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Centering Women in Prisoners’ Rights Litigation
This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being. This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an aesthetic project.” Using oral histories in this way—requesting, offering, and receiving narrative—is important for two reasons. First, it is crucial for developing a shared understanding of the context surrounding the event, such as the position, setting, and social order. First-person narratives reveal the human experience behind legal rules. Secondly, the methodology is significant to dignity rights scholarship since it respects and augments the idea of a right to dignity by recognizing that the people who are primarily affected by an event are the people best informed about the dynamics of the harm they have endured. The precise influences that lead an individual to articulate her rights cannot be conveyed through court records or opinions. That process occurs before, beside, and in the aftermath of litigation. Traditional forms of scholarship—those based on highly bureaucratic processes such as court decisions and filings—may even be considered dignity-violative. For women of color or poor women, those indignities are often rendered invisible by supposed “neutral” applications of law and summarization of harms in court decisions. In this way, marginalizing individual narratives can be dignity-corrosive. To examine the role of women in the development of prisoners’ rights litigation, I conducted oral history interviews with three individuals involved in the lawsuits from Bedford Hills Correctional Facility in the 1970s.Customer Domination at Work: A New Paradigm for the Sexual Harassment of Employees by Customers
This Article introduces a novel legal paradigm—customer domination at work—to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer liability than other instances where employers are liable for the sexual harassment of their employees. The protection for workers is also limited. The same is true of two other legal regimes discussed in the Article: Germany and Britain. More importantly, I argue that the prevailing paradigm precludes a true understanding of the problem of third-party harassment that recognizes the power of customers within an employer- employee-customer triangular relationship, seeing the customer as integral to the organization of work. Within the triangular relationship, customer domination at work is created, consisting of three aspects: masculinity, authority, and service market power. Customer domination is shaped and reinforced by employers, and is exploited by customers in these cases of harassment. This should lead, I claim, to placing stricter legal liability on employers, incentivizing them to change workplace practices that provide customers with such power, and to customers bearing legal responsibility that parallels employer liability.Running from the Gender Police: Reconceptualizing Gender to Ensure Protection for Non-Binary People
Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how friendly the Court is to queer rights issues. I argue that a fundamental right to selfidentification would require courts to give the same wide degree of deference to a plaintiff’s self-identification of their gender as they do to a plaintiff’s self-identification of their religious beliefs. This legal framework would prohibit courts from policing the gender of the parties before them and allow them only to assess whether the plaintiff’s gender-related beliefs are sincerely held. Such a legal framework would allow non-binary plaintiffs to bring claims under federal anti-discrimination law without worrying that the Court will refuse to recognize their gender as valid.Working Sex Words
Imagine yourself tasked to speak for a few minutes about legal controls on sex-selling in the United States, or any other country you choose. You need not have thought about the particulars. As someone willing to read a law review article, you have enough to say because sex-selling overlaps with the subject knowledge you already have. Criminal law, contracts, employment law, immigration law, tort law, zoning, commercial law, and intellectual property, among other legal categories, all intersect with this topic. In your brief remarks on how law attempts to mediate the sale and purchase of sex, you have only one modest constraint: Omit a short list of nouns. Describe paid-for sex as a regulated activity without using the words “prostitute” (including “prostitution”), “sex work” (or “sex worker”), “legalization,” “decriminalization,” “john,” “pimp,” “madam,” “trafficking,” and “Nordic model” or “Swedish model.” The premise of the exercise may be familiar from a game marketed under two names, Taboo and Catchphrase. When competing, a member of a team is told a word or phrase and then has to convey its meaning to teammates from whom the word has been hidden. Rules constrain players: The clue-giver is allowed to make any physical gesture and give almost any verbal clue to get his/her team to say the word. But you may NOT: • Say a word that RHYMES with the word. • Give the FIRST LETTER of the word. • Say A PART OF THE WORD in the clue (i.e., shoe for shoe horn). But why, you may reasonably wonder, would anyone discuss an issue in American legal regulation by copying a game that demands dodging? Evasion is anathema to regulation, an endeavor that references an activity and then tries to give intelligible guidance about what participants in the regulated sector must, must not, and may do. Playing Taboo/Catchphrase about the law of sex-selling and -buying seems unproductive, to say the least.Prenatal Abandonment: ‘Horton Hatches the Egg’ In the Supreme Court and Thirty-Four States
This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; the high non-marital birth rate; the commonality of casual sexual relationships; the likelihood that non-marital children will live in poverty; and poverty’s deleterious effects upon children. The 2013 United States Supreme Court’s decision in Adoptive Couple v. Baby Girl endorsed prenatal abandonment theory and elevated the rights of pregnant women and fetuses while tying an unwed father’s rights to the responsibilities he assumes from the moment of conception. This Article analyzes relevant socio-demographics and comprehensively reviews existing case law to conclude with recommendations for the structure of prenatal abandonment theory as it now exists in various forms in thirty-four states.A Relational Feminist Approach to Conflict of Laws
Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century. In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism— specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements. Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging— to Conflict of Laws theory and methodology.R-Egg-Ulation: A Call for Greater Regulation of the Big Business of Human Egg Harvesting
When it comes to young healthy women “donating” their eggs, America has a regulation problem. This Note explains the science behind the harvesting of human eggs, focusing on potential egg donors, and describes the specific factors that make egg donation a unique type of transaction. It describes the current regulatory status of the assisted reproductive technology industry in the United States and highlights the ways in which this scheme fails to protect egg “donors.” This Note concludes with a call for comprehensive regulation of the assisted reproductive technology industry.Gender Discrimination and Statelessness in the Gulf Cooperation Council States
Using the Gulf Cooperation Council countries as a case study, this Article outlines the ways in which gender and birth status discrimination create new cases of statelessness. These occur when women are legally unable to convey their nationality to their children. This Article studies gender and birth status discrimination in nationality laws and in civil registration, family, and criminal law in each GCC state: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. Ending statelessness will require these states to end discrimination against women and non-marital children in all of its forms in law and practice.The Tax Definition of “Medical Care:” A Critique of the Startling IRS Arguments in O’Donnabhain V. Commissioner
This Article critiques the startling arguments made by the Internal Revenue Service (“IRS”) in O’Donnabhain v. Commissioner, a case in which the issue was whether a person diagnosed with gender identity disorder (“GID”) could take a federal tax deduction for the costs of male-to-female medical transition, including hormone treatment, genital surgery, and breast augmentation. Internal Revenue Code § 213 allows a deduction for the costs of “medical care,” which (1) includes costs incurred for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body,” but (2) generally excludes “cosmetic surgery” and “similar procedures.” Courts and the IRS interpreted the statutory definition of “medical care” consistently for decades until the IRS made a series of radical arguments in O’Donnabhain v. Commissioner. IRS opposition to O’Donnabhain’s medical expense deduction tracked the views of Dr. Paul McHugh, an outspoken opponent of medical transition for transgender persons and a member of President George W. Bush’s Council on Bioethics. In his writings, Dr. McHugh, a psychiatrist, asserts that (1) persons who “claim” to be transgender are delusional, (2) GID is deviant “behavior,” not a disease, and (3) gender confirmation surgery (“GCS”) should be prohibited as “collaborating with madness” and a moral “abomination.” Views expressed by Dr. McHugh in an article, Surgical Sex, appeared in a 2004 letter that the Traditional Values Coalition sent IRS Commissioner Everson, to demand that the IRS not allow O’Donnabhain a deduction, and in Chief Counsel Advice issued by the IRS Office of Chief Counsel. Dr. McHugh’s views also featured prominently in IRS arguments throughout the subsequent tax litigation. Incorporating excerpts from the extensive O’Donnabhain trial record (over 1,000 pages), this Article critiques the arguments made by the IRS in the case, and considers the implications of the case and the IRS’s arguments going forward—not just in the context of GCS, but also in the context of other types of medical care, including reproductive medical care. Part I analyzes the statutory definition of “medical care” and the “general well-being” and “cosmetic surgery or other similar procedures” limitations on the definition of “medical care.” Part II provides background on the facts of the case and the administrative tax controversy between O’Donnabhain and the IRS, reveals the significant influence of Dr. McHugh on the tax case, summarizes the arguments made by O’Donnabhain and the IRS in the United States Tax Court case, and discusses the Tax Court’s 2010 reviewed decision. Part III analyzes and critiques specific IRS arguments, some of which were radical departures from long-standing case law and IRS practices, and highlights similarities between (1) GCS and (2) breast reconstruction following mastectomy or lumpectomy, which the IRS acknowledges is medical care, not cosmetic surgery. Part III also considers the IRS’s arguments as a whole and concludes that the arguments the IRS made in the case are quite puzzling as a matter of tax law—but less puzzling when viewed as a covert attempt by the IRS to discourage GCS on moral grounds. In addition, Part III objects to the IRS’s negative stereotyping of O’Donnabhain, medical professionals who specialize in GID, and transgender persons in general. Part IV distills a series of rules for interpreting the § 213(d) definition of “medical care” and explores the implications of the O’Donnabhain case beyond its specific facts. Part IV also voices a concern that the IRS might deploy similar tax arguments in the future to deny deductions for other controversial medical care on covert moral grounds, particularly in the context of reproductive medical care.Towards Reasonable: The Rise of State Pregnancy Accommodation Laws
In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there are reasons that the seemingly minimal accommodations for pregnant workers have not been met with overwhelming support. Some fear the increased cost to employers. Others fear the stigma of equating pregnancy with a disability. Nevertheless, employers will have to grapple with increased state protections supplementing the already-existing scheme of Title VII. Young adds another complication by lessening the burden to prove an employer’s duty to accommodate. For multinational corporations, tailoring their pregnancy policies to each state might prove costlier than uniformly implementing the plan of the most generous state. Employers are already accommodating disabled employees in the same manner. And these accommodations are by definition “reasonable.” Employers might not only avoid needless liability by providing accommodations to pregnant workers—even when not required—but might also gain numerous benefits, such as: increased morale; lower attrition rates; more productive workers; and better reputations. Accommodating pregnant workers seems uncontroversial, but every federal bill introduced to do so has been strongly opposed and stopped. States may now be leading the way and, ultimately, pregnancy accommodation laws will create positive benefits for women.