself may do more harm than good to the efforts to end wartime sexual violence. Instead, this Note finds a solution in an unlikely realm: using voluntary pollution prevention programs as a template to address wartime sexual violence. In examining the parallels between the two issues, this Note suggests a new framework for addressing wartime sexual violence, relying on three factors in particular: adequate and consistent funding to key organizations, regular and credible monitoring of vulnerable communities, and the credible threat of enforcement.Criminal Record Relief for Human Trafficking Survivors: Analysis of Current State Statutes and the Need for a Federal Model Statute
This Note defines criminal record relief and analyzes the effectiveness of three state criminal record relief statutes at protecting trafficking survivors. This analysis is based on State Report Cards: Grading Criminal Record Relief Laws for Survivors of Human Trafficking by Polaris, a leading human trafficking nonprofit. It next discusses the absence of federal criminal record relief and how a statute at the federal level could provide relief for survivors with federal convictions while simultaneously providing a model for states to ensure their statutes incorporate best practices for record relief moving forward. This Note then discusses how Polaris’s report stops short of providing a model statute for states to draw from. Finally, this Note provides a best practice statute based on Polaris’s evaluation criteria and recommends it be added as an amendment to the Trafficking Victims Protection Act.